Arguably, yes. I have a case now where a client was in an accident. The highway patrol asked him if they could take his blood and urine. He volunteered it. He was not under arrest for driving under the influence at the time. I spoke to the police and they did not notice any evidence of impairment by drugs or alcohol. This means that there was no probable cause to get a search warrant. However, a suspect may waive the warrant requirement by volunteering to consent to the search. Police taking and testing blood has been found to implicate the 4th Amendment.
The interesting thing here is that a person granting voluntary consent has full discretion to limit the scope and duration of the search at any time. They can stop the search once begun. They can tell the cops that they are not allowed to search inside packages and containers they find. In our case my client withdrew consent to test his blood and urine. He asked for the samples to be returned to him. The police will not stop testing and refused to return the samples.
We researched a way to get them to comply. We filed a replevin action in the court against the state and the motion we used is attached generally below:
County courts have exclusive, original jurisdiction in all cases of replevin in which the value of the specific personal property that is sought to be recovered does not exceed five hundred dollars and original jurisdiction in all cases of replevin in which the value of the specific personal property that is sought to be recovered does not exceed fifteen thousand dollars. The property in question here are 2 vials of blood and 1 tube of urine. This property has a value of less than five hundred dollars. Therefore, this court has exclusive jurisdiction over this matter.
The Court may grant injunctive relief in addition to or in lieu of any other relief available under sections 2737.01 to 2737.19 of the revised code. Defendant has withdrawn voluntary consent and accordingly his civil and constitutional rights are being violated as the state maintains possession and continues to test his property.
In Ohio, the prevailing rule is that a suspect may revoke or limit his consent even after the search has begun. In Rojas, Defendant unlocked his suitcase and indicated verbally and with a gesture that the detectives could search it. As the detectives searched the suitcase, they found two sealed envelopes. At that time Defendant protested, stated the detectives did not have his consent to search the envelopes, and effectively and expressly withdrew his consent. The detectives proceeded to open the envelopes after Defendant’s consent was withdrawn. The court held that the search of the envelopes was invalid. The court reasoned that Defendant could revoke his consent at any time and that a “suspect may***delmit as he chooses the scope of the search to which he consents.” The Rojas court decided in accordance with the prevailing rule in Ohio that the search of the envelopes was invalid because Defendant withdrew his consent. (See also State v. Damron, 2007-Ohio-5808 (Ohio Ct. App., Licking County Oct. 26, 2007) “When police officers rely upon consent to justify a warrantless search, they have no more authority than they have been given by the consent… The Prevailing rule among Ohio courts is that consent to a search may be limited in time, duration, area, and intensity, or may be revoked at any time, even after the search has begun.”).
Like in Rojas, Defendant in the present case has withdrawn his consent. Defendant withdrew his consent on June 7, 2016. Defendant served both the highway patrol and the prosecutor with the revocation. The court received notice of the revocation on June 9, 2016. The highway patrol acknowledges that Defendant’s consent has been revoked, yet indicated to the prosecutor and the attorney general that they will not return Defendant’s property despite his revocation. The State has also indicated that they will proceed with the testing of the samples. This is a clear violation of Defendant’s constitutional and civil rights as he has withdrawn consent. Additionally, the State’s conduct is in violation of the prevailing rule in Ohio. Pursuant to Rojas, once voluntary consent is revoked, the property is to be returned and anything obtained after Defendant’s revocation is invalid.
Further, the arresting officer has indicated that he did not observe ANY indication of impairment upon Defendant’s arrest. Without probable cause or consent from Defendant, the State cannot maintain possession of Defendant’s property. The arresting officer’s report specifically states that he did not observe any indicia of impairment and that he believed Defendant fell asleep at the wheel and was appropriately charged with the misdemeanor offense. Accordingly, the state has no probable cause to keep Defendant’s blood and urine without his consent.
While Defendant admits this would be a motion to suppress issue if Defendant were charged with a crime in which this property were relevant. That, however, is not the case. The defendant is charged with vehicular homicide. Defendant’s blood and urine do not add or support any element of Defendant’s alleged crime. The State’s retention and testing of Defendant’s blood is merely a “fishing expedition” to see if they can try to find something for which they have no probable cause or reason to believe is present, and relevant to a crime that has not been charged. This type of behavior has long been discouraged by our courts.
Defendant respectfully requests injunctive relief from this Court. Specifically, Defendant requests that his property be returned to him in its entirety and any testing that is in progress cease.
If you dispute the movant’s claim for possession of property and believe that you are entitled to retain possession of the property because it is exempt or for any other reason, you may request a hearing before this court by disputing the claim in the request for hearing form appearing below, or in a substantially similar form and delivering the request for the hearing to this court, at the office of the clerk of this court, not later than the end of the fifth business day after you receive this notice. You may state your reasons for disputing the claim in the space provided on the form; however, you are not required to do so. If you do state your reasons for disputing the claim, you are not prohibited from stating any other reasons at the hearing, and if you do not state your reasons, it will not be held against you by the court and you can state your reasons at the hearing.
If you do not request a hearing or file a bond on or before the end of the fifth business day after you receive this notice, the court, without further notice to you, may order a law enforcement officer or bailiff to take possession of the property. Notice of the dates, times, places, and purposes of any subsequent hearings and of the date, time, and place of the trial of the action will be sent to you.