[Vision2020] 9-2-2017 Chicago Tribune "Utah nurse's arrest raises questions on limits of evidence collection"

[Ted Moffett]

Fourth Amendment?  What Fourth Amendment?

"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
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Vision2020 Post: Ted Moffett

http://www.chicagotribune.com/news/nationworld/ct-nurse-arrested-20170902-story.html

Utah nurse's arrest raises questions on limits of evidence collection
*Amy Forliti*
*September 2, 2017*

The videotaped arrest of a Utah nurse who refused to allow blood to be
drawn from an unconscious patient has raised questions about how far
officers can go to collect evidence and has led to policy changes within
the Salt Lake City Police Department.

Here are some of the legal issues involved:
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*WHAT HAPPENED?*

Police body-camera video released Thursday shows Salt Lake City Detective
Jeff Payne handcuffing nurse Alex Wubbels on July 26 after she refused to
allow blood to be drawn from an unconscious patient after a car crash.

In the video, Wubbels, who works in the burn unit at Utah University
Hospital, explains she's protecting the patient's rights and she can't take
the man's blood unless he is under arrest, police have a warrant or the
patient consents.

None of that applied, and the patient was not a suspect. Payne's written
report says he wanted the sample to show the victim did nothing wrong.

The dispute ended with Payne telling Wubbels: "We're done, you're under
arrest." He pulled Wubbels outside while she screams: "I've done nothing
wrong!"

Wubbels is being praised for her actions to protect the patient, while
Payne and another officer are on paid leave. Criminal and internal affairs
investigations are underway.

*LEGAL ISSUES AT PLAY?*

A 2016 U.S. Supreme Court ruling says a blood sample can't be taken without
patient consent or a warrant. But in this case, the officer reportedly
believed he had "implied consent" to take the patient's blood.

Implied consent assumes that a person with a driver's license has given
approval for blood draws, alcohol breath screenings or other tests if
there's reason to believe the driver is under the influence.

Paul Cassell, a criminal law professor at the University of Utah
<http://www.chicagotribune.com/topic/education/colleges-universities/university-of-utah-OREDU0000573-topic.html>'s
S.J. Quinney College of Law, wrote in an opinion piece for The Salt Lake
Tribune that state law doesn't permit a blood draw in this situation —
especially since the blood was being sought to prove the patient was not
under the influence.

Wubbels' attorney, Karra Porter, said the state's implied-consent law "has
no relevance in this case whatsoever under anyone's interpretation. ... The
officer here admitted on the video and to another officer on the scene that
he knew there was no probable cause for a warrant."

*MEDICAL PERSONNEL VS. POLICE*

Charles Idelson, a spokesman for National Nurses United, said a nurse's
prime responsibility is to be a patient advocate and protect patients,
especially when they can't consent themselves

Meanwhile, police are investigators and have to capture forensic evidence,
which in the case of a blood draw, is decaying with every passing minute,
said Ron Martinelli, a forensic criminologist and certified medical
investigator.

"For the officer, the clock is ticking," Martinelli said.

But even with those different objectives, police and medical professionals
routinely cooperate and conflicts like the Utah case are infrequent,
Martinelli said.

*THE OFFICERS*

A second officer who was put on leave Friday has not been formally
identified, but officials have said they were reviewing the conduct of
Payne's boss, a lieutenant who reportedly called for Wubbels' arrest if she
kept interfering.

Wubbels, who was not charged with a crime, has said that Payne "bullied me
to the utmost extreme." Payne hasn't returned messages left at publicly
listed phone numbers.

The Salt Lake City police chief and mayor also apologized and changed
department policies on blood draws. Police spokeswoman Christina Judd said
the new policy does not allow for implied consent for any party and
requires a warrant or consent.

Judd also said the agency has met with hospital administration to ensure it
does not happen again and to repair relationships.

*Forliti reported from Minneapolis. Associated Press writer Sally Ho in Las
Vegas contributed to this story.*
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