IN THE CRIMINAL COURT FOR HAMILTON COUNTY, TENNESSEE, STATE OF TENNESSE! v : No, 295881 Division III BENJAMIN SCOTT BREWER ORDER Before the Court are pre-trial motions 1, 2, and 6, what remains of pre-trial motion 5, and amended pre-trial motion 4 of the defendant, by and through counsel. Motion 1 is a motion to suppress evidence from the defendant’s six-hour, post-accident detention pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution. As grounds, the Court understands him to allege in the motion or a mid-hearing brief: (1) that, at about 7:09 p.m. on 25 June 2015, while operating a tractor-trailer on I-75 north, he was involved in an accident with multiple fatalities and injuries; (2) that, after the accident, he was unreasonably detained in a trooper’s patrol car without, probable cause; (3) that he remained in custody for the next six hours, during which time police obtained a written statement, performed a blood test, transported him to Collegedale police headquarters, where he was evaluated by a drug-recognition expert (“DRE”) and perhaps was subjected to field, sobriety tests, and transported him to Chattanooga police headquarters, where a second, recorded statement was obtained: (4) that any consent was involuntary and an exploitation of the prior illegality; and (6) that federal regulations governing motor carriers did not authorize the blood test. Motion 2 is a motion to suppress the results of the defendant’s blood test. As grounds, the Court understands him to allege: (1) that his blood was drawn at the scene, in the dark, amid carnage, and (2) that, because of the highly unusual circumstances, he has concerns about the chain of custody and the potential for contamination, tampering, loss, substitution, and mistake. Amended motion 4 is a motion to suppress evidence from hsdarth dt he! iitelior of the THAY 22 44 951 tractor. As grounds, the Court understands the defendant to allege!" 17 i)(1) that, according to police reports, at the scene, officers requested and received his permission to enter the tractor to retrieve his las (2) that, thereafter, on 28 June 2015, by means of a conclusory affidavit that does not state probable cause, Off. Seiter obtained a warrant to search the interior of the tractor; and (3) that, on 29 June 2015, in violation of Tenn. R. Crim. P, 41(e)(1), the warrant was executed in Off. Seiter’s absence. Motion 5 is a motion in limine to exclude miscellaneous evidence. Paragraphs 1, 2, 3, 5, and 6 of the motion have been sustained by agreement and paragraph 8 has been stricken at the defendant’s request, which leaves paragraphs 4, 7, and 9 in dispute. As grounds, the Court understands the defendant to allege: (1) that evidence of a detoxification substance is inadmissible pursuant to Tenn. R. Evid, 403, 602, and 802; (2) that the results of his passenger’s blood test is inads 403; and (3) that photographs of the victims at the scene are inadmissible pursuant to Tenn. R. Evid. 403 and State v. Banks, 564 S.W.2d 947 (Tenn. 1978). ble pursuant to Tenn, R. Evid. Motion 6 is a motion to compel the state to provide outstanding discovery. The parties agree that three discovery items, which the state expresses itself willing to provide, remain outstanding. Ata hearing of pending motions on 2 March and 20 April 2017, eight officers, Thomas Seiter, Steve Wiertel, Brian Blumenberg, Springer, and Jonathan Adams of Chattanooga Police Department, John Harmon and Gray Gibson of Tennessee Highway Patrol, and Brian Hickman of Collegedale Poli ¢ Department, and one nurse, Lisa Martin, testified and seventeen exhibits, including the defendant's written statement at the scene, Chief Hickman’s DRE evaluation at Collegedale police headquarters, the defendant's waiver of rights at Chattanooga police headquarters, the transcript of the audio recording of the defendant’s statement at Chattanooga police headquarters, and the transcript of the first day of the hearing, were introduced.Summary of proof From the proof at the hearing, the Court gathers that, at about 7:09 p.m. on 25 June 2015, a tractor-trailer operated by the defendant overran several passenger vehicles that were stationary in their respective travel lanes near a construction zone on I-75 north, killing several victims, injuring several others, and closing the northbound lanes of the interstate, which were littered with vehicles and debris for about one hundred yards, until 10:00 a.m. the next moming. Tr. Gibson, who was on duty at the construction zone ahead, was alerted to the accident by the construction-zone contractor, who noticed smoke. ‘Tr. Gibson drove back to the scene, arriving at 7:21 p.m, and stopping his vehicle facing the tractor-trailer, which was against the barrier wall, at the north end of the accident site. There was fire and much activity, with people everywhere He asked the defendant what happened and the defendant said that he had hit his head and could not remember. He asked the defendant for his log books and the defendant retrieved them from the tractor. At 7:27 p.m., he placed the defendant in the back seat of his patrol car to await the foreseeable questions. ‘Thereafter, at 8:36 p.m., Off. Seiter, who had arrived at the scene at 7:37 p.m., obtained the following written statement from the defendant: “I seen brake lights tried to stop [and] couldn't hit brakes [and] couldn’t stop[.]” He then obtained the defendant’s consent to collection of his blood for analysis. ‘Thereafter, Nurse Martin came to the scene and, at 8:51 p.m., using a TBI blood kit and a non-aleohol disinfectant, drew one tube of blood for TBI and an extra tube for the defendant. She drew the blood in front of the trooper’s vehicle, labeled it, including the time, placed it in special wrapping in the box, sealed the box, and gave the box to Off. Seiter, who secured it in his vehicle before conveying it to “property”. She did not notice any marks on the defendant's armindicative of intravenous drug use. It took about ten minutes. ‘Then, at Off, Seiter’s request and following the same procedures, she draw the female passenger’s blood, She has gone to scenes ‘many times before when there is a bad accident or someone does not appear to be intoxicated. ‘Time was an issue, ‘Thereafter, Off. Blumenberg asked the defendant whether anyone had read him his rights. ‘When the defendant replied in the negative, Off. Blumenberg read the rights to the defendant. He told the defendant that he was detained but not arrested. At 9:41 p.m., he transported the defendant to Collegedale police headquarters for evaluation by a DRE, arriving at 9:48 p.m. At Collegedale, Chief Hickman, a DRE, evaluated the defendant for drug influence. The defendant cooperated, answering all the chief's questions and not refusing to proceed with the evaluation, which took about one hour. Exhibit 10 is a full report of Chief Hickman’s observations and conclusion, Thereafter, Off, Blumenberg transported the defendant to Chattanooga police headquarters, arriving at 11:15 p.m. Off. Charles Poland interrogated the defendant. Also in attendance were Off, Seiter and Lt, Harmon. The defendant was read the rights and the waiver of rights, was asked whether he understood, and was then instructed to initial and sign the form to acknowledge his rights. Q , in other words, we get to talking and you go, “Whoa, don’t want to talk any further,” you can talk to a lawyer at any point in time, okay? So, in other words, we get to talking and you go, “I want to talk to a lawyer,” to stop right there, okay? Tm g A Okay. Will Ibe free to go then or do I have to have a lawyer come in here with me? Or can I go see who I want to get for a lawyer? Q Well, let me finish this last statement here, okay? Waiver of your rights. ..All right. To answer your question, yes, you can get a lawyer if you want to get a Jawyer. Okay? If we start talking right now and I go somewhere you don’t want to talk about, you can go, “Hey, I don’t want to talk about that.” Okay? Just to let you know. And it’s one of those you may turn and go, “Hey, I'd rather talk to a lawyer about that before we talk about that.” So that’s kind of letting you know what your rights are. It’s, {just letting you know you don’t have to say anything if you don’t want to, but, this is no different than any crash when we go to work a crash, we talk to people. ‘The biggest difference is we do have some tragedy involved in this, so that’s why I’m reading your rights. Okay? Do you understand that? A Uh Q Okay. What I need you to do is need you to initial and sign here. When you do that, you're not signing your rights away, all you're doing is saying you understand what just read to you. Okay? This has nothing to do with giving a statement, other than just saying you understand your rights. You just need to put initials in each one of those yellow spots there and then just sign down there by that X at the bottom. And you've been good to listen to me. Give me just one second before we get started. Again, I just want to go through the day, want to talk about how we got to where we're at today. Okay? And like I said, if we go somewhere you don’t want to go, I'd rather you go, “hey, I don’t want to talk about that.” Okay? It’s a lot better than us going down a rabbit trail and you say something over here and we can’t remember it, that’s the ind of stuff that gets people in trouble. Okay? That pretty clear? A (Noaudible response.) Exhibit 13, pp. 2-4. The defendant executed the form and gave a second statement, of which there is an audio recording ‘Thereafter, at about 12:45 a.m. on 26 June 2015, Off. Adams transported the defendant and his female passenger to a gas station in Ooltewah on the way to Cleveland, where he was to leave them ata truck stop. He stopped in Ooltewah after receiving a call from Off. Seiter requesting that he ask the female passenger for consent to search her purse. He searched their belongings again, allowing them to watch, and then, at their request, left them there. Thereafter, on 28 June 2015, Off. Seiter obtained warrants to search the interior of the tractor and the tractor’s electronic control module. NTSB agents with Sgt. Wiertel in attendanceconducted the search of the interior of the tractor. Among the items seized by Sgt. Wiertel was a bottle labeled by the manufacturer “Advanced detox cleanser”. Off. Seither’s affidavit for a warrant to search the interior of the tractor provides in part: On 06/25/2015 at 19:10 hrs, Traffic Division was requested to 1100 1-75 NB on a ‘multiple vehicle collision with multiple fatalities. A total of 9 vehicles were involved with 6 fatality victims on scene. The following was determined from interview, observation and investigation, The driver of the 2007 Peterbilt Semi Tractor was traveling north on 1-75 passing, over Exit 11 when for undetermined reasons was not able to utilize the brakes on the Semi causing the Semi to strike 8 multiple vehicles that were stopped in their prospective [sic] traffic lanes due to construction a couple of miles north of Exit 11. Six fatality vietims came from three of the vehicles. Four vehicles had occupants that were transported to Memorial Hospital and Erlanger Hospital for medical attention. One vehicle’s occupant did not need medical attention, Of the six fatal victims two were ‘minor children under 11 years of age. During the course of the investigation the driver of the 2007 Peterbilt Semi Tractor, Benjamin Scott Brewer (11/25/1975), stated he saw brake lights ahead of him and when he went to apply the brakes he found he did not have any braking system, Due to the severity of the traffic crash the driver of the 2007 Peterbilt, Benjamin Scott Brewer (11/25/1975) is being investigated for Vehicular Homicide. A Drug Recognition Expert (DRE) completed an evaluation on the driver of the 2007 Peterbilt, Benjamin Scott Brewer. The evaluation indicated the driver of the Peterbilt, Benjamin Scott Brewer, was on a drug that can impair his ability to drive a motor vehicle. The affidavit does not specify the object of search. The search warrant, hoy ever, authorizes a search only for “illegal substances.” Motion 1 The Court first considers motion 1. ‘The defendant argues that he was detained without probable cause when he was placed in the back seat of Tr. Gibson’s patrol car and, as a consequence, all the evidence obtained from him thereafter should be suppressed. The Court agrees that he was detained without probable cause but respectfully disagrees that the detention was unlawfulThe Fourth Amendment to the United States Constitution and Article I, § 7 of the Tennessee Constitution prohibit unreasonable searches and seizures. Under both provisions, a ‘warrantless search or seizure is presumptively unreasonable and evidence therefrom is subject to suppression. State v. Richards, 286 8.W.3d 873, 878 (Tenn. 2009) (citations omitted). ‘To rebut the presumption of unreasonableness, the state must prove by a preponderance of evidence that ‘an exception to the warrant requirement applies. State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006) (citation omitted); State v. Keith, 978 S.W.2d 861, 865 (Tenn, 1998). The stop of an automobile is... . constitutionally permissible under both the Tennessee and federal constitutions when the police have either reasonable suspicion or probable cause to believe that a traffic violation has occurred, regardless of any ulterior motive of the arresting officer. Vineyard, 958 S.W.2d at 734; see also Pulley, 863 S.W.2d at 30, State v. Donaldson, 380 8.W.3d 86, 92 (Tenn. 2012) (footnotes omitted). It was reasonable for officers to detain the defendant to investigate the accident, The defendant's tractor-trailer had overrun several passenger vehicles and the defendant was not complaining that another motorist was at fault, giving officers reason to suspect him of causing the accident by not exercising due care to avoid a collision in violation of T.C.A. § 55 8 136(b). It was also reasonable for officers to delay their investigation of the defendant to render aid and question other witnesses. Many persons had been killed or injured, and there was fire. The Court therefore finds no ground for suppression of the evidence in issue in this respect. ‘The defendant also argues that any cooperation with the investigation was involuntary or an exploitation of a prior illegality. The Court not finding a prior illegality, it considers only the voluntary nature of the defendant's cooperation with the investigation, From the undisputed proof, the Court gathers that the defendant was cooperative with Tr. Gibson, retrieving the log books from the tractor, was cooperative with Off. Seiter, giving him a written statement, as did other witnesses, and consenting to collection of a blood sample for analysis, and was cooperativewith Chief Hickman, answering all his questions and not refusing to proceed with the DRE evaluation, The Court finds no ground for suppression in these respects. ‘The defendant was also cooperative with Off. Poland, executing the waiver-of-rights form and answering questions. Although Off. Poland’s description of the execution of the form, including the waiver, as an acknowledgement, not a waiver, of rights was not entirely accurate and prevents the Court from regarding the waiver-of-rights form as an explicit waiver of right under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966), on the whole, the officer did accurately recite and explain the rights and obtain the defendant’s acknowledgement of them. - . “Even absent” a suspect’s invocation of Miranda rights, a statement given “during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the aceused ‘in fact knowingly and voluntarily waived [his] rights’ when making the statement.” Berghuis, 130 S.Ct. at 2260 (quoting Butler, 441 U.S. at 373, 99 S.Ct. 1755) (emphasis added). The State bears the burden of establishing “waiver by a preponderance of the evidence.” Berghuis, 130 $.Ct. at 2261 (citing Colorado v. Connelly, 479 US. 157, 168, 107 S.Ct. 515, 93 L.Bd.2d 473 (1986)); see also State v. Bush, 942 8.W.2d 489, 500 (Tenn.1997).. A valid waiver “has two distinct dimensions.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L-Ed.2d 410 (1986). First, a waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Jd. Second, a waiver must be “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Jd; see also Berghuis, 130 S.Ct. at 2260. “The Constitution does nor require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege.” Colorado v, Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Bd.2d 954 (1987) (emphasis added). “Only if the totality of the circumstances surrounding the interrogation reveal[s] both an uncoerced choice and the requisite level ‘of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran, 475 U.S. at 421, 106 S.Ct. 1135 (internal quotation marks omitted). While the State must show a knowing and voluntary waiver, an express waiver is not required. Berghuis, 130 S.Ct. at 2261; State v. Robinson, 622 8.W.2d 62, 67 (Tenn.Crim.App.1980) (“Lack of an explicit written waiver of the right to remain silent or the right to counsel after Miranda warnings does not per se require exclusion of a confession if waiver can be found from facts and surrounding circumstances.”); Bowling y, State, 3 Tenn.Crim.App. 176, 458 S.W.2d 639, 641 (1970) (recognizing that the Statemay carry its burden of proving a knowing and voluntary waiver of Miranda rights, without showing that the suspect expressly waived his rights). “[G]iven the practical constraints and necessities of interrogation and the fact that Miranda’s main protection lies in advising defendants of their rights,” Miranda rights may be “waived through means less formal than a typical waiver on the record in a courtroom.” Berghuis, 130 S.Ct. at 2262 (citations omitted). Although implicit waivers are valid, an implicit waiver is not established by showing only that Miranda warnings were given before the accused made an uncoerced statement. Berghuis, 130 S.Ct. at 2261 (citing Miranda, 384 U.S. at 475, 86 S.Ct. 1602). “The prosecution must make the additional showing that the accused understood these rights.” /d, at 2261..“As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” Id, at 2262 (emphasis added); see also Mays v. State, 495 S.W.2d 833, 836 (Tenn.Crim.App.1972) (“The rule is that once a defendant has been informed of his rights and indicates he understands them, his choosing to speak and not requesting a lawyer is sufficient evidence that he knows his rights and chooses not to exercise them.”); Bowling, 458 S.W.2d at 641 (same). Thus, the State may establish an implicit waiver of Miranda rights by showing that the suspect received and understood Miranda warnings, did not invoke Miranda rights, and gave an uncoerced statement to the police. Berghuis, 130 S.Ct. at 2264 (finding an implied waiver of the right to remain silent because Thompkins did not invoke his right to remain silent and, “[u}nderstanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police”. State v. Climer, 400 8.W.3d 513, 564-5 (Tenn. 2013) Although Off. Poland never answered the defendant's questions “Will Ibe free to go then or do I have to have a lawyer come in here with me? Or can I go see who I want to get for a lawyer?”, those questions concern the defendant's freedom after interrogation or invocation of his rights, not his rights before or during interrogation, Thereafter, the defendant executed the acknowledgement of rights without renewing the old questions or asking new ones. The Court finds that the defendant understood and implicitly waived his rights. The Court therefore finds xno ground for suppression of the evidence in issue in this respect. Motion 2 ‘The Court next considers motion 2. ‘The defendant expresses concern about the chain ofcustody of his blood sample and the potential for contamination, tampering, loss, substitution, and mistake at the scene, Using a blood kit for the purpose and a non-alcohol disinfectant for the te, Nurse Mar collected the defendant’s blood, labeled it, sealed it in the kit, and gave the kit to Off. Seiter. Of citer secured the kit in his vehicle, conveyed it to police headquarters, and gave it, with a property form, to a property clerk, who secures it there. This establishes the first part of the chain of custody and excludes the possibility of contamination, tampering, loss, substitution, or mistake at the scene. The Court finds no ground for exclusion of the evidence in issue in this respect. Amended motion 4 ‘The Court next considers amended motion 4. Under the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution search warrants may not be issued unl neutral and detached magistrate determines that probable cause exists for their issuance. Gates, 462 U.S. at 240, 103 S.Ct. 2317; Henning, 975 S.W.2d at 294; Jacumin, 778 S.W.2d at 431.“ ‘Articulating precisely what probable cause means is not possible. State v. Reynolds, 504 8.W.3d 283, 300 (Tenn. 2016) (quoting Omelas v. United States, 517 U.S, 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)) (quotation marks and alterations omitted)). “Probable cause is more than a mere suspicion but less than absolute certainty.” Id. (internal citations and quotation marks omitted). “[ T]he strength of the evidence necessary to establish probable cause ... is significantly less than the strength of evidence necessary to find a defendant guilty beyond a reasonable doubt.” State v. Bishop, 431 S.W.3d 22, 41 (Tenn. 2014); see also Brinegar v. United States, 338 USS. 160, 174, 69 S.Ct, 1302, 93 L.Ed. 1879 (1949) (discussing the differences between the probable cause standard and the standard for proving guilt beyond a reasonable doubt). Probable cause, as its name implies, deals with probabilities. Brinegar, 338 U.S at 175, 69 S.Ct. 1302; Jacumin, 778 S.W.2d at 432. “These [probabilities] are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar, 338 U.S. at 175, 69 S.Ct. 1302; see also Reynolds, 504 §.W.3d at 300 (recognizing that the probable cause standard is practical and nontechnical), In Tennessee, probable cause for issuance of a warrant is established by presenting “a sworn and written affidavit” to the magistrate, Saine, 297 S.W.3d at 205 06; see also Henning, 975 $.W.2d at 294; Jacumin, 778 S.W.2d at 432. “To ensure that 10the magistrate exercises independent judgment, the affidavit must contain more than mere conclusory allegations by the affiant.” Henning, 975 $.W.2d at 294. The affidavit must include facts from which the neutral and detached magistrate may determine, upon, ‘examining the affidavit in a commonsense and practical manner, whether probable cause exists. State v. Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006); Henning, 975 $.W.2d at 294. When the affidavit seeks to establish probable cause for a search warrant, it must “set forth facts from which a reasonable conclusion might be drawn that the evidence is in the place to be searched.” State v. Smith, 868 S.W.2d 561, 572 (Tenn, 1993). In other words, the affidavit must demonstrate a nexus between the criminal activity, the place to be searched, and the items to be seized. Saine, 297 8.W.3d at 206 (citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); Smith, 868 S.W.2d at 572), “The nexus between the place to be searched and the items to be seized may be established by the type of crime, the nature of the items, and the normal inferences where a criminal would hide the evidence.” ‘Smith, 868 S.W.2d at 572. Additionally, in determining whether the nexus has been sufficiently established, courts may * ‘consider whether the criminal activity under investigation was an isolated event or a protracted pattern of conduct [,].. the nature of the property sought, the normal inferences as to where a criminal would hide the evidence, and the perpetrator’s opportunity to dispose of incriminating evidence.’ ” Saine, 297 S.W.3d at 206 (quoting Reid, 91 S.W.3d at 275). Although a nexus between the place to be searched and the items to be seized must be established, unlike an affidavit in support of an arrest warrant, an affidavit seeking issuance of a search warrant need not implicate a particular person in the crime under investigation. See Zurcher v. The Stanford Daily, 436 U.S. 547, $56, 98, S.Ct. 1970, 56 L.Ed.2d 525 (1978); United St Burney, 778 F.3d 536, 540 (6th Cir. 2015). An affidavit may include information that would not be admissible as evidence in a criminal trial, Brinegar, 338 U.S. at 172-73, 69 S.Ct. 1302, and an affidavit need not reflect the direct personal observations of the affiant, Henning, 975 S,W.2d at 294; Jacumin, 778 8.W.2¢ at 432. The reliability of hearsay information included in an affidavit is evaluated differently, however, depending upon its source. State v. Williams, 193 S.W.3d 502, 507 (Tenn, 2006). If the source of the information is a law enforcement officer, “[n]Jo special showing of reliability is necessary.” Smotherman, 201 8.W.3d at 663 (citing Ventresca, 380 U.S. at 111, 85 S.Ct. 741). But this presumption of reliability applies only if the affidavit states that the “information [was] provided by other officers.” ck, 781 F.2d 1498, 1505 (1 Ith Cir. 1986)). A presumption source of the information as a citizen informant. Williams, 193 $.W.3d at 507. By contrast, no presumption of reliability applies to information supplied by an unknown informant or an informant from the “criminal milieu.” Smotherman, 201 S.W.3d at 662 (citing Williams, 193 $.W.3d at 507; Jacumin, 778 S.W.2d at 436). In such circumstances, the affidavit must establish both the criminal informant’s basis of ulknowledge and his or her veracity or credibility. Williams, 193 S.W.3d at 507 (citing Jacumin, 778 8.W.2d at 436; State v. Cauley, 863 S.W.2d 411, 417 (Tenn. 1993). For all these reasons, we overrule Jacumin, insofar as it retained the Aguilar/Spinelli test, and adopt the Gates totality-of-the-circumstances analysis, which is, in our judgment and that of the vast majority of courts in other states, a sufficiently definite standard for assessing probable cause and much better suited to evaluating the practicalities that underlie the probable cause inquiry. We reiterate that, under the ‘otality-of-the-circumstances analysis, the informant’s basis of knowledge and veracity or credibility remain highly relevant considerations. Rather than separate and independent, considerations, they “should [now] be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular pl Gates, 462 U.S. at 230, 108 S.Ct. 2317... . State v. Tuttle, - 8.W.3d -, 2017 WL 1246855, *9-11, 15 (Tenn. 5 April) (citations omitted), Although the affidavit does not explicitly describe the object of search, itis reasonable to infer that the object of search was any evidence relevant to the cause of the accident, including ‘mechanical failure, prescription medicine, illegal drugs, and distractions. Consistent with T.C.A. $40 6 103, which allows a search warrant to be issued only “on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched|,]” the warrant describes the object of search as more narrow: “illegal substances”. In addition, although the affidavit does not describe the sources of the affiant’s formation other than “interview, observation and investigation[,]” it is reasonable to infer that the sources are presumptively reliable eyewitnesses of the accident, including, presumably, the defendant, and one or more officers. The defendant argues and the state concedes that Off. Seiter was not present for and did PA not participate in the execution of the warrant, as subsection (e)(1) of Tenn. R. Cri requires. Under T.C.A. § 40 6 108, however, such a vi lation is a technical violation that, by itself, does not entitle a defendant to suppression of evidence. 12(a) Notwithstanding any law to the contrary, any evidence that is seized as a result of executing a search warrant issued pursuant to this part or pursuant to Tennessee Rules of Criminal Procedure Rule 41 that is otherwise adi le ina criminal proceeding and not in violation of the constitution of the United States or Tennessee shall not be suppressed as a result of any violation of this part or any violation of Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c). (©) As used in this section, unless the context otherwise requires, “good faith mistake or technical violation” means: (2) When the officer to whom the warrant is delivered for execution is not present during the execution but an officer with law enforcement authority over the premises does otherwise execute the search warrant. . T.C.A, § 40 6 108. The Court therefore finds no ground for suppression of the evidence in issue in this respect. ‘The defendant also argues that Off. Seiter’s affidavit for a warrant to search the interior of the tractor was conclusory and did not state probable cause. To this argument, the state does not respond, Thi irch warrant narrowing the object of search to “illegal substances”, the Court considers only the sufficiency of the affidavit with respect to probable cause to suspect the defendant of being under the influence of illegal substances. ‘The defendant is correct that, from the fact that there was a multiple-vehicle, multiple-fatality accident alone, it is not reasonable to infer that the defendant was under the influence at the time of the accident. Influence was only one of several criminal and non-criminal possibilities. ‘The affidavit, however, also states the conclusion of someone identified only as a DRE ‘who completed an evaluation of the defendant that the defendant was “on a drug that can impair 13his ability to drive a motor vehicle.” From these additional facts, is it reasonable to infer that the defendant was under the influence at the time of the accident, even though the additional facts ‘amount to no more than a completed evaluation by and a conclusory opinion of a DRE? Presumably, the argument that such an inference is reasonable depends on the officer’s expertise. Unlike an officer who is not an expert and performs field, sobriety tests only, a DRE is an expert and performs a physical examination, too. What is the point of requiring an affidavit to include information about the DRE’s observations or even the DRE’s full report when it is unreasonable to expect a non-expert affiant or magistrate to substitute his judgment for that of an expert or consult another expert? The argument that such an inference is not reasonable depends on the lack of information regarding the relevance of the officer’s expertise, without which it is not possible to explain and justify probable cause to a non-expert affiant or magistrate While the officer’s experience and training is relevant to the probable cause analysis, the government bears the burden of establishing how such experience and training “bears ‘upon the facts which prompted the officer to arrest.” United States v. Briggs, $17 F App'x 582, 583 (9th Cir.2013) (concluding that the government failed to establish probable cause where “the government did not prove how, if at all, the officers’ experience contributed to any probable cause determination”) (internal quotation omitted); United States v. Cervantes, 703 F.3d 1135, 1139-40 (9th Cir.2012) (“[w]hile [the officer's] training and experience are factors to be considered, ‘itis incumbent upon the arresting or searching officer to explain the nature of his expertise or experience and how it bears upon the facts which prompted the officer to arrest or search’. {clonclusory statements and a general claim of expertise will not suffice”) (quoting 2 LaFave, Search and Seizure § 3.2(c)) (internal citation omitted); Rivera v. Murphy, 979 F.2d 259, 264 (Ist Cir.1992) (“[t]he experience and training of a police officer are, of course, factors to be considered in the determination of probable cause, but, the relevance {of such experience and training} in a particular case must be sufficiently conveyed so that... it can be understood by the average reasonably prudent person”) (internal quotation omitted) (alterations in original), Moreover, even if such a conclusion could be inferred from Marx’s testimony, his testimony does not explain how his training and experience as a drug recognition expert 4informed such a conclusion. While he testified that dilated pupils may indicate drug use, he also testified that dilated pupils and the other characteristics McAuley displayed may have benign explanations. He admitted that McAuley did not seem to be impaired. Moreover, at one point in his testimony, Marx even suggested that if he had discovered only the marijuana roach and not the methamphetamine, he would have investigated further before deciding to arrest McAuley for DUI metabolite. (Tr. 86). On this record, it ‘was incumbent upon the government to explain whether and, if so, why a drug recognition expert like Marx would have believed before searching him that McAuley: even though he did not appear impaired—had a measurable amount of controlled substance metabolite in his system. As this Court observed at the February 4 court appearance, it does not have the experience from which to make that conclusion. Again, jony on that very issue. The government declined to As courts routinely acknowledge, drug recognition experts possess unique skills designed to assist them in identifying whether, and to what extent, an individual may be under the influence of a substance other than alcohol. See, e.g, Wheeler v. Lynn, 2012 WL 1833672, "2 (W.D.Mo.2012) (“[d]rug recognition experts check a suspect’s blood pressure, pulse, and temperature because certain drugs cause the body to do things involuntarily”); Green v. Euler, 2010 WL 415309, *1 (M.D.Fla.2010) (“[drug recognition expert] training includes evaluations of a suspect’s eyes, their bodily movements and speech to appropriately detect and categorize impairment from drugs”); United States v. Everett, 972 F.Supp. 1313, 1316-17 (D.Nev.1997) (drug recognition expert follows a twelve-step protocol that includes, inter alia, pulse readings; eye examinations, including nystagmus and convergence tests; motor skills testing; blood pressure and temperature readings; pupil measurements under various lighting conditions; muscle rigidity examinations; and, interrogation). Marx did not testify concerning how any of his training, experience or skills as a drug recognition expert led him to believe before the search that McAuley had a measurable amount of controlled substance metabolite in his system. Indeed, as stated earlier, Marx did not even testify if he believed before searching him that McAuley had violated the DUI metabolite statute. Thus, this Court is unable to assess how Marx’s training and experience informed his pre-search evaluation of McAuley. See United States v. Ten Thousand Seven Hundred Dollars and No Cents in United States Currency, 258 F.3d 215, 231 (3d Cir.2001) (concluding that test results “cannot be considered a factor weighing in the government's favor in the overall probable cause analysis” in the absence of information in the record “sufficient. to guide [the court] in evaluating the evidentiary significance of the test results”); United States v. Ho, 94 F.3d 932, 937-38 (5th Cir.1996) (no probable cause where “the government clicited almost no testimony from which to gauge the extent of [the officer’s} knowledge and experience in the area of credit card fraud”); State v. Hechtle, 89 P.3d at 190-91 (government may not establish probable cause unless it can show that officer acted upon more than “mere suspicion” or “hunch” that suspect had measurable amount of controlled substance in his body; “[e]ven if we were persuaded to accept the [government's] position that the condition of [defendant’s] eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either howe conditions are sustained or how long measurable quantities of marijuana in the system as required by the statute”). United States v. McAuley, 2014 WL 7792546, *3-4 (W.D. N.Y. 19 March) (Payson, Mag. J.) ‘The first argument defeating and the second argument effectuating the point of a neutral reasonable, non-expert person in the role of magistrate, the Court finds the latter argument more persuasive. Noting that the state does not argue any other bases for admission of the evidence in issue, including the pervasively-regulated-industry, plain-view, or inventory exception to the ‘warrant requirement or the inevitable-discovery exception to the exclusionary rule, the Court decides that there is ground for suppression of the evidence in issue in this respect. ‘The Court observes that, presumably, it would have been as reasonable for authorities to inspect the tractor-trailer for evidence of a mechanical cause of the accident as it was for them to impound it, which impoundment the defendant does not challenge. See Commonwealth v. Petroll, 696 A.2d 817, 830, 831 (Pa. 1997) (finding probable cause for inspection, where the nd and skid marks appellant's tractor-trailer struck an automobile stopped in traffic from bel showed that the appellant began braking or the brakes responded when the front of the truck was thirty-six feet from the victims’ car; also remarking that, “[e]ven if the officers suspected appellant of causing the collision, they were required to, and did, investigate other potential causes by, for example, inspecting the truck for mechanical failure”) (citations omitted). See also State v. MeClure, 74 $.W.34 362, 371 (Tenn. Crim. App. 2001) (describing the pervasively regulated bus 1ess doctrine as applicable to motor carriers) (citation omitted). [I]t may certainly be argued that the strong public interest in vehicle safety makes possible both (1) routine, nonarbitrary safety inspections of vehicle equipment generally, and (2) inspection of the equipment of particular vehicles which have been involved in an accident (especially one resulting in death) in order to determine the cause of the accident. 16Illustrative of a more sound analysis of this situation is People v. Quackenbush, [670 N.F.2d 434 (N.Y. 1996),] where after defendant’s vehicle was involved in a fatal accident it was impounded for a safety inspection pursuant to a state statute requiring police to investigate every accident resulting in personal injury. The court upheld the impoundment and subsequent inspection which revealed defendant's brakes were inadequate by utilizing the “useful analytical framework” provided by that branch of Fourth Amendment law having to do with inspection of closely regulated businesses. ‘The most significant factors in the court’s analysis were these: (1) The inspection scheme at issue served an important governmental interest, as it was “designed to further the compelling safety interest of the government in regulating the use of motor vehicles on the State’s public highways.” (2) The “diminished expectation privacy in the mechanical areas of a vehicle” must yield “to the State’s legitimate safety interests” when the vehicle has been involved in an injury-causing accident. (3) The applicable rules “comport with 4" Amendment prineiples because they remove the possibility that the inspection will be undertaken in an arbitrary manner,” as the inspection “is only conducted in response to a particular event-an automobile accident resulting in personal injury or death-that calls into question the safe mechanical functioning of the vehicle.” (4) “The scope of the intrusion was also strictly tailored to a determination of whether any safety violation existing on the vehicle at the time of the accident could have contributed to its cause-the initial justification for the intrusion.” Wayne R. LaFave, Search and Seizure § 7.4(h), at 670 (4 ed. 2004) (footnotes omitted) But of significance here is the possibility of lawfully obtaining the data even absent probable cause under a Quackenbush-style analysis. Illustrative is [People v. Christmann, 716 N.Y 8.2d 437 (N.Y.J.Ct. 2004),] where a state trooper arrived at an accident scene, directed that defendant's vehicle not be moved, and then downloaded the performance date [sic] from the vehicle’s “black box,’ which with other information determined the speed of defendant’s vehicle at impact. In holding that the officer’s did not violate the Fourth Amendment, the court stressed that there is “only a hed expectation of privacy in the mechanical areas of the vehicle [which] must yield to the overwhelming state interest in investigating fatal accidents,” and that in “the area of automobile safety, there is a high degree of governmental regulation,” so that “a search conducted to carry out this regulation has a low threshold of reasonableness.” Id. at 72 (Supp. 2007-8) (footnote omitted). The affidavit, however, does not mention the result of any safety inspection of the tractor- trailer. Arguably, the elimination of the possibility of mechanical failure would have made it more probable that the defendant's non-utilization of the brakes was a result of either criminal recklessness or impairment. 17What remains of motion 5 ‘The Court next considers what remains of motion 5, the motion in limine, The state did not attempt to prove or argue the relevance of the “detox” substance, the purpose of which is unclear to the Court, or the female passenger’s blood test. In any event, the suppression of the evidence from the interior of the tractor renders the admissibility of the “detox” substance moot. ‘The parties anticipate an agreement with respect to the admissibility of photographs of the vietims at the scene. Motion 6 ‘The Court last considers motion 6, The state does not dispute the defendant’s entitlement to the three discovery items that remain outstanding and expresses itself willing to provide them to the defendant. ‘The Court therefore ORDERS: (1) that motions 1 and 2 be denied; (2) that amended motion 4 be granted and the evidence from the interior of the tractor suppressed; (3) that motion 5 be granted with respect to the “detox” substance and the passenger's blood test and reserved with respect to the photographs of the victims at the scene; (4) that motion 6 be granted; and (5) that counsel, the deputy district public defender and the district attorney general, be promptly provided with a copy of this order. SO ENTER on this__/ v day of. » 2017. Don W. Poole Criminal Court Judge 18