It was a beautiful Friday in Brazoria County when I checked TDCAA’s weekly caselaw update, and there it was: a case out of Missouri that would affect DWI cases everywhere.
Missouri vs. McNeely1 has been the subject of discussion in many prosecutor’s offices, online chat boards, and as expected, defense attorney motions to suppress. (This journal has covered it too; see the May–June and July–August 2013 issues to read what W. Clay Abbott, TDCAA’s DWI Resource Prosecutor, has to say about the case.) The gravamen of McNeely is that absent exigent circumstances, a blood draw of a DWI suspect should be done pursuant to either consent or a search warrant. The Supreme Court further concluded inevitable dissipation of alcohol in blood alone does not constitute an automatic (or per se) exigency to support a warrantless blood test during a DWI investigation. The court didn’t address whether our state’s mandatory blood draw statutes for felony driving while intoxicated and car crash cases were constitutional or not. (But see the recent 14th Court of Appeals [Houston] decision in Douds v. State, which is summarized in TDCAA’s weekly case summaries from the week of October 18, or read the opinion at www.tdcaa .com/dwi/index.html.)
So how does a prosecutor, or officer for that matter, resolve the mandatory blood draw requirement in Transportation Code §724.012(b) in light of McNeely?
After McNeely was handed down, I began receiving phone calls from heads of our local law enforcement agencies regarding how felony driving while intoxicated cases (and the blood draws that once went along with them) should be handled. I went to our elected Criminal District Attorney, Jeri Yenne, to discuss the issue. We considered the most nightmarish scenario: a collision where a victim was injured or killed; where the suspect performed no standardized field sobriety tests due to injuries; where the hospital either did not take or did not preserve a blood sample; and where the mandatory blood sample was suppressed. What evidence would be left to see that justice is done and the defendant held accountable? Would a potential felony murderer be set free from lack of evidence?
Yes, this is a worst-case scenario, but we as prosecutors know that these things do happen. With the community’s safety of paramount importance, it was not worth the risk that such a scenario might happen—not if we could help it. We did not want even the slightest chance that a judge would rule pre-trial that a blood sample should be suppressed due to McNeely, so we finally decided that law enforcement must apply for a search warrant for a blood sample from every person suspected of felony DWI and in collision cases in Brazoria County (unless the suspect gave consent to draw his blood).
Avoiding the nightmare
Now that the decision was made, we had to coordinate how to effectively and efficiently accomplish this mandate (no matter what course our office took, an increased and streamlined ability to get search warrants in DWI investigations was central to the response). We are extremely fortunate in our county that we have judges willing and able to review a search warrant application for a probable cause determination no matter the time of day. We discussed our intentions with the judges and gave them a heads-up that they would see an increase of search warrant applications due to our new felony-DWI policy.
We then had to recommend to the police how to handle the increased number of warrant requests they would be doing for DWIs. Pre-McNeely, the standard after-hours procedure was for investigating officers to draft a search warrant and call the closest judge to meet at the hospital for review of the warrant. Because most of our judges live near the county seat in Angleton, they were frequently the ones called. We wanted to put a system in place where judges did not have to travel to the hospital for each warrant request, as well as to spread the on-call duties among all the county’s judges. Additionally, we wanted to reduce the time the officer had to wait for dispatch to find a judge—all while the intoxicating substance was metabolizing and dissipating in a suspect’s system.
Presiding Judge Pat Sebesta encouraged using an electronic means to communicate with the officer and for transmission of the search warrant back and forth. Fax machines have been in existence for decades, and Clay v. State,2 decided in January 2013, clearly said that an officer need not swear to the warrant in the magistrate’s physical presence. The warrant in Clay was faxed between the judge and officer, and there was testimony at the trial court level that the judge and officer recognized each other’s voices over the phone, which probably helped save the case for the State. In our large county, made up of more than 20 police agencies, it isn’t feasible that every judge and police officer would know one another. Judges and police needed a means to see one another so the judge could swear the officer to an approved warrant. They also needed a means to transmit the warrant back and forth without being tied down to a particular location.
The iPad solution
We knew we wanted the judge and officer to see one another when the officer was being sworn, but we also needed a method for the warrant to be transmitted without a person having to be near a computer or fax machine. We looked at using signature pads, which could be connected to a computer so that all parties could sign by electronic means, but they proved untenable with the large number of police agencies, all with their own IT rules and non-standardized computer systems. We would have had to check with 23 different agencies to confirm that such a program was doable, as well as confirm that each department’s computers were updated enough to handle the technology of web cameras and signature pads, which required two open USB ports in each computer. And we still had the problem of officers and judges being tied down to their respective computers. Signature pads were not the answer.
I wanted judges to be able to swear an officer and sign a warrant from anywhere—anywhere they would normally be at the close of regular business. They should be able to take their children or grandchildren to the park or a baseball game without concern of what they would do if they were called upon to review a warrant.
I have been using my own iPad at work since March 2012. I conduct voir dire from it, carry my caselaw on the Westlaw Next app, and have all of my calendaring on it as well. I have found it to be a very reliable, proven prosecutorial tool. While we considered Skype (an Internet-based video-conference application) for getting these warrants, I noticed that it tends to be temperamental, that the video feed can be choppy at times. On the other hand, Apple’s FaceTime application on the iPad—where people can talk to each other “face to face” by using the tablet’s built-in camera—was generally crystal-clear and reliable. Apple software is intuitive; people who have never touched an iPad can pick one up and use it. And Apple’s platform is closed, meaning that Apple screens every app and doesn’t allow for modification to the operating system—it takes a very skilled user to “jailbreak”3 it. With the iPad, we would have significant uptime (the time when the iPad is operational and not needing to be updated or taken out of service for repair) and no “blue screens of death”—which every Windows user has at some point encountered on his own computer. We decided to buy an iPad for every law enforcement agency in the jurisdiction.
DA Investigator Gary Epps helped me find an incredible volume deal of iPad 2s at Microcenter in Houston. Microcenter offered us the best price for our purchase of 30 brand-new iPads at $349 each, a savings of $50 an iPad compared to retail rates. The AppleCare4 warranties for each iPad were $99 each. We also bought Griffin Survivor cases for $38 each, while the retail price of these cases is $99. The iPads and accessories were purchased with forfeiture funds. Every single police agency that handles the investigation of DWIs in our county received at least one iPad. Some agencies, such as the sheriff’s office and DPS, have multiple zones around the county and therefore needed more than one. Total cost—$12,172. This number reflects an extreme value to law enforcement, and more importantly, the safety of the public. The community deserves to have dangerous intoxicated drivers held accountable for their actions. The iPad program helps to limit the chances a suspect’s blood is suppressed and decreases the time between arrest and the point where a judge can review a search warrant. While this is an investment, there is no pricetag that can be placed on the increased safety of the community the iPad program provides.
The judges’ iPads had to be purchased by the county, as current state law prohibits the DA from purchasing such items for judges. Only two iPads were needed for the judges. The cost to the county was approximately $700, and the monthly cellular fee is $60 total. The judges’ iPads are the cellular/WiFi models, meaning that they operate both through WiFi as well as on cellular networks, a more expensive option than the WiFi-only versions. (The county pays the monthly service fee for the judges’ iPads to have cellular connectivity, while the police iPads we purchased are WiFi-only models and require no monthly fee.) The on-call judge and backup on-call judges’ iPads would allow each respective judge to be anywhere and to be reachable for the review of a warrant, whereas the officers must be in an area with available WiFi.
Every week, there is always an on-call and backup on-call judge available for this program (hence the two judge iPads). At the end of the week, the next on-call and backup on-call judge get the on call bag consisting of the respective iPad and on call phone. The judges have worked out their on-call schedules for the next two years, and we are appreciative they wanted to have the backup redundancy in place with two on-call judges during non-business hours. If neither judge is available, the on-call ADA will find the closest judge to the officer, and the warrant application will take place the old-fashioned way. Officers have also appreciated the on-call judge system because they don’t have to wait for dispatch to locate and contact an available judge.
iPad apps and software
The iPad was by far the most appealing option, and not just because of its ease of use, uptime, and FaceTime application. The iPad allows the officer to write the warrant anywhere, needing to connect to WiFi only for FaceTime conferencing and transmittal of the warrant. WiFi access is available at nearly every police department and at area hospitals. Judges could be at a restaurant, for example, and still be available to review a warrant without having to hurry home to a fax machine. Moreover, judges are no longer required to leave their homes in the middle of the night to drive to the hospital.
From a blood search warrant we had been using in Microsoft Word, I created an editable PDF using Adobe Acrobat Professional XI. Such a document includes boxes for various parts of the warrant that an officer can check, and the defendant’s name and other identifiers need to be input only once—the document will then automatically fill in the proper fields where this information is required. The search warrant PDF was uploaded to our county website and is accessible to anyone who knows the web address. The blank search warrant can then be saved to each agency’s iPad so it’s ready and available roadside.
The next step was to select the apps that would be used for this program. FaceTime, which comes free with the iPad, was our choice for the judge swearing the officer to an approved search warrant. I chose the Adobe Reader5 app for filling in the warrant and signing it (using one’s finger or a stylus). Adobe Reader also allows the judge to “flatten,” or lock, the PDF once she signs, preventing any accidental changes to the warrant. We created iCloud email accounts for each police agency and saved all these contacts in the judges’ iPads so the judges can easily use FaceTime with an officer without having to look up the right email address.
We then were simply going to “lock” the police iPads to prevent any further modification, such as preventing App Store game downloads and new account creation, then hand them out to the police agencies. The problem with this approach is that apps are updated frequently, and any lost or stolen iPads could not be tracked down. The solution was to have all of the police iPads connected to a Mobile Device Management (MDM) server.
Many MDM server hardware packages involve an initial payment of thousands of dollars for the server hardware, plus a licensing fee of $50–$100 per iPad each year. We would also have had to handle the server’s maintenance. I was doing further research for a more cost-effective MDM server when I discovered that the one of the county school districts use the Cisco Meraki MDM cloud server. It comes highly recommended.
The Cisco Meraki MDM server is free, and its website indicates the intention to always keep it free. They make money when a purchaser chooses wireless access points and other web analytics hardware (but none of those are necessary for this program). We simply had to create a profile and submit an application to Apple (again all free) to get “push”6 service clearance, then download the server profile to each iPad. The profile is a file containing all predetermined settings by the network administrator (in this case, me). It would be extremely time-consuming to attempt to set up 30 iPads individually, while at the same time making sure none of the settings were input incorrectly.
The best way to set up the iPads was to use the free Apple Configurator App on an iMac or Mac laptop. All the preset restrictions (such as the apps, inability to download or delete apps, and other settings) are chosen in the Apple Configurator app. The Cisco Meraki profile file is saved with these choices, and when an iPad is connected to the computer running the Configurator, the program automatically configures each iPad.
The Meraki MDM also allowed me to create a web clip, which is a button that appears on the iPad home screen. When an officer clicks this button, it brings up the website for our blood search warrant so the officer doesn’t have to type in the web address. This is preferred because whenever we make updates to the search warrant and the officer clicks this web app button, the newest version of the search warrant appears on the screen for the officer to edit. Not only does the server profile from Cisco allow for the administrator to choose the apps on the iPad, but it also enables the administrator to “push out” app updates to all the iPads. (Going to 23 different police agencies to do so would be a huge time investment, so this option saves me a lot of headache.) It also enables the network administrator to track the iPad should it ever get lost.
While the iPad is very user-friendly, the intricacies of this new process required a 30-minute training session for the various departments in the county, which I provided. I created a Keynote presentation on my iPad and showed the officers each step of the process using a projector connected to the tablet. Police at these sessions took to the system quickly. I also met with each judge one-on-one because they had to interact with the process differently from the officers. I gave both the officers and judges a handout with the step-by-step procedures as a quick reference on how to review, sign if appropriate, and send the warrant via email. For our numerous police agencies, it took a total of two weeks to train most of the officers.
The iPad warrant process
When an officer conducts a DWI investigation and has probable cause to believe a suspect committed a felony DWI, the officer will ask for consent for the blood draw. If the suspect gives consent, there is no need to apply for a search warrant.
If the suspect does not consent, the officer turns on the iPad, fills out the warrant, and sends it to the on-call judge’s email address. He will then call that judge to let him know a warrant was sent. The judge reviews the warrant for a probable cause determination. The judge then initiates a FaceTime video call with the officer. If probable cause exists, the judge swears the officer to the warrant. The FaceTime call is disconnected, and the officer signs the search warrant. He then emails the warrant to the judge. The judge signs the warrant, “flattens” (i.e., locks) the PDF, and emails it back to the officer. The officer can then log into his Apple iCloud account to print the signed warrant, or he can take the iPad to the blood draw location and show the statutorily authorized blood draw order from the judge to the qualified technician. Within 24 to 48 hours, the officer will submit the search warrant and return it to the county or district clerk’s office accordingly.
(Please note another option for swearing to a search warrant affidavit [from W. Clay Abbott, TDCAA’s DWI Resource Prosecutor]. You can have the officer swear to the affidavit in front of someone authorized to take oaths [say, a notary or another peace officer] and then send it to the magistrate as a final sworn affidavit. [Sometimes this is called “pre-swearing” an affidavit.] In such a situation, it is vital to fill in the jurat [where the notary signs and seals the document] and to make clear who took the oath and why he or she has legal authority to take the oath. Depending on local resources, pre-swearing affidavits might be a more helpful method.)
The judges are firm believers in the iPad program. For the officers, time is saved in connecting with a judge to review the warrant, and judges appreciate the mobility the iPad offers them when they are on call.
At first, there were some requests from police agencies to increase the size of the narrative section of the warrant, so I updated it and refreshed it on the county website within 30 minutes of this request so the new version was almost immediately available—and automatically updated on every agency’s iPad. If these warrants had been paper printouts or digital files on CDs, we would have had to create new disks and handouts for every update. The process we created saves money and allows for an immediate fix.
Overall, the police are very happy with the program. It is important to ensure that the officers who investigate DWIs attend the training session in the use of the iPad for search warrants. The officers who attended our training tended to encounter no issues with the program whereas officers who were unable to attend a session had to make a call to me in the middle of the night for some clarification in a process or two (which I am happy to assist with).
There is an initial investment required in the purchase of iPads for this program. However, the time and cost savings in the long run are easily recouped—we can even see that the program could be expanded from felony DWIs to other search warrants down the road. There is a small learning curve for users who have never operated an iPad before, but a short hands-on training and practice session generally affords the user confidence in using the program.
If you have any questions about how this program was set up or what settings are recommended, please do not hesitate to contact me at 979/864-1230 or [email protected]
1 Missouri v. McNeely, 133 S. Ct. 832 (2013).
2 391 S.W.3d 94 (Tex. Crim. App. 2013).
3 “Jailbreaking” means modifying the operating system to remove Apple-imposed restrictions and install apps by means other than the Apple App Store.
4 AppleCare warranties cover manufacturer defects and two accidental damages to the iPad for two years from the purchase date. Accidental damage has a deductible of $50, while manufacturer defects have a $0 deductible.
5 The PDF viewer that comes installed on iPads is called QuickLook, and it is a decent program for viewing flattened and/or simple PDFs, but it’s not a good viewer for a detailed search warrant PDF. Adobe Reader renders the search warrant properly.
6 Automatic updates for apps and other preferences are “pushed” to the iPad with no input from the user.