Petition for Writ of Certiorari — Mary Ann German, Petitioner v. South Carolina

No. ____

INTHE

Supreme Court of the United States

STATE OF SOUTH CAROLINA,

Respondent,

V.

MARY ANN GERMAN,

Petitioner.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

PETITION FOR WRIT OF CERTIORARI

*David Alexander

Attorney at Law

South Carolina Comm'n Indigent Defense

1330 Lady Street, Suite 401

Columbia, South Carolina 29201

dalexander@sccid.sc.gov

(803) 734-1330

Attorney for Petitioner

*Counsel of Record

QUESTION PRESENTED

After a decision .of this Court makes a State statute unconstitutional. under the

Fourth Amendment, do the police get a grace period after this Court's decision under

the Davis good faith exception?

1

TABLE OF CONTENTS

QUESTION PRESENTED ................................................................................................. i

TABLE OF CONTENTS .................................................................................................... ii

APPENDIX INDEX........................................................................................................... iii

TABLE OF AUTHORITIES ............................................................................................. iv

CITATION TO OPINION BELOW ................................................................................... 1

JURISDICTION ................................................................................................................. 1

CONSTITUTIONAL PROVISIONS ................................................................................. 1

STATEMENT OF THE CASE ........................................................................................... 3

REASONS THE WRIT SHOULD BE GRANTED ........................................................... 8

CONCLUSION ................................................................................................................. 15

ii

APPENDIX INDEX

1.

'Opinion of the Supreme Court of South Carolina ............................................... Al

2.

Petition for Rehearing to the South Carolina Supreme Court .........................A26

3.

Return to Petition for Rehearing to the South Carolina Supreme Court ........A36

4.

South Carolina Supreme Court Order Denying Rehearing.............................. A46

111

TABLE OF AUTHORITIES

United States Supreme Court Cases

Arizona State Legis. v. Arizona Ind. Redistricting Comm'n, 576 U.S. 787 (2015) .................... 14

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) .................................................................... passim

California v. Texas, 141 S.Ct. 2104 (2021) .......................................................................................... 14

Carpenter v. United States, 138 S.Ct. 2206 (2018) .......................................... :··········· .. ··············11, 13

Collins v. Virginia, 138 S.Ct. 1663 (2018) ............................................................................................ 14

Colorado v. Key. 564 U.S. 1033 (2011) .................................................................................................13

Florida v. Jardines. 569 U.S. 1 (2013) .................................................................................................... 9

Heien v. North Carolina, 574 U.S. 54 (2014) ......................................................................................14

Illinois v. Krull, 480 U.S. 340 (1987) ....................................................................................................10

Kentucky v. Velasquez, 564 U.S. 1032 (2011) ..................................................................................... 14

Kyllo v. United States, 533 U.S. 27 (2001) ............................................................................................ 9

Lange v. California, 141 S.Ct. 2011 (2021) ..........................................................................................14

Missouri v. McNeely. 569 U.S. 141 (2013) ..................................................................................... 2, 7, 8

Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019) ...................................................................................... 7

Riley v. California, 573 U.S. 373 (2014) ............................................................................................... 13

United States v. Davis, 131 S.Ct. 2419 (2011) ......................................................................................2

United States v. Davis, 564 U.S. 229 (2011) ............................................................................... passim

United States v. Gonzalez, 564 U.S. 1032 (2011) ............................................................................... 13

Utah v. Strieff, 579 U.S. 232 (2016) ...................................................................................................... 14

Whren v. United States, 517 U.S. 806 (1996) ......................................................................... : ...........12

iv

Other Cases

Campbell v. State, 288 So.3d 739 (Fla. Dist. Ct. App. 2019) ............................................................ 12

Commonwealth v. Updike, 172 A.3d 621 (Pa. Super. Ct. 2017) .....................................................13

State v. Eads, 154 N.E.3d 538 (Ohio Ct. App. 2020) .....................................................,:.................... 11

State v. German, 887 S.E.2d 912 (2023) ...................................................................................... 2, 7, 11

State v. Mary Ann German, 439 S.E.2d 912 (2023) ............................................................................. 1

State v. Miller, 295 So.3d 443 (La. Ct. App. 2020) ............................................................................. 13

State v. Nielsen, 917 N.W.2d 159 (Neb. 2018) .................................................................................... 12

State v. Weakland, 434 P.3d 578 (Ariz. 2019) .....................................................................................10

State v. Weddle , 224 A.3d 1035 (Me. 2020) ......................................................................................... 10

United States v. Whitaker, 820 F.3d 849 (7th Cir. 2016) ..................................................................... 9

Constitutional Provisions

28 U.S.C. §1257 (a) ..................................................................................................................... l

V

PETITION FOR WRIT OF CERTIORARI

Petitioner Mary Ann German respectfully petitions for a writ of certiorari to

review the judgment of the Supreme Court of South Carolina.

OPINION BELOW

The opinion ofthe Supreme Court of South Carolina is reported at State v. Mary

Ann German, 439 S.E.2d 912 (2023). App. 1.

JURISDICTION

The Supreme Court of South Carolina issued its opinion on April 5, 2023. The

court issued an amended opinion on April 19, 2023. Petitioner timely filed a petition

for rehearing which was denied on June 28, 2023. App. A46. This Court's jurisdiction

is invoked pursuant to 28 U.S.C. §1257 (a), petitioner having asserted below and herein

the deprivation of rights secured by the United States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

"The right ofthe 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." Am�ndment

IV, United States Constitution.

"[N]o state shall ... deprive any person oflife, liberty, or property, without due

process oflaw ..." Amendment XIV, United States Constitution.

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INTRODUCTION

Petitioner's case presents this Court with the opportunity to define the scope of

the phrase "binding appellate precedent" as used in United States v. Davis, 564 U.S.

229 (2011). Justice Sotomayor's concurrence in Davis specifically invited a similar

question. In Davis, Justice Sotomayor stated:

[W]hether exclusion would result in appreciable deterrence in the

circumstances of this case is a different question from whether exclusion

would appreciably deter Fourth Amendment violations when the

governing law is unsettled. The Court's answer to the former question in

this case does not resolve the latter one.

Id. at 2436.

The "latter" question referenced. by Justice Sotomayor was answered by the

South Carolina Supreme. Court in a contrived and unusual way. The state supreme

court held the police violated petitioner Mary Ann German's Fourth Amendment rights

when they ordered her blood drawn without her consent. State v. German, 887 S.E.2d

912, 922-23 (2023). But the court held the admission of German's blood alcohol level

was proper under Davis because of the officer's "reasonable reliance" on South

Carolina's implied consent statute and "its uncertain validity at the time." Id. at 925.

The state court reached this conclusion even though the police took German's blood over

three years after this Court's decision in Missouri v. McNeely, 569 U.S. 141 (2013) and

three weeks after Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).

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STATEMENT OF THE CASE

The Altercations:at the Bar

In the wee morning of July 10, 2016, petitioner Mary Ann German and her

husband, Roger, sped out of a bar's parking lot fleeing threats of rac1al violence and ran

headfirst into an oncoming car, causing a terrible crash in which the other driver died.1

At the hospital, a police officer ordered Mary's blood drawn over her vehement

objections. The police officer who ordered the blood draw testified at the suppression

hearing that even though seeking a warrant from a magistrate who was on call "24/7"

was possible, he did not need one when he suspected a felony DUI because he "was

trained that way" when he began his law enforcement career.

On the day leading up to the fatal crash in rural Beaufort County, the couple

set off from their home ;intent on visiting two state parks to get stamps in their

Ultimate Outsider book. : R. 409. The Germans, who had been married for twenty­

six years, were avid campers. R. 406, 412. A bad wreck on the only highway out of

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the first state park delayed their departure for the second park by over five hours. R.

413-14. The July evening had already become dark when they headed out for the

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second park, Hunting Island, near Beaufort, South Carolina. R. 414-15.. Mary drove

and the rural road was empty that night. R. 415-16.

The first place they

saw with its lights on was a small bar. R. 415-16, 461-62.

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Figuring Hunting Islan_d park would be closed, the Germans pulled into the bar's

empty parking lot to get a drink and de�ide where to stay for th� night. R. 415-17.

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The South Carolina Supreme Court's Opinion failed to include any mention of the threats against

the Germans or her defense of necessity.

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R. 461-62.

Roger thought it looked like a safe place to stop and have a beer. R. 417-

18, The bar was almost empty when the Germans arrived at approximately 10:30

�M. R. 418-19.

Not much of a beer drinker, Mary decided to get a mixed drink. R. 419. A lady

sitting at the corner of the bar offered the Germans "the opportunity to purchase an

all you can drink bracelet. for $10." R. 419. The

. Germans bought .bracelets and went

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around a corner where someone was "free pouting" liquor. R. 419-20.

Unknown to the Germans, they had unintentionally become guests at "Isa and

Muck's Grown and Sexy Bash." R. 420-21. The bar where they stopped was known

locally as "Archie's" and was a night club. R. 156. Isa Grant and Mahogany Fields

were the hostesses of the Grown and Sexy Bash and promoted the event with a flyer

that said "Security strictly enforced." R. 165-66. The trial judge sustained the state's

objection when defense counsel attempted to cross-examine the eponymous Archie

about shootings, attempt, ed murders, and other times the police had been called to

the club. R. 216-25. The court allowed defense counsel to ask Archie in front of the

jury whether people had ."a habit of bringing guns and weapons" to the bar and Archie

said, "That's right." R. 225-26.

Archie's started filling with people. R. 469. The Germans are white and the

crowd at Archie's was Black. As it became "packed," the crowd became hostile to the

Germans. R. 422-24. _Somebody called Roger "a white bitch." R. 423. Several other

people in the bar asked Roger "what the fuck was my white ass doing there." R. 423.

Someone "shouldered" Roger. R. 423. Mary dropped a beer bottle and when she lifted

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her head from picking up the broken pieces, one woman loudly said, "Who the fuck is

this white bitch." R. 471-72. Roger told Mary, "It's time to go." R. 472.

.

.

"Things went fro� bad to worse" when the Germans got tothe parking lot. R.

425. The Germans had considered spending the night in their truck when it was the

only car parked in the rural parking lot, but that was no longer possible. R, 425-26.

People followed them out of the bar. R. 426. The parking lot had as many people as

inside the bar. R. 426. The Germans' truck was blocked by cars in the now-full lot.

R. 426-28. Mary got in the truck and Roger tried to find somebody to move cars so

they could leave. R. 428.

People gathered around the truck and then surrounded Ro15er, making more

racially charged comments. R. 428-29. Roger fell to the ground dodging a punch. R.

429. As he stood up, another man pulled a gun and pointed it at Roger. R. 429. Roger

put his hands in the air.. , R. 429.

Mary saw the man pointing the gun at Roger and "was terrified." R. 473-76.

Mary quit "being careful about getting out of the parking spot," pulled up next to

Roger, and told him to get in the truck. R. 479. They "took off' screaming at people

to "move, move, move." R. 479. Mary said, "There was no way I was gonna watch my

husband get shot." R. ,:181. She testified calling 911 or a cab were impossible and

that, "There were no options. I couldn't go back in the club. I couldn't run away. I

couldn't leave my husband there to be shot. I did the only thing that I knew to do."

R. 484-86.

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The Accident and the Blood Draw

Neither Mary nor Roger could remember the accident. R. 434, 489-90. The

state's accident reconstruction expert said the Germans' truck pulled out of the

parking lot and across a four-lane highway divided by a grassy median. R. 296-310.

The truck began travelling the wrong way at 22 mph. R. 296-310. Tragically, a sedan

driven by Shermain Palmer was travelling at 62 mph and collided head-on with the

Germans' truck, killing him. R. 296-310.

An ambulance took Mary to the hospital where she encountered State Trooper

Jeff Shumaker. R. 22-23. Trooper Shumaker read Mary the wrong implied consent

rights because he "grabbed the wrong form." R. 22-23. Mary refused to cooperate

with any testing. R. 36. She refused to sign the trooper's form. R. 20. She became

upset. R. 36.

Trooper Shumaker nevertheless told Mary he was getting the blood. R. 43, 1.

20 - 44, 1. 12. He admit_ted it was "[p]ossible" that he told Mary that "like it or not,

we are getting a blood d�aw." R. 44. When Mary's blood was taken at 2:00 AM, she

was restrained to a bed in the emergency room. R. 8, 59. Testing revealed a blood

alcohol level of 0.275. R. 393-94.

Trooper. Shumaker candidly admitted the reason why he did not get a warrant:

"In a case, normally, of-if there's a felony DUI involving death, we do not need

permission." R. 41-42. The. officer "was trained that way when I came into law

enforcement." R. 42. Trooper Shumaker agreed that magistrates were on call "24/7,"

that he had contact information for a magistrate, that getting a warrant "could have

6

been possible," but nevertheless made no attempt to get a warrant for the blood draw.

R. 40-41.

How the Federal Issue was Raised Below and the State Codrt Decisions

Mary moved to suppress the results of the blood draW arguing that a

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warrantless blood draw pursuant

to South Carolina's implied cons$nt statute violated

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the Fourth Amendment, citing McNeely and Birchfield. R. 62-89. ·:At the suppression

hearing, the state expressly waived any argument that the exigent circumstances

exception to the warrant requirement applied. R. 71. The trial court ruled that

McNeely and Birchfield did not make the implied consent statute unconstitutional

and refused to suppress the BAC results. R. .57.3. The jury convicted Mary of felony

DUI, death resulting, and the trial judge sentenced her to eleven years'

imprisonment. R. 566.

The South Carolina Supreme Court held that application of the implied

consent statute violated the Fourth Amendment.

German, 887 S.E.2d at 920-23.

After analyzing McNeely, Birchfield, and Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019),

the state court reasoned that "implied consent cannot justify a categorical exception

to the warrant requirement. G�rman, 887 S.E.2d at 922.

But the court refused tci apply the exclusionary rule under the Davis good faith

exception.

Id. at 925-26. Even though it recognized that McNeely and Birchfield

were

.

.

decided before the blood draw. in this case, it said that South Carolina's implied

consent statute "had not been directly called into question" until a state court decision

three years after the blood draw. Id. The court said the state trooper "reasonably

7

relied on [the implied consent statute] and did not violate Appellant's rights

deliberately, recklessly, or with gross negligence." Id. The court then cited the

trooper's reliance on his training (when he began his law enforcenient career) that he

did not need a warrant as evidence of good faith. Id. The trooper's reliance on the

statute was reasonable because of its "uncertain validity at the time." Id. Mary's

petition for rehearing was summarily denied. App. A46.

REASONS FOR GRANTING THE WRIT

Each time this Court issues a decision that modifies existing Fourth Amendment

law or addresses a new technological development, lower courts grapple with how to

apply the Davis good faith exceJ?tion to the exclusionary rule. The _lower courts apply

Davis in different ways. Some courts apply Davis strictly and require "binding appellate

precedent" that specifically authorizes law enforcement's action. Other courts hold that

when the law is unsettled, law enforcement receives the benefit of the doubt and Davis

applies. In the context of McNeely and Birchfield, courts routinely use the date of the

offense to judge the state.of the existing law at the time.

South Carolina's a,pproach is in line with those states that give the police the

benefit of the doubt when the law is unsettled and also indicates that the police may

wait on the state appellate court to interpret this Court's decisions. South Carolina is

a distinct outlier by not using the date of Birchfield to assess the state of the law. The

court reasoned that Birchfield was "only released three weeks before the blood draw,"

effectively giving the pol�ce a grace period during which this Cour,t's decisions do not

'

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apply to South Carolinians. This Court has not addressed Davis in a meaningful way

8

since it was issued in 2011, making this question ripe for certiorari and German's case

presents the question cleanly.

The Strict Approach - Requiring Express Authorization for Police Conduct

The Seventh Circuit applied Davis strictly in a dog sniff qase in the wake of

Florida v. Jardines, 569 U.S. 1 (2013). See United States v. Whitah�r, 820 F.3d 849 (7th

Cir. 2016). This Court issued Jardines on March 26, 2013. On J�nuary 7, 2014, the

police took a drug sniffing dog into the common area of an apartmeit building to detect

drugs. Whitaher, 820 F.3d at 851. The police used the dog's indication that drugs were

present at an apartment to obtain a search warrant. Id. at 851-52. The district court

refused to suppress the drugs. Id.

Relying on Jardin.es and Kyllo v. United States, 533 U.S. 27 (2001), the Seventh

Circuit had little trouble concluding that the police's actions violated the Fourth

Amendment. Id. at 852-54. When the court turned to the Davis good faith exception,

it noted, "At the time of this search, there was no recognized expectation of privacy in

the common areas of a �ulti-unit apartment building." Id. at 854. But the court then

said, "However, no appellate decision specifically authorizes the use of a super-sensitive

instrument, a drug detecting dog, by the police outside an apartment door to investigate

the inside of the apartment without a warrant. Therefore, the officer could not

reasonably rely on binding appellate precedent, and the good-faith exception does not

apply." Id. at 854-55. The court further reasoned that the police should have known

better based on Kyllo. Id. at 855. Whitaher's strict interpretation of Davis puts the

burden on the state and the police to tie their action to a case that specifically allowed

9

the conduct.

Maine applied the good faith exception for the first time in th� wake of Birchfield.

State v. • Weddle, 224 A.3d' 1035, 1045-47 (Me. 2020). Despite the bl6od draw in Weddle

!

taking place months before Birchfield, the Maine court engaged in !i strict analysis and

identified its own "binding

• appellate precedent." Id. at 1038. The court first examined

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Illinois v. Krull, 480 U;S. 340 (1987) for the reach of the exclusionary rule when dealing

with an unconstitutionatstatute. Id. The court noted that officers;cannot be expected

to question a legislature's judgment, but also stated that an officer cannot "'be said to

have acted in good-faith reliance upon a statute if its provisions are such that a

reasonable officer should have known that the statute was unconstitutional."' Id.

quoting Krull at 355. The

Maine court reluctantly applied the good

faith exception

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because it had "blessed" the statute "as constit.utional as recently as 2007." Id.

The Loose Approach

Arizona's approach at first blush appears to give defendants the benefit of the

doubt when the law is unsettled. State v. Weakland, 434 P.3d 578 (o/iz. 2019). Arizona

looked at the status of its own jurisprudence to "determine whether the law regarding

a DUI admonition was ,'unsettled' at the time of Weakland's arrest, meaning law

enforcement officers could not rely on precedent to authorize the illegal search." Id. at

580-81. But the court backed away from a strict reading of Davis and endorsed a

forgiving analysis for the.

Id. "We see no

• ' police on whether the law was unsettled.

'

reason to limit the good-faith exception to police practices that appellate precedent

specifically authorizes when the rationale for the exception applies with equal force

10

where binding appellate precedent otherwise supports the practice." Id. "It is the

exclusionary rule, not the good-faith exception to it, that we turn to as a 'last resort."'

Id. at 584.

Ohio used a loose approach to good faith in State v. Eads, 154 N.E.3d 538 (Ohio

Ct. App. 2020), The blood draw in Eads was post-Birchfield. Eads, 154 N.E.3d at 54142. Instead of using a forced blood draw under an implied consent statute, the police

obtained the defendant's blood from the hospital months later in re�iance on a different

statute allowing the police to get drug and alcohol results from a health care provider.

Id.

The Ohio court: analyzed both Birchfield and Carpenter v. United States, 138

S.Ct. 2206 (2018) and determined that the police needed a warrant to get the

defendant's blood from the hospital. Id. at 543-49. Despite the illegal search, the court

concluded the good fai�h exception applied. Id. at 549-50. Some Ohio appellate courts

"had already held" that statutes did not authorize such warrantless searches. 1d. But

neither the Ohio Supreme Court nor the specific court of appeal in Eads had decided

the issue. Id. The court also looked to other jurisdictions and the Sixth Circuit and

found the law to be uncertain. Id.

The Lack of Grace Periods in Jurisdictions Other than South Carolina

South Carolina's approach in German gives a grace period to the police. The

court rElasoned that Birchfield was "only released three weeks before the blood draw,"

and applied the Davis good faith exception. German, 887 S.E.2d at 925. This approach

will introduce an element of subjectivity into the good-faith inquiry. Defense lawyers

11

will need to discover training methods and find out what an officer knew or should have

known about this Court's decisions.

Contrast South Carolina's

grace period •with the objective s�andard applied by

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Florida. See Campbell v_; State, 288 So.3d 739 (Fla. Dist. Ct. App. 2019). In Campbell,

the defendant was arrested and had his blood drawn the day after this Court issued

Birchfield. Id. at 741. '!)he trial judge applied the good faith exception finding that it

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was unreasonable to expE!ct an officer to know about Birchfield so soon. Id. The Florida

appellate court rejected this reasoning, stating, "Although it is understandable that a

police officer might be unaware of the holding of a controlling court opinion within a day

or two of its issuance, we conclude that the good faith exception cannot be applied where

the police officer's acts occur subsequent to a binding appellate court decision which

determines that such acts are violative of the Fourth Amendment." Id.

The Florida court's rationale uses the objective measure of the date of police

conduct versus the dat(1 of the decision from this Court.

I

Keeping the good

faith

•

exception simple and ea'1y to apply eliminates the need for any subjective inquiry into

training or what the officer

actually knew. This rationale is also in keeping with

this

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Court's jurisprudence fayoring objective tests instead of subjective approaches in the

Fourth Amendment context.

See, e.g., VVhren v. United States, 517 U.S.

806, 813

(1996)

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("Subjective intentions p}ay no role in ordinary, probable-cause Fourth Amendment

analysis.").

Nebraska applied the same objective analysis in State v. Nielsen, 917 N.W.2d

159, 162-63 (Neb. 2018).. The

court compared the date of the police action with the date

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Bi rchfield was issued. Id. Because the officer's c onduct occurr ed before Bi rchfield, the

Nebraska court conclude� that the good faith exception applied. Id. See also S tate v.

Miller, 295 S o.3d 443, 459-460 (La. Ct. App. 2020) (comparing date i;Jf conduct with date

of Birchfield and concluding good faith exception applied); Comm¢nwealth v, Updike,

172 A.3d 621, 627 (Pa.· Super. Ct. 2017) (c omparing date of conduct with date of

Birchfield and concluding good faith exception applied).

The Importance of this Questi on as the Pace of Technological Change Accel�rates

Law enforcement's use of technology will continue to make the good faith issue

important. In the last ten years, this Court decided Riley v. California, 573 U.S. 373

(2014) and Carpenter, both

., dealing with cell phones and the Fourth Amendment. F acial

recognition, license plate readers with mass storage, drones, stingrays, and other

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technologies will be empioyed by the police in creative ways. Each time the pol ice use

a new technological devic;e, the reach of Davis will come into play.

Advocates of a strict

'

approach to Davis will w::mt the police to assume they cannot use a new technology

witho ut a warrant. Adv9cates of a loose approach will argue that Davis means th at if

an appellate court has not prohibited a new technol ogy's use, the police do not need a

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warrant and relief will,. be: denied to that defendant (and subsequent defendants)

based

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on the good faith excepti9n.

The Issue is Ripe and German's Case Presents a Clean Question for .this Court's Review

This Court has n<;>t e_xamined the scope of Davis since it was issued, citing it

States v. Gonzalez, 564 U.S. 1032 (2011)

(GVR of Ninth

briefly nine times. United

•

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'

Circuit decision); Colorado v. Key, 564 U.S. 1033 (2011) (GVR of. Colorado decision);

13

Kentucky v. Velasquez,.. 564 U.S. 1032 (2011) (GVR of Kentucky decision); Heien v. North

Carolina, 574 U.S. 54 (2014) (holding reasonable mistake of law h¥ an officer can give

rise to reasonable suspicion, citing Davis with no discussion); Arizon,a State Legislature

v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015) (quoting Davis

in a non-Fourth Amendment case); Utah v. Strief/, 579 U.S. 232 (2016) (citing Davis

briefly for the proposition that "The exclusionary rule exists to deter police

misconduct."); Collins v. Virginia, 138 S.Ct. 1663 (2018) (citing Davis in Justice

Thomas's concurrence concerning application of the exclusionary rule); California v.

Texas, 141 S.Ct. 2104 (2021) (citing Davis in dissent about standing in a non-Fourth

Amendment case); Lange v. California, 141 S.Ct. 2011 (2021) (citing Davis in Justice

Thomas's concurrence concerning application of the

exclusionary rule). The good

faith

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issue arises both with_ new technologies and, as is the case here, with old technology.

The issue is ripe for this Court's attention.

German's case �resents the issue cleanly. Her arrest was after Birchfield. No

serious dispute exists that the blood draw violated her Fourth Amendment rights. The

Davis good faith exception is the only constitutional issue at play. Granting certiorari

in German's case will allow this Court to address the question Justice Sotomayor

correctly predicted would arise after Davis.

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CONCLUSION

By reason of the foregoing arguments, this Court should grant a writ of

certiorari and allow full briefing on this issue.

Attorney at L

S. C. Comm'n Indigent Defense

1330 Lady Street, Suite 401

Columbia, South Carolina 29201

dalexander@sccid.sc.gov

(803) 734-1330

ATTORNEY FOR PETITIONER

*Counsel of Record

This 26th day of September, 2023.

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