Recognizing The Limits Of A Scientific Methodology

In a civil rights suit alleging that defendant deputy sheriff violated the plaintiff's Fourth Amendment right to be free of unreasonable entry, search, seizure, and excessive force when the defendant performed a “family welfare check” on plaintiff (Sandra's) residence, admitting testimony regarding the results of a PBT the defendant conducted at the time, despite its otherwise insufficient reliability, in Der v. Connolly, _ F.3d _ (8th Cir. Jan. 25, 2012) (Nos. 11-1162, 11-1048)

The Supreme Court's insistence in Daubert on the screening of expert evidence for reliability has left many federal courts with a resource-intensive need to vet methodological applications. In a recent case, the Eighth Circuit noted the distinct care with which the soundness of a methodology should be judged. In this way, even a methodology that was inherently unsound can be deemed sufficiently relevant to issues in a case as to be admitted.

In the case, Sheriff Deputy Connolly (the defendant) was sent to conduct a "welfare check on a five-year-old ... and an intoxicated mother") at the plaintiff (Sandra's) residence. While conducting the welfare check, the deputy concluded he could not leave the child safely with the mother, whom he judged was intoxicated and in an "irrational state." The result of a struggle between the plaintiff and the defendant ended in federal civil rights suit against the officer, alleging that his actions violated the plaintiff's Fourth Amendment rights. The plaintiff alleged that the defendant violated her rights by "unreasonably entering [the plaintiff's] home, using excessive force against [the plaintiff] ... as he was entering the home, conducting an unreasonable search of the [plaintiff's] home after he entered it, unreasonably seizing [the plaintiff] when he placed her in handcuffs, and using excessive force against [the plaintiff] in connection with handcuffing her. Der, __ F.3d at __.

After a four-day trial, the jury found in favor of Deputy Connolly," the defendant. The plaintiff appealed this verdict -- attributing it in part to the trial judge's erroneous admission of testimony by the defendant about the results he obtained in administering a "Portable Breath Test" (PBT) on the plaintiff at the time of the incident. The plaintiff argued, and the Eighth Circuit agreed, that the PBT "lacks sufficient reliability to be admitted as substantive evidence." But the Eighth Circuit found no error in admitting the PBT in this case. Der, __ F.3d at __.

In particular the circuit cited a previous case that had found a limited scope for the use of PBT methodology. In this earlier case, United States v. Iron Cloud, 171 F.3d 587, 591 (8th Cir. 1999) the circuit considered a prosecution in which officers used a PBT at the scene of an accident. The results of this test were admitted at trial and the defendant sought a Daubert hearing to assess the reliability and relevance of the PBT methodology. The trial judge denied the hearing and summarily concluded that PBT was admissible as it was "recognized by the scientific community." Iron Cloud 171 F.3d at 590.

The Eighth Circuit reversed in Iron Cloud, concluding that a Daubert hearing was necessary. The circuit indicated that the PBT is not recognized as generally reliable.

[A]lmost every state that has addressed the issue has refused to admit the results of the test for purposes other than probable cause. Although the admissibility of evidence is governed by federal standards, in the face of this overwhelming case law as to the limited reliability of the PBT, we conclude, without further foundation being laid, that the PBT is not reliable as anything more than a screening test to be used for probable cause.
Iron Cloud 171 F.3d at 590. In support of this finding, the circuit cited a long list of cases from the state courts limiting the use of the methodology.

This recognition of the limits of the PBT methodology, however, did not mean the methodology was not relevant to the issues in the defendant's case, even without a Daubert assessment being performed. Unlike Iron Cloud, defendant Connolly's case was a civil action in which the actual condition of the plaintiff was not necessarily relevant. Rather, the focus of excessive force civil rights claims often devolved on the reasonableness of the actions taken by the officers at the time of the incident. Here, the district court did not admit the PBT result as substantive evidence of Sandra's intoxication. Instead, the circuit expressly limited its permissible use by the jury to deciding an issue raised by the defendant -- that he was not liable because he believed the plaintiff was drunk. The PBT test might not necessarily resolve the issue of the plaintiff's intoxication, but it would be relevant to a key question in the defendant's civil case: did the officer act reasonably (and therefore with probable cause) after he administered the test, ”for example, in handcuffing [plaintiff] Sandra.... Thus, we hold that the district court did not abuse its discretion in admitting the PBT result for the limited purpose of determining the reasonableness of Deputy Connolly's actions after he administered the test.") (footnotes omitted))Der v. Connolly, _ F.3d _

Not only did the trial properly "...not admit the PBT result as substantive evidence of Sandra's intoxication," that court gave limiting instructions to the jury "to ensure that the jury used the PBT result for this limited purpose." That properly limited purpose was to determine the reasonableness of the defendant's actions at the time:

During final instructions, the district court again cautioned the jury that it could only consider the PBT result "in deciding whether Connolly's actions after he administered the PBT were objectively reasonable." The district court stressed that the jury could "not use the PBT result for any other reason," such as "whether Connolly's actions before he administered the test . . . were reasonable" or "whether Sandra Der was in fact intoxicated."
Der v. Connolly, _ F.3d _ (citing United States v. Iron Cloud, 171 F.3d 587, 590 (8th Cir. 1999) ("As we have discussed, the PBT should not be used for anything other than probable cause determinations."); Sherbrooke v. City of Pelican Rapids, 577 F.3d 984, 987-88 (8th Cir. 2009) (in civil rights 4th Amendment suit, holding that there was probable cause to arrest the plaintiff for driving under the influence when, inter alia, the plaintiff "registered .11 on the PBT"))


Federal Rules of Evidence