Robert Jackson CRIDER, Appellant, v. The STATE of Texas.
No. PD-0592-10.
Court of Criminal Appeals of Texas.
Nov. 16, 2011.
352 S.W.3d 704
Andrеa L. Westerfeld, Asst. District Atty., McKinney, Lisa C. McMinn, State‘s Attorney, Austin, for State.
OPINION
COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY and ALCALA, JJ., joined.
A jury convicted appellant of driving while intoxicated after the trial judge denied his motion to suppress evidence obtained from a search warrant for blood. The court of appeals held that the search-warrant affidavit established probable cause to believe that evidence of intoxication would be found in appellant‘s blood even though the officer did not specify when, on the day before he obtained the search warrant, he had stopped appellant.1 We granted appellant‘s petition to address whether a search-warrant affidavit for blood must contain the time the DWI arrestee was stopped.2 This is a “bookend” case to State v. Jordan,3 in which we recently held that the search-warrant affidavit for blood in a DWI case established probable cause even though the affidavit did not explicitly state when the officer stopped the defendant because it was obvious from the context. Under the totality-of-the-circumstances standard set out in Jordan, the affidavit in this case is not sufficient to show probable cause because there could have been a twenty-five-hour gap between the time the officer first stopped appellant and the time he obtained a search warrant for blood. We therefore reverse the court of appeals.
I.
Wylie Police Sergeant Anthony Henderson executed a search-warrant affi
On or about 6-06-2008, I Sgt. A Henderson was stationary at the three way intersection of s/b E FM 544, Vinson Rd. And County Line Rd. When I observed suspect vehicle make a left hand turn onto n/b E FM 544 and Cedar Point. Upon making contact, the driver identified themselves as CRIDER, ROBERT JACKSON II. I detected a strong odor of alcoholic beverage, bloodshot eyes and his speech was thick-tongued. During Standardized field sobriety testing, I observed 4 clues during Horizontal Gaze Nystagmus, and CRIDER, ROBERT JACKSON II refused to perform the One Leg Stand Test and the Walk and Turn test. While speaking with CRIDER, ROBERT JACKSON II outside his vehicle I observed him swaying heavily. Based on these observations, the defendant CRIDER, ROBERT JACKSON II was arrested for driving while intoxicated. Defendant CRIDER, ROBERT JACKSON II was asked to give a breath specimen, which [he] refused.
A Collin County magistrate issued a search warrant based on Sgt. Henderson‘s affidavit at 1:07 a.m. on June 7, 2008.
At the motion to suppress hearing, the defense argued, inter alia, that the affidavit failed to establish probable cause to search for alcohol in appellant‘s blood “because the alcohol does dissipate from the blood” and the officer failed to put the time he had observed appellant driving while intoxicated in the affidavit. The time of the stop was required so that the magistrate “could have determined whether or not there was fresh probable cause.... Without that information, you can‘t determine whether or not to justify having blood forcibly taken from a citizen in the United States.”
The prosecutor anticipated the defense argument “that there is a full day, June 6th of 2008, where this crime could have occurred, and being the nature of blood-or alcohol in blood either absorbing or eliminating, that because there‘s a 24-hour period, we need to know a more specific time because of the nature of the blood.” But the prosecutor argued that “it is reasonable to infer that an officer is not going to wait four hours, five hours, ten hours, 12 hours, 24 hours to get this warrant executed.” To think that an officer would wait around that long “goes completely contrary to common knowledge and common sense.” Furthermore, “[a]ny delay in time is beneficial to the defendant,” so the officer is going to seek a search warrant for blood “as quickly as possible because not to do so would not benefit his ultimate objective[.]”
The trial judge noted the dearth of case law concerning staleness in a blood search warrаnt, and stated, “To tell you the truth, I think that we need some bright line law on the time on a search warrant.” He asked the parties to submit briefs, and then denied the motion to suppress in a written order.
After hearing the evidence at trial, the jury found appellant guilty of DWI, and the trial judge sentenced him to 90 days in the county jail, probated for one year, and an $800 fine.
In his sole issue on appeal, appellant claimed that the search-warrant affidavit failed to establish “recent” probable cause. The court of appeals, relying upon the “uninterrupted sequence of events outlined in the affidavit,” rejected this claim:
Viewing the facts and circumstances within the four corners of the affidavit, specifically the factual time-line given by the officer, interpreting the affidavit “in
a common sense and realistic manner,” and drawing all reasonable inferences, we conclude the June 7, 2008, 1:07 a.m. finding of probable cause by the magistrate was of reasonable proximity to the June 6, 2008 arrest of appellant. We cannot say it was unreasonable for the magistrate to presume some evidence оf intoxication would be found in appellant‘s blood when the warrant was signed.4
II.
The Fourth Amendment requires that “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.”5 The probable-cause standard means that the affidavit must set out sufficient facts for the magistrate to conclude that the item to be seized will be on the described premises at the time the warrant issues and the search executed.6 Thus, in a seminal 1932 case, wе first held that an affidavit
is inadequate if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that event upon which the probable cause was founded was not so remote as to render it ineffective.7
Affidavits are to be read “realistically and with common sense,” and reasonable inferences may be drawn from the facts and circumstances set out within the four corners of the affidavit.8 But there must be sufficient facts within the affidavit to support a probable-cause finding that the evidence is still available and in the same location. We agree that the “proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.”9 No hard-and-fast rule sets the outer limit of time between stopping an apparently intoxicated driver and the existence of probable cause that evidence of intoxication will still be found within that person‘s blood. The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still
- the type of crime—short-term intoxication versus long-term criminal enterprise or conspiracy;
- the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman;
- the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse); and
- the place to be searched—a “mere criminal forum of convenience or secure operational base.”10
“[T]he fundamental point is that when the facts put forward to establish probable cause show only a single, nonrecurring crime occurring on a specific occasion, the question to be considered is how long after that [time or] date evidence of that single crime can be expected to remain at the scene.”11
Alcohol in a person‘s bloodstream disappears quite rapidly, thus the facts cited to support probable cause to search for alcohol in a DWI suspect‘s bloodstream become stale quite rapidly. Blood-alcohol levels are usually described in terms of blood-alcohol content (BAC). BAC refers to the concentration of alcohol in the blood, measured in grams of alcohol for every one hundred milliliters of blood volume.12 Hypothetically, a person whose blood had one gram of alcohol for every one hundred milliliters of blood would have a BAC of 1 and a blood-alcohol concentration of 1% (“weight per volume“). This is hypothetical because a person with a BAC of 1 would literally be pickled in alcohol. A person whose blood contains 0.10 grams of alcohol for every one hundred milliliters of blood will have a BAC of 0.10 (a more realistic and typical situation). Every hour, the “average” person eliminates somewhere between 0.015 and 0.020 grams of alcohol for every one-hundred milliliters of blood.13 In other words, a BAC of 0.10 will go down by 0.015 to 0.020 every hour in an average person.
Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later because it takes at least four hours for the average person to eliminate 0.08 grams of alcohol (per one hundred milliliters of blood) at а rate of 0.02 grams of alcohol (per one hundred milliliters of blood) per hour. Put
The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. For example, if the average person‘s blood-alcohol level were twice the limit of legal intoxication, with a BAC of 0.16 at the time he were stopped, his level would be approximately 0.08 four hours later, and some level оf alcohol would still be in his blood up to seven to eight hours later.14 But it would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectable level of alcohol in his blood. (This would correspond to an initial blood-alcohol content of 0.48, six times the legal limit and nearly lethal.)15
With these general principles in mind, we turn to our recent, unanimous decision in State v. Jordan16 concerning staleness in DWI search-warrant affidavits for blood and contrast it to the present case.
III.
In Jordan, the police officer presentеd his search-warrant affidavit to the magistrate on June 6, 2008. The magistrate signed the warrant at 3:54 a.m. The officer‘s affidavit stated that the defendant “committed the offense of Driving While Intoxicated on June 6, 2008, and then described the driving and intoxication that constituted elements of that offense.”17 We noted that the magistrate “needed to know when the [defendant] was stopped in order to determine the probability that evidence of an offense would be found in the [defendant‘s] blood at the time the warrant issued.”18
The officer should have included the time that he stopped or arrested the defendant.19 As Professor LaFave has stated, if “the time of the occurrence of the facts relied upon is critical in determining whether there is probable cause to search, then surely ‘failure to state when the alleged facts occurred is fatally defective.‘”20 Nonetheless, that omission was not fatal in Jordan because the officer did say that the defendant had committed the offense on June 6th, so necessarily there was less than a four-hour interval between the initial stop and the signing of the warrant at 3:54 a.m. on that same date. Thus, it was unlikely that all evidence of intоxication had dissipated from the defendant‘s blood in that four-hour period, given
Compare that four-hour window in Jordan with the twenty-five-hour window in the present case. Here, Sgt. Henderson stated in his affidavit that he saw appellant make a left-hand turn without signaling on June 6, 2008. No time is mentioned. Nothing in the affidavit indicates whether it was light or dark outside.22 No fact within the affidavit could help inform the magistrate about when on June 6th Sgt. Henderson saw this turn. Sgt. Henderson stopped appellant and noticed that appellant (1) had “a strong odor of alcoholic beverage“; (2) had “bloodshot eyes“; (3) had “thick-tongued” sрeech; (4) “sway[ed] heavily.” Based on these observations, as well as “clues” during an HGN test, Sgt. Henderson arrested appellant and asked him to give a breath test. Appellant refused.
The next day, at 1:07 a.m., a magistrate signed Sgt. Henderson‘s affidavit in support of a search warrant for blood. There was ample probable cause to believe that appellant was intoxicated at the time he was driving. But nothing in “the four corners” of the affidavit23 suggests what time gap existed between the last moment of driving and the moment the magistrate signed the warrant. The longеr the time gap between the initial stop and the eventual signing of the warrant, the less likely that evidence of intoxication would still be found in appellant‘s blood. We know that the gap was more than one hour, but it could have been as much as twenty-five hours.24
Under the totality-of-the-circumstances test and giving due regard to all reasonable inferences that can be drawn from the stated facts, the affidavit in this case, unlike the one in Jordan, does not contain sufficient facts within its four corners to establish probable cause that evidence of intoxication would be found in appellant‘s blood at the time thе search warrant was issued.
We therefore reverse the judgment of the court of appeals and remand this case to the trial court for further proceedings not inconsistent with this opinion.
WOMACK, J., filed a dissenting opinion in which KELLER, P.J., joined.
Reviewing courts give great deference to a magistrate‘s determination of probable cause.5 “[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.”6
I agree with the ultimate conclusion of the Court of Appeals that the magistrate had a substantial basis for concluding that probable cause existed. However, I do not find an “uninterrupted sequence of events” or “factual time-line” described in the affi
The State would have the magistrate infer an “uninterrupted course of events” when there is “nothing indicating any kind of break or delay before the officer sought a search warrant.” But this inference would run counter to our opinion in Schmidt v. State,7 in which a magistrate could not draw such an inference from an affidavit that failed to indicate the timing of a sequence of events. In other words, the affiant must submit facts establishing that the evidence is on the premises at the time the warrant is issued; timeliness is not presumed in the absence of facts suggesting stalеness.
I also do not agree with the State that a magistrate may infer that a police officer would not wait to submit an affidavit while evidence was likely disappearing from the place to be searched. The State seems to advocate a presumption that police officers act reasonably in requesting search warrants. While many officers may act reasonably, the basic purpose of the Fourth Amendment is to “safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”8 Indeed, searсhes by officers are deemed unreasonable unless authorized by a search warrant or certain exceptions to the warrant requirement.9 To presume that the affiant was acting reasonably rather than arbitrarily in requesting a warrant would run counter to the requirements of the Amendment.
On the other hand, the appellant‘s argument, that in order to issue the warrant in this case, the magistrate must have been able to conclude that the blood drawn would contain 0.08 grams of alcohol per 100 milliliters, is not correct. To the contrary, the magistrate neеded only to conclude that there was a fair probability that evidence of intoxication would be found. A person commits the offense of Driving While Intoxicated “if the person is intoxicated while operating a motor vehicle in a public place.”10 “Intoxicated” is defined in
I would hold that the affidavit provided the magistrate with a substantial basis for concluding that there was a fair probability that evidence of intoxication would be found in the appellant‘s blood.11 The affiant‘s observations indicated that the appellant was highly intoxicated at the time of the stop and had consumed at least alcohol. Evidence that other drugs had been ingested, particularly in combination with the alcohol, would constitute further evidence of intoxication. It is common knowledge that traces of many drugs can be detected in the blood for substantially longer than 24 hours following ingestion,12 so even if the stop had been made in the early morning hours of June 6, nearly 25 hours before the magistrate signed the warrant at 1:07 a.m. on June 7, the observed symptoms of intoxication provided the magistrate with a substantial basis for concluding that probable cause existed at the time the warrant issued.13
I would affirm the judgment of the Court of Appeals.
Notes
United States v. Brinklow, 560 F.2d 1003, 1005-06 (10th Cir.1977) (citations omitted). Id., at 528-29.Probable cause is not determined by merely counting the number of days between the time of the facts relied upon and the warrant‘s issuance. The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property‘s nature, and should be contemplated in view of the practical considerations of evеry day life. The test is one of common sense.
Id. at 324-25 (quoting Commonwealth v. Novak, 233 Pa.Super. 236, 335 A.2d 773, 774 (1975)).Generally when the courts are forced to make an assumption as to when transactions occurred “within” a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period.... The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of “within” language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that “within the last two months a dozen purchases were made“, rather than “a dozen purchases were made in thе first week of January.”
Jordan, 342 S.W.3d at 570–71. The problem in this case is the same as that in Schmidt—the affiant described a series of events of indeterminate duration—from seeing appellant turn left without signaling, to stopping his car, to requesting field sobriety tests, to conducting an HGN test, to arresting appellant, to transporting him to the police station, to asking him to give a breath sample, to drafting an affidavit for a search warrant, to finding a magistrate, to faxing the affidavit and warrant to the magistrate. There is nothing in the affidavit to show when these events began or how long each one took.The problem in Schmidt was that the affiant described a series of events of indeterminate duration—from driving while sniffing cocaine, to finding the vehicle, to calling the ambulance, to providing medical treatment. The magistrate needed to know how much time elapsed between the events and the submissiоn of the affidavit in order to determine the probability of evidence‘s being found in the vehicle when a warrant issued. But the only date given was that of the alleged possession, while the events supporting the allegation could have occurred at some remote time.