Jesse Thomas SUTHERLAND, Appellant v. The STATE of Texas, Appellee.
No. 07-12-00289-CR
Court of Appeals of Texas, Amarillo.
April 7, 2014
Rehearing Overruled June 3, 2014.
Because we have decided that the trial court did not err in granting summary judgment on the ground that Thibodeau‘s suit was an improper collateral attack on the justice court‘s default judgment, we need not decide the remainder of Thibodeau‘s objections to the substance of the Dodd affidavit.
CONCLUSION
Thibodeau‘s sole issue is overruled, and the trial court‘s judgment is affirmed.
Angie Creasy, Assistant District Attorney, Austin, for State of Texas.
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
MACKEY K. HANCOCK, Justice.
Appellant, Jesse Thomas Sutherland, appeals his conviction for felony driving
Factual and Procedural History
Traffic Stop and Arrest
Late on the night of February 2, 2011, Austin Police Department Officer Shane Housmans initiated a traffic stop of a vehicle traveling southbound on South Congress Street after that vehicle changed lanes without using a turn signal and then changed back to its original lane, again without signaling intent to do so. After the vehicle had pulled over, Housmans approached the driver, appellant, and, after speaking with appellant for “a bit,” Housmans asked him to step out of the vehicle. Housmans administered field sobriety tests on appellant, arrested appellant based on his performance of the field sobriety tests and on the resulting suspicion that he was driving while intoxicated, and asked that appellant provide a specimen of his breath. Appellant refused. Dispatch provided Housmans with Texas Department of Public Safety records based on appellant‘s license number indicating that he had two or more previous convictions for driving while intoxicated. Housmans transported appellant to the Travis County jail where, ultimately, a blood sample was taken without appellant‘s consent and without a warrant.
Housmans testified that, as justification for the warrantless blood draw, he relied solely on the provision in the Texas Transportation Code that requires him to obtain a sample of a suspect‘s blood whenever he learns that the individual has been convicted two or more times of driving while intoxicated. The provision to which Housmans referred provides, in pertinent part, as follows:
(b) A peace officer shall require the taking of a specimen of the person‘s breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer‘s request to submit to the taking of a specimen voluntarily:
. . .
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
. . .
(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar
to the elements of an offense under those sections.
The Warrant Process in Travis County
Erik Carey, a nighttime magistrate for the City of Austin Municipal Court, testified that a magistrate is available twenty-four hours a day at the central booking facility for Travis County, which is located in the basement of the Travis County jail. Carey estimated that it would take between five and seven minutes for him to review an affidavit presented to him in support of a search warrant seeking a blood sample in a DWI case. Conveniently, a phlebotomist is located approximately 100 feet down the hall from the magistrate‘s office. Though Carey was uncertain when Travis County instituted around-the-clock phlebotomist service, we confirm later in the record that such service was indeed available the night appellant was arrested. We learn, too, that Carey was the magistrate on duty the night appellant was arrested. Carey added that his general policy is that, even if he is busy with other matters, he permits an officer to interrupt the proceedings to present an affidavit in support of a warrant application in a DWI case because of the urgency and time-sensitive nature of a blood draw in such a case. Of course, we do not know if that is the policy of all the magistrates, but we know that it is Carey‘s policy and that he was the nighttime magistrate on duty the night appellant was arrested.
The arresting officer, Housmans, conceded that there was no collision, no medical emergency, and no need to take appellant or any other person to the hospital for medical treatment the night in question. Housmans explained that appellant refused both breath and blood test requests. He also testified that it is approximately 2.6 miles from the location at which appellant was stopped and ultimately arrested to the Travis County jail. Housmans added that it would take approximately nine minutes to drive the 2.6 miles as a general rule, varying with traffic volume and other driving conditions. Housmans conceded, too, that he did not seek out a magistrate the night appellant was arrested; it was Housmans‘s understanding of
As to the relevant time frames involved here, Housmans stopped appellant‘s vehicle at 11:30 p.m. on the night of February 2, 2011. Housmans took appellant into custody at 11:54 p.m. Appellant was noted as arriving in Travis County central booking at 12:22 a.m. on February 3, and his blood was drawn at 12:48 a.m. So, from the time that Housmans stopped appellant to the time that appellant‘s blood was drawn, one hour and eighteen minutes had passed.
Glen Kreger, a sergeant with the Austin Police Department, testified about the warrant process in DWI cases, as well. He testified that, whenever the APD DWI Units are on duty, phlebotomists are available at central booking. Phlebotomists are also on call on the days during which the DWI Units are not on duty. Kreger, too, explained that he understood
Issue Raised on Appeal
Appellant reserved his right to appeal the trial court‘s denial of his motion to suppress evidence and brings to this Court the following issue:
In the absence of exigent circumstances or consent[,] does
Section 724.012(b)(3)(B) of the Texas Transportation Code violate the Texas and United States constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee‘s blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times.
To address this issue, we outline the standard of review, general principles of the Fourth Amendment, cases applying those principles to similar situations, and recent developments in this area of the law.
Standard of Review
We review a trial court‘s denial of a motion to suppress under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App.2013). We review the trial court‘s factual findings for an abuse of discretion but review the trial court‘s application of the law to the facts de novo. Id. In reviewing the trial court‘s decision, we do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight
Applicable Law
General Fourth Amendment Principles
The Fourth Amendment provides, in relevant part, that “[t]he right of the 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.”
One well-established exception to the Fourth Amendment‘s warrant requirement is the “exigent circumstances” exception and “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U.S. ----, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (internal quotations omitted). A variety of scenarios may give rise to circumstances sufficiently exigent to justify a warrantless search, the one most relevant to the instant case being the prevention of the imminent destruction of evidence. See McNeely, 133 S.Ct. at 1558-59 (citing Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), and Ker v. California, 374 U.S. 23, 40-41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion)).
To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, we look to the totality of circumstances. See id. at 1559. We apply this “finely tuned approach” to Fourth Amendment reasonableness in this context because the police action at issue lacks “the traditional justification that a warrant . . . provides.” See id. (quoting Atwater v. City of Lago Vista, 532 U.S. 318, 347 n. 16, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)). In the absence of a warrant, “the fact-specific nature of the reasonableness inquiry” demands that we evaluate each case of al-
Schmerber v. California
The United States Supreme Court first considered the Fourth Amendment restriction on nonconsensual blood draws in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Schmerber, as driver, suffered injuries in a vehicle collision and was taken to the hospital for treatment. See Schmerber, 384 U.S. at 758. While he was at the hospital, he was arrested for driving while intoxicated, and a sample of his blood was taken without his consent while he was unconscious. See id. at 758-59.
The Schmerber Court upheld the warrantless blood draw because, on the facts of that case, the arresting officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” See id. at 770 (internal quotations omitted). The Court emphasized that, indeed, “[t]he importance of informed, detached[,] and deliberate determinations” by a ““neutral and detached magistrate‘” before allowing a law enforcement officer to “invade another‘s body in search of evidence of guilt is indisputable and great.” Id. Nonetheless, on the “special facts” presented in Schmerber, the Court observed that the record supported the conclusion that exigent circumstances justified the warrantless blood draw. Id. at 770-71.
In arriving at that conclusion, the Schmerber Court recognized the natural dissipation of alcohol shortly after a person stops drinking. Id. at 770. It added that “[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” Id. at 770-71. In light of those “special facts,” the United States Supreme Court deemed it appropriate for the officer to have acted without a warrant. Id. at 771. Finally, the Schmerber Court went on to expressly limit its conclusion to “the facts of the present record.” Id. at 772.
Aviles v. State
The San Antonio Court was confronted with a factual situation very similar to that presented to this Court in the instant case. See Aviles v. State, 385 S.W.3d 110 (Tex. App.-San Antonio 2012, pet. ref‘d), vacated, --- U.S. ----, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014). In that case, Aviles had been stopped and arrested for DWI. Id. at 112. The officer had learned that Aviles had two prior DWI convictions, then read the DWI statutory warnings, and requested a sample from Aviles of his breath or blood. Id. Aviles refused. Id. The officer, acting without a warrant and relying on
Aviles argued that the trial court erred by admitting over his motion to suppress the results of testing done on his blood specimen because the specimen was taken without consent and without a warrant. See id. at 112. In rejecting his contention, the San Antonio Court relied on the implied-consent provision of the Texas Transportation Code and the following excerpt from the Texas Court of Criminal Appeals:
The implied consent law expands on the State‘s search capabilities by providing a
framework for drawing DWI suspects’ blood in the absence of a search warrant. It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.
Id. at 115 (quoting Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App.2002) (en banc)); see
McNeely v. Missouri
As Aviles was being considered and decided, a case out of Missouri was making its way to the United States Supreme Court. See State v. McNeely, 358 S.W.3d 65 (Mo.2012) (en banc) (per curiam), aff‘d, --- U.S. ----, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Faced with facts similar to those before us and the State‘s position that the natural dissipation of alcohol from the bloodstream was per se exigent circumstances, the Missouri Supreme Court held as follows:
The patrolman here, however, was not faced with the “special facts” of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.
McNeely, 358 S.W.3d at 67.2 The United States Supreme Court granted certiorari to consider the constitutional viability of the per se exigency urged by the State of Missouri. Missouri v. McNeely, --- U.S. ----, 133 S.Ct. 98, 183 L.Ed.2d 737 (2012).
In McNeely, the high court did reiterate its recognition that exigent circumstances may, in some instances, justify a warrantless blood draw. See McNeely, 133 S.Ct. at 1556 (citing the general holding of Schmerber, 384 U.S. at 770-71). The State of Missouri sought a per se rule that, in cases in which a person is suspected of driving while intoxicated, exigent circumstances will necessarily exist
The factual background at issue in McNeely is not unlike the facts presented in the instant case. McNeely was stopped after an officer observed him exceeding the posted speed limit and repeatedly crossing the centerline. Id. at 1556. The officer noted several signs of intoxication when he approached McNeely: slurred speech, blood-shot eyes, and the odor of alcohol. Id. McNeely acknowledged having had “a couple of beers.” Id. McNeely performed poorly on the field sobriety tests and declined the officer‘s invitation to take a breath test at the scene. Id. at 1556-57. When en route to the police station, McNeely voiced his intent to refuse to take a breath test there as well. See id. at 1557. In light of that development, the officer took McNeely to a nearby hospital where McNeely also refused to take a blood test; at the officer‘s direction, a sample of McNeely‘s blood was taken nonetheless. See id.
Though not directly confronted with the issue whether exigent circumstances were otherwise presented by that case, the Court did lend some insight into the factors that might be considered when analyzing the totality of the circumstances for the presence of exigent circumstances. McNeely first looked back to Schmerber for the types of “special facts” to consider when determining whether exigent circumstances were at hand. See id. at 1559-60. That is, we should consider whether additional delay related to accident investigation and medical treatment made the time required to secure a warrant more burdensome and more likely to result in the destruction of evidence. See id. at 1560 (citing Schmerber, 384 U.S. at 770-71).
McNeely also noted that a per se rule as urged by the State of Missouri failed to account for advances in the processing of warrant applications that have made the process more expeditious and “other ways to streamline the warrant process.” See id. at 1561-62. From this observation, we take that technological or logistical advances that are designed to streamline the process through which a warrant may be obtained are other factors to consider when examining the totality of the circumstances to determine whether those circumstances were exigent such that the warrant requirement may be dispensed with in a given situation. See id.
Again, McNeely, like Schmerber, does recognize the reality that the body metabolizes alcohol and thereby rids it from the blood. See id. at 1560. But that reality alone is not enough to always justify a warrantless blood draw. See id. at 1561. “We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.” Id. However, “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn with-
It remains clear from McNeely that the dissipation of alcohol alone will not necessarily be exigent circumstances, that some other “special facts” must lend themselves to the exigency of the situation. See id. “In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically.” Id. at 1563. “Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id.
Recent Developments Involving McNeely and Aviles
A few intermediate appellate courts in Texas had relied on the implied-consent principles in Aviles to distinguish the exigent-circumstances principles of McNeely from those cases at bar examining mandatory blood draws under
Indeed, since the Aviles remand, a sister court has since taken a similar position. See Villarreal, --- S.W.3d at ----, 2014 WL 1257150, at *4-5, *10-11, 2014 Tex.App. LEXIS 645, at *12-13, *33. In Villarreal, on facts very similar to the instant case, the State conceded that there were no exigent circumstances, no consent, and no warrant. Id. at ----, 2014 WL 1257150 at *1, *9, 2014 Tex.App. LEXIS 645 at *2, *28. The State relied solely on the appellant‘s refusal and the criteria for the mandatory blood draw having been satisfied. See id. at ----, 2014 WL 1257150 at *1-2, 2014 Tex.App. LEXIS 645 at *5 (citing
As we have noted, the court observed that
Even more recently, the Houston First Court seems to have taken a contrary position in this context, a position more in keeping with that espoused in Aviles: that the implied consent of the Texas Transportation Code‘s statutory scheme provided the necessary exception to the Fourth Amendment‘s warrant requirement. See Perez v. State, No. 01-12-01001-CR, --- S.W.3d ----, ----, 2014 WL 943126, at *6-7, 2014 Tex.App. LEXIS 2681, at *16-20 (Tex.App.-Houston [1st Dist.] Mar. 11, 2014, no pet. h.). In Perez, the court seems to have returned somewhat to the reasoning of Aviles with respect to
In consideration of the United States Supreme Court‘s remand of Aviles for consideration in light of its opinion in McNeely,
Analysis
Per McNeely, we look to the facts of the instant case to evaluate the exigency of the circumstances to determine whether the warrantless blood draw was reasonable in this case.
Metabolization of alcohol in the bloodstream and the resulting loss of evidence are among the factors that we consider when determining whether a warrant was required. See McNeely, 133 S.Ct. at 1568. We, of course, have such a case here that the metabolization of alcohol was a consideration. That will, of course, frequently be true in a DWI case. Apart from the natural dissipation of alcohol by metabolic processes, however, this case, as the Missouri Supreme Court characterized the case in McNeely, was “unquestionably a routine DWI case.” See McNeely, 358 S.W.3d at 74. The arresting officer, Housmans, did not describe any factors that would suggest he was confronted with an emergency or any unusual delay in securing a warrant. He testified that he made no effort to obtain a warrant because he believed that the law required that he obtain a blood sample under the circumstances presented to him.
The record is clear that appellant was not transported to the hospital for medical care and, therefore, no extra delay in that process could be said to lend to the exigency beyond the regular dissipation of alcohol. The scene of the traffic stop was not very far from the booking facility, and transportation time was not a factor that could be said to lend to the exigency of the situation.
Procedures and obstacles in place for obtaining a warrant or the (un)availability of a magistrate may affect whether the police can obtain a warrant in an expeditious manner and may, therefore, lend themselves to an exigency that justifies a warrantless blood draw. See McNeely, 133 S.Ct. at 1568. But it would seem that such obstacles were not at all present in the instant case. To the contrary, it would appear that the procedures in place at the Travis County central booking facility have been implemented to streamline the warrant application process. See id. A magistrate is available twenty-four hours a day, every day. The magistrate who was
On the record before us, the arresting officer was not faced with exigent circumstances such that the natural dissipation of alcohol from appellant‘s bloodstream would support a warrantless seizure of a specimen of appellant‘s blood. We sustain appellant‘s point of error and conclude that the trial court erred by denying appellant‘s motion to suppress. To the extent that
In re Jeffrey M. STERN, individually and d/b/a Stern, Miller & Higdon, Relator.
No. 14-13-00905-CV
Court of Appeals of Texas, Houston (14th Dist.).
April 17, 2014
Rehearing En Banc Overruled July 2, 2014.
Conclusion
Having sustained appellant‘s sole point of error, we reverse the trial court‘s order denying appellant‘s motion to suppress evidence and remand the cause to the trial court for further proceeding consistent with this opinion.