THE PEOPLE, Plaintiff and Respondent, v. BOBBY LYNN JONES, Defendant and Appellant.
No. A140054
First Dist., Div. Five.
Nov. 26, 2014.
231 Cal.App.4th 1257
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit and Laurence K. Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BRUINIERS, J.—Appellant Bobby Lynn Jones was arrested for driving a vehicle under the influence of alcohol and causing injury. Following his arrest, a sample of his blood was taken over his objection and without a warrant. His motion to suppress the results of the chemical analysis of his blood sample was denied. Jones contends that the decision of the United States Supreme Court in Missouri v. McNeely (2013) 569 U.S. ___ [185 L. Ed. 2d 696, 133 S. Ct. 1552] (McNeely),
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 21, 2012, shortly before midnight, Fairfield police were called to the scene of a rear-end, two-car collision on Air Base Parkway. The collision had forced the first vehicle off the road and down an embankment, and the driver had sustained soft-tissue injuries for which she sought medical treatment. The other car, a newer model Toyota with major front-end damage, was on the street unattended, with the airbags deployed. The driver of the Toyota had reportedly fled on foot, possibly headed westbound on the north side of Air Base Parkway.
About 12:06 a.m., Jones was observed walking westbound on the north side of Air Base Parkway about 400 yards from the scene of the collision, in an area with no sidewalks and where pedestrian traffic is prohibited by local ordinance (
When advised of the requirement that he submit to a chemical test to determine his blood-alcohol content, Jones said that he would not take a blood test. Jones was transported to the Fairfield Police Department for a breath test, but then refused to provide a breath sample. Jones was then taken to the North Bay Medical Center where a blood sample was drawn by a phlebotomist about 1:10 a.m. Subsequent analysis determined that Jones had a blood-alcohol content of 0.25 percent.
Jones was charged by amended information with driving under the influence causing bodily injury (
Jones‘s motion to suppress the evidence resulting from the blood draw was denied at his preliminary hearing. Following the preliminary hearing, Jones renewed his suppression motion, arguing that the intervening decision of the United States Supreme Court in McNeely, supra, 569 U.S. ___ [133 S. Ct. 1552], required a warrant or exigent circumstances for the blood draw. The court conducted a further evidentiary hearing (
After denial of the suppression motion, Jones entered a plea of no contest to counts 1 and 3 and admitted having served three prior prison terms under
II. DISCUSSION
“The standard of appellate review of a trial court‘s ruling on a motion to suppress is well established. We defer to the trial court‘s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729].)
A. Application of McNeely
In McNeely, the Supreme Court “granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.” (McNeely, supra, 569 U.S. at p. ___ [133 S. Ct. at p. 1558].) McNeely was arrested for driving while intoxicated following a traffic stop and an officer‘s observations of McNeely‘s bloodshot eyes, slurred
In the case before us, the People presented no evidence of any case-specific exigent circumstances in the hearings below, and the trial court made no finding of exigent circumstances. The threshold question then is whether McNeely applies retroactively to the search in this case. We hold that it does not.
Prior to McNeely, the rule applicable to nonconsensual warrantless blood draws incident to a lawful arrest for driving under the influence was articulated in Schmerber v. California (1966) 384 U.S. 757 [16 L. Ed. 2d 908, 86 S. Ct. 1826] (Schmerber). Schmerber was arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had been driving. (Id. at p. 758.) He exhibited objective symptoms of intoxication both at the scene of the accident and at the hospital. (Id. at pp. 768-769.) In finding a compelled sampling of Schmerber‘s blood to be a reasonable search and seizure, the court focused on the evanescent nature of alcohol in the body as it is metabolized and the consequent risk of “‘destruction of evidence.‘” (Id. at pp. 770-771.) The court also found that the test was performed in a reasonable manner by medical personnel. (Id. at p. 771.)
“The courts of this state have frequently summarized Schmerber as permitting warrantless compulsory seizure of blood for the purpose of a blood-alcohol test if the procedure (1) is done in a reasonable, medically approved manner, (2) is incident to a lawful arrest, and (3) is based upon reasonable belief the arrestee is intoxicated. (See, e.g., Mercer v. Department of Motor
In holding that the natural dissipation of alcohol in the bloodstream, while a factor, does not constitute an exigency in every case sufficient to justify conducting a warrantless blood test (McNeely, supra, 569 U.S. at p. ___ [133 S. Ct. at p. 1568]), the high court noted advances such as “the more expeditious processing of warrant applications” (including widespread use of telephonic search warrants since Schmerber was decided in 1966), “particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple” (id. at pp. ___ & fn. 4 [133 S. Ct. at pp. 1561-1562]; see 569 U.S. at pp. ___ [133 S. Ct. at pp. 1572-1573] (conc. & dis. opn. of Roberts, C. J.)). McNeely requires that the reasonableness of a warrantless blood draw from a suspected drunk driver now be determined on a case-by-case basis, on its own facts and circumstances. (Id. at p. ___ [133 S. Ct. at p. 1559].)
The trial court found that McNeely would have retroactive application to all cases not then final on appeal. (See Griffith v. Kentucky (1987) 479 U.S. 314, 328 [93 L. Ed. 2d 649, 107 S. Ct. 708] (Griffith) [a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “‘clear break‘” with the past].) Griffith, however, did not involve application of the judicially evolved exclusionary rule, but rather the Batson3 requirements for review, at trial, of claims of invidious discrimination in jury selection. (Griffith, at p. 316.) The exclusionary rule is “a ‘prudential’ doctrine, [citation], created by [the Supreme] Court to ‘compel respect for the constitutional [4th Amend.] guaranty.’ [Citations.] Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search.” (Davis v. United States (2011) 564 U.S. ___ [180 L. Ed. 2d 285, 131 S. Ct. 2419, 2426] (Davis).) “For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” (Id. at p. ___ [131 S. Ct. at p. 2427].) Davis recognized a “good-faith” exception to the exclusionary rule and held that where a search is conducted by police officers in objectively reasonable reliance on binding judicial precedent, the conduct of the officers is not wrongful, and that “[e]vidence obtained during a search conducted in
Prior to McNeely, all binding judicial precedent in this state, both at the Supreme Court and intermediate appellate levels, consistently interpreted Schmerber to permit warrantless blood draws incident to a valid arrest and done in a medically approved manner. (See People v. Harris (2014) 225 Cal.App.4th Supp. 1, 5 [170 Cal.Rptr.3d 729] and cases cited therein [“... California cases uniformly interpreted Schmerber to mean that no exigency beyond the natural evanescence of intoxicants in the bloodstream, present in every DUI case, was needed to establish an exception to the warrant requirement.“].) “[W]hen binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities.” (Davis, supra, 546 U.S. at p. ___ [131 S. Ct. at p. 2429].)4 McNeely affords no basis for exclusion of the evidence here, and the motion to suppress was properly denied.5
B. The Postrelease Community Supervision Search Condition
The trial court denied the motion to suppress on the basis that Jones was subject to search and seizure without consent at the time of his arrest as a condition of postrelease community supervision (PRCS).6 Both the People and Jones agree that no California appellate court has yet considered, in any published decision, whether a warrantless blood draw falls within the scope of a search-and-seizure condition of parole, probation, or PRCS. We find that it does, and agree that the PRCS terms Jones was subject to provide an independent basis for denial of the motion to suppress.
The evidence presented to the preliminary hearing magistrate and to the trial court showed that Jones acknowledged to investigating officers that he was on active “probation” at the time of his initial detention. A contemporaneous records check showed that Jones was on PRCS supervision. The
PRCS supervision was established as an element of the Criminal Justice Realignment Act of 2011 (enacted by
Although monitored by county probation officers, a defendant on PRCS is not on probation and PRCS is similar to parole. (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422-1423 [165 Cal.Rptr.3d 383] [considering postrelease “mandatory supervision” of felon sentenced to serve term in county jail under analogous provisions of
“[N]either probationers nor parolees enjoy ’ “the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.” ’ ” (People v. Reyes, supra, 19 Cal.4th at pp. 747-748 (Reyes).) Our Supreme Court has held that a search pursuant to a parole condition, even in the absence of a reasonable suspicion of criminal activity “does not ‘intrude on a reasonable expectation of privacy, that is, an expectation that society is willing to recognize as legitimate.’ ” (Id. at p. 751; see Samson v. California (2006) 547 U.S. 843, 852 [165 L. Ed. 2d 250, 126 S. Ct. 2193].) “When involuntary search conditions are properly imposed, reasonable suspicion is no longer a prerequisite to conducting a search of the subject‘s person or property. Such a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing.” (Reyes, at p. 752; see People v. Schmitz (2012) 55 Cal.4th 909, 916 [149 Cal.Rptr.3d 640, 288 P.3d 1259]; People v. Smith (2009) 172 Cal.App.4th 1354, 1360 [92 Cal.Rptr.3d 106].) Far from being arbitrary, or even absent reasonable suspicion, the search here was conducted on unquestioned probable cause to believe that Jones had been involved in an accident causing injury while intoxicated.
Jones does not contend that the blood draw here was arbitrary, capricious or harassing, and he acknowledges that “the warrantless blood draw conducted in this case does not fall within any of the limitations set forth by the California Supreme Court in Reyes and other decisions concerning searches pursuant to conditions of parole and probation.” Nevertheless, he argues that, given the nature of the bodily intrusion, a blood draw “would fall outside the parameters of what we ordinarily think the search and seizure clause to entail” and that a nonconsensual blood draw is therefore outside the scope of
While the compulsory, nonconsensual gathering of biological samples constitutes a search and seizure subject to Fourth Amendment protection, the authorities are consistent in holding that the extraction of biological samples from an adult felon is not an unreasonable search and seizure within the meaning of the Fourth Amendment. (In re Calvin S. (2007) 150 Cal.App.4th 443, 446-448 [58 Cal.Rptr.3d 559] [nonconsensual extraction of the biological samples necessary for DNA testing under
Jones argues that a buccal swab may be a minimal bodily intrusion, but that a blood draw is not, and that the Supreme Court in Maryland v. King draws this distinction. The Supreme Court did observe that “[a] buccal swab is a far more gentle process than a venipuncture to draw blood.” (Maryland v. King, supra, 569 U.S. at p. ___ [133 S. Ct. at p. 1969].) Nothing in that case, however, suggests that drawing blood in a medically approved manner to obtain evidence of a crime is an inherently unreasonable intrusion, and Schmerber and McNeely clearly hold otherwise. As the Supreme Court noted long ago in Schmerber, “[s]uch tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.” (Schmerber, supra, 384 U.S. at p. 771.) The drawing of blood is sufficiently routine that it is one of the
In Maryland v. King, the court also observed that ” ‘[T]he Fourth Amendment‘s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.’ ” (Maryland v. King, supra, 569 U.S. at p. ___ [133 S. Ct. at p. 1969], quoting Schmerber, supra, 384 U.S. at p. 768.) ” ‘As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness” ’ ” and the reasonableness of any bodily intrusions must be considered in the context of an individual‘s legitimate privacy expectations. (Maryland v. King, 569 U.S. at p. ___ [133 S. Ct. at p. 1969].) By virtue of his PRCS supervision conditions, Jones did not have an “expectation of privacy ‘society is “prepared to recognize as legitimate.” ’ ” (Reyes, supra, 19 Cal.4th at p. 754.)
The purpose of a search condition is to deter the commission of crimes and to protect the public. (Reyes, supra, 19 Cal.4th at p. 753.) That purpose was served here. Jones‘s mandatory PRCS search and seizure condition authorized the blood draw without the necessity of a warrant and offends no interest the Fourth Amendment is intended to protect.
III. DISPOSITION
The judgment is affirmed.
Jones, P. J., and Simons, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied February 25, 2015, S223036.