THE PEOPLE, Plaintiff and Respondent, v. GIOVANNI ROMMEL ROSSETTI, Defendant and Appellant.
No. A139041
First Dist., Div. Four.
Oct. 22, 2014.
230 Cal.App.4th 1070
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RUVOLO, P. J.—
I.
INTRODUCTION
Appellant Giovanni Rommel Rossetti appeals after entering a plea of no contest to driving with 0.08 percent or higher blood-alcohol content. He also admitted he had three prior convictions for driving under the influence (DUI). (
II.
FACTS AND PROCEDURAL HISTORY
The statement of facts is taken from the evidence introduced at the hearing on appellant‘s suppression motion which, as appellant concedes, “is essentially undisputed.” About 1:50 а.m. on November 9, 2011, California Highway Patrol Officer Jason Tyhurst was driving north on Highway 242 in Contra Costa County when he saw a car traveling at an estimated 90 miles per hour in a 65-mile-per-hour zone. The car was weaving out of its lane and crossing into other lanes. After pacing the car for about one-quarter mile to determine its speed, Officer Tyhurst activated his emergency lights.
After the vehiсle was stopped, Officer Tyhurst approached the driver, who was later identified as appellant. The officer observed that appellant‘s eyes were bloodshot and watery, and his speech was thick and slurred. The officer could smell alcohol emanating from the passenger compartment. Officer Tyhurst explained the reason for the stop, requested identification, and asked appellant whether he had been drinking that evening. When appellant was unable to produce identification, Officer Tyhurst directed him to get out of the car.
Officer Tyhurst conducted a series of field sobriety tests. Appellant‘s performance on these tests was consistent with alcohol impairment. Officer Tyhurst concluded that appellant had been driving while intoxicated and placed him under arrest.
After Officer Tyhurst drove appellant to the California Highway Patrol area office, he advised appellant that state law required a person arrested for DUI to submit to a chemical test, either blood or breath. Appellant refused to take either test. Appellant was then restrained by Officer Tyhurst and three other officers, and his blood was drawn without his consent at 2:38 a.m. by Jonathan Young, a lab technician both state and nationally certified in phlebotomy. Young executed a declaration under penalty of perjury that he drew the blood in a medically approved manner. Officer Tyhurst did not obtain a warrant for the blood draw, even though there was a judge on call, based on his understanding “[w]e‘re not required to.” The results of the blood-alcohol test showed appellant had a 0.19 percent blood-alcohol level, well above the 0.08 percent legal limit.
Appellant moved to suppress the blood sample taken from him, as well as the observations of and statements stemming from the forcible blood draw
III.
DISCUSSION
A. Suppression of Blood Test Results
Appellant claims the court erred in denying his motion to suppress because “there was no constitutional justification for the warrantless, forcible draw of blood in this case, when the officer was aware that a magistrate was available to issue a warrant if he applied for one.”
“‘In reviewing a suppression ruling, “we defer to the superior court‘s express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found.“’ [Citation.] [¶] Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court.” (People v. Tully (2012) 54 Cal.4th 952, 979 [145 Cal.Rptr.3d 146, 282 P.3d 173].) We review issues relating to the suppression of evidence derived from police searches and seizures under federal constitutional standards. (People v. Bradford (1997) 15 Cal.4th 1229, 1291 [65 Cal.Rptr.2d 145, 939 P.2d 259].)
At the time of appellant‘s arrest on November 9, 2011, long-standing California law permitted blood testing without a warrant, and without the consent of the person tested, so long as “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. [Citations.]” (People v. Ford (1992) 4 Cal.App.4th 32, 35-36 [5 Cal.Rptr.2d 189].) California courts, including our Supreme Court, regularly approved warrantless blood draws where these factors were satisfied. (People v. Superior Court (1972) 6 Cal.3d 757, 761-765 [100 Cal.Rptr. 281, 493 P.2d 1145]; People v. Harris (2014) 225 Cal.App.4th Supp. 1 [170 Cal.Rptr.3d 729] (Harris) [citing numerous Cal. cases for the proposition that a warrant was not required in order for police to conduct a blood draw of a suspect arrested for drunk driving].)
However, in 2013, over a year after appellant‘s arrest, the United States Supreme Court clarified Schmerber—and dramatically changed the legal landscape in California and many other states—by holding that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that suffices on its own to justify a warrantless blood draw in every DUI case. In Missouri v. McNeely (2013) 569 U.S. ___ [185 L.Ed.2d 696, 133 S.Ct. 1552, 1563] (McNeely), the court indicated, “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, ... it does not do so categorically.” (Italics added.) Instead, “the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among thе factors that must be considered in deciding whether a warrant is required.” (569 U.S. at p. ___ [133 S.Ct. at p. 1568].) The McNeely decision concluded that every case involving a warrantless blood draw must be examined on its own facts in light of the totality of the circumstances to determine whether exigent circumstances existed that would justify an exception to the warrant requirement. (569 U.S. at p. ___ [133 S.Ct. at p. 1556].) The prosecution must prove there was “‘compelling need for official action and no time to secure a warrant‘” in order to justify a warrantless blood draw. (569 U.S. at p. ___ [133 S.Ct. at p. 1559], quoting Michigan v. Tyler (1978) 436 U.S. 499, 509 [56 L.Ed.2d 486, 98 S.Ct. 1942].)
It has been recognized that ”McNeely thus repudiated the long-standing California interpretation of Schmerber.” (Harris, supra, 225 Cal.App.4th at
However, the United States Supreme Court also has recognized an exception for Fourth Amendment search and seizures cases, and will not apply the exclusionary rule as a remedy where the police conducted a search in good faith reliance on binding legal precedent in the jurisdiction where the search occurred. (See Davis v. United States (2011) 564 U.S. ___ [180 L.Ed.2d 285, 131 S.Ct. 2419, 2434] (Davis).) Davis addressed searches conducted prior to Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2d 485, 129 S.Ct. 1710], a case holding that police could not automatically search the passenger compartment of a vehicle whenever an occupant was arrested. (Davis, supra, 564 U.S. at pp. ___ [131 S.Ct. at pp. 2424-2425].) Recognizing that its prior holding in New York v. Belton (1981) 453 U.S. 454 [69 L.Ed.2d 768, 101 S.Ct. 2860] had been widely understood as permitting such searches, the court concluded that the exclusionary rule was not an appropriate remedy for pre-Gant searches. (Davis, supra, 564 U.S. at pp. ___ [131 S.Ct. at pp. 2428-2429].) The court reasoned that, where the police act in reliance on established legal precedent, suppressing evidence wоuld not serve the purpose of the exclusionary rule, which is to deter lawless police conduct. (564 U.S. at p. ___ [131 S.Ct. at p. 2426].) The court stated that “[e]xcluding evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding aрpellate precedent, the exclusionary rule does not apply.” (564 U.S. at p. ___ [131 S.Ct. at p. 2434].)
Based on the foregoing, the police conduct in this case falls within the parameters of the “good faith” exception to the exclusionary rule. Appellant does not identify any pre-McNeely California decision suggesting that, in the circumstances before us, the warrantless nonconsensual blоod draw was legally impermissible. As the trial court found, Officer Tyhurst acted in accordance with existing legal precedent and with a reasonable, good faith belief that his actions were consistent with the law because “the
In so concluding we reject appellant‘s claim that People v. Thompson (2006) 38 Cal.4th 811 [43 Cal.Rptr.3d 750, 135 P.3d 3], which was the law in California at the time of appellant‘s arrest, mandates the conclusion that the police officers’ actions in this case “were inconsistent with [existing] California law....” In Thompson, our Suprеme Court upheld a warrantless entry into a residence to arrest the defendant for DUI because his “blood-alcohol level would have diminished while the police sought a warrant....” (Id. at p. 825.) However, the Thompson court emphasized that it was not holding in every case “that the police may enter a home without a warrant to effect an arrest of a DUI suspect....” (Id. at p. 827.) It reaffirmed it was considering the totality of the circumstances to determine whether the police conduct was reasonable. (Ibid.) Appellant relies on Thompson to argue that binding precedent at the time of his arrest required a “totality of the circumstances” approach in assessing the “justification for the warrantless, forcible draw of blood” in this case.
We disagree, and find Thompson to be readily distinguishable. Thompson involved circumstances where officers entered the defendant‘s home without a warrant to arrest him. “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed ....” (United States v. United States District Court (1972) 407 U.S. 297, 313 [32 L.Ed.2d 752, 92 S.Ct. 2125].) “‘[A] private home [is] where privacy expectations are most heightened,’ [citation].” (Kyllo v. United States (2001) 533 U.S. 27, 33 [150 L.Ed.2d 94, 121 S.Ct. 2038].) Consequently, Thompson did not involve what standard applies to government intrusions taking place outside the home, and does not call into question the unbroken line of pre-McNeely authority in California authorizing the officers’ actions in this case.
B. Excessive Force
Appellant also claims his constitutional rights were violated because the officers used excessive force in obtaining the blood sample. He argues that
With or without a warrant, the police may not use unreasonable force to perform a search or seizure of a person. (See Graham v. Connor (1989) 490 U.S. 386, 397 [104 L.Ed.2d 443, 109 S.Ct. 1865].) In Carleton v. Superior Court (1985) 170 Cal.App.3d 1182 [216 Cal.Rptr. 890] (Carleton), the court stated: “Law enforcement must act reasonably and use only that degree of force which is necessary to overcome a defendant‘s resistance in taking a blood sample. Even where necessary to obtain a blood sample police may not act in a manner which will ‘shock the conscience.’ A defendant‘s arbitrary refusal to submit to a blood test will not excuse unlawful police conduct.” (Id. at pp. 1187-1188, fn. omitted.)
The evidence adduced at the suppression hearing reveals that at 2:38 a.m., Officer Tyhurst and three other officers restrained appellant, whom Officer Tyhurst could not subdue alone because appellant was “kicking around and not doing what [he was] told to do.” Appellant, who was handcuffed, was forced down on the floor while lab technician Jonathan Young, state and nationally certified in phlebotomy, drew two vials of blood and gave them to Officer Tyhurst. The entire process was videotaped, and took “probably less than 10 minutes, might have even been less than five minutes.”
Defense counsel asked the court to review the videotape of the forced blood draw, claiming “[t]his is excessive force.” After reviewing the videotape, the court found the police did not use more force than necessary to overcome appellant‘s resistance. The court indicated, “And I think the video reveals that officer safety was аn issue in this case.”4
The reasonableness of the officers’ conduct in this case is demonstrated by comparing it to the forcible blood draw judicially approved in Carleton, supra, 170 Cal.App.3d 1182. In that case, police also had to obtain blood from a suspect who was resisting. (Id. at p. 1190.) The Carleton court noted that the use of six officers to restrain Carleton was necessary because he was a threat tо the officers’ own security. (Ibid.) Consequently, in order to draw blood, he
By contrast, suppression was ordered in People v. Kraft (1970) 3 Cal.App.3d 890 [84 Cal.Rptr. 280], where the defendant refused to submit to a blood test and resisted being taken into the hospital. (Id. at p. 895.) Without provocation, one of the officers struck the defendant on the cheek with a closed fist. (Id. at p. 896.) Later, as officers tried to carry or lead the defendant to a bed in an examination room, the defendant fell or was pushed to the floor. (Ibid.) On the floor, police immobilized him while a physician withdrew blood. (Ibid.) One officer testified that he held the defendant‘s arm while also holding a scissor lock on the defendant‘s legs. (Id. at p. 898.) An officer acknowledged that the defendant‘s behavior had not been aggressive but was “defensive.” (Id. at p. 899.) The court concluded that the officers’ “strong arm” tactics were “aggressive beyond all need,” and exceeded the limits of permissible force. (Ibid.)
The present case bears more resemblance to Carleton, supra, 170 Cal.App.3d 1182, than it does to Kraft, supra, 3 Cal.App.3d 890. Appellant was described as “kicking around,” so some amount of force was necessary to overcome his resistance and to obtain the blood sample safely. However, unlike in Kraft, the police did not gratuitously strike appellant or otherwise engage in unnecessary physical abuse. The officers used no more force than necessary to hold appellant still so the officers would not be endangered while his blood was being drawn. The blood sample was taken by а phlebotomist in a medically reasonable manner. As the Supreme Court stated in Schmerber, supra, 384 U.S. at page 760, footnote 4, “[i]t would be a different case if the police initiated the violence, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force. [Citation.]”
Under these circumstances, there is substantial evidence supporting the superior court‘s conclusion that the force used was reasonable. (See Carleton, supra, 170 Cal.App.3d at p. 1188 [appellate court “must determine whether there is substantial evidence to support the court‘s findings the police acted lawfully“].)
DISPOSITION
The order denying appellant‘s motion to suppress is affirmed.
Reardon, J., and Rivera, J., concurred.
A petition for a rehearing was denied November 9, 2014, and aрpellant‘s petition for review by the Supreme Court was denied January 14, 2015, S222800.