State v. MooreState v. Moore
Rendered on the 2nd day of April, 2021.
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant-Appellant
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On April 27, 2018, a Montgomery County grand jury returned an indictment charging Moore with two counts of aggravated vehicular homicide—one count in violation of
{¶ 3} After pleading not guilty to the charges, on May 7, 2018, Moore moved to suppress all evidence obtained from a blood sample that was taken from him pursuant to a search warrant. Moore argued that the blood-sample evidence should be suppressed because the State could not establish that his blood was drawn and tested pursuant to
{¶ 4} On June 26, 2018, Moore filed a supplemental motion to suppress arguing three specific violations under
{¶ 5} The trial court held hearings on Moore’s motion to suppress, during which it heard testimony from Officer Sherri Robinson and Sergeant Joseph McCrary of the Trotwood Police Department. The trial court also heard testimony from phlebotomist Shannon Kraus and forensic toxicologist Brian Simons of the Miami Valley Regional Crime Lab (“MVRCL”). During the hearing, the trial court admitted several exhibits, including a copy of the signed search warrant authorizing Moore’s blood draw, a certificate from the Ohio Department of Health certifying that toxicologist Simons was qualified of to perform blood-alcohol testing, and an internal chain of custody report from MVRCL. Based on the testimony and evidence presented at the June 28th hearing, the trial court made the following findings of fact.
{¶ 6} At 7:14 p.m. on November 14, 2017, Officer Sherri Robinson was dispatched
{¶ 7} While at the scene, Robinson observed medics attempting to treat the driver of the Ford, who died as a result of the accident. Robinson also observed medics attempting to extricate the driver of the Chevy, Moore, from his vehicle. After about 10 minutes, the medics successfully extricated Moore from the vehicle and placed him in an ambulance. During that time, Robinson observed that Moore was conscious, but in pain. Robinson then entered the ambulance to check on Moore’s condition. Upon doing so, Robinson detected a moderate odor of alcohol emanating from Moore. When Robinson exited the ambulance she was approached by Moore’s wife. Robinson asked Moore’s wife where Moore was traveling from, and Moore’s wife indicated that Moore was coming from a bar called Cognacs.
{¶ 8} Based on the accident, the odor of alcohol emanating from Moore, and the fact that Moore had been leaving a bar, Robinson suspected that Moore had been driving under the influence of alcohol. To investigate the matter further, Robinson followed Moore’s ambulance to Miami Valley Hospital (“MVH”) in order to seek Moore’s consent for a blood sample. Robinson arrived at MVH at 7:51 p.m.
{¶ 10} After receiving Robinson’s call, McCrary drove to the Trotwood Police Department to prepare a search warrant. Once he arrived at the police department, McCrary called his fellow officers, Sergeant DeLong and Officer Richardson, to obtain information necessary to prepare the warrant. Neither DeLong nor Richardson answered their phone, so McCrary left messages for them to return his call. While awaiting their calls, McCrary began preparing the search warrant “the old fashioned way” by typing out the warrant and affidavit. Around 10:30 p.m., DeLong returned McCrary’s call and provided him with the necessary information to complete the search warrant. DeLong also told McCrary that he could prepare the warrant using a preprinted “short form” and told him where to find it. McCrary thereafter found the short form and completed the search warrant.
{¶ 11} After completing the search warrant, McCrary attempted to find a judge to review and sign it. McCrary contacted the first judge on his list and waited for a return call. When the judge returned McCrary’s call, the judge informed McCrary that he was retired and could not help. McCrary then contacted Judge Deirdre Logan of the Dayton Municipal Court, who told McCrary to bring the warrant to her residence. McCrary
Affiant, Joseph A. McCrary, personally appeared before me and swore to facts set forth in an affidavit from which I find there is probable cause to command Joseph A. McCrary and any other law enforcement officer with the assistance of a physician, registered nurse, or qualified technician, chemist or phlebotomist; to draw a blood sample from Johnnie L. Moore as described in the above affidavit and seized or located within this court’s jurisdiction; any time day or night; as soon as possible (within 3 hours of operation of vehicle).
State’s Exhibit 2.
{¶ 12} Upon receiving the signed search warrant, McCrary left Judge Logan’s residence and drove to MVH. On the way to MVH, McCrary called Robinson and told her to inform Moore’s medical staff that there was a search warrant to obtain Moore’s blood sample. At 12:05 a.m., McCrary arrived at MVH and presented the search warrant to Robinson. Robinson then entered Moore’s hospital room and presented the warrant to phlebotomist Shannon Kraus. Kraus verified that the warrant was signed and that Moore was the person named in the warrant. Kraus then used a standard DUI kit to obtain Moore’s blood sample.
{¶ 13} When obtaining the blood sample, Kraus broke the seal of the DUI kit and inventoried the contents of the kit. Kraus then used a tourniquet to find a suitable vein on Moore’s left arm and swabbed the area with Betadine, a non-alcohol antiseptic. Kraus thereafter prepared her instruments by screwing a straight needle onto a hub.
{¶ 14} At 12:08 a.m., Kraus bubble-wrapped and placed labels over the tops of the tubes containing Moore’s blood. The labels included Robinson’s name, Moore’s name, Kraus’s name, and the date and time. After placing the tubes in the DUI kit, Kraus closed, sealed, and labeled the kit. Kraus then gave the kit to Robinson.
{¶ 15} Upon receiving the sealed DUI kit, Robinson and McCrary left Moore’s hospital room and briefly spoke with Moore’s wife. The officers then spoke with each other for approximately 15 to 20 minutes. Following their conversation, Robinson returned to her cruiser and transported the DUI kit to the Trotwood Police Department. Robinson arrived at the police department at 1:20 a.m. Robinson completed her report and lab sheet before placing the DUI kit in the department’s refrigerator. At 1:46 a.m., Robinson finished the necessary paperwork and placed the DUI kit in a locked compartment of the police department’s refrigerator.
{¶ 16} Later that day, the sealed DUI kit was delivered to MVRCL where it was assigned a bar code and placed in a secure refrigerator. Forensic toxicologist Elizabeth Kiely retrieved the kit and transferred it to MVRCL’s toxicology section. Kiely inspected the DUI kit to ensure it was properly labeled and sealed. Kiely then broke the seal, opened the kit, and inventoried its contents. Kiely thereafter placed the kit in a secure refrigerator to await analysis.
{¶ 18} On April 10, 2019, the trial court issued a judgment overruling Moore’s motion to suppress the blood-sample evidence. In so holding, the trial court found that the approximate five-hour delay in taking Moore’s blood sample did not require suppression of the blood-alcohol test results. The trial court also found that there was substantial compliance with the refrigeration requirement in
{¶ 19} With regard to the search warrant, which required Moore’s blood to be drawn “as soon as possible (within 3 hours of operation of vehicle),” the trial court relied on this court’s holding in State v. Barger, 2017-Ohio-4008, 91 N.E.3d 277 (2d Dist.), and found that Moore’s blood sample was the product of a valid search warrant that was
{¶ 20} After the trial court overruled Moore’s motion to suppress, the matter proceeded to a jury trial. Following trial, the jury found Moore guilty of both counts of aggravated vehicular homicide. At sentencing, the trial court merged the counts and imposed a mandatory term of eight years in prison. The trial court also ordered Moore to pay $4,337.04 in restitution and placed a lifetime suspension on his driver’s license.
{¶ 21} Moore now appeals from his conviction and raises a single assignment of error for review.
Assignment of Error
{¶ 22} Under his sole assignment of error, Moore argues that the trial court erred in failing to suppress the evidence obtained from his blood sample, i.e., the results of his blood-alcohol test. In support of this claim, Moore asserts that his blood sample was not taken within the time frame set out in the search warrant and in
Standard of Review
{¶ 23} “Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence.” (Citation omitted.) Id. “Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” (Citation omitted.) Id.
R.C. 4511.19(D)(1)(b)
{¶ 24} As previously noted, Moore contends that all evidence obtained from his blood sample should be suppressed because it was not taken within the time frame set out in the search warrant and in
[T]he court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant’s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. * * *
(Emphasis added.)
{¶ 25} There is no dispute that Moore’s blood was not drawn within three hours of the automobile accident at issue. The automobile accident occurred around 7:14 p.m. on November 14, 2017, and Moore’s blood was drawn at 12:08 a.m. the following morning. Therefore, Moore’s blood was drawn approximately five hours after the alleged violation.
{¶ 27} The administrative requirements in
{¶ 28} In his motion to suppress, Moore claimed that the State could not establish that Moore’s blood sample was collected and analyzed in substantial compliance with the regulations in
{¶ 29} With regard to the refrigeration requirement, Moore’s blood sample was not refrigerated until 1 hour and 38 minutes after it was drawn. The blood sample was drawn at 12:08 a.m. at MVH and then taken to the Trotwood Police Department by Officer Robinson, who placed the blood sample in the police department’s refrigerator at 1:46 a.m. In his motion, Moore took issue with Robinson’s delay in transporting his blood sample to the police station and with Robinson finishing her paperwork as opposed to immediately refrigerating his blood sample when she arrived at the police station at 1:20 a.m.
{¶ 30} In State v. Baker, 146 Ohio St.3d 456, 2016-Ohio-451, 58 N.E.3d 1114, the Supreme Court of Ohio held that “[w]hile strict compliance with the [refrigeration] regulation is preferable, we recognize inherent logistical issues that may make strict compliance unrealistic.” Id. at ¶ 21. More specifically, the court held “that failing to refrigerate a blood specimen for a period of four hours and ten minutes before placing it in transit for analysis is a de minimis error and does not render the test result inadmissible for failure to substantially comply with
{¶ 31} In Barger, 2017-Ohio-4008, 91 N.E.3d 277, this court was presented with a case where blood samples remained unrefrigerated for approximately 45 minutes while
{¶ 32} In light of the holdings in Baker, Barger, and Moore, we find that the 1 hour and 38 minute delay in refrigerating Moore’s blood sample did not prevent a finding of substantial compliance with the refrigeration requirement in
{¶ 33} With regard to the chain of custody requirement, forensic toxicologist Simons testified that MVRCL maintained an internal chain of custody for Moore’s blood sample and that it was MVRCL’s practice to retain the chain of custody for a minimum of three years. The actual chain of custody kept by MVRCL was also admitted into evidence as Defendant’s Exhibit A. Therefore, we agree with the trial court’s conclusion that substantial compliance with
{¶ 34} Because the evidence established substantial compliance with the administrative requirements of
Search Warrant
{¶ 35} We now turn to Moore’s argument that the blood draw in question constituted an unreasonable search and seizure since it was not performed within the time frame set out in the search warrant. The language of the search warrant authorized law enforcement to obtain Moore’s blood sample “as soon as possible (within 3 hours of operation of vehicle).” State’s Exhibit 2. Because the blood sample was taken approximately five hours after Moore operated his vehicle, Moore contends that the search warrant was invalid and illegally executed. We disagree.
{¶ 36} “The Fourth Amendment to the United States Constitution and the
{¶ 37} In Barger, 2017-Ohio-4008, 91 N.E.3d 277, this court addressed the exact
{¶ 38} Even though the blood sample in Barger was drawn beyond the three-hour time frame in the search warrant, we held that the blood draw was not an unreasonable search and seizure under the Fourth Amendment. Id. at ¶ 30. In so holding, we considered that there was “no evidence of any undue delay or dilatory tactics by the police in obtaining or executing the search warrant.” Id. We also held that “a reasonable reading of the search warrant is that the warrant had to be executed ‘as soon as possible’ after the operation of the vehicle had terminated.” Id. at ¶ 31. We explained that had we “read the warrant’s language to strictly require execution of the warrant within three hours of the accident, rather than ‘as soon as possible’ after the accident, complying with the terms of the warrant would have been virtually impossible at the time the municipal court judge signed it.” Id.
{¶ 39} We further held that “[t]he inclusion of ‘(within 3 hours of operation of vehicle)’ in the search warrant is likely a result of the current version of
{¶ 40} Lastly, in Barger we recognized that:
[T]here is a line of federal cases that allow for searches made “shortly” after the expiration of a warrant if (1) the probable cause on which the warrant is based still exists at the time of the tardy search and (2) there is no showing of bad faith on the part of the government in executing the warrant shortly after the warrant expires. See United States v. Richmond, 694 F.Supp. 1310, 1311 (S.D. Ohio 1988) (holding that a search made 4.5 hours after a warrant expired was neither unreasonable nor constitutionally prejudicial to the defendant, because “there is nothing in the record to indicate that the circumstances, related in the officer’s affidavit affording probable cause for the issuance of the search warrant, changed before it was executed ....”); United States v. Chambers, S.D. Miss. No. 1:07cr15, 2007 WL 2872406, *1 (Sept. 27, 2007) (citing Tenth Circuit and Eleventh Circuit decisions that allowed searches completed shortly after the expiration of a search warrant if probable cause still exists and the government did not act in bad faith).
Barger, 2017-Ohio-4008, 91 N.E.3d 277, at ¶ 33.
{¶ 41} In following Barger, we find that a reasonable reading of the search warrant herein is that the warrant had to be executed “as soon as possible” after the automobile accident in question. Based on the trial court’s findings of fact, which are supported by competent credible evidence, we find that even though Moore’s blood was drawn approximately five hours after the accident, it was nevertheless drawn as soon as possible.
{¶ 42} Like Barger, there was no evidence of bad faith, undue delay, or dilatory tactics by law enforcement in executing the search warrant. The trial court’s findings of fact establish that Officer Robinson was diligent in her initial effort to obtain Moore’s consent to provide a blood sample when she followed Moore to the hospital. However, after waiting approximately 90 minutes in the emergency room, Robinson ultimately had to request a search warrant when she learned that Moore had to be sedated due to being uncooperative. After learning this information, Robinson contacted Sergeant McCrary and requested a search warrant. McCrary then acted diligently on the request by driving to the police department and contacting other officers in order to obtain the information necessary to prepare the search warrant.
{¶ 43} After obtaining the necessary information and preparing the warrant, McCrary consulted a list of judges and called two judges before finding one who was
{¶ 44} We also note that strict compliance with the three-hour time frame in the search warrant would have made it impossible to execute the warrant since the warrant was signed by Judge Logan approximately four and a half hours after the automobile accident. Also, like in Barger, the trial court found that the administrative requirements in
{¶ 45} In light of the foregoing, we find that the search warrant in this case was validly executed and that Moore’s blood draw did not violate his Fourth Amendment protection against unreasonable searches and seizures.
{¶ 46} Moore’s sole assignment of error is overruled.
Conclusion
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Jeffrey T. Gramza
Hon. Steven K. Dankof