Case Information

*1 ACCEPTED 04-13-00891-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/7/2015 4:17:33 PM KEITH HOTTLE CLERK No. 04-13-00891-CR

In the

Fourth Court of Appeals District of Texas San Antonio, Texas

D ONALD F. H ,

Appellant

S TATE OF T EXAS

Appellee

On appeal from the 226th Judicial District Court Bexar County, Texas

Trial Cause No. 2011-CR-2990 STATE’S MOTION FOR REHEARING N ICHOLAS “N ICO ” L A OOD

Criminal District Attorney

N ATHAN E. M OREY Assistant Criminal District Attorney State Bar No. 24074756 RIMINAL D ISTRICT TTORNEY ’ S O FFICE

Bexar County, Texas 101 West Nueva Street, Suite 370 San Antonio, Texas 78205

Voice: (210) 335-2414

Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attorneys for the State of Texas T ABLE OF C ONTENTS

T ABLE OF C ONTENTS ................................................................................................. ii I NDEX OF A UTHORITIES ............................................................................................. iii S TATEMENT OF THE C ASE ........................................................................................... 1 G ROUNDS FOR R EHEARING ......................................................................................... 2 RGUMENT ................................................................................................................. 3

Ground One: The Court’s opinion contravenes a basic tenet of the

Fourth Amendment by relying on the officer’s subjective intent. ........................................................................................... 3 Applicable Law: The Fourth Amendment and an Officer’s Subjective Intent ........................................................................................................... 3 Application of the Law to the Present Record ................................................. 4 Ground Two: The Court’s opinion implies an incorrect legal standard

for exigent circumstances. .......................................................... 6 Applicable Law: McNeely ............................................................................... 6 Application of the Law to the Present Record ................................................. 7 Conclusion ..................................................................................................... 8 P RAYER ....................................................................................................................... 9 C ERTIFICATE OF S ERVICE ..........................................................................................10 ERTIFICATE OF C OMPLIANCE ..................................................................................10

ii I NDEX OF UTHORITIES

Statutes:

T EX . C ODE C RIM . P ROC . art. 18.02 ........................................................................ 8 T EX . P ENAL ODE § 19.02(b) ................................................................................ 1 Cases:

Aliff v. State ,

627 S.W.2d 166 (Tex. Crim. App. [Panel Op.] 1982) .................................7, 9 Ashcroft v. al-Kidd ,

131 S. Ct. 2074 (2011) ..................................................................................... 3 Brinegar v. United States ,

338 U.S. 160 (1949)......................................................................................... 4 Cole v. State ,

454 S.W.3d 89 (Tex. App.—Texarkana 2014),

pet. granted , No. PD-0077-15,

No. 2015 Tex. Crim. App. LEXIS 508 (Tex. Crim. App. Apr. 22, 2015) ...... 6 Devenpeck v. Alford ,

543 U.S. 146 (2004).....................................................................................3, 5 Heien v. North Carolina ,

135 S. Ct. 530 (2014) ...................................................................................4, 5 Hill v. California ,

401 U.S. 797 (1971).....................................................................................4, 5 Huff v. State ,

No. 04-13-00891-CR, ___ S.W.3d ___

(Tex. App.—San Antonio 2015, no pet. h.) ................................................1, 6 Kentucky v. King ,

131 S. Ct. 1849 (2011) ..................................................................................... 4 Mincey v. Arizona

437 U.S. 385 (1978)......................................................................................... 4 iii

Missouri v. McNeely ,

133 S. Ct. 1552 (2013) ........................................................................ 6, 7, 8, 9 Ryburn v. Huff ,

132 S. Ct. 987 (2012) ....................................................................................... 7 Schmerber v. Califorina ,

384 U.S. 757 (1966).....................................................................................6, 9 Scott v. United States ,

436 U.S. 128 (1978)......................................................................................... 3 United States v. Sharpe ,

470 U.S. 675 (1985).....................................................................................7, 8 Whren v. United States

517 U.S. 806 (1996).....................................................................................3, 5 Rules:

T EX . R. A PP . P. 9.4(i)(2)(B) ...............................................................................10 T EX . R. A PP . P. 9.4(i)(3) .....................................................................................10 T EX . R. A PP . P. 9.5(b).........................................................................................10 T EX . R. PP . P. 49.1. ............................................................................................. 1

iv TO THE HONORABLE FOURTH COURT OF APPEALS:

NOW COMES the State of Texas, by and through Nicholas “Nico” LaHood, criminal district attorney of Bexar County, Texas, and the undersigned assistant criminal district attorney, with the filing of the following Motion for Rehearing.

S TATEMENT OF THE C ASE

Donald F. Huff, hereinafter referred to as Appellant, was charged by indictment with murder (C.R. at 19). See T EX . P ENAL ODE § 19.02(b). This Court reversed the trial courts judgment on the basis that evidence was admitted during trial that was seized in violation of the Fourth Amendment. Huff v. State No. 04-13-00891-CR, ___ S.W.3d ___ (Tex. App.—San Antonio 2015, no pet. h.).

The State now asks this Court to reconsider its previous judgment and opinion.

See T EX . R. PP . P. 49.1.

G ROUNDS FOR R EHEARING

Ground One: The Court’s opinion contravenes a basic tenet of the Fourth

Amendment by relying on the officer’s subjective intent. Ground Two: The Court’s opinion implies an incorrect legal standard for exigent

circumstances. RGUMENT Ground One: The Court’s opinion contravenes a basic tenet of the Fourth

Amendment by relying on the officer’s subjective intent. In deciding whether the instant blood draw was supported by exigent circumstances, this Court relied almost entirely on the officer’s subjective intent.

This Court also relied on the trial court’s conclusion, which appears to have also erroneously relied on the officer’s subjective intent. Huff , at *29–30. Because the Supreme Court has repeatedly stated that an officer’s subjective intent does not control a Fourth Amendment analysis, this Court should reconsider its original opinion.

Applicable Law: The Fourth Amendment and an Officer’s Subjective Intent

It is axiomatic that the subjective intent of the officer is irrelevant to the lawfulness of a search or seizure. Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2080 (2011); Devenpeck v. Alford , 543 U.S. 146, 154–55 (2004); Bond v. United States , 529 U.S. 334, 339 n.2 (2000); Whren v. United States , 517 U.S. 806, 813 (1996).

A court must decide whether “the circumstances, viewed objectively, justify the challenged action.” Ashcroft , 131 S. Ct. at 2080 (quoting Scott v. United States 436 U.S. 128, 138 (1978) (alterations omitted)). Consistent with this principle, the Supreme Court has stated that police may conduct a warrantless search “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 , 131 S. Ct. 1849, 1856 (2011) (quoting Mincey v. Arizona , 437 U.S. 385, 394 (1978) (emphasis added, internal quotes and alterations omitted)).

Along this same line is the equally axiomatic rule that an officer does not have to be right so long as he is reasonable . See Hill v. California , 401 U.S. 797, 804 (1971) (officer’s factual mistake was reasonable and did not invalidate search and seizure). “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’” Heien v. North Carolina , 135 S. Ct. 530, 536 (2014) (quoting Brinegar v. United States , 338 U.S.

160, 176 (1949)).

Application of the Law to the Present Record

The question in the present case should not tunr on Officer Peeler’s opinion. Rather, the question should be whether an objective assessment of the facts support a finding of exigent circumstances. Contrary to the trial court’s ruling and this Court’s opinion, the record supports such a finding.

Peeler initially had to block off traffic when he arrived at the scene of a major accident (V R.R. at 10). Then his supervisor asked him to handle the DWI portion of the accident investigation (V R.R. at 10). Once Peeler asked Appellant to perform standardized field sobriety tests, he requested EMS treatment (V R.R. at 12). Peeler was unable to request a blood specimen from Appellant until 10:53 PM (V R.R. at 15). In addition, there was no expedited process to obtain a blood- warrant in 2009 (V R.R. at 14, 15). The blood was ultimately drawn by a nurse at the hospital at 11:36 PM (V R.R. at 15). This Court should have analyzed these facts from an objective perspective. Instead, this Court and the trial court rested its ruling and opinion on the officer’s conclusory response to Appellant’s leading question: “Where there any exigent circumstances that prevented you from getting a warrant?” “No, sir.” (V R.R. at 19). But the officer testified to more.

The Fourth Amendment does not require Peeler to subjectively believe that exigent circumstances were present, see Devenpeck , 543 U.S. at 154–55; Whren 517 U.S. at 813, nor does it require him to be factually correct as to the sufficiency of exigent circumstances, see Heien , 135 S. Ct. at 536; Hill , 401 U.S. at 804. This Court’s exigency analysis contains no reference to any objective facts and relies solely on Peeler’s subjective belief (supported by a single response to a leading question). See Huff , at *29–32. The State respectfully asks this Court to reissue its opinion with an exigency analysis based on objective facts and consistent with the above cited precedent.

Ground Two: The Court’s opinion implies an incorrect legal standard for exigent

circumstances. This Court and the trial court concluded that there were no exigent circumstances because “the officer never thought of obtaining a warrant because it was not standard procedure.” Huff , at *31. This conclusion is inconsistent with McNeely’s holding.

Applicable Law: McNeely

In Missouri v. McNeely , 133 S. Ct. 1552 (2013), the Supreme Court reaffirmed its previous holding in Schmerber v. Califorina , 384 U.S. 757 (1966).

In that case the Court concluded that a warrantless blood draw was administered under exigent circumstances after a suspect was transported to a hospital following a car crash. McNeely , 133 S. Ct. at 1559–60 (citing Schmerber ). The McNeely Court referred to the crash circumstances in Schmerber as “special facts” and distinguished Schmerber’s car crash scenario from McNeely’s run-of-the-mill DWI arrest. McNeely , 133 S. Ct. at 1559–61. The question, according to McNeely , is not whether the officer can obtain a warrant. The question is whether police can obtain a warrant “without significantly undermining the efficacy of the search.” Id. at 1561. ^[1] The McNeely plurality warned reviewing courts not to view an officer’s action with “the 20/20 vision of hindsight” when answering this question.

Id . at 1564 (plurality op.) (quoting Ryburn v. Huff , 132 S. Ct. 987, 992 (2012)). It is always important that courts review an officer’s conduct for objective reasonableness and not whether he took the most reasonable course of action amongst a set of reasonable alternatives. United States v. Sharpe , 470 U.S. 675, 686–87 (1985).

The Court of Criminal Appeals has previously concluded that exigent circumstances existed in a case similar to both Schmerber and the present case.

See Aliff v. State , 627 S.W.2d 166, 168–70 (Tex. Crim. App. [Panel Op.] 1982) (blood draw of manslaughter suspect in hospital who was not under arrest did not violate Fourth Amendment).

Application of the Law to the Present Record

In the present case, Officer Peeler followed Appellant to the hospital, but was not able to speak with him and ask him for a consensual blood test until 10:53 PM—nearly three hours after the initial crash (V R.R. at 12–15). The blood was ultimately drawn pursuant to the mandatory law at 11:36 PM (V R.R. at 15). Had Peeler sought a warrant at that point, without the current “no refusal procedures” in Appeals conduct an incorrect exigent circumstances analysis when it required proof of a ‘now or never’ level of urgency?” See Court of Criminal Appeals’ Issues Page at http://www.txcourts.gov/media/914405/issues04292015.pdf. The Court is also reviewing other McNeely issues involving car crashes in the cases of Douds v. State , No. PD-0857-14, and Weems v. State , No. PD-0635-14.

place, he would have compromised “the efficacy of the search,” i.e., the probative value of the blood. McNeely , 133 S. Ct. at 1561. Accordingly, Peeler’s actions were consistent with McNeely and Schmerber .

Of course, this Court could second guess Peeler and conclude that he should have applied for a warrant based on his initial observations at the scene— specifically, the odor on Appellant’s breath, the clues observed during the HGN test, and the fact that Appellant lost control of his motorcycle. However, a magistrate need not ever issue a warrant. He may issue a warrant if he is convinced that the officer has probable cause. See T EX . ODE C RIM . P ROC . art.

18.02. And a magistrate would be acting well within the law to decline to issue the warrant if the officer had not first requested a voluntary breath specimen or obtained a refusal. This Court should not fault Peeler for first attempting to obtain Appellant’s consent or refusal because a refusal to voluntarily submit a blood or breath specimen has probative value in a DWI investigation. McNeely , 133 S. Ct.

at 1564 (plurality op.); Sharpe , 470 U.S. at 686–87. By the time Appellant refused, too much time had already passed and Peeler was reasonable to proceed without a warrant.

Conclusion

This Court’s exigency analysis turns on Officer’s Peeler’s subjective intent and ignores the objective facts and whether, based on those facts, obtaining a

H search warrant would have significantly undermined the “efficacy of the search.” McNeely , 133 S. Ct. at 1561. Regardless of whether the mandatory blood draw provision of the Transportation Code is by itself is a reasonable alternative to a search warrant (a question still pending), Officer Peeler’s conduct was reasonable in light of general Fourth Amendment principles and precedent from both the Supreme Court and the Court of Criminal Appeals. See Schmerber , 384 U.S. at 766–71; Aliff , 627 S.W.2d at 168–70.

P RAYER

WHEREFORE, PREMISES CONSIDERED, Appellee State prays this reconsider its judgment and opinion of April 8, 2015, and issue a new judgment and opinion affirming the trial court’s judgment of conviction and sentence.

Respectfully submitted, N ICHOLAS “N ICO ” L OOD Criminal District Attorney Bexar County, Texas /s/ Nathan E. Morey N ATHAN E. M OREY Assistant Criminal District Attorney State Bar No. 24074756 101 West Nueva, Suite 370 San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attorneys for Appellant State of Texas C ERTIFICATE OF S ERVICE

I, Nathan E. Morey, hereby certify that, pursuant to Texas Rule of Appellate Procedure 9.5(b), a true and correct copy of the above and foregoing brief was emailed to Dayna Jones on Thursday, May 7, 2015. ERTIFICATE OF C OMPLIANCE

I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate Procedure 9.4(i)(2)(B) and 9.4(i)(3), the above and foregoing Motion for Rehearing contains 2,324 words according to the “word count” feature of Microsoft Office.

/s/ Nathan E. Morey N ATHAN E. M OREY Assistant Criminal District Attorney State Bar No. 24074756 101 West Nueva, Suite 370 San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attorney for Appellant State cc: D AYNA L. J ONES

Attorney at Law

State Bar No. 24049450

206 East Locust Street

San Antonio, Texas 78212

Voice: (210) 255-8525

Fax: (210) 249-0116

Email: daynaj33@gmail.com

Attorney for Appellant

Notes

[1] The Court of Criminal Appeals recently granted the State’s petition for discretionary review of the Texarkana Court of Appeals decision in Cole v. State , 454 S.W.3d 89 (Tex. App.— Texarkana 2014), pet. granted , No. PD-0077-15, No. 2015 Tex. Crim. App. LEXIS 508 (Tex. Crim. App. Apr. 22, 2015). The first ground presented in the Cole PDR is: “Did the Court of