ACCEPTED
03-14-00541-CR
4859995
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/13/2015 11:23:23 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00541-CR
FILED IN
3rd COURT OF APPEALS
In the AUSTIN, TEXAS
Court of Appeals 4/13/2015 11:23:23 AM
Third District JEFFREY D. KYLE
Austin, Texas Clerk
Robert Rene Torres,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 299th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-12-302414
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is not requested
Table of Contents
Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Standard of Review.............................................................................. 2
Argument............................................................................................. 3
Reply Point One: The warrantless blood draw did not violate the
Fourth Amendment. ......................................................................... 4
Reply Point Two: Assuming, arguendo, that the blood draw violated
the Fourth Amendment, the exclusionary rules do not bar
admission of the evidence................................................................ 11
Prayer .................................................................................................18
Certificate of Compliance and Service................................................19
i
Index of Authorities
Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) ................. 12, 16
Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448
(1957)................................................................................................ 8
Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 180 L. Ed. 285
(2011)...............................................................................................16
Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530, 190 L. Ed. 2d
475 (2014)........................................................................................10
Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)
.........................................................................................................15
Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002)...................... 9
Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013)
.......................................................................................................... 5
Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552, 185 L. Ed. 2d 696
(2013) ..........................................................................................8, 14
Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ..................... 4
Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)...............6, 7
People v. Youn, 2014 Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15,
2014)................................................................................................ 17
Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d.
250 (2006)........................................................................................ 5
Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) .................. 5
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ............... 2
South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748
(1983) ............................................................................................... 8
State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (App. Div. Dec. 20,
2013)................................................................................................14
State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)................13
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ................ 7
State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) ..16
State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet.
ref’d) ................................................................................................12
State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d) 7
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
1898 (Tex. Crim. App. Nov. 26, 2014)...................................3, 4, 5, 9
United States v. Brooks, No. PWG-14-0053, 2014 U.S. Dist. LEXIS
ii
67417 (D. Md. May 16, 2014) (mem. op.) ........................................ 17
Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013)..........13
Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)
.......................................................................................................... 8
Statutes
Tex. Code Crim. Proc. art. 38.23 ........................................................ 11
Tex. Transp. Code § 724.012........................................................... 4, 17
Tex. Transp. Code § 724.017................................................................ 8
iii
No. 03-14-00541-CR
In the
Court of Appeals
Third District
Austin, Texas
Robert Rene Torres,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 299th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-12-302414
STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to
that of the appellant.
Summary of the State’s Argument
Reply Point One: The warrantless blood draw did not violate
the Fourth Amendment. The blood draw was mandated by Tex.
Transp. Code § 724.011(b), and this statute is constitutionally
reasonable under the Fourth Amendment. Alternatively, there was no
1
violation of the Fourth Amendment because the officer made a
reasonable mistake of law in believing that there was a valid statutory
mandate for the blood draw.
Reply Point Two: Assuming, arguendo, that the blood draw
violated the Fourth Amendment,
1) the Texas exclusionary rule does not apply because the police
did not violate the law as it existed at the time of the search, and
2) the federal exclusionary rule does not apply because the police
were acting in good faith.
Standard of Review
The appellate court reviews a ruling on a motion to suppress
evidence for an abuse of discretion. The appellate court views the
facts in the light most favorable to the trial court's decision. The
appellate court reviews de novo the trial court's application of the law
of search and seizure to those facts. Shepherd v. State, 273 S.W.3d
681, 684 (Tex. Crim. App. 2008).
2
Argument
As a starting point, the State acknowledges that the Texas Court of
Criminal Appeals recently held that a warrantless blood draw,
conducted pursuant to the mandatory blood draw statute, violated the
Fourth Amendment because it did not fall under any recognized
exception to the warrant requirement. State v. Villarreal, No. PD-
0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26,
2014).
The court’s decision in Villarreal directly contradicts the first
argument made by the State in Reply Point One, but the State
continues to make this argument because Villarreal is not final. In
fact, the Court of Criminal Appeals granted the State’s motion for
rehearing in Villarreal on February 25, 2015. See id., 2015 Tex. Crim.
App. LEXIS 201. The court may issue a different decision upon
rehearing, especially since the court was split 5-4 and three of the
judges who joined the majority opinion have recently left the court.
But even if this court holds that the blood draw violated the
Fourth Amendment, the State maintains that the exclusionary rules
do not bar admission of the evidence, as argued in Reply Point Two.
3
Reply Point One: The warrantless blood draw did not
violate the Fourth Amendment.
1) The blood draw was mandated by statute, and the statute
is reasonable under the Fourth Amendment.
The blood draw was mandated by statute.
As a starting point, the State argues that the warrantless blood
draw in this case was mandated by statute: Tex. Transp. Code §
724.012(b)(3)(B) states that police “shall” take a specimen of breath
or blood when they have reliable information that a suspect has two
prior DWI convictions, as in this case.
The statute does not specifically state that blood draws should be
undertaken “without a warrant.” But if a warrant is required, the
wording of the statute stating that the officer "shall" get a specimen
would place an officer in violation of the law if the magistrate refuses
to sign the officer's warrant. See Villarreal, 2014 Tex. Crim. App.
LEXIS 1898, at *83 (Meyers, J., dissenting). Because this is an absurd
result, the mandatory blood draw statute cannot be interpreted to
require warrants. Muniz v. State, 851 S.W.2d 238, 244 (Tex. Crim.
App. 1993) (stating that courts should prefer an interpretation of a
statute that does not yield absurd results).
4
Courts conduct a traditional balancing test to evaluate
the constitutionality of statutorily-mandated searches.
When evaluating the constitutionality of statutorily-mandated
searches, courts routinely apply a traditional Fourth Amendment
balancing test, which weighs the statute’s promotion of legitimate
government interests against the intrusion on individual privacy. See
Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013);
Segundo v. State, 270 S.W.3d 79, 96-99 (Tex. Crim. App. 2008);
Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d.
250 (2006). This balancing test approach is consistent with the plain
language of the Fourth Amendment, which does not actually require a
warrant or warrant exception, but rather, prohibits unreasonable
searches.
The State acknowledges, however, that the Court of Criminal
Appeals declined to conduct a balancing test in Villarreal, holding
instead that the mandatory blood draw must fall under a recognized
warrant exception. Villarreal, 2014 Tex. App. LEXIS 1898, at *59-75.
5
A traditional balancing test weighs in favor of the
constitutionality of Section 724.012(b)(3)(B).
As a starting point, the State has a significant legitimate interest in
the primary purpose of Section 724.012(b), which is to save lives and
decrease the number of casualties caused by drunken drivers. Neesley
v. State, 239 S.W.3d 780, 785 (Tex. Crim. App. 2007). Mandatory
draws identify intoxicated drivers, so that the State can remove them
from the roads through administrative license revocations.
Mandatory draws also promote safety through their deterrent effect.
The State also has a legitimate interest in preserving evidence,
both for administrative licensing hearings and criminal prosecutions.
Timely blood alcohol evidence is indisputably the most probative
evidence of intoxication, far more so than subjective observations,
field sobriety tests, or retrograde extrapolation. The Texas Legislature
acted reasonably in passing a law that requires police to secure this
evidence, in serious cases, before it dissipates.
Reasonableness is also shown in that the statute does not leave
blood draws to the discretion of the officer on the scene. Instead, the
circumstances requiring blood draws are clearly set out in the statute,
which was enacted by the Legislature, which is itself a neutral and
6
detached body. Clear guidelines also further the State’s legitimate
interest in readily applicable rules for officers in the field, which are
not subject to second-guessing months and years down the road.
The law is narrowly tailored in scope. The statute only allows one
useable blood draw, and it only applies to people who are arrested,
based on probable cause, for driving while intoxicated on public
roads. Neesley, 239 S.W.3d at 786; State v. Mosely, 348 S.W.3d 435,
444 (Tex. App.—Austin 2011, pet. ref’d).
The law also takes the gravity of the crime into consideration by
mandating draws only in serious cases, such as felonies or cases with
injuries.
Additionally, the search specified by the statute (a blood draw) is
reasonable because blood testing is a highly effective means of
determining the degree to which a person is under the influence of
alcohol. State v. Johnston, 336 S.W.3d 649, 659-60 (Tex. Crim. App.
2011).
Also, blood tests are commonplace and involve virtually no risk,
trauma, or pain, and the Supreme Court has stated time and again
that a blood draw is a minimally intrusive search that does not
7
constitute an unduly extensive imposition on an individual's privacy
and bodily integrity. See Schmerber, 384 U.S. at 771; Skinner 489
U.S. at 625; Winston v. Lee, 470 U.S. 753, 761-62, 105 S. Ct. 1611, 84
L. Ed. 2d 662 (1985); South Dakota v. Neville, 459 U.S. 553, 563, 103
s. Ct. 916, 74 L. Ed. 2d 748 (1983); Breithaupt v. Abram, 352 U.S.
432, 436-37, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957); but see Missouri v.
McNeely, __ U.S. __, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013).
The Transportation Code also limits who can draw blood and
where it can be drawn. Tex. Transp. Code § 724.017; Johnston, at 661
(noting that Section 724.017 is reasonable under the Fourth
Amendment).
Additionally, the law mandates testing only on people who are
already under arrest. Arrestees have significantly diminished
expectations of privacy. And arrestees are not free to leave, so the
testing’s interference with their freedom to move does not infringe on
significant privacy interests. Drivers also have a reduced expectation
of privacy and are subject to extensive regulations.
Finally, the defendant bears the burden of establishing that
statutes are unconstitutional, courts presume that statutes are
8
constitutional and resolve all reasonable doubts in favor of their
constitutionality, and the mere fact that opinions regarding
constitutionality may differ is not a sufficient basis to strike down a
statute. Luquis v. State, 72 S.W.3d 355, 363, 365-66 (Tex. Crim. App.
2002). The presumption of constitutionality afforded legislation
should not to be disposed of lightly. Laws passed by elected
representatives represent the will of the people. Of course, courts
must safeguard against violations of the Constitution, but in
determining what is “reasonable” under the Fourth Amendment, the
fact that the Legislature has passed laws mandating these searches
speaks volumes as to what the people of Texas believe is reasonable.
In sum, the search mandated by Section 724.012(b)(3)(B) is
constitutionally reasonable.
The State acknowledges, however, that the Court of Criminal
Appeals stated in Villarreal that a DWI suspect's privacy interest
outweighs the State's interest in preventing drunk driving through
warrantless searches. Villarreal, 2014 Tex. App. LEXIS 1898, at *67-
69.
9
2) Alternatively, there was no violation of the Fourth
Amendment because the officer made a reasonable
mistake of law.
Recently, the Supreme Court held that an officer does not violate
the Fourth Amendment if he stops the defendant based on a
reasonable mistake of law. Heien v. North Carolina, __ U.S. __, 135
S. Ct. 530, 540, 190 L. Ed. 2d 475 (2014).
The Court reiterated that the touchstone of the Fourth
Amendment is reasonableness. Id. at 536. To be reasonable is not to
be perfect. Id. Thus, the Fourth Amendment allows for searches and
seizures based on reasonable mistakes. Id. In accordance with the
reasoning in Heien, the officer in this case did not violate the Fourth
Amendment if he drew the defendant’s blood based on a reasonable
mistake of law.
The officer clearly believed that there was a valid statutory
mandate for a blood draw. 2RR 34-35. If the officer was mistaken, his
mistake was reasonable. For years, Texas’s police officers,
prosecutors, defense attorneys, and judges have assumed that
warrantless blood draws taken pursuant to the mandatory blood draw
statute were constitutional. Challenges began only after the Supreme
10
Court’s ruling in McNeely, which came down in 2013, after the 2012
blood draw in this case.
In sum, because the officer’s mistake of law, if any, was
reasonable, the search was lawful under the Fourth Amendment.
Reply Point Two: Assuming, arguendo, that the blood
draw violated the Fourth Amendment, the exclusionary
rules do not bar admission of the evidence.
1) The Texas exclusionary rule does not apply because the
police did not violate the law as it existed at the time of
the search.
The Texas exclusionary rule is codified in Tex. Code Crim. Proc.
art. 38.23, which states:
(a) No evidence obtained by an officer or other person
in violation of any provisions of the Constitution or
laws of the State of Texas, or of the Constitution or
laws of the United States of America, shall be admitted
in evidence against the accused on the trial of any
criminal case.
In any case where the legal evidence raises an issue
hereunder, the jury shall be instructed that if it
believes, or has a reasonable doubt, that the evidence
was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard
any such evidence so obtained.
(b) It is an exception to the provisions of Subsection (a)
of this Article that the evidence was obtained by a law
enforcement officer acting in objective good faith
11
reliance upon a warrant issued by a neutral magistrate
based on probable cause.
The evidence is not barred by article 38.23 because the police
officer did not obtain the evidence in violation of the Constitution
because, at the time the evidence was obtained, Texas case law clearly
held that alcohol dissipation alone constituted exigent circumstances,
which justified a warrantless blood draw in DWI cases. See Aliff v.
State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982); and State v.
Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d)
(stating, “It is a well-settled fact that alcohol in the blood dissipates
quickly constitutes exigent circumstances”). Thus, at the time of the
blood draw in this case, the search clearly fell under the exigent
circumstances exception, which means the police did not obtain the
evidence in violation of the Fourth Amendment, which means the
Texas exclusionary rule does not apply.
To be clear, the State is not arguing for a good faith exception to
article 38.23. Rather, the State is arguing that article 38.23 does not
apply because the officer did not obtain the evidence in violation of
the law.
12
The State’s argument may appear to be a backdoor good faith
argument, but the argument is in line with other statutory
construction cases that have held that Article 38.23 does not apply
when the evidence was not actually obtained in violation of the law.
See State v. Johnson, 871 S.W.2d. 744, 750-51 (Tex. Crim. App. 1994)
(no exclusion when there is attenuation of taint); Wehrenberg v.
State, 416 S.W.3d 458, 467-70 (Tex. Crim. App. 2013) (no exclusion
when there is an independent source).
In other words, the defendant cannot backdate a change in law to
exclude evidence. To do so would twist the plain language of the
statute because the evidence was not actually “obtained” in violation
of the law. Rather, it was obtained in compliance with the law, which
later changed.
Some courts have held that there was no change in the law and
that McNeely merely clarified existing constitutional law. That may
be true in other states, but it is not true in Texas. In Texas, case law
had clearly established a per se exigency in DWI cases. See Aliff, 627
S.W.2d at 170; Laird, 38 S.W.3d at 713. McNeely specifically granted
certiorari to resolve the split of authority among states on the
13
question of whether the natural dissipation it the bloodstream
establishes a per se exigency. See McNeely, 133 S. Ct. at 1558.
McNeely decided that there is no per se exigency. Thus, McNeely
clearly overturned (i.e., changed) the law in several states, including
Texas. Cf. State v. Adkins, 433 N.J. Super. 479, 484-93, 81 A.3d 680
(App. Div. Dec. 20, 2013) (stating that McNeely dramatically changed
the legal landscape when the Supreme Court issued a new search and
seizure rule that was more restrictive than state court precedent, and
holding that the State was not seeking to admit the fruits of unlawful
police conduct because the police fully complied with the law in effect
at the time they acted).
Finally, the State realizes that the holding in McNeely is
retroactive and applies to all cases pending on direct appeal, such as
the defendant’s case. But this does not mean that the exclusionary
rules apply as well. Indeed, the Supreme Court has held that the
federal exclusionary rule often does not apply even though a new
holding is retroactive, as explained further below.
It is now up to Texas courts to decide whether the Texas
exclusionary rule applies when the law changes after evidence is
14
obtained. This will turn on how the courts interpret the language in
the Texas exclusionary rule, codified in Tex. Code Crim. Proc. art.
38.23.
Again, the State’s argument is that the Texas exclusionary rule
does not apply when the law changes after evidence has been
obtained because, in such a situation, the evidence was not actually
obtained in violation of the law.
2) The federal exclusionary rule does not apply because the
police were acting in good faith.
The federal exclusionary rule is not codified, but rather, judicially
created, and its purpose is to safeguard Fourth Amendment rights by
deterring police misconduct. Illinois v. Krull, 480 U.S. 340, 347, 107
S. Ct. 1160, 94 L. Ed. 2d 364 (1987). With this purpose in mind, the
Supreme Court has created several good faith exceptions. The State
will argue that two exceptions apply in this case. The federal
exclusionary rule will not bar the evidence if either one of the
exceptions applies.
15
Exception one: Good faith reliance on binding appellate
precedent
One exception is when the police act in good faith reliance on
binding precedent, because “It is one thing for the criminal to go free
because the constable has blundered. It is quite another to set the
criminal free because the constable has scrupulously adhered to
governing law. Excluding evidence in such cases deters no police
misconduct and imposes substantial social costs.” Davis v. United
States, 564 U.S. __, 131 S. Ct. 2419, 2423-24, 2434, 180 L. Ed. 285
(2011).
The blood draw in this case was done prior to the Supreme Court’s
decision in McNeely. At that time, Texas case law clearly held that
dissipation alone constituted exigent circumstances in DWI cases.
Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982); State v.
Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d).
Exigency is an established exception to the warrant requirement, so
the search in this case was constitutional under binding Texas
precedent at the time it was done. Therefore, under Davis, the good
faith exception for reliance on precedent applies. See People v. Youn,
2014 Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15, 2014) (applying
16
the good faith exception for reliance on state court precedent to pre-
McNeely blood draws); United States v. Brooks, No. PWG-14-0053,
2014 U.S. Dist. LEXIS 67417, at *5-15 (D. Md. May 16, 2014) (mem.
op.) (same).
Exception two: Good faith reliance on a statute
Another exception applies when an officer acts in good faith
reliance on a statute that is later held to be unconstitutional, because
“Unless a statute is clearly unconstitutional, an officer cannot be
expected to question the judgment of the legislature that passed the
law. If the statute is subsequently declared unconstitutional,
excluding evidence obtained pursuant to it prior to such a judicial
declaration will not deter future Fourth Amendment by an officer
who has simply fulfilled his responsibility to enforce the statute as
written.” Krull, 480 U.S. at 349-50.
As previously argued, Section 724.012(b)(3)(B) mandated the
warrantless blood draw in this case. The police officer relied on this
statute in obtaining the warrantless blood draw. 2RR 34-35. This
reliance was in good faith because the mandatory blood draw law was
not “clearly unconstitutional” before McNeely. Indeed, Texas’s police
17
officers, prosecutors, defense attorneys, and judges have had
mandatory blood draw cases for years without questioning their
constitutionality. Therefore, under Krull, the federal exclusionary rule
does not bar admission of the evidence.
Prayer
The State asks this Court to overrule the appellant’s point of error
and to affirm the trial court’s judgment.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
18
Certificate of Compliance and Service
I hereby certify that this brief contains 3,120 words. I further
certify that, on the 13th day of April, 2015, a true and correct copy of
this brief was served, by U.S. mail, electronic mail, facsimile, or
electronically through the electronic filing manager, on the
defendant’s attorney: Jamie Spencer, Attorney at Law, 812 San
Antonio St., Suite 403, Austin, Texas 78701.
Angie Creasy
19
Robert Rene Torres v. State
Combined Opinion