IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1070-19
ROBERT LEE CRIDER, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
KERR COUNTY
N EWELL, J., filed a concurring opinion in which H ERVEY,
R ICHARDSON and S LAUGHTER JJ., joined.
Today, the Court clarifies our holding in State v. Martinez,1 and
reiterates that a defendant maintains an expectation of privacy in the
contents of his blood even if police have lawfully seized it pursuant to a
1
570 S.W .3d 278 (Tex. Crim . App. 2019).
Crider Concurring — 2
warrant based upon probable cause.2 In other words, the Court continues
to hold that there are two searches that take place when it comes to
blood draws in a DWI case: first, when the police search the defendant’s
body and seize his blood; and second, when the lab technician analyzes
the contents of the blood.3 I agree with the Court’s holding and join the
Court’s opinion.
In its opinion, the Court observes that it is of no moment whether
we say that authorization to search the blood is implied in the warrant or
whether there was necessarily a determination of probable cause for the
second search.4 Appellant raises some persuasive concerns about
implying authorization for a second search from a warrant that only
authorizes a seizure.5 Depending on the type of evidence at issue and the
2
Maj. Op. 2 (“[C]hem ical testing of blood constitutes a separate and discrete invasion
of privacy for Fourth Am endm ent purposes from the physical extraction of that blood.”).
3
Id. at 2–3 (citing Martinez, 570 S.W .3d at 290; State v. Huse, 491 S.W.3d 833,
840 (Tex. Crim . App. 2016); and State v. Hardy, 963 S.W .2d 516, 523 (Tex. Crim . App.
1997)).
4
Maj. Op. 4.
5
Appellant’s Reply Br. 11 (“W hat’s to stop the governm ent from retaining blood sam ples
for future analysis or for whatever purpose the governm ent m ay deem ‘reasonable’? In such
a case, who decides what constitutes ‘reasonableness’? These questions cut to the heart of why
general search warrants are prohibited by the Fourth Am endm ent.”); see also Holder v. State,
595 S.W .3d 691, 702–03 (Tex. Crim . App. 2020) (noting fram ers of the Texas and United
States Constitutions shared a disdain for general warrants and that, in Texas, general warrants
“were widely condem ned as dangerous to liberty because they perm itted authorities to search
wherever and seize whom ever they desired without evidence of crim inal activity.”).
Crider Concurring — 3
probable cause supporting the seizure, implying an authorization for a
search of something already seized could lead to the type of “general
warrant” rummaging Appellant warns us about.6 For example, the State
at one point in its briefing argues that the seizure warrant of a computer
could imply authorization to do an on-site forensic search of that
computer.7 Because I can envision scenarios in which the probable cause
to seize an item would not necessarily provide probable cause to conduct
a second search of that item, I believe it is better to say that the
probable-cause determination that justified the seizure of blood, at least
in this case, necessarily constituted a determination of probable cause to
also search it.8 This grounds the analysis upon what the magistrate
6
Appellant’s Reply Br. 16–17 (“No one would contest that a warrant authorizing the
search of John Doe’s hom e ‘for evidence of any and all crim es’ could not pass constitutional
m uster. The sam e principle holds true here, given that blood is sim ply a repository for a m yriad
of potentially incrim inating evidence sought by the state.”); see also Walthall v. State, 594
S.W .2d 74, 78 (Tex. Crim . App. 1980) (noting that the United States and Texas Constitutions
prohibit “general warrants”— i.e., warrants that fail to particularly describe the property to be
seized and allow “general, exploratory rum m aging in a person's belongings”) (quoting Andresen
v. Maryland, 427 U.S. 463, 480 (1976)); Maryland v. King, 569 U.S. 435, 466 (2013) (“At the
tim e of the Founding, Am ericans despised the British use of so-called ‘general
warrants’— warrants not grounded upon a sworn oath of a specific infraction by a particular
individual, and thus not lim ited in scope and application.”) (Scalia, J., dissenting).
7
State’s Br. 7–8 & n.24.
8
See, e.g., Buckham v. State, 185 A.3d 1, 19–20 (Del. 2018) (warrant affidavit set out
probable cause to search Buckham ’s cell phone for GPS data to ascertain where Buckham had
been during the six weeks prior to his arrest, but the warrant did not lim it the search of
Buckham ’s cell phone to any relevant tim e fram e and authorized the search of categories of
data that had nothing to do with GPS location inform ation; “The m ism atch between the scope
of the warrant and the probable cause finding that the trial court cited to support it is readily
apparent from the record, and this error led to the adm ission of evidence that even the State
Crider Concurring — 4
actually determined and limits the scope of the search. I join the Court’s
opinion because I believe our holding today is based primarily upon this
rationale.
We have previously considered a similar dilemma in an analogous
context. In Faulkner v. State, this Court evaluated the propriety of the
seizure of contraband inside a residence when the search warrant itself
only authorized a seizure of the residence, presumably due to a drafting
error.9 We held that the seizure of the contraband found inside the
residence was authorized by the warrant because it incorporated the
probable cause affidavit by reference and that affidavit also set out
probable cause to seize the contraband inside the residence.10 Though
there is a significant difference in the scale of the authorized seizure in
Faulkner and the one in this case, the rationale in Faulkner applies
equally to this case. The scope of the warrant should be judged against
both the warrant and the probable cause affidavit, rather than by the just
the warrant, when the search warrant incorporates the probable cause
conceded was im portant to the trial.”).
9
Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim . App. 1976).
10
Id.
Crider Concurring — 5
affidavit by reference.11 And when the search warrant affidavit
incorporated by reference in the search warrant reveals that the affiant
sought a warrant that authorized the search for or seizure of evidence
beyond the scope of the warrant itself, the scope of the warrant is judged
by both the affidavit and the search warrant.
In this case, reading both the search warrant and the probable
cause affidavit in a common sense manner reveals that the search of
Appellant’s body and blood for evidence of intoxication falls within the
scope of the search warrant and affidavit.12 Even though the language
incorporating the affidavit into the warrant is not repeated as often as it
was in Faulkner, our decision in Faulkner did not turn on the repetition or
placement of the referencing language in the search warrant.13 Further,
the affidavit in this case authorizes the search of Appellant’s person, not
merely the seizure of blood. The affidavit sets out a request for a warrant
that will authorize the affiant or his agent to “search the person of the
11
See also Arrick v. State, 107 S.W .3d 710, 713–14 (Tex. App.— Austin 2003, pet. ref’d)
(upholding seizure of evidence from a residence based upon facts described in a search warrant
affidavit even though the search warrant itself only authorized the seizure of the owner of the
residence).
12
See, e.g., State v. Cuong Phu Le, 463 S.W .3d 872, 877 (Tex. Crim . App. 2015) (noting
that Court should interpret search warrant affidavits in a com m onsensical and realistic m anner).
13
Faulkner, 537 S.W .2d at 744 (“[I]n interpreting affidavits and search w arrants,
m agistrates and courts m ust do so in a com m on sense and realistic fashion and avoid
hypertechnical analysis.”)
Crider Concurring — 6
suspected party for the property described above and seize the same as
evidence that the offense described was committed and that the
suspected party committed the said offense.” Appellant’s blood by itself
is not evidence that Appellant committed the offense of driving while
intoxicated. The amount of alcohol within it is.
The common-sense way to read the language in the affidavit is that
it included a search within Appellant’s person and the seizure of evidence
that Appellant committed the offense of driving while intoxicated. The
authorization to search within Appellant’s body for blood evidence that he
committed the offense of driving while intoxicated necessarily includes
the search of Appellant’s blood within his body—just as the warrant’s
authorization to search inside the residence in Faulkner necessarily
included the seizure of contraband within the residence due to the
incorporation of the search warrant affidavit seeking the seizure of
contraband. Further, this reference to search and seizure of “evidence
that shows the offense was committed” also limits the scope of the search
to evidence of intoxication and not to a broader search for evidence
unrelated to the crime such as DNA. Reading the search warrant and the
affidavit to authorize only the seizure of blood, and not the evidence
within the blood, that shows Appellant committed the offense applies an
Crider Concurring — 7
unduly technical and restrictive reading of the search warrant affidavit
that fails to allow for any reasonable inferences that the issuing
magistrate could have made.14
Of course, as Appellant points out, this issue could have been
avoided entirely if the warrant here had included extra language to
specify that the warrant authorized the search of the blood for evidence
of intoxication after it was seized. That second search, as the Court
rightly points out, was justified by the same probable cause that justified
the seizure of the blood in the first place. I have little doubt that after
this case, and in cases like it, law enforcement officers will endeavor to
specify that their blood warrants authorize both a search and seizure.
But the failure to do so in this case doesn’t render the search of
Appellant’s blood pursuant to a warrant unreasonable.
With these thoughts, I join the Court’s opinion.
Filed: September 16, 2020
Publish
14
See, e.g., Rodriguez v. State, 232 S.W.3d 55, 59 (Tex. Crim . App. 2007) (“The
Suprem e Court has repeatedly rem inded reviewing courts that they should ‘not invalidate the
warrant by reading the affidavit in a hypertechnical rather than a com m onsense, m anner.’”)
(quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)); see also Illinois v. Gates, 462
U.S. 213, 240 (1983) (“Nothing in our opinion in any way lessens the authority of the
m agistrate to draw such reasonable inferences as he will from the m aterial supplied to him by
applicants for a warrant; indeed, he is freer than under the regim e of Aguilar and Spinelli to
draw such inferences, or to refuse to draw them if he is so m inded.”).