ACCEPTED
13-14-00682-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
2/18/2015 9:20:22 AM
DORIAN RAMIREZ
CLERK
No. 13-14-682-CR FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE COURT OF APPEALS2/18/2015 9:20:22 AM
FOR THE THIRTEENTH DISTRICT OF DORIAN
TEXASE. RAMIREZ
AT CORPUS CHRISTI Clerk
THE STATE OF TEXAS,
APPELLANT
v.
JEROME EDMOND,
APPELLEE.
ON APPEAL FROM THE 105TH DISTRICT COURT
NUECES COUNTY, TEXAS
APPELLANT’S BRIEF
(STATE’S APPEAL)
Michelle A. Putman
State Bar No. 24068493
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
michelle.putman@nuecesco.com
Attorney for Appellant
ORAL ARGUMENT IS REQUESTED
IDENTITY OF PARTIES AND ATTORNEYS
State’s Trial Attorney:
Michelle A. Putman
State Bar No. 24068493
Assistant District Attorney
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
michelle.putman@nuecesco.com
State’s Appellate Attorney:
Michelle A. Putman
State Bar No. 24068493
Assistant District Attorney
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
michelle.putman@nuecesco.com
Appellee:
Jerome Edmond
921 Red Start Cir.
Corpus Christi, Texas 78418
361-533-6135
Appellee’s Trial & Appellate Attorney:
Scott Ellison
State Bar No. 00787432
410 Peoples Street
Corpus Christi, Texas 78401
(361) 887-7600
scottellison@att.net
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND ATTORNEYS ………………………….2
INDEX OF AUTHORITIES . . . …………………………………………..5
STATEMENT OF THE CASE ……………………………………………8
ISSUE PRESENTED………………………………………………………9
SUMMARY OF THE ARGUMENT . . . …………………………………10
STATEMENT OF FACTS…………………………………………………12
ARGUMENT
(1) Whether the Corpus Christi Police Department’s Officer Robert
Mayorga’s seizure of appellant’s blood under Texas Transportation
Code section 724.012(b)(3), Texas’s mandatory blood draw statute, was
constitutional as applied under the Fourth Amendment as interpreted
by McNeely v. Missouri. .............................................................................. 13
I. THE TEXAS IMPLIED CONSENT / MANDATORY DRAW
STATUTE.......................................................................................... 13
II. THE McNEELY CASE. .............................................................. 16
III. RECOGNIZED EXCEPTIONS TO THE WARRANT
REQUIREMENT. ............................................................................ 19
A. Actual
Consent………………………………………………………20
B. Exigent Circumstances…………………………………..20
C. The Automobile Exception. ............................................. 22
D. Consent and Waiver. ......................................................... 24
E. Search Incident to Arrest.................................................. 27
IV. OTHER SIGNIFICANT FACTORS. ...................................... 28
A. Legitimate Governmental Interest. ................................. 28
B. Gravity of the Offense. ...................................................... 29
C. Bright-Line Rule. ............................................................... 29
D. Presumption of Validity and Constitutionality. ............. 30
E. The Underlying Expectation of Privacy. ......................... 30
F. The Specific Context of a Post-Arrest Mandatory Draw.32
3
G. Statutory Protections Concerning the Manner of
Drawing Blood. ....................................................................... 32
V. OTHER CASES. .......................................................................... 34
VI. THE UNIQUE NATURE OF THE INTRUSION
– SEARCH OR SEIZURE? ............................................................. 35
VII. CONCLUSION. ........................................................................ 38
PRAYER . . . ………………………………………………………………38
CERTIFICATE OF SERVICE . . . ………………………………………...40
4
INDEX OF AUTHORITIES
Cases
Aliff v. State, 627 S.W.2d 166, 169-170 (Tex. Crim. App. 1982)………….20
Arizona v. Gant, 556 U.S. 332 (2009). ......................................................... 27
Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536 (2001)........... 36
Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012, pet ref’d).35
Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). .................... 15, 16
United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593 (1972). .................... 25
Breithaupt v. Abram, 352 U.S. 432 (1957). .................................................. 32
California v. Carney, 471 U.S. 386, 105 S.Ct. 2066 (1985). ................. 22, 23
Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012). ........................................ 37
Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280 (1925). ................ 22, 23
City of Ontario v. Quon, 130 S.Ct. 2619 (2010). ......................................... 31
Cook v. City of Bella Villa, 582 F.3d 840 (8th Cir. 2009). ............................ 37
Cupp v. Murphy, 412 U.S. 291 (1973). .................................................. 27, 37
Douds v. State, --- S.W.3d ----, No. 14–12–00642–CR, 2013 WL 5629818
(Tex. App.--Houston [14th Dist.], October 15, 2013, no pet. h.). ................ 35
Dunaway v. New York, 442 U.S. 200 (1979). ............................................... 29
United States v. Edwards, 415 U.S. 800 (1973). .......................................... 28
State v. Flonnory, 2013 WL 3327526 (Del. Super. Ct., June 12, 2013). ..... 35
In re Hart, 2013 WL 2990658 (Wis. App., June 18, 2013). ........................ 35
5
Horton v. California, 496 U.S. 128, 110 S.Ct. 2301 (1990). ....................... 36
Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946 (2001). .......................... 19
United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652 (1984). ............... 36
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). ........................ 30
United States v. Knights, 534 U.S. 112 (2001). ............................................ 25
Life & Casualty Ins. Co. v. McCray, 291 U.S. 566, 54 S.Ct. 482 (1934). ... 30
Maryland v. King, 133 S.Ct. 1958 (2013). ....................................... 28, 34, 37
Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011). ........................ 24
Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013). .... 16, 17, 18, 19,
21, 27, 29, 36
State v. Mosely, 348 S.W. 3d 435, 440 (Tex. App.-Austin 2011, pet ref’d).20
Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012). ....................................... 37
State v. Osborne, 2013 WL 3213298 (Wis. App., June 27, 2013). .............. 35
State v. Powell, 306 S.W.3d 761 (Tex. Crim. App. 2010). .......................... 36
Reeder v. State, --- S.W.3d ----, No. 06–13–00126–CR, 2014 WL 60162
(Tex. App.--Texarkana, January 8, 2014). ................................................... 34
Sampson v. California, 547 U.S. 843 (2006)................................................ 25
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966).. 20, 27, 32, 33,
34, 36
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973). ......... 20, 24
South Dakota v. Neville, 459 U.S. 553 (1983). ............................................ 32
6
State v. Villarreal, No. 13-13-00253-CR (Tex. App.—Corpus Christi Jan.
23, 2014). ................................................................................................ 15, 35
Welsh v. Wisconsin, 466 U.S. 740 (1984). ................................................... 29
Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297 (1999). .................... 28
Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277 (1946). .......................... 25
Statutes & Rules
Tex. Code Crim. Proc. art. 18.01. ................................................................. 15
Tex. Transp. Code § 724.011........................................................................ 14
Tex. Transp. Code § 724.012.................................................................. 14, 18
Tex. Transp. Code § 724.013.................................................................. 14, 18
Tex. Transp. Code § 724.016........................................................................ 14
Tex. Transp. Code § 724.017. …………………………………………14, 33
7
STATEMENT OF THE CASE
Defendant Jerome Edmond was charged by indictment in Cause 13-
CR-0895-D with the third degree felony offense of Driving While
Intoxicated, Third Offense or More alleged to have been committed on or
about March 20, 2013 in Nueces County, Texas. Edmond was represented
by his attorney, Scott Ellison throughout all proceedings, and Mr. Ellison
continues to represent Edmond in this Court. On April 4, 2014, the State and
defendant presented evidence and argument on Defendant's Motion to
Suppress. The sole issue on the motion to suppress was whether or not
McNeely v. Missouri required a warrant for the officer to perform the blood
draw.
The Court suppressed the results from the warrantless blood draw law
that Corpus Christi Police Officer Robert Mayorga obtained during his
investigation of the March 20, 2013 offense of driving while intoxicated,
alleged to have been committed by Edmond. On November 18, 2014, the
trial court granted Defendant’s Motion to Suppress.
8
ISSUE PRESENTED
Whether the Corpus Christi Police Department’s Officer Robert
Mayorga’s seizure of appellant’s blood under Texas Transportation Code
section 724.012(b)(3), Texas’s mandatory blood draw statute, was
constitutional as applied under the Fourth Amendment as interpreted by
McNeely v. Missouri?
9
SUMMARY OF THE ARGUMENT
The trial court abused its discretion when it suppressed the results of
the warrantless blood draw of defendant's blood. The State argues that the
opinion issued by the United States Supreme Court in McNeely v. Missouri
does not stand for the proposition that all warrantless blood draws in driving
while intoxicated (hereinafter “DWI”) offense are unconstitutional absent a
warrant, and, accordingly, the Texas mandatory blood draw statute
encompassed in Transportation Code Section 724.012. In Villarreal v. State,
the Texas Court of Criminal Appeals has presently ruled that a warrant is
required; however, the State in that case has a motion for rehearing on file
that has yet to be ruled upon.
The State further would have the Court find that in situations where a
defendant, such as in this case, initially confers consent for a blood draw,
withdraws it, then subsequently confers consent again, the defendant has
actually consented to the blood draw.
Additionally, the State argues that the defendant created an exigent
circumstance because he initially conferred consent for the blood draw. Only
upon arrival at the hospital did he say he withdrew consent. The officer
relied on the defendant’s consent, all the way up until the actual blood draw,
10
time he could have spent getting a warrant, only to have it withdrawn right
as the blood was about to be drawn. This created an exigent circumstance.
This case can be distinguished from Villarreal and other McNeely
type cases in that the defendant ended up actually consenting and created an
exigent circumstance by allowing the officer to detrimentally rely on the
defendant’s consent only to have it withdrawn at the last moment.
11
STATEMENT OF FACTS
At the hearing of Defendant’s Motion to Suppress testimony provided
the following facts : (1) Officer Robert Mayorga was called out to
investigate a possible intoxicated driver, Jerome Edmond at approximately
2:00/2:20 a.m.; (2) Edmond initially agreed to perform field sobriety tests,
but then refused to complete them; (3) Officer Mayorga read Edmond his
rights in the DIC-24 form and requested a sample of Edmond’s blood at
approximately 3:08 a.m.; (4) Edmond agreed to provide a sample of his
blood at that time; (5) Officer Mayorga did not have a blood kit on him, so
he had to wait for his supervisor to arrive with a blood kit; (6) Officer
Mayorga then transported the defendant to the hospital to perform the blood
draw; (7) Defendant’s blood was drawn at approximately 3:40 a.m.; (8)
During the transport to the hospital, Officer Mayorga was not working on
obtaining a warrant because Edmond consented to the blood draw; (9) Right
as defendant’s blood was to be drawn, he withdrew consent; (10) Officer
Mayorga read the defendant the DIC-24 again, and the defendant refused;
(11) Officer Mayorga had the defendant’s blood drawn anyways because he
had two previous DWI convitions; (12) During transport back to the
detention center, defendant tells Officer Mayorga that he never said no, he
agreed to the blood draw.
12
NO. 13-14-682-CR
THE STATE OF TEXAS, § COURT OF APPEALS
Appellant, §
§
V. § FOR THE THIRTEENTH
§
JERMONE EDMOND §
Appellee. § DISTRICT OF TEXAS
APPELLANT’S BRIEF
(STATE’S APPEAL)
Comes now the State of Texas, by and through the District Attorney for the
105th Judicial District of Texas, and files this Second Supplemental Brief in
compliance with this Court’s February 13, 2014, order for briefing, and would
show the Court the following:
(1) Whether the Corpus Christi Police Department’s Officer Robert
Mayorga’s seizure of appellant’s blood under Texas
Transportation Code section 724.012(b)(3), Texas’s mandatory
blood draw statute, was constitutional as applied under the
Fourth Amendment as interpreted by McNeely v. Missouri.
I. THE TEXAS IMPLIED CONSENT/MANDATORY DRAW
STATUTE.
Driving on a roadway is a privilege, not a right; by doing so, a
defendant impliedly consents to providing a breath or blood sample when
suspected of intoxication-related crimes. The Transportation Code provides
as follows:
13
If a person is arrested for an offense arising out of acts alleged
to have been committed while the person was operating a motor
vehicle in a public place, or a watercraft, while intoxicated, or
an offense under Section 106.041, Alcoholic Beverage Code,
the person is deemed to have consented, subject to this chapter,
to submit to the taking of one or more specimens of the person's
breath or blood for analysis to determine the alcohol
concentration or the presence in the person's body of a
controlled substance, drug, dangerous drug, or other substance.
Tex. Transp. Code § 724.011 (emphasis added). A person retains the right
under most routine circumstances, subject to an automatic license
suspension, to refuse to provide a specimen. Tex. Transp. Code § 724.013.
However, the Legislature extinguished a defendant’s right to refuse in cases
where an officer possesses probable cause to believe that certain
enumerated, egregious circumstances existed. Id. at § 724.012(b).1 In those
narrow instances, the Transportation Code requires the arresting officer to
"require the taking of a specimen of the person's breath or blood." See Tex.
Transp. Code § 724.012(b). The Transportation Code then provides for the
breath or blood specimen to be taken "at the request or order of" the officer
in question. See Tex. Transp. Code § 724.016 (a) & § 724.017 (a). The
specimen is taken purely under the authority of the statute.
1 Transportation Code Sections 724.012(b)(1)(A)-(b)(1)(C) require mandatory draws when the offense
caused death, serious bodily injury, or an injury requiring transport to a medical facility for care, while
Section (b)(2) requires a mandatory draw when the intoxicated driver was carrying a child passenger under
fifteen years of age, and Section (b)(3) requires a mandatory draw for a recidivistic DWI offender. See
generally Tex. Transp. Code § 724.012(b).
14
By contrast, a search warrant is defined in the Code of Criminal
Procedure as "a written order, issued by a magistrate and directed to a peace
officer, commanding him to search for any property or thing and to seize the
same and bring it before such magistrate." See Tex. Code Crim. Proc. art.
18.01 (a). The arresting officer has no authority to require a magistrate to
issue a warrant, but only to provide information to that magistrate in the
hope of securing a warrant. If the magistrate signs a warrant, the arresting
officer, or any other officer into whose hands the warrant comes, then acts
under the authority of the magistrate's warrant and not the statutory
directive.
Accordingly, the two are collateral sources of authority which may
not be merged into one, contrary to 13th Court of Appeals’ suggestion in
State v. Villarreal, No. 13-13-00253-CR (Tex. App.—Corpus Christi Jan.
23, 2014).
The Court of Criminal Appeals endorsed this distinction when it
recognized the taking of a blood specimen under the implied consent statute
as "another method of conducting a constitutionally valid search," Beeman v.
State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002), and stated that:
The implied consent law expands on the State's search
capabilities by providing a framework for drawing DWI
suspects' blood in the absence of a search warrant. It gives
officers an additional weapon in their investigative arsenal,
15
enabling them to draw blood in certain limited circumstances
even without a search warrant.
Id. at 616. (emphasis added).
II. THE McNEELY CASE.
The Supreme Court’s McNeely decision focused on the narrow
question of “whether the natural metabolization of alcohol in the
bloodstream presents a per se exigency that justifies an exception to the
Fourth Amendment’s warrant requirement for nonconsensual blood testing
in all drunk-driving questions.” McNeely, 133 S.Ct. at 1556. The five-vote
majority reversed the warrantless seizure in McNeely, holding that the State
may not rely on a per se exigency premised solely on the natural dissipation
of alcohol from the bloodstream. Id. at 1568.2 However, the Court made the
limited nature of its holding apparent: “Because this case was argued on the
broad proposition that drunk-driving cases present a per se exigency, the
arguments and the record do not provide the Court with an adequate analytic
framework for a detailed discussion of all the relevant factors that can be
taken into account in determining the reasonableness of acting without a
warrant.” Id. at 1566-57.
2
Missouri has an implied-consent statute, as do all fifty states. See, e.g., Mo. Ann. Stat. §§ 577.020.1,
577.041; see also McNeely, 133 S.Ct. at 1566 (citing National Highway Traffic Safety Administration
[NHTSA], Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar.
2011) [NHTSA Review]). Yet, the Missouri prosecutors did not rely on their State’s implied-consent
statute or, for that matter, any other exception to the Fourth Amendment’s warrant preference.
16
McNeely’s disposition resulted in four separate opinions, including the
5-4 majority by Justice Sotomayor. However, only part of her decision
garnered a majority; Justice Kennedy did not join in the last part of Section
II, nor did he join Section III. Justice Kennedy’s separate concurrence
signaled – in express language – that the majority only decided the per se
exigency issue on which certiorari had been granted, and nothing more.
McNeely, 133 S.Ct. at 1569 (J. Kennedy, concurring in part). Justice
Kennedy did not agree with Justice Sotomayor’s Section III discussion
discounting law enforcement’s concerns regarding the need for a bright-line
rule, nor did he join in the remaining plurality’s minimization of the
government’s interest in preventing and prosecuting drunk-driving offenses.
Id. at 1564-67 (Part III). While five justices voted against a per se
application of exigency, all of the justices recognized some blood draws will
be compelled, and there appears to be a differently-constituted-five-vote
block that remains open to a modified rule departing from the warrant
requirement in circumstances other than a per se blood-alcohol exigency.
See id. at 1568-77 (J. Kennedy, concurring; Chief Justice Roberts,
concurring and dissenting, joined by Justices Breyer and Alito; and Justice
Thomas, dissenting).
17
Moreover, the McNeely opinions contain positive references to the
implied-consent provisions enacted across this country. Part III of Justice
Sotomayor’s opinion, for instance, stated:
States have a broad range of legal tools to enforce their drunk-
driving laws and to secure BAC evidence without undertaking
warrantless nonconsensual blood draws. For example, all 50
States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense.
See NHTSA Review 173; supra, at 1556 (describing Missouri's
implied consent law).
McNeely, 133 S.Ct. at 1566 (emphasis added). The opinion continues by
recognizing the “significant restrictions” States have placed on when an
officer may obtain a compelled sample. See McNeely, 133 S.Ct. at 1566 n.9
(listing mandatory-draw provisions countrywide as an example of how states
have placed “significant restrictions” on when officers may obtain
compelled samples). The Court even cites Texas’ mandatory blood-draw
statute. Id. at n.9 citing Tex. Transp. Code §§ 724.012(b), 724.013.
Moreover, Justice Kennedy, who provided the crucial fifth vote in McNeely,
states in his concurrence that States “can adopt rules, procedures, and
protocols that meet the reasonableness requirements of the Fourth
Amendment and give helpful guidance to law enforcement officials.” Id. at
1569. These opinions in no way disapproved of the States’ carefully
18
tailored implied consent schemes where only specified and limited situations
authorized compelled blood draws after refusal. See id. at 1566 & n.9.
In addition, the language in each of the McNeely opinions, including
the majority, assumes the gravity of the dangers faced by the traveling public
due to intoxicated drivers. For example, the majority asserts as follows:
“No one can seriously dispute the magnitude of the drunken
driving problem or the States' interest in eradicating it.”
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110
S.Ct. 2481, 110 L.Ed.2d 412 (1990). Certainly we do not.
While some progress has been made, drunk driving continues to
exact a terrible toll on our society. See NHTSA, Traffic Safety
Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that
9,878 people were killed in alcohol-impaired driving crashes in
2011, an average of one fatality every 53 minutes).
McNeely, 133 S.Ct. at 1565 (emphasis added). Nothing in any of the various
McNeely opinions signals that any member of the Supreme Court would
look unfavorably on implied consent provisions.
III. RECOGNIZED EXCEPTIONS TO THE WARRANT
REQUIREMENT.
In addition to exigent circumstances, the Supreme Court recognizes that
there are exceptions to the warrant requirement, such that "[w]hen faced
with special law enforcement needs, diminished expectations of privacy,
minimal intrusions, or the like, the Court has found that certain general, or
19
individual, circumstances may render a warrantless search or seizure
reasonable." Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946 (2001).
A. Actual Consent
The law is well settled that actual consent to a search is an exception
to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218,
219, 93 S.Ct. 2041, 2044, 36 L.Ed.2d 854 (1973). Defendant initially
consented to the blood draw, but then withdrew that consent at the hospital.
However, after the blood was drawn and defendant was transported to the
detention center, he stated that he did agree to the blood draw, thereby
conferring consent again. Consequently, defendant was waived his argument
that he did not provide actual consent.
B. Exigent Circumstances
Warrantless blood draws are constitutional where “officers have
probable cause to arrest a suspect, exigent circumstances exist, and a
reasonable method of extraction is available.” State v. Mosely, 348 S.W. 3d
435, 440 (Tex. App.-Austin 2011, pet ref’d) (citing Schmerber v. California,
384 U.S. 757, 767-68, 86 S.Ct. 1826, (1966)); Aliff v. State, 627 S.W.2d 166,
169-170 (Tex. Crim. App. 1982).
In the instant case, officers had probable cause to arrest defendant,
and a blood draw is a reasonable method of extraction. Additionally, exigent
20
circumstances existed due to defendant’s withdrawal of his consent to the
blood draw at the hospital. Officer Mayorga had to take time to wait for his
supervisor to arrive with an extra blood kit, took time to transport the
defendant to the hospital, only to have the defendant right as the blood draw
is about to begin withdraw consent.
In McNeely, the Supreme Court recognized that “some circumstances
will make obtaining a warrant impractical such that the dissipation of
alcohol from the bloodstream will support an exigency justifying a properly
conducted warrantless blood test.” McNeely, 133 S.Ct. at 1561. Here,
defendant provided consent to the blood draw at the scene of his arrest. Once
transported to the hospital and again read the DIC-24, defendant withdrew
his consent. During the time it took to transport defendant to the hospital,
officers could have used that time to obtain a warrant. However, the officers
relied on defendant’s consent and did not obtain a warrant. Only once the
time had passed to get defendant to the hospital did defendant withdraw his
consent. Having to get a warrant at the point would just further delay the
blood draw.
This is an exigent circumstance because those arrested on suspicion of
DWI can basically “play the system” and provide verbal consent on the
scene of their arrest, causing officers to rely on it, knowing they will
21
withdraw that consent by the time they get to a hospital in the hopes that the
alcohol in their bloodstream will dissipate to below a .08. Officers will have
lost valuable time to obtain a warrant to for a sample before this dissipation
occurs, and thus the destruction of evidence is a real threat, caused only by
the officer’s reliance on a defendant’s verbal consent. Therefore, due to the
dissipation of alcohol in the bloodstream over time, and the officers’ reliance
on defendant’s verbal consent at the scene, exigent circumstances existed to
obtain a sample of defendant’s blood without a warrant, as anticipated in
McNeely.
C. The Automobile Exception.
The automobile exception to the warrant requirement, first set out in
Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280 (1925) and later
repeated in numerous cases including California v. Carney, 471 U.S. 386,
105 S.Ct. 2066 (1985), recognized that, although the privacy interests in an
automobile are constitutionally protected, its ready mobility and capacity to
be "quickly moved" justifies a lesser degree of protection, noting also that
there had been a long-recognized distinction between stationary structures
and vehicles. Carney, 471 U.S. at 390. The Court in Carney recognized that
the reduced expectations of privacy that justify the automobile exception
22
also derive from "the pervasive regulation of vehicles capable of traveling
on the public highways." 471 U.S. at 392.
When the automobile exception had originally been recognized in
Carroll, the Supreme Court looked to statutes contemporary with the
adoption of the Fourth Amendment which allowed law enforcement
officials, without a warrant, "to stop, search, and examine any vehicle, beast,
or person on which or whom they should suspect [of a violation]." 267 U.S.
151 (quoting Act of March 3, 1815, 3 Stat. 231, 232) (emphasis added).
Arguably, the driver of an automobile in transit is just as mobile as his
vehicle, just as subject to pervasive licensure and regulation, and,
historically, was subject to search without warrant under the same terms as a
vehicle or vessel. Accordingly, the Courts should recognize a driver
exception to the warrant requirement coextensive with the vehicle exception.
However, even short of a full-fledged and free-standing exception of
this nature, the Courts should allow the States to craft such an exception
based both on these considerations, on the substantial public interest in
ridding the road of drunk drivers, and on implied consent statutes like the
Texas version, which condition the privilege of driving on the acceptance of
a warrantless search under very limited circumstances.
23
As in Carney, the driving public is on notice of the lessened degree of
privacy protection in matters that concern the safety of the roads on which
they drive. They know that their cars can be stopped and searched on
probable cause alone; likewise, under common mandatory blood draw
statutes, they should know that their blood can be drawn without a warrant,
on probable cause of DWI alone, under specified conditions. In both
situations, the normal expectation of a warrant yields to common concerns
inherent in a highly regulated activity in which the driver freely chooses to
engage.
D. Consent and Waiver.
Another recognized exception to the warrant requirement is a search
conducted with the person's voluntary consent, which may be communicated
to law enforcement in a variety of ways, including by words, action, or
circumstantial evidence showing implied consent. Meekins v. State, 340
S.W.3d 454 (Tex. Crim. App. 2011) (citing Schneckloth v. Bustamonte, 412
U.S. 218, 219, 93 S.Ct. 2041 (1973)) Such consent must ordinarily be
carefully scrutinized for its knowing, intelligent and voluntary character.
See Id.
However, the Supreme Court has long recognized a parallel exception
in the form of a prior waiver of the Fourth Amendment rights to probable
24
cause and a warrant, as a condition for some benefit extended to the suspect
from the State. Zap v. United States, 328 U.S. 624, 627-28, 66 S.Ct. 1277
(1946), vacated on other grounds, 330 U.S. 800, 67 S.Ct. 857 (1947) (the
benefit of doing business as a Navy contractor).3 The waiver applies,
moreover, in spite of the suspect's protest at the time of the search in
question. See Id. In the same way, acceptance of a license to engage in a
pervasively regulated activity may carry with it an obligation to allow
statutorily authorized inspections of that activity that would otherwise
require a warrant. See United States v. Biswell, 406 U.S. 311, 316-17, 92
S.Ct. 1593 (1972) (gun dealer who chose to engage in this pervasively
regulated business and to accept a federal license was subject to warrantless
inspection of his business records and firearms).
In addition, there is no indication that the Navy contractor in Zap
actually read, much less consciously understood or knowingly agreed to, the
waiver in question. However, unlike the consent exception recognized in
3
Governmental and quasi-governmental bodies often condition the granting of a privilege upon the waiver
of certain constitutional rights. The decision to participate in an activity is a prime example of this same
give-and-take privilege. See Board of Education v. Earls, 536 U.S. at 828 (no Fourth Amendment violation
where school board policy conditioned participation in extracurricular activities on random drug testing).
Even in the criminal context, suspicion searches promoting a legitimate government interest pass Fourth
Amendment muster based upon an offender’s parolee status which invokes statutorily-required conditions
agreeing to such searches. Sampson v. California, 547 U.S. 843 (2006); see also United States v. Knights,
534 U.S. 112 (2001) (upholding warrantless search of probationer’s apartment where authorized by
probation condition). In this context, the Supreme Court has suggested its approval of a bargained-for
waiver in holding that "acceptance of a clear and unambiguous search condition 'significantly diminished
[the suspect's] reasonable expectation of privacy,' … [such] that petitioner did not have an expectation of
privacy that society would recognize as legitimate." Sampson v. California, 547 U.S. 843, 852, 126 S.Ct.
2193 (2006) (quoting United States v. Knights, 534 U.S. 112, 120, 122 S.Ct. 587 (2001)).
25
Schneckloth, which on the one hand is unbargained-for and gratuitous on the
part of the waiving party, and on the other is subject to strict scrutiny
concerning its knowing and voluntary character, a bargained-for waiver, like
any other contractual provision, binds a party even though he neglected to
read the clause in question. In other words, unlike bare consent, a waiver
acts more like a bargained-for contract that binds a party even though he
neglected to read it, and it cannot later be withdrawn. In the case of a
mandatory draw statute, which the law presumes the driving public to have
read, the driver impliedly agrees ahead of time that, in exchange for the
privilege of driving on our roads, he is willing to waive the right to a warrant
in these limited circumstances. The deal is sealed when he gets behind the
wheel, and it can't later be revoked when he gets caught driving in an
impaired condition.
Moreover, implied consent statutes like the one in Texas do not apply
to all motorists, but only to objectively impaired ones. Accordingly, there
are two components over which the driver has control: (1) the choice to
drive a vehicle on Texas roads; (2) in an objectively impaired condition that
would create probable cause to believe he is intoxicated. A driver who
wishes to avoid the inconvenience of a warrantless search of his or her blood
may effectively do so simply by avoiding any alcohol or other drugs that
26
might tend to impair his driving or lead to probable cause to believe that he
is intoxicated. On the other hand, the driver who imbibes enough to raise
suspicion rightfully takes his chances and should fairly be held to his waiver.
E. Search Incident to Arrest.
The blood draw was also valid pursuant to the search-incident-to-
arrest exception to the warrant preference, especially in light of the
recognized exigency regarding the dissipation of alcohol from the blood.
McNeely, 133 S.Ct. at 1568 (“in every case the law must be concerned that
evidence is being destroyed”). In Cupp v. Murphy, the Supreme Court
upheld the warrantless search of the defendant's body – obtaining samples
from underneath his fingernails – as a search incident to arrest. The officers
possessed probable cause to believe the defendant had strangled the victim,
and the circumstances also involved a potential exigency. See Cupp v.
Murphy, 412 U.S. 291, 294-95 (1973) (analogizing the highly evanescent
characteristic of the fingernail scrapings to the exigent nature of blood
alcohol described in Schmerber).4
In the search-incident-to-lawful-arrest scenario, a law enforcement
officer may conduct a full but reasonable search of a person, unlike the
scenario often seen where the search focuses on a vehicle. See, e.g., Arizona
4
See Schmerber, 384 U.S. 757.
27
v. Gant, 556 U.S. 332, 338 (2009). There is no limit on the scope of such a
search, other than the Fourth Amendment’s core reasonableness
requirement.5 See United States v. Edwards, 415 U.S. 800, 803 n.9 (1973).
Here, the nexus between the crime being investigated and the search being
sought is beyond dispute. Additionally, the instant search-incident-to-arrest
responds to the need to preserve evidence.
IV. OTHER SIGNIFICANT FACTORS.
In addition to the specific exceptions into which a mandatory blood
draw might fit, a number of factors should be considered in determining the
overriding question – is it “reasonable” to allow this sort of warrantless
blood draw?
A. Legitimate Governmental Interest.
The Supreme Court has recently stated, concerning warrantless
searches, that the “application of ‘traditional standards of reasonableness’
requires a court to weigh ‘the promotion of legitimate governmental
interests’ against ‘the degree to which [the search] intrudes upon an
individual's privacy.’” Maryland v. King, 133 S.Ct. 1958, 1970 (2013)
(reasonable to require buccal swab as a legitimate police booking procedure)
(quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297 (1999)).
5
The McNeely majority acknowledged that, unlike the exigent circumstances exception, the traditional
warrant exception known as search-incident-to-arrest applies categorically, not requiring a case-by-case
28
In the present case, the legitimate interests of the State in detering drunk
driving is thus a factor to weigh in favor of upholding the present mandatory
draw statute.
B. Gravity of the Offense.
In Welsh v. Wisconsin, the Supreme Court recognized that the Fourth
Amendment authorizes common-sense consideration of the gravity of the
underlying offense when weighing the existence of an exigency. Welsh v.
Wisconsin, 466 U.S. 740, 751-52 (1984). According to the Court, a crime’s
severity should be considered as an “important” or “principal” factor in the
exigency calculation. The mandatory-blood draw statute applies this legal
theory by authorizing compelled draws only in limited, serious cases
involving felony conduct or less-than-minor injuries.
C. Bright-Line Rule.
By providing a limited number of instances mandating compelled
blood draws, the implied-consent framework provides a standard "essential
to guide police officers, who have only limited time and expertise to reflect
on and balance the social and individual interests involved in the specific
circumstances they confront.” Dunaway v. New York, 442 U.S. 200, 213–14
analysis. McNeely at 1558 n.3.
29
(1979) (applying the Fourth Amendment to facts unrelated to the instant
scenario).
D. Presumption of Validity and Constitutionality.
Statutes are presumed constitutional until determined otherwise;
challengers to a statute’s constitutionality bear the burden of rebutting
presumed constitutionality. Karenev v. State, 281 S.W.3d 428, 434 (Tex.
Crim. App. 2009).
In addition, the Supreme Court has recognized that “[t]he presumption
of validity which applies to legislation generally is fortified by acquiescence
continued through the years.” Life & Casualty Ins. Co. v. McCray, 291 U.S.
566, 572, 54 S.Ct. 482 (1934). Implied consent statutes of the present nature
have been around in Texas and other states for the past 30 years without any
significant challenge to their constitutionality. The fact that these statutes
are widely accepted throughout the country and have survived for so long
without any such challenge should weigh heavily in favor of a presumption
that the mandatory draw is valid, reasonable, and constitutional.
E. The Underlying Expectation of Privacy.
While a state statute cannot contravene the Fourth Amendment
protection and requirements for a warrant, it may both represent and inform
the extent of the societal "reasonable expectation of privacy."
30
The Supreme Court has recognized that the extent to which society
recognizes an expectation of privacy in any particular context evolves with
changing conditions, and that state statutes themselves may represent and
mirror those expectations. See City of Ontario v. Quon, 130 S.Ct. 2619,
2629-30 (2010) (city’s review of employee’s text messages was reasonable,
and thus did not violate Fourth Amendment). In addition, clearly
communicated policies of someone in authority, such as an employer, may
shape the reasonable expectation of privacy for those subject to his or her
authority. See Quon, 130 S.Ct. at 2630. Likewise, clearly communicated
policies concerning the driving privilege may shape a driver's expectation of
privacy in his blood should he be stopped on suspicion of DWI.
Accordingly, to the extent that mandatory draw statutes represent a
lowering of the driving public's expectations concerning privacy in their
blood and what they may be required to do in certain circumstances, that
lowering of expectations may inform the debate concerning the extent to
which the Fourth Amendment privacy right continues to require a warrant.
Stated another way, the people have spoken, through their legislators,
concerning their expectations about privacy, and reasonable intrusions
thereon, when they are caught driving in an impaired condition.
31
F. The Specific Context of a Post-Arrest Mandatory Draw.
As a practical matter, the suspect has already been arrested and cannot
complain that the blood draw is interfering with his freedom; he will sit
waiting either at the hospital or at the jail. He cannot complain that he is
being subjected to forced surgery or medication, or some risky or painful
medical procedure. He will receive the same pin prick that all patients come
to expect as a routine matter of occasional testing.6 The testing of that blood
will not put his entire medical condition before the public eye, but will be
limited to testing for intoxicants to confirm or deny that he was driving
while intoxicated. In short, the privacy interest being invaded is slight in the
context of a post-arrest mandatory draw.
G. Statutory Protections Concerning the Manner of Drawing Blood.
Concurrent with the lack of a warrant requirement, the mandatory
draw statute provides added protection concerning the procedure for the
blood draw, which significantly alleviates the concerns expressed by
McNeely and Schmerber.
The Supreme Court in Schmerber v. California, 384 U.S. 757, 86
S.Ct. 1826 (1966), focused its concern not only on the initial justification for
the blood draw, but also, arguably primarily, on the means and procedures
6
Blood tests have been described as commonplace, routine, and safe by the Supreme Court. See South
Dakota v. Neville, 459 U.S. 553, 563 (1983); Breithaupt v. Abram, 352 U.S. 432, 436 (1957).
32
employed and whether they involve “an unjustified element of personal risk
of infection and pain.” 384 U.S. at 772.
Assuming that the bodily invasion itself is the primary concern, that
invasion can be significantly ameliorated by a statutory framework that
requires the conditions of the draw to be sanitary and restricts those persons
who may draw blood to a qualified few.
The blood draw provisions in the Transportation Code require both
that the person drawing the blood be qualified and that it be taken in a
sanitary place, as follows:
(a) Only the following may take a blood specimen at the request or
order of a peace officer under this chapter:
(1) a physician;
(2) a qualified technician;
(3) a registered professional nurse;
(4) a licensed vocational nurse; or
(5) a licensed or certified emergency medical technician-intermediate
or emergency medical technician-paramedic authorized to take a
blood specimen under Subsection (c).
(a-1) The blood specimen must be taken in a sanitary place.
Tex. Transp. Code § 724.017.
Accordingly, blood drawn pursuant to this statutory mandate avoids
the concerns present in McNeely, where a favorable ruling would have
opened up the possible situations where blood could be drawn to any
environment that the officer might consider appropriate and any person that
the officer in his discretion might consider to be competent to draw it. Had
33
McNeely gone the other way, it is easy to imagine officers on patrol carrying
a little blood draw kit, with minimal training thereon, ready to take blood
wherever they encounter a drunk driver. See Schmerber v. California, 384
U.S. 757, 772, 86 S.Ct. 1826 (1966) (questioning the reasonableness of a
blood draw “administered by police in the privacy of the stationhouse”).
The Texas draw statute protects drivers against this sort of arbitrary
procedure and should ease their minds concerning the circumstances of a
required draw. These statutorily enhanced procedures should be considered
in balancing the reasonableness of the statutory mandate against the actual
intrusion allowed thereunder. In other words, to the extent that the statute
lessens the dangers of a painful or unsanitary draw, it should likewise lessen
the hurdle that the State must overcome in order to justify such a warrantless
draw. See Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (“fact than an
intrusion is negligible is of central relevance to determining
reasonableness”).
V. OTHER CASES.
There are a number of Texas cases addressing the constitutionality of
the implied consent and mandatory blood-draw statute, several post-
McNeely, although no case yet from the Court of Criminal Appeals.
- Reeder v. State, --- S.W.3d ----, No. 06–13–00126–CR, 2014 WL
60162 (Tex. App.--Texarkana, January 8, 2014) (recognizing
34
implied consent as another method of conducting a constitutionally
valid search).
- Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012,
pet ref’d) (pre-McNeely opinion holding that the mandatory blood-
draw statute does not violate the Fourth Amendment).7
- Douds v. State, --- S.W.3d ----, No. 14–12–00642–CR, 2013 WL
5629818 (Tex. App.--Houston [14th Dist.], October 15, 2013, no
pet. h.) (upholding a mandatory blood draw where there were
exigent circumstances).
- State v. Villarreal, No. 13-13-00253-CR, 2014 Tex. App. LEXIS
645, at *34 (Tex. App.—Corpus Christi Jan. 23, 2014) (holding
that the statute was unconstitutional as applied because the State
conceded to the trial court that there was no consent, no exigency,
and no warrant).
In addition, out-of-state cases generally agree that McNeely’s rejection of a
categorical exigency exception to the warrant requirement does not impact
implied-consent provisions. See In re Hart, 2013 WL 2990658, slip op. at
n.2 (Wis. App., June 18, 2013) (publication decision pending) (dicta); State
v. Flonnory, 2013 WL 3327526, at *6 (Del. Super. Ct., June 12, 2013) (not
designated for publication); see also State v. Osborne, 2013 WL 3213298,
slip op. (Wis. App., June 27, 2013) (publication decision pending).
VI. THE UNIQUE NATURE OF THE INTRUSION
– SEARCH OR SEIZURE?
Finally, the State would suggest that the Supreme Court has
mislabeled a blood draw as a “search,” when it more properly fits the legal
7
Both the State and the defendant, however, asked the Supreme Court to grant the defendant’s petition for
certiorari and issue an opinion on the constitutionality of Texas’ statutes in light of McNeely. Predictably,
on January 13, 2014, the Supreme Court vacated the judgment and remanded for the state court to do such
an analysis first.
35
definition of a “seizure.” The distinction is more than merely academic, as
a seizure or arrest, unlike a search, generally does not require a warrant. See
Atwater v. City of Lago Vista, 532 U.S. 318, 340-41, 121 S.Ct. 1536 (2001).
The Supreme Court has distinguished searches from seizures as
follows: “A search compromises the individual interest in privacy; a seizure
deprives the individual of dominion over his or her person or property.”
Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301 (1990) (citing
United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652 (1984)); see
also State v. Powell, 306 S.W.3d 761, 769 n.14 (Tex. Crim. App. 2010)
(citing Horton).
When Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966),
was decided some fifty years ago, the Supreme Court acknowledged the
unique nature of the intrusion in forced blood draws and stated, “Because we
are dealing with intrusions into the human body rather than with state
interferences with property relationships or private papers—‘houses, papers,
and effects'—we write on a clean slate.” 384 U.S. at 767-68. Recently, the
Supreme Court has continued to recognize forced blood draws as “an
invasion of bodily integrity [that] implicates an individual's ‘most personal
and deep-rooted expectations of privacy.’” Missouri v. McNeely, 133 S.Ct.
1552, 1558 (2013). Similarly, the Supreme Court has characterized buccal
36
swabs of the mouth as “an invasion of ‘cherished personal security’ that is
subject to constitutional scrutiny.” Maryland v. King, 133 S.Ct. 1958, 1969
(2013) (quoting Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000 (1973)).
However, in writing on a “clean slate,” the Court has, in the State’s
view, too hastily categorized a blood draw as a search rather than a seizure.
In the present case, the interest being protected is, like an arrest,
grounded in an individual’s dominion over his own person, rather than on
the privacy of things carried on his person. Blood is not a briefcase, pocket,
or purse in which a person may carry private things, and it is not the private
nature of the blood being seized that gives rise to the Fourth Amendment
protection, but the manner of getting at that blood through an assault on the
skin and veins of the person in question. Accordingly, as with an arrest, the
Fourth Amendment here protects personal dominion rather than privacy.
Blood draws are comparable to the use of a taser as an incident of the
defendant’s arrest. See, e.g., Carpenter v. Gage, 686 F.3d 644, 649-50 (8th
Cir. 2012); Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012); Cook v. City of
Bella Villa, 582 F.3d 840, 849-50 (8th Cir. 2009). Both situations involve
forcing a metal object under the defendant’s skin – the taser being
significantly more severe – and both should be analyzed as a form or manner
of seizure, rather than as a search, for purposes of the Fourth Amendment.
37
Although the Supreme Court has summarily categorized a forced
blood draw as a search, the State would argue that it should re-examine this
analysis and hold that it amounts instead to a seizure - in the nature of an
extension or collateral part of the arrest of the person - and that, as such,
there is no warrant requirement if probable cause has already been
established.
VII. CONCLUSION.
Because McNeely’s holding was limited to whether the mere
dissipation of alcohol in the blood constituted exigent circumstances, the
United States Supreme Court has not ruled that § 724.012 of the Texas
Transportation Code is unconstitutional. There is every reason to believe that
one or more of the exceptions discussed above will be sufficient to sustain
the constitutionality of the Texas mandatory blood draw and implied consent
statutes, which are narrowly drawn to include only the most egregious
offenders and situations. Additionally, the blood draw in this case meets
several exceptions to the warrant requirement – actual consent and exigent
circumstances.
PRAYER
For the foregoing reasons, the State respectfully requests that the
Court of Appeals order the trial court to vacate its order granting
38
defendant’s Motion to Suppress, and for all other relief to which the State
shows itself justly entitled.
Respectfully Submitted,
/s/ Michelle A. Putman
___________________
Michelle A. Putman
State Bar No. 24068493
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
michelle.putman@nuecesco.com
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 5,879.
/s/ Michelle A. Putman
___________________
Michelle A. Putman
39
CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was mailed this 19th day of
February, 2015, to Appellee’s attorney, Scott Ellison.
/s/ Michelle A. Putman
___________________
Michelle A. Putman
40
State v. Jerome Edmond
Combined Opinion