PD-0601-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/21/2015 3:47:03 PM
Janaury 22, 2015 Accepted 1/22/2015 2:00:09 PM
ABEL ACOSTA
Nos. PD-0601-14 & PD-0622-14 CLERK
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
CLAYTON DEAN REEDER AND Appellants
MARCUS BRUCE HOLIDY,
v.
THE STATE OF TEXAS, Appellee
Appeals from Rusk County
* * * * *
STATE’S POST-SUBMISSION
SUPPLEMENTAL BRIEFS
* * * * *
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
Bar I.D. No. 24031632
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512-463-1660 (Telephone)
512-463-5724 (Fax)
The State submits these post-submission supplemental briefs to further address
some issues raised during oral argument.
Applicability of Heien v. North Carolina
In Heien, the Court addressed the validity of a traffic stop based on an officer’s
mistaken belief about the elements of an ambiguous brake-light traffic offense. __
U.S. __, 2014 U.S. LEXIS 8306, at *5 (2014). Even though the officer was wrong
about the elements of the offense, his belief that a violation had been committed was
reasonable, and so the stop based on that belief was also reasonable, i.e. supported by
reasonable suspicion. Id. at *21. Because the Fourth Amendment forbids only those
searches and seizures that are unreasonable, there was no constitutional violation. Id.
at *18. The entire rationale of Heien is that a Fourth Amendment violation does not
occur if the seizure is supported by probable cause or reasonable suspicion of a
substantive criminal law violation. It does not say that any reasonable mistake makes
any search or seizure reasonable. In fact, it said that an officer cannot be reasonably
mistaken about the requirements of the Fourth Amendment: “An officer’s mistaken
view that the conduct at issue [(a search or seizure)] did not give rise to such a
violation—no matter how reasonable—could not change that ultimate conclusion.”
Id. at *17.
The distinction between reliance on a substantive criminal law and reliance on
1
a statute purporting to authorize a search is not new. In Michigan v. DeFillippo, the
Court stated: “We have held that the exclusionary rule required suppression of
evidence obtained in searches carried out pursuant to statutes, not previously declared
unconstitutional, which purported to authorize the searches in question without
probable cause or a warrant.” 443 U.S. 31, 35-51 (1979). In those circumstances, the
search-authorizing statutes did not comport with the Fourth Amendment. Id. In
contrast, the Court observed that substantive criminal law offenses do not directly
authorize a search and seizure; they are relevant only to the facts and circumstances
that constitute probable cause or reasonable suspicion supporting an arrest. Id. Or,
as the Court explained,
The validity of the arrest does not depend on whether the suspect
actually committed a crime; the mere fact that the suspect is later
acquitted of the offense for which he is arrested is irrelevant to the
validity of the arrest. We have made clear that the kinds and degree
of proof and the procedural requirements necessary for a conviction
are not prerequisites to a valid arrest.
Id. at 36.
The Court went on to hold that the search of DeFillippo made pursuant to his
arrest based on probable cause that he violated a statute (failure to identify), which
was later declared unconstitutional for vagueness, did not violate the Fourth
Amendment. Id.
2
The Supreme Court has also addressed the distinction between finding no
violation occurred and choosing not to apply the exclusionary remedy. In Illinois v.
Krull, also cited by Heien, 2014 U.S. LEXIS 8306, at *17, a statute that authorized
warrantless inspections of automobile wrecking yards was held unconstitutional
because it gave officers unbridled discretion. Illinois v. Krull, 480 U.S. 340, 1164
(1987). Recognizing that the search of Krull’s business under the statute violated the
Fourth Amendment, the Court held that, because law enforcement relied on the
presumptively valid statute in good faith, the federal exclusionary rule did not require
the remedy of suppression. Id. at 1169-72. In doing so, the Court observed that the
deterrent purpose of the exclusionary rule is not served because a statute, enacted by
legislators, provided the basis for the mistake; there was no improper police conduct.
Id. at 352. In the Court’s view, “the greatest deterrent to the enactment of
unconstitutional statutes is the power of courts to invalidate such statutes.” Id.
Transportation Code Section 724.012(b) is a search-authorizing statute.
Therefore, any mistake as to its terms is controlled by Krull. So if, as per Villarreal,
the search pursuant to the statute without a warrant violated the Fourth Amendment,
then there is a Fourth Amendment violation. An officer’s reasonable belief that the
statute allowed the blood draw without a warrant does not make the search
reasonable. The question then becomes whether the remedy of suppression is
3
appropriate. Cf. Davis v. United States, 131 S. Ct. 2419, 2431 (2011) (“the
retroactive application of a new rule of substantive Fourth Amendment law raises the
question whether a suppression remedy applies . . . .”). Given the statute and the
Court’s statement in Beeman v. State,1 that the statute operates independently from
a warrant, it would be appropriate to conclude that the federal good-faith exception
applies.
Also, if it is ultimately determined that the statute has always had a warrant
requirement, then any officer who executed a search under the statute without a
warrant violated the Fourth Amendment. The application of the exclusionary rule
becomes questionable, however. If an officer executed a search pursuant to the
statute, but under a reasonably mistaken belief that it did not require a warrant, then
the good faith exception should apply. But if the officer should have known that the
statute included a warrant requirement, it cannot be said that he reasonably relied on
the statute at all. Instead, the officer acted outside the scope of the statute, and the
good faith exception would be inapplicable.
1
86 S.W.3d 613, 615 (Tex. Crim. App. 2002); see also State v. Johnston,
336 S.W.3d 649, 661 (Tex. Crim. App. 2011) (“In light of Beeman, the court of
appeals was correct to hold that compliance with Section 724.017 would provide
one way to establish reasonableness under the Fourth Amendment.”).
4
Reasonableness Framework
Further analysis of the application of the reasonableness framework to
warrantless mandatory blood draws under the implied consent law’s repeat offender
provision may also be helpful.
Whether a warrantless blood-draw conducted pursuant to the repeat-offender
implied consent mandatory blood-draw provision is reasonable presents a
“Goldilocks” predicament. The well-established warrant exceptions are not “just
right” for one reason or another. But shoe-horning facts into an established exception
is unnecessary. Reasonableness—the touchstone of the Fourth Amendment—is the
“just right” theory. See e.g., Schmerber, 384 U.S. at 768; Sitz, 496 U.S. at 450;
Segundo, 270 S.W.3d at 98; McGee, 105 S.W.3d at 616. Consideration of the various
factors borrowed from precedent assessing reasonableness in other contexts
establishes that a Section 724.012(b)(3)(B) blood draw does not violate the Fourth
Amendment.
Reduced Expectation of Privacy
The following provide a basis for recognizing a reduced expectation of privacy
in this context:
• Use of a vehicle on public roadways. See New York v. Class, 475 U.S.
106, 113 (1986) (reduced expectation of privacy expected in automobile
due to pervasive regulation); Skinner v. Ry. Labor Executives’ Ass’n,
5
489 U.S. 602, 627 (1989) (“the expectations of privacy of covered
employees are diminished by reason of their participation in an industry
that is regulated pervasively to ensure safety . . . .”).
• Arrest. See Riley v. California, 134 S. Ct. 2473, 2485 (2014) (reduced
privacy expectations by virtue of arrest); Maryland v. King, 133 S. Ct.
1958, 1979 (2013) (“A brief intrusion of an arrestee’s person is subject
to the Fourth Amendment, but a swab of this nature does not increase
the indignity already attendant to normal incidents of arrest.”).
• Citizens are presumed to know the law. Cheek v. United States, 498
U.S. 192 (1991); see also United States v. Biswell, 406 U.S. 311, 315-16
(1972) (administrative search of firearms business reasonable because
owner was aware of statutory authorization and time, place, scope
limitations).
• Repeat offender status. Cf. Griffin v. Wisconsin, 483 U.S. 868, 873-80
(1987) (regulation authorizing warrantless search of probationer’s home
based on “reasonable grounds” that there is contraband); United States
v. Knights, 534 U.S. 112, 119-22 (2001) (search of probationer
reasonable based on a known and accepted cart blanche probation
search condition and reasonable suspicion of wrongdoing); Samson v.
California, 547 U.S. 843, 852-56 (2006) (suspicionless search of
parolee’s person reasonable based on a known and accepted cart
blanche parole search condition).
A person’s non-probationary or parole status is not determinative.
Convicted persons may be denied constitutional rights on the basis of a
conviction, even where the sentence has been fully discharged. See,
e.g., Richardson v. Ramirez, 418 U.S. 24, 52-55 (1974) (exclusion of
felons from voting); District of Columbia v. Heller, 554 U.S. 570-626-
27 (2008) (noting exclusion of laws barring felons from possessing
firearms from its holding); Kansas v. Hendricks, 521 U.S. 346, 369
(1997) (civil commitment of dangerous sex-offenders).2
2
A comprehensive list of collateral consequences that flow from a felony
conviction in Texas can be found on the ABA’s Criminal Justice Section’s
6
Limited Discretion
The limited discretion afforded to an officer to draw blood and the limited
circumstances under which he may do so also support the reasonableness of the
statute.
• Probable Cause of a Chapter 49, Penal Code, offense is required. Cf.
King, 133 S. Ct. at 1970 (arrestee in valid police custody for serious
offense supported by probable cause); Griffin, 483 U.S. at 873-80
(“reasonable grounds” required for search of probationer’s home);
Knights, 534 U.S. at 119-22 (reasonable suspicion of wrongdoing
required for search of probationer’ home); Cupp v. Murphy, 412 U.S.
291, 296 (1973) (fingernail scraping for readily destructible evidence
reasonable when conducted pursuant to station-house detention and
probable cause).
• Of those arrested for a Chapter 49 offense, the search authorization
applies to only those with two prior DWI convictions. Because officers
will generally not know which suspects qualify for a mandatory draw,
it is highly unlikely that arrests under Chapter 64 will be made as a
pretext for enforcing Section 724.012. Thus, in nearly all cases officers
exercise no discretion in executing a mandatory draw. Cf. King, 133 S.
Ct. at 1967 (DNA sample from all persons arrested for serious offenses);
Skinner, 489 U.S. at 629-30 (“triggering event” mandating testing is
unknown and cannot be predicted).
The Test is Reasonable and Limited
The reasonableness of the method is well-established, and the proposed use is
more limited than in other cases upheld by the Supreme Court.
National Inventory of Collateral Consequences of Conviction at
http://www.abacollateralconsequences.org/search/?jurisdiction=45.
7
• Blood draws are presumptively reasonable, and the amount of blood
taken is small. 3 See State v. Johnston, 336 S.W.3d 649, 659 (Tex. Crim.
App. 2011) (holding that blood draws are reasonable and noting that a
small sample is taken).
• The analysis is limited to the discovery of intoxicants. Compare with
Riley, 134 S. Ct. at 2489 (data contained on cell phone quantitatively
and qualitatively different than any other object); King, 133 S. Ct. at
1967 (DNA for identification and unsolved crime comparison); Segundo
v. State, 270 S.W.3d 79, 98 (Tex. Crim. App. 2008) (DNA collection to
assist investigating and prosecuting sex-related offenses and other cases
in which biological evidence was recovered); McGee v. State, 105
S.W.3d 609, 617-18 (Tex. Crim. App. 2003) (visual body cavity
inspection incident to arrest).
Equally Vital Administrative Purpose
Blood-draw evidence is equally vital to the enforcement of non-punitive,
administrative license suspensions and refusals.4 Compare with New York v.
Burger, 482 U.S. 691, 713-14 (1987) (junkyard regulatory warrantless
inspection scheme, which may be conducted by police, promotes the same goal
as criminal laws by deterring auto theft); Mich. Dep’t of State Police v. Sitz,
496 U.S. 444, 449-50, 453-55 (1990) (upholding checkpoint to discover drunk-
drivers as reasonable and noting that dispensing with individualized suspicion
does not always require a non-criminal law-enforcement purpose).
Exigency
Finally, though insufficient on its own as a justification, there is always an
element of exigency with respect to dissipation of intoxicants that should be
3
Any fears about how the test is administered is an entirely separate
question and therefore should not factor into the reasonableness of the
authorization of the draw. Johnston, 336 S.W.3d at 663 (noting that use of force is
generally reasonable).
4
See TEX. TRANSP. CODE §§ 724.032-042.
8
considered. See Skinner, 489 U.S. at 623 (recognizing, among other things, that
the delay needed to get a warrant may result in the destruction of evidence).
9
PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that the Court of Criminal Appeals
reverse the judgments of the Court of Appeals. But if the Court affirms, the State
prays that the Court remand the cases so that the courts of appeals can decide if
suppression is warranted.
10
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool
these documents contain 2,040 words, exclusive of the items excepted by TEX. R.
APP. P. 9.4(i)(1).
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
11
CERTIFICATE OF SERVICE
The undersigned certifies that copies of the State’s Post-Submission
Supplemental Briefs have been served on January 21, 2015, via certified electronic
service provider to:
Hon. Richard Kennedy
Rusk County Courthouse
115 North Main Street
Henderson, Texas 75652
rkennedy@co.rusk.tx.us
Hon. Ebb B. Mobley
422 North Center Street
P.O. Box 2309
Longview, Texas 75606
ebbmob@aol.com
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
12