Summary
determining that testing of sample of defendant's blood lawfully collected under search warrant did not violate Fourth Amendment even though there was no "explicit authorization for such testing in the search warrant (or in a separate search warrant)" because, among other reasons, magistrate determined that probable cause "existed to justify its seizure—for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated"
Summary of this case from Schneider v. StateOpinion
NO. PD-1070-19
09-16-2020
Robert Lee CRIDER, Jr., Appellant v. The STATE of Texas
OPINION
Yeary, J., delivered the opinion of the Court in which Keller, P.J., and Keasler, Hervey, Richardson, Newell, Keel, and Slaughter, JJ., joined.
A sample of Appellant's blood was lawfully extracted pursuant to a search warrant which alleged probable cause to believe he had been driving while intoxicated. The warrant, however, did not also expressly authorize the chemical testing of the extracted blood to determine his blood-alcohol concentration. This petition for discretionary review calls upon us now to examine whether introduction of evidence of the result of the chemical testing at Appellant's trial, in the absence of any explicit authorization for such testing in the search warrant (or in a separate search warrant), violated his Fourth Amendment rights. We hold that it did not, and we therefore affirm the judgment of the court of appeals.
I. Background
Following a citizen's 9-1-1 report describing Appellant's erratic driving as well as the location where he eventually parked, a Kerrville police officer found Appellant sitting alone in his vehicle exactly where he had been reported to be. The officer noticed that Appellant exhibited a strong odor of alcohol, glassy and bloodshot eyes, an unsteady gait, and slow, slurry speech. When Appellant would not submit to field sobriety testing because of claims of recent injuries, the officer conducted a horizontal gaze nystagmus test to look for signs of intoxication. Appellant exhibited all six signs of intoxication that are revealed through that test. The officer then arrested Appellant and sought a search warrant for extraction of his blood, which was granted. But the search warrant did not explicitly authorize the chemical testing of Appellant's blood. Chemical testing of the blood sample was nevertheless conducted, and it revealed an alcohol-concentration level of .19.
Appellant did not contest the validity of the search warrant insofar as it authorized the extraction of his blood. See Crider v. State , No. 04-18-00856-CR, 2019 WL 4178633, at *1 (Tex. App.—San Antonio Sept. 4, 2019) (mem. op., not designate for publication) ("Crider does not challenge the existence of probable cause to support the blood draw warrant."). He did challenge, in a motion to suppress evidence, however, the introduction of evidence of the results of chemical testing for his blood-alcohol concentration. The trial court denied his motion to suppress, and on appeal Appellant argued that the introduction of his blood-alcohol concentration test result was error under this Court's recent opinion in State v. Martinez , 570 S.W.3d 278 (Tex. Crim. App. 2019).
In Martinez , this Court recently reiterated what it had held in previous opinions: that the chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes from the physical extraction of that blood. Id. at 290 ; see also State v. Huse , 491 S.W.3d 833, 840 (Tex. Crim. App. 2016) ("[W]hen the State itself extracts blood from a DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes."); State v. Hardy , 963 S.W.2d 516, 523 (Tex. Crim. App. 1997) ("Where the drawing of blood is instigated by the government, a subsequent analysis of the blood by government agents also constitutes an invasion of a societally recognized expectation of privacy.") (citing Skinner v. Ry. Labor Exec.’s Ass'n. , 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ).
Appellant argued that this necessarily means that he may insist that, before that chemical testing may occur, the State must obtain a warrant expressly authorizing that test, or else identify an exception to the Fourth Amendment's ordinary preferences for search warrants. Crider , 2019 WL 4178633, at *2. While acknowledging our holding that blood testing involves a discrete invasion of privacy under the Fourth Amendment, the San Antonio court of appeals held that this did not require a separate and express authorization of chemical testing in a search warrant that already authorizes extraction of blood for that purpose. See id. ("[W]e reasonably can assume that where the police seek and obtain a blood draw warrant in search of evidence of intoxication, the blood drawn pursuant to the warrant will be tested and analyzed for that purpose.").
Other courts of appeals in Texas have reached similar conclusions. See Hyland v. State , 595 S.W.3d 256, 261 (Tex. App.—Corpus Christi–Edinburg 2019, no. pet.) (op. on remand) ("[U]nlike in Martinez , the search here was not warrantless."); State v. Staton , 599 S.W.3d 614, 618 (Tex. App.—Dallas 2020, no pet. h.) ("[C]ommon sense dictates that blood drawn for a specific purpose will be analyzed for that purpose and no other.") (quoting Martinez , 570 S.W.3d at 290 ); Jacobson v. State , 603 S.W.3d 485, 491 (Tex. App.—Fort Worth 2020) ("[T]he Fourth Amendment does not require the State to obtain a second warrant to test a blood sample that was seized based on probable cause that a person was driving while intoxicated."). And we do too.
II. Analysis
"[T]he ultimate touchstone of the Fourth Amendment is reasonableness." Riley v. California , 573 U.S. 373, 381–82, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (quoting Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). A neutral magistrate who has approved a search warrant for the extraction of a blood sample, based upon a showing of probable cause to believe that a suspect has committed the offense of driving while intoxicated, has necessarily also made a finding of probable cause that justifies chemical testing of that same blood. Indeed, that is the purpose of the blood extraction. This means that the constitutional objective of the warrant requirement has been met: the interposition of a neutral magistrate's judgment between the police and the citizen to justify an intrusion by the State upon the citizen's legitimate expectation of privacy. See State v. Villarreal , 475 S.W.3d 784, 795–96 (Tex. Crim. App. 2014) (op. on orig. subm.) (citing Johnson v. United States , 333 U.S. 10, 13–14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), for the proposition that the purpose of the Fourth Amendment's warrant requirement is to provide a neutral arbiter between the police and citizens to determine whether probable cause exists to justify a police intrusion). Whether we say the warrant that justifies extraction of the blood also, by necessary implication, justifies chemical testing, or we simply acknowledge that a magistrate's finding of probable cause to extract the blood for chemical testing necessarily constitutes a finding of probable cause also to conduct the chemical test for intoxicants, is of no moment. However we choose to characterize it, the chemical testing of the blood, based upon a warrant that justifies the extraction of blood for that very purpose, is a reasonable search for Fourth Amendment purposes.
See Faulkner v. State , 537 S.W.2d 742, 744 (Tex. Crim. App. 1976) ("[I]n interpreting affidavits and search warrants , magistrates and courts must do so in a common sense and realistic fashion and avoid hypertechnical analysis.") (emphasis added); Long v. State , 132 S.W.3d 443, 448 (Tex. Crim. App. 2004) ("[W]hen courts examine the description of the place to be searched to determine the warrant's scope, they follow a common sense and practical approach, not a ‘Procrustean’ or overly technical one."); see also State v. Martines , 184 Wash.2d 83, 355 P.3d 1111, 1115 (2015) ("A warrant authorizing a blood draw necessarily authorizes blood testing, consistent with and confined to the finding of probable cause."); State v. Frescoln , 911 N.W.2d 450, 456 (Iowa Ct. App. 2017) ("Although the warrant does not explicitly state that the blood sample would be subject to chemical testing, the stated reason for obtaining the blood sample was its relevance to an [Operating While Intoxicated] investigation. The best practice is to state the purpose for requesting the sample in the warrant. However, a commonsense reading of the warrant implies the blood sample would be subjected to chemical testing.").
As all the courts of appeals to have addressed the question so far have discerned, the facts of Martinez are distinguishable. See Crider , 2019 WL 4178633, at *6 ; Hyland , 595 S.W.3d at 260–61 ; Staton , 599 S.W.3d at 616–18 ; Jacobson , 603 S.W.3d at 491. There, it was not the State that extracted the blood in the first instance. Instead, the State obtained the already-extracted blood sample from a treating hospital and, without a magistrate's finding of probable cause, had that blood sample tested for intoxicants. Martinez , 570 S.W.3d at 281. Having previously acknowledged that a chemical test conducted at the behest of the State constitutes a discrete and separate invasion of a legitimate expectation of privacy, we held that the warrantless test was unconstitutional. Id. at 292.
Here, the State obtained the blood sample by way of a magistrate's determination that probable cause existed to justify its seizure—for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated. That magistrate's determination was sufficient in this case to justify the chemical testing of the blood. And this is so, we hold, even if the warrant itself did not expressly authorize the chemical testing on its face.
This holding is not tantamount, as Appellant fears, to an unconstitutional endorsement of "general" search warrants. The Fourth Amendment prohibits the enforcement of warrants that are so lacking in specificity that the police may seemingly engage in "general, exploratory rummaging in a person's belongings." Walthall v. State , 594 S.W.2d 74, 78 (Tex. Crim. App. 1980) (citing Andresen v. Maryland , 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), quoting Coolidge v. New Hampshire , 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ). But no indiscriminate "rummaging" through the content of Appellant's blood was authorized here; nor does the record suggest that any occurred. On the basis of the warrant issued in this case, the State was not authorized to analyze Appellant's blood for, say, genetic information, or for any other biological information not supported by the same probable cause that justified the extraction of his blood sample in the first place.
See Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 2178, 195 L.Ed.2d 560 (2016) ("[A] blood test ... places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading.").
In his motion to suppress, Appellant sought only to exclude the evidence of his blood-alcohol concentration. Extraction of his blood for the purpose of testing his blood for this specific information was justified by the strong odor of alcohol the officer noticed when he first confronted Appellant and found him to exhibit characteristics of intoxication—a fact confirmed by the neutral magistrate in the warrant. The State does not contend that it should have been able to analyze the blood for any other purpose on authority of the warrant in this case. On the facts of this case, Appellant's concern about the lack of specificity in the warrant is unfounded. We affirm the judgment of the court of appeals.
Newell, J., filed a concurring opinion in which Hervey, Richardson, and Slaughter, JJ., joined.
Walker, J., filed a dissenting opinion.
Newell, J., filed a concurring opinion in which Hervey, Richardson and Slaughter JJ., joined.
Today, the Court clarifies our holding in State v. Martinez , 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 warrant based upon probable cause. 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. I agree with the Court's holding and join the Court's opinion.
570 S.W.3d 278 (Tex. Crim. App. 2019).
Similarly, the concurring opinion believes that "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." (concurring opinion of Newell, J., at 3).
Maj. Op. 306 ("[C]hemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes from the physical extraction of that blood.").
Id. at 306–07 (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) ).
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. Appellant raises some persuasive concerns about implying authorization for a second search from a warrant that only authorizes a seizure. Depending on the type of evidence at issue and the 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. 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. 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. This grounds the analysis upon what the magistrate 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.
Maj. Op. 307.
Appellant's Reply Br. 11 ("What's to stop the government from retaining blood samples for future analysis or for whatever purpose the government may 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 Amendment."); see also Holder v. State , 595 S.W.3d 691, 702–03 (Tex. Crim. App. 2020) (noting framers of the Texas and United States Constitutions shared a disdain for general warrants and that, in Texas, general warrants "were widely condemned as dangerous to liberty because they permitted authorities to search wherever and seize whomever they desired without evidence of criminal activity.").
Appellant's Reply Br. 16–17 ("No one would contest that a warrant authorizing the search of John Doe's home ‘for evidence of any and all crimes’ could not pass constitutional muster. The same principle holds true here, given that blood is simply a repository for a myriad of potentially incriminating 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 rummaging in a person's belongings") (quoting Andresen v. Maryland , 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) ); Maryland v. King , 569 U.S. 435, 466, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) ("At the time of the Founding, Americans 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 limited in scope and application.") (Scalia, J., dissenting).
State's Br. 7–8 & n.24.
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 limit the search of Buckham's cell phone to any relevant time frame and authorized the search of categories of data that had nothing to do with GPS location information; "The mismatch 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 admission of evidence that even the State conceded was important to the trial.").
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. 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. 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 affidavit by reference. 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.
Faulkner v. State , 537 S.W.2d 742, 744 (Tex. Crim. App. 1976).
Id.
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).
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. 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. 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 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.
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 commonsensical and realistic manner).
Faulkner, 537 S.W.2d at 744 ("[I]n interpreting affidavits and search warrants, magistrates and courts must do so in a common sense and realistic fashion and avoid hypertechnical analysis.")
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 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.
See, e.g., Rodriguez v. State , 232 S.W.3d 55, 59 (Tex. Crim. App. 2007) ("The Supreme Court has repeatedly reminded reviewing courts that they should ‘not invalidate the warrant by reading the affidavit in a hypertechnical rather than a commonsense, manner.’ ") (quoting United States v. Ventresca , 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ); see also Illinois v. Gates , 462 U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("Nothing in our opinion in any way lessens the authority of the magistrate to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant; indeed, he is freer than under the regime of Aguilar and Spinelli to draw such inferences, or to refuse to draw them if he is so minded.").
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.
DISSENTING OPINION
Walker, J., filed a dissenting opinion.
Appellant, Robert Lee Crider, Jr.’s, blood was drawn pursuant to a search warrant as part of a DWI investigation, and the blood was later tested for blood alcohol concentration. While the search warrant expressly authorized drawing of the blood, the search warrant did not authorize testing of that blood. The Court today determines that testing was implicitly authorized by the warrant because the affidavit attached to the warrant, which stated facts providing probable cause to draw the blood, also stated facts providing probable cause to test the blood. While I agree that there was probable cause to test the blood, I disagree that the mere presence of probable cause means the warrant authorized testing. Because I would hold that the warrant in Appellant's case did not even implicitly authorize testing, I respectfully dissent.
I — Particularity
The Fourth Amendment prohibits the issuance of warrants unless there is probable cause and unless the warrant particularly describes the place to be searched and the persons or things to be seized. U.S. CONST. amend. IV. A search conducted with a warrant that fails to comply with the Fourth Amendment's particularity requirement is unconstitutional. Massachusetts v. Sheppard , 468 U.S. 981, 988 n.5, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).
The particularity requirement "assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his powers to search. " Bonds v. State , 403 S.W.3d 867, 874–75 (Tex. Crim. App. 2013) (emphasis added). The constitutional objectives of the particularity requirement include:
1) ensuring that the officer searches the right place; 2) confirming that probable cause is, in fact, established for the place described in the warrant; 3) limiting the officer's discretion and narrowing the scope of his search ; 4) minimizing the danger of mistakenly searching the person or property of an innocent bystander or property owner; and 5) informing the owner of the officer's authority to search that specific location.
Id. (citing Long v. State , 132 S.W.3d 443, 447 (Tex. Crim. App. 2004) ) (emphasis added). "[W]hen courts examine the description of the place to be searched to determine the warrant's scope, they follow a common sense and practical approach, not a ‘Procrustean’ or overly technical one." Long , 132 S.W.3d at 448.
Long is a good example of the issues at play in this case. The search warrant in Long , incorporating the affidavit by reference, gave a "remarkably specific" and "superb" description of the premises (a silver railroad car) to be searched, but when executing the warrant the police searched not only the silver railroad car but also another train car in the same vicinity as well as Appellant's home, which was a nearby red caboose. Id. at 445. Long challenged the search of the red caboose as going beyond the scope authorized by the warrant. Id. at 445–46. We concluded that the warrant, specifically describing the silver railroad car to be searched, did not implicitly authorize a search of the separate little red caboose. Id. at 452. This conclusion had two bases. First, we were unwilling to find the little red caboose as included within the curtilage of the business described by the warrant and affidavit due to the fact that the caboose was Long's home. Id. at 450–51. "Furthermore," and of particular importance to the case before the Court today, "we believe[d] that a reasonable magistrate or officer, reading the description of [the premises] in the ... search warrant/affidavit in a common-sense, practical manner, could not conclude that the warrant also authorized a search of [Long's] red caboose home." Id. at 451. A reading of the warrant in Appellant's case inexorably leads to a similar conclusion.
II — The Warrant in This Case
The warrant in this case provides:
WHEREAS an affidavit in writing under oath, has been made before me by Kienan Goodnight (officer who signed search warrant affidavit), which said affidavit is attached hereto and expressly incorporated herein and made a part hereof, and said affidavit and the attachments thereto have stated facts and information in my opinion sufficient to establish probable cause for issuance of this warrant for seizure of BLOOD from the person of Robert Lee Crider Jr (suspected party) and to CARRY the said person to a physician, registered nurse, or medical laboratory technician skilled in the taking of blood from the human body and the said physician, registered nurse, or medical laboratory technician shall take sample of the BLOOD from the person of the said Robert Lee Crider Jr (suspected party) in the presence of a law enforcement officer and deliver the said samples to the said law enforcement officer.
By its terms, the warrant states that the magistrate has the opinion that the affidavit states facts sufficient to establish probable cause for the seizure of Appellant's blood from his person. The warrant then does three things: (1) it authorizes the carrying of Appellant to a physician, registered nurse, or a medical laboratory technician who is skilled in the taking of blood from a human body; (2) it directs that physician, registered nurse, or medical laboratory technician to take a sample of blood from Appellant in the presence of a law enforcement officer; and (3) it directs that physician, registered nurse, or medical laboratory technician to deliver the samples to the law enforcement officer. The warrant does not say anything about testing the blood. The warrant could have directed the physician, registered nurse, or medical laboratory technician to test the blood and thereafter deliver the results of that test to the law enforcement officer. Or the warrant could have instructed the law enforcement officer to take delivery of the drawn blood and thereafter bring it to a forensic laboratory for testing. The warrant, however, did neither of these things.
But the Court reads testing into the warrant anyway. This is so, according to the Court, because the same facts establishing probable cause for the drawing of Appellant's blood are also the same facts establishing probable cause for the testing of Appellant's blood.1 I agree that the facts in the affidavit show probable cause to support both drawing Appellant's blood as well as testing Appellant's blood. But the question is not whether there was probable cause for the draw or the test. The question is whether the warrant authorized the test. It does not.
The concurring opinion likens the situation before us to Faulkner v. State , 537 S.W.2d 742 (Tex. Crim. App. 1976). In Faulkner , we upheld the seizure of contraband where the warrant did not particularly describe the contraband to be seized. Id. at 744. Instead, the warrant said, in pertinent part:
Whereas, the affiant whose name appear (sic) on the affidavit attached hereto is a Peace Officer under the laws of Texas, and do heretofore this day subscribe and swear to said affidavit before me (which said affidavit is here now made part hereof for all purposes), and whereas I find that the verified facts stated by the affiant in said affidavit show that the affiant has probable cause for the belief
that he expresses therein and establish existence of proper grounds for issuance of this warrant; now, therefore, you are commanded to enter the suspected place described in said affidavit and to seize same and bring it before me and to arrest and bring before me each suspected party named in said affidavit
Id. at 743. The concurring opinion argues that the rationale of Faulkner applies equally to Appellant's case, and, because the warrants in both cases incorporate their respective affidavits, the scope of the warrant in Appellant's case should be judged against both the warrant and the affidavit. But the Faulkner warrant incorporates the affidavit where it matters. The warrant in Appellant's case does not.
The Faulkner warrant's incorporation of the affidavit is part and parcel of the command to the executing officers: "now, therefore, you are commanded to enter the suspected place described in said affidavit and to seize same and bring it before me." Id. at 743. In contrast, the warrant in Appellant's case does not incorporate the affidavit in the command. Instead, the affidavit is incorporated in the first half of the warrant, where the affidavit does little more than provide background information for the magistrate's finding of probable cause. As such, the affidavit is part of the "WHEREAS." I would agree with the concurrence if the affidavit was incorporated into the actual command of the warrant, as it was in Faulkner :
WHEREAS an affidavit in writing under oath, has been made before me by Kienan Goodnight (officer who signed search warrant affidavit), which said affidavit is attached hereto and expressly incorporated herein and made a part hereof, and said affidavit and the attachments thereto have stated facts and information in my opinion sufficient to establish probable cause for issuance of this warrant; now, therefore, you are commanded to search for and seize the evidence described in the said affidavit from the person of Robert Lee Crider Jr (suspected party).
Instead, the warrant in the case before us gave specific instructions: (1) it tells the officer to carry Appellant to a physician, registered nurse, or a medical laboratory technician who is skilled in the taking of blood from a human body; (2) it directs that physician, registered nurse, or medical laboratory technician to take a sample of blood from Appellant in the presence of a law enforcement officer; and (3) it directs that physician, registered nurse, or medical laboratory technician to deliver the samples to the law enforcement officer. The warrant did not incorporate the affidavit into its command, and Faulkner is not on point.
This conclusion is bolstered by the fact that the Faulkner warrant says "you are commanded to enter the suspected place described in said affidavit and to seize same and bring it before me ...." Id. at 743 (emphasis added). The warrant's command to the executing officers to "bring it before me" means that they were to go in, search for "it," and bring "it" back to the magistrate. This command would be impossible if the warrant only commanded seizure of the place. The police in Faulkner , unlike the officer in Appellant's case, had authority to do what they did.
One could argue that "common sense" would imply that a warrant authorizing a blood draw in a DWI case also authorizes testing the blood for BAC. But the "common sense" we spoke of in Long was related to the reading of the words actually used by the warrant. If a warrant is poorly worded or confusing, courts should not fault the police executing the warrant for going outside the bounds of the warrant's authority. See Long , 132 S.W.3d at 451 ("we believe that a reasonable magistrate or officer, reading the description of [the premises] in the ... search warrant/affidavit in a common-sense, practical manner, could not conclude that the warrant also authorized a search of [Long's] red caboose home.") (emphasis added). We did not, in Long , use the phrase "common sense" to mean that the clear words used by the warrant can be overridden by a reviewing court's opinion of what the warrant should have said. Unless someone can point to me how the actual words in the warrant:
CARRY the said person to a physician, registered nurse, or medical laboratory technician skilled in the taking of blood from the human body and the said physician, registered nurse, or medical laboratory technician shall take sample of the BLOOD from the person of the said Robert Lee Crider Jr (suspected party) in the presence of a law enforcement officer and deliver the said samples to the said law enforcement officer.
are somehow ambiguous, such that the officers reading the warrant and then executing the warrant could mistakenly read these words as also authorizing testing, the warrant should be read according to its own terms.
A warrant that expressly directs for: (1) Appellant to be carried to a physician, registered nurse, or medical laboratory technician; (2) that physician, registered nurse, or medical laboratory technician to take a sample of Appellant's blood in the presence of a law enforcement officer; and (3) then deliver the sample to the law enforcement officer does not implicitly direct the law enforcement officer to take the sample to a laboratory for testing. It is not " ‘Procrustean’ or overly technical" to read the actual words used in the warrant as authorizing only what it says and no more. See Long , 132 S.W.3d at 448. The words are clear. Id. I decline to join the Court's overly generous reading of the warrant, and I respectfully dissent.