Summary
affirming trial court's determination that State failed to meet its burden when suspect was arrested within 30 minutes of accident, when warrantless blood draw occurred over one hour after arrest, and when police officer testified that it would have taken from one and half to three hours to obtain warrant because officer also testified that he had access to technology to help assist him in obtaining warrant and that there was another officer who was available to help him obtain warrant
Summary of this case from Ayala v. StateOpinion
NO. 03-13-00779-CR
03-25-2016
State of Texas, Appellant v. Michael Cuba, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-12-201222, HONORABLE JIM CORONADO, JUDGE PRESIDINGMEMORANDUM OPINION
After being involved in a car accident and after demonstrating signs of intoxication when he performed field-sobriety testing, Michael Cuba was arrested for driving while intoxicated. See Tex. Penal Code § 49.04 (setting out elements of offense). One of the individuals in the other car was injured and was transported for medical treatment. The officer who responded to the scene and arrested Cuba was Officer Luis Becerra. During his investigation, Officer Becerra learned that Cuba had previously been convicted twice for driving while intoxicated. See id. § 49.09(b)(2) (elevating offense level if defendant has previously been convicted twice of driving while intoxicated). Although Cuba was not seriously injured, he was taken to a nearby hospital after he was arrested. When Cuba arrived at the hospital, Officer Becerra asked Cuba to provide a breath sample and a blood sample. Because Cuba refused, Officer Becerra asked a nurse to obtain a blood sample from Cuba without obtaining a warrant.
Subsequent to Cuba being charged with driving while intoxicated, Cuba filed a motion to suppress the results of the blood analysis. When responding to Cuba's motion, the State asserted that taking the blood sample without a warrant was authorized under what is commonly referred to as the mandatory-blood-draw statute because that statute requires an investigating officer to take "a specimen of the person's breath or blood" if the person has been arrested for driving while intoxicated, if he "refuses the officer's request to submit to the taking of a specimen voluntarily," and if "an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment" or if "at the time of the arrest, the officer possesses or receives reliable information . . . that the person . . . has been previously convicted of or placed on community supervision" "on two or more occasions" for driving while intoxicated. See Tex. Transp. Code § 724.012(b)(1)(C), (b)(3)(B). Further, the State argued that the sample was properly taken under the implied-consent statute. See id. § 724.011.
After considering the arguments from Cuba and from the State, the district court suppressed the results of the blood test. The district court's ruling was based in part on the Supreme Court's decision in Missouri v. McNeely, in which the Court determined that "the natural metabolization of alcohol in the bloodstream [does not] present[] a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases" and that a warrantless search of a person for gathering evidence, including blood collection, can be justified "only if it falls within a recognized exception" to the warrant requirement. 133 S. Ct. 1552, 1556, 1558 (2013). The district court made the following findings of fact and conclusions of law when granting the motion to suppress:
Findings of Fact
16. Although a magistrate was on duty at the time of Cuba's arrest on March 12, 2012, officer Becerra made no attempt to obtain a warrant for a specimen of Cuba's blood.
17. At the October 22, 2013 hearing on Cuba's motion to suppress, officer Becerra articulated no facts or circumstances that would create a reasonable belief that taking time to obtain a warrant for Cuba's blood would significantly undermine the efficacy of the search.
18. A warrant for Cuba's blood could have been obtained without significantly undermining the efficiency of a search for Cuba's blood.
Conclusions of Law
1. Under the Fourth Amendment to the United States Constitution a warrant to search a person's home or person is required unless the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable.
2. In light of McNeely, the extraction of a specimen pursuant to Transportation Code section 724.012(b) constitutes an unreasonable search and seizure under the Fourth Amendment unless exigent circumstances exist.
3. In DWI investigations where police officers can reasonably obtain a warrant for the suspect's blood without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
4. The state has the burden of proving that under the totality of the circumstances, a warrant for a DWI suspects blood could not reasonably be obtained without significantly undermining the efficacy of the search.
5. The warrantless extraction of a blood specimen from Michael Cuba on March 12, 2012, violated the Fourth Amendment to the United States Constitution because the state failed to prove that a warrant could not have been reasonably obtained without significantly undermining the efficacy of the search.
6. The consent exception to the warrant requirement therefore does not justify the mandatory blood-draw in this case.
Following the district court's ruling, the court of criminal appeals issued an opinion addressing warrantless blood draws and rejecting the State's argument that the mandatory-blood-draw and implied-consent provisions of the Transportation Code "form a valid alternative to the Fourth Amendment warrant requirement." State v. Villarreal, 475 S.W.3d 784, 793 (Tex. Crim. App. 2014). Specifically, the court determined "that the warrantless, nonconsensual testing of a DWI suspect's blood cannot be justified as a reasonable intrusion under any of the State's proffered exceptions to the warrant requirements." Id. at 808. In that decision, the court did not address whether the exigent-circumstances exception to the warrant requirement applied. Id. at 797.
In three issues on appeal, the State contends that the district court erred by granting the motion to suppress. First, the State asserts that the district court erred by concluding that the consent exception to the general warrant requirement did not apply in this case because, according to the State, consent was implied by law. Second, the State argues that even if the blood draw was not done in compliance with governing constitutional requirements, the evidence should not have been excluded under the federal exclusionary rule or the Texas statutory exclusionary rule. Finally, the State urges that the district court erred when it determined "that exigent circumstances did not exist" to justify the warrantless blood draw. We will affirm the district court's order of suppression.
STANDARD OF REVIEW
Appellate courts review a trial court's ruling on a motion to suppress for an abuse of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). Under that standard, the record is "viewed in the light most favorable to the trial court's determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or 'outside the zone of reasonable disagreement.'" State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). Moreover, appellate courts apply "a bifurcated standard, giving almost total deference to the historical facts found by the trial court and analyzing de novo the trial court's application of the law." State v. Cuong Phu Le, 463 S.W.3d 872, 876 (Tex. Crim. App. 2015); see Arguellez, 409 S.W.3d at 662 (explaining that appellate courts afford "almost complete deference . . . to [a trial court's] determination of historical facts, especially if those are based on an assessment of credibility and demeanor"). "The same deference is afforded the trial court with respect to its rulings on application of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of credibility and demeanor." Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Moreover, appellate courts review "a trial court's application of the law of search and seizure to the facts de novo," Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010), including whether a warrantless search was justified by the presence of exigent circumstances, Roop v. State, No. 03-13-00141-CR, 2016 Tex. App. LEXIS 1541, at *6 (Tex. App.—Austin Feb. 17, 2016, pet. filed); see Evans v. State, No. 14-13-00642-CR, 2015 WL 545702, at *6 (Tex. App.—Houston [14th Dist.] Feb. 10, 2015, pet. filed) (mem. op., not designated for publication) (providing that "[a]lthough all findings of historical fact supported by the record must be implied in favor of the trial court's ruling that the blood draw should not be suppressed, whether those facts meet the legal standard of exigent circumstances is a legal question that is reviewed de novo"). Further, appellate courts "view the evidence in the light most favorable to the" trial court's ruling on the motion, State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011), and the trial court's ruling will be upheld if it is correct under any theory of law regardless of whether the trial court based its ruling on that theory, Story, 445 S.W.3d at 732.
DISCUSSION
Implied Consent
In its first issue on appeal, the State argues that the "blood draw was justified under the consent exception to the warrant requirement." See Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) (explaining that warrantless search "can still be reasonable under the Fourth Amendment if the police obtain consent"). Specifically, the State contends that "if a person is arrested for operating a motor vehicle in a public place while intoxicated, the person is deemed to have consented to submit to the taking of one or more specimens of the person's breath or blood" under the implied-consent statute. See Tex. Transp. Code § 724.011. Further, the State argues that because Officer Becerra learned through his investigation that Cuba had two prior convictions for driving while intoxicated and because Cuba caused an accident that resulted in another person being sent to a hospital for treatment, Officer Becerra was required to obtain a specimen. For these reasons, the State contends that "[t]he blood draw is constitutionally valid because of this implied consent."
Recently, this Court explained in a similar case that the holding from Villarreal compelled a conclusion that a blood draw violated the Fourth Amendment because the court of criminal appeals in Villarreal "rejected the argument that a warrantless, nonconsensual blood test obtained under the Transportation Code provisions should be upheld as categorically reasonable under the consent exception, applicable in the form of a prior waiver through implied consent." State v. Molden, No. 03-14-00166-CR, 2016 WL 690795, at *3 (Tex. App.—Austin Feb. 17, 2016, pet. filed) (discussing Villarreal, 475 S.W.3d at 798-804). Moreover, this Court explained that Molden, like Cuba, had refused to provide a sample, which "revoked any prior consent." See id. Accordingly, we similarly reject the State's arguments here.
The provision of the mandatory-blood-draw statute relied on by the State in Villarreal and in Molden was subsection 724.012(b)(3)(B), which requires the taking of a sample if a person has been arrested for driving while intoxicated and has previously been convicted of driving while intoxicated "on two or more" prior occasions. Tex. Transp. Code § 724.012(b)(3)(B). That subsection is applicable to this case as well, but the State also relies on subsection 724.012(b)(1)(C), which requires that a sample be taken if a person has been arrested for driving while intoxicated and if the person was the driver of a car "in an accident that the officer reasonably believes occurred as a result of the offense" and if "the officer reasonably believes that as a direct result of the accident . . . an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment." Id. § 724.012(b)(1)(C). We believe that the analysis from Villarreal and Molden apply with equal force to warrantless blood draws taken under either subsection of the mandatory-blood-draw statute. See Roop, 2016 Tex. App. LEXIS 1541, at *12 (applying analysis from Villarreal to case in which blood was drawn under car-accident provisions of mandatory-blood-draw statute).
For all these reasons, we overrule the State's first issue on appeal.
In its first issue, the State challenges the district court's conclusion that "in light of McNeely, the extraction of a specimen pursuant to Transportation Code section 724.012(b) constitutes an unreasonable search and seizure under the Fourth Amendment unless exigent circumstances exist." The State argues that the conclusion is incorrect because McNeely "did not invalidate the well-established consent exception to the warrant requirement" or "render Texas' mandatory blood draw statute unconstitutional." However, as set out above, after this appeal was filed, the court of criminal appeals clarified that the mandatory-blood-draw and implied-consent provisions of the Transportation Code are not "a valid alternative to the Fourth Amendment warrant requirement." Villarreal v. State, 475 S.W.3d 784, 793 (Tex. Crim. App. 2014); see also Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (stating that "warrantless search of the person is reasonable only if it falls within a recognized exception"); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (explaining that exceptions include "voluntary consent to search, search under exigent circumstances, and search incident to arrest").
In its reply briefing, the State asks this Court to determine that the mandatoryblooddraw statute is constitutional under the Fourth Amendment by employing the traditional "reasonableness" analysis. To the extent that the State is arguing in its briefing that the district court determined that the mandatoryblooddraw statute is itself unconstitutional, we disagree with that assertion. Although Cuba asserted in his motion to suppress that the mandatoryblooddraw statute was unconstitutional "[t]o the extent that" it allows for the collection of blood without a warrant and in the absence of exigent circumstances, Cuba did not seek to have the statute declared unconstitutional. Rather, Cuba asserted in his motion that the manner in which his blood sample was taken in this case (without a warrant or express consent and in the absence of exigent circumstances) violated his Fourth Amendment rights. Moreover, the conclusions of law issued by the district court did not state that the mandatoryblooddraw statute was itself unconstitutional. On the contrary, the district court determined that obtaining a sample under the mandatoryblooddraw statute without first obtaining a warrant will violate a defendant's constitutional rights unless an exception to the general warrant requirement applied. Accordingly, if the State is seeking to confront a determination regarding the constitutionality of the mandatoryblooddraw statute itself, we do not believe the State's argument challenges the district court's order in this case and, therefore, do not address the merits of that argument.
Exclusionary Rule
In its second issue on appeal, the State contends that even if the blood draw at issue in this case did not comply with governing constitutional requirements, the results of the blood draw should not have been excluded under the federal exclusionary rule or under the Texas statutory exclusionary rule. Compare Illinois v. Krull, 480 U.S. 340, 347 (1987) (discussing federal exclusionary rule), with Tex. Code Crim. Proc. art. 38.23 (providing that evidence obtained in violation of United States Constitution, federal law, Texas Constitution, or Texas law shall not "be admitted in evidence against the accused on the trial of any criminal case"). When presenting this issue, the State relies on good-faith exceptions to the federal exclusionary rule and urges that the evidence should not be suppressed because Officer Becerra "acted reasonably in relying on the implied consent and mandatory blood draw statutes" and relied "in good faith on binding appellate precedent." Further, the State contends that the evidence is not subject to exclusion under the Texas statutory exclusionary rule because "no constitutional provision, or court opinion questioned the constitutionality" of obtaining a blood sample in the manner at issue in this case at the time that the sample was taken and that Officer Becerra was following the law when he obtained the sample.
When rejecting similar arguments regarding the federal exclusionary rule, this Court explained that an "arresting officer's good faith reliance on his belief that the Transportation Code permitted (or required) him to collect [the] blood sample without a warrant or a recognized exception to the warrant requirement is irrelevant here" because Texas has enacted an exclusionary rule that is broader than the federal one. Molden, 2016 WL 690795, at *4; see also Huff v. State, 467 S.W.3d 11, 34-35 (Tex. App.—San Antonio 2015, pet. filed) (explaining that although mandatory-blood-draw statute instructs officer to "take a blood draw if an individual suffered serious bodily injury as a result of the DWI, it does not mandate that he do so without a warrant" and, therefore, concluding that it could not determine that officer acted in good faith when he failed to obtain warrant based on mandatory-blood-draw statute because statute does not dispense with warrant requirement).
Regarding the Texas statutory provision, that provision contains a single good-faith exception to the exclusionary rule allowing for evidence to be admitted if it "was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause." Tex. Code Crim. Proc. art. 38.23(b). When discussing whether the statutory exclusionary rule applied to a similar case, this Court explained that "[a]n exception to article 38.23 based on an officer's good faith reliance upon anything other than a warrant is inconsistent with the plain language of the Texas exclusionary rule" and that "an officer's good faith reliance on the law or good faith reliance on existing appellate precedent are not recognized as exceptions to the Texas exclusionary rule." Molden, 2016 WL 690795, at *4. Further, this Court explained that because the sample was not collected under a warrant, "article 38.23's explicit good faith exception is inapplicable." Id. Accordingly, this Court determined that the trial court did not err by applying the exclusionary rule. Id.
For the reasons previously expressed by this Court and in light of the fact that no warrant was issued to obtain the blood sample from Cuba, we overrule the State's second issue on appeal.
Exigent Circumstances
In its final issue on appeal, the State asserts that the district "court erred in determining that exigent circumstances did not exist" and specifically challenges the district court's fifth conclusion of law in which the court determined that the warrantless blood draw violated the Fourth Amendment because the State "failed to prove that a warrant could not have been reasonably obtained without significantly undermining the efficacy of the search."
When seeking to suppress evidence on the ground that it was obtained in violation of the Fourth Amendment, a defendant has the initial burden of rebutting "the presumption of proper police conduct," but if the defendant meets this burden by showing that the search was done "without a warrant," the State has the burden of proving that the search "was nonetheless reasonable under the totality of the circumstances." Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). A search without a warrant may be proper "'when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.'" McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King, 563 U.S. 452, 460 (2011) and omitting internal quotation marks and brackets). When "determining whether a warrantless search is justified," appellate courts apply an objective standard based on "the facts and circumstances known to the police at the time of the search." See Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998); Roop, 2016 Tex. App. LEXIS 1541, at *9.
Regarding driving-while-intoxicated cases, as set out earlier, the Supreme Court determined that "the natural metabolization of alcohol in the bloodstream" does not present "a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases." McNeely, 133 S. Ct. at 1556; see also id. at 1561 (distinguishing evidence of intoxication from other destruction-of-evidence situations in which police must act more quickly because blood-alcohol evidence "from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner"); cf. Evans, 2015 WL 545702, at *6 (determining that accident investigation, without more, is not exigent circumstance). On the contrary, the Court explained that "the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances." McNeely, 133 S. Ct. at 1560. Moreover, the Court reasoned that reviewing courts should bear in mind that advances in technology and improvements to the warrant process have "allow[ed] for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple." Id. at 1561-62. Further, the Court noted that although "the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case," id. at 1563, "[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so," id. at 1561.
During the suppression hearing, the only witness who testified was Officer Becerra. When describing the chronology of the events at issue in this case, Officer Becerra stated that the accident happened at approximately 5:30 p.m., that he spent some time making sure the area was safe and dealing with the wrecked cars and EMS, that he started conducting field-sobriety tests around 5:44 p.m., and that he likely finished the testing around 6:00 p.m. and placed Cuba under arrest. In addition, a hospital record was introduced during Officer Becerra's testimony showing that Cuba arrived at the hospital by ambulance at 6:27 p.m. Moreover, Officer Becerra explained that the blood sample was taken at 7:14 p.m.
In his testimony, Officer Becerra stated that the reason that he did not try to obtain a warrant was because it was not the policy of the Police Department for the City of Pflugerville at that time to obtain search warrants for blood draws and to instead rely on the mandatory-blood-draw statute to obtain a blood sample without a warrant. In addition, he related that at the time relevant to this case, the City of Pflugerville did not have fill-in-the-blank-search-warrant affidavits, meaning that he would have had to prepare one before requesting a search warrant. Further, Officer Becerra explained that although he had never gone through the process of obtaining a search warrant for a blood draw before Cuba was arrested, he had gone through the process for other suspects after arresting Cuba and before testifying during the suppression hearing. When describing those attempts to obtain a search warrant, Officer Becerra related that the process took between one and a half hours to three hours because he had to fill out paperwork for the warrant, because the City of Pflugerville does not have a magistrate on hand for those purposes, because he had to travel to Austin to obtain the warrant, because he had to appear before the magistrate, and because he had to travel back to Pflugerville before the blood draw could be performed.
However, although Officer Becerra testified that he did not ask any other officers to help him obtain a search warrant and that the police department is usually "short-handed," Officer Becerra admitted that "there were a lot more people assisting me" with the case and that he had access to a cell phone as well as a computer in his car with internet access. Further, Officer Becerra admitted that another officer arrived at the hospital at 6:00 p.m. before Cuba was taken to the hospital, that the other officer stayed at the hospital the whole time that Cuba was there, and that the other officer could have kept watch over Cuba to allow Officer Becerra to travel to Austin and get a search warrant. Moreover, in the State's brief on appeal, it concedes that "the time it would [have taken Officer Becerra] to drive back to the hospital is irrelevant" because "[o]nce he obtained the warrant, Officer Becerra could have called his fellow officer to proceed with the blood draw." When the district court announced that it was going to grant the motion to suppress, it stated that there were not exigent circumstances because "there was another officer who could have gone to secure a warrant."
When presenting this issue on appeal, the State contends that the facts in this case are similar to those from Douds v. State, No. 14-12-00642-CR, 2013 Tex. App. LEXIS 12725 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013). In that case, the appellate court determined that a warrantless blood draw "did not violate [Douds]'s constitutional rights" where the officer reasonably believed that an individual suffered bodily injury warranting transportation for medical treatment, where time was taken to investigate the scene and determine the need for medical treatment, where at least 57 minutes elapsed from the time that the officer arrived on the scene to when Douds was taken to the police department, and where Douds refused to provide a sample. Id. at *14-15. However, the opinion that the State relies on was withdrawn by the appellate court, and a new en banc opinion was issued in its place. See Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014), rev'd by 472 S.W.3d 670 (Tex. Crim. App. 2015). Although the new opinion was later reversed by the court of criminal appeals on the ground that Douds failed to preserve his appellate complaint that the blood draw violated his Fourth Amendment rights because there were no exigent circumstances justifying the warrantless draw, Douds, 472 S.W.3d at 671, 677, we note that the en banc opinion by our sister court explained that the "Fourth Amendment requires prior judicial approval of a search or seizure unless the State proves a recognized exception," Douds, 434 S.W.3d at 848, and determined that the State had "not demonstrated that exigent circumstances made obtaining a warrant impractical," id. at 849, 861. --------
Given the State's concession on appeal that the time needed to drive back to Pflugerville after obtaining a warrant does not bear upon this analysis and in light of the testimony establishing that Officer Becerra had access to technology that could have been used in the process of obtaining a warrant and could have been used to seek aid from other officers in securing a search warrant, that a warrant could have been issued from a magistrate in Austin, that Officer Becerra arrested Cuba within 30 minutes of the accident after Cuba exhibited signs of intoxication during his field-sobriety testing, and that another officer was available within 30 minutes of the accident to help Officer Becerra secure a warrant or supervise Cuba, we cannot conclude that the district court abused its discretion by determining that the State failed to prove that the warrantless blood draw was justified by the presence of exigent circumstances. Cf. McNeely, 133 S. Ct. at 1561 (explaining that metabolization of alcohol is one factor to consider but also stating that if "warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer," "there would be no plausible justification for an exception to the warrant requirement").
For these reasons, we overrule the State's last issue on appeal.
CONCLUSION
Having overruled all of the State's issues on appeal, we affirm the district court's order of suppression.
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Field Affirmed Filed: March 25, 2016 Do Not Publish