Opinion
NO. 03-17-00174-CR
06-22-2017
State of Texas, Appellant v. Virginia Gray, Appellee
FROM COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. C-1-CR-15-217262, HONORABLE JOHN LIPSCOMBE, JUDGE PRESIDING MEMORANDUM OPINION
Virginia Gray was arrested for and ultimately charged with driving while intoxicated. See Tex. Penal Code § 49.04(a) (setting out elements of offense). After being charged, Gray filed a motion to suppress evidence obtained during the investigation and the results of testing performed on a sample of her blood. At the end of a hearing on the motion, the trial court granted the motion to suppress. Following the trial court's ruling, the State appealed the granting of the motion to suppress. See Tex. Code Crim. Proc. art. 44.01(a)(5) (authorizing State to appeal trial court's ruling on motion to suppress). We will reverse the trial court's order granting the motion to suppress and remand for further proceedings.
BACKGROUND
According to an affidavit for an arrest warrant, Officer Gil Matthew observed Gray speeding late one evening, decided to initiate a traffic stop, detected a strong odor of alcohol coming from Gray, noticed that Gray's eyes appeared bloodshot, and asked Gray to submit to field-sobriety testing. After Officer Matthew arrested Gray for driving while intoxicated, he sought a warrant for a blood draw. The reviewing magistrate issued a warrant requiring Officer Matthew to take Gray "to a physician, registered nurse, licensed vocational nurse, licensed clinical laboratory technologist; or an individual who is trained to properly collect blood from the human body" and authorizing "the said physician, registered nurse, licensed vocational nurse, [or] licensed clinical laboratory technologist" to collect samples of Gray's blood. See Tex. Code Crim. Proc. art. 18.04 (setting out requirements for search warrants). After obtaining the warrant, Officer Matthew took Gray to Andy Hofmeister, who was a certified emergency medical technician, and Hofmeister collected a sample of Gray's blood.
Following her arrest, Gray filed a motion to suppress the evidence obtained through the blood draw and the results of the testing performed on the collected sample. In her motion, Gray argued that the evidence should be suppressed because Hofmeister did not fall into any of the categories of individuals authorized by the warrant to collect a sample of Gray's blood. Although Gray acknowledged that the warrant instructed Officer Matthew to take Gray to a physician, registered nurse, licensed vocational nurse, laboratory technologist, or other individual trained to collect blood, she argued that the warrant directed that the sample be taken only by a physician, registered nurse, licensed vocational nurse, or laboratory technologist.
During the hearing on the motion, Hofmeister was the only witness who was called to the stand. In his testimony, Hofmeister explained that he collected a blood sample from Gray on the night in question, that he is a paramedic, that he has a "professional health care license," that he is a qualified blood-draw technician, that he has been trained to "administer medications" or "draw fluids from the vein," that he has collected thousands of blood samples, that his supervising medical director authorized him to perform blood draws, and that his supervising medical director established procedures and protocols for performing blood draws; however, Hofmeister also agreed that he is not a physician, a registered nurse, a vocational nurse, or a clinical laboratory technologist. During Hofmeister's testimony, an affidavit prepared by him was admitted as an exhibit. The affidavit states that "[t]he blood specimen was taken using reliable procedures as recognized by the scientific community . . . and in a sanitary place as required by" the Transportation Code.
After considering the parties' arguments, the trial court granted Gray's motion to suppress. When making its ruling, the trial court explained that it found that Hofmeister was a credible witness, that he can act "as a properly qualified technician," and that he was working under the direction of a physician medical director. However, the trial court explained that it could not "look beyond the four corners of" the warrant when determining whether an individual was authorized to collect blood; that the warrant only authorized a physician, registered nurse, licensed vocational nurse, or licensed clinical laboratory technologist to collect the sample from Gray; and that the warrant did not "specifically allow[]" Hofmeister "to draw that blood." See id. art. 38.23 (providing that "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case").
Following the trial court's ruling, the State filed this appeal.
STANDARD OF REVIEW AND GOVERNING LAW
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").
A blood draw qualifies as a search and seizure for purposes of the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 767 (1966). Reasonableness is the touchstone of the Fourth Amendment, and the reasonableness of a search or seizure "is measured in objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39 (1996). A blood draw is reasonable under governing Fourth Amendment requirements if the police had a justification for requiring the blood sample to be taken and if reasonable means and procedures were used in obtaining the blood sample. State v. Johnston, 336 S.W.3d 649, 658 (Tex. Crim. App. 2011). When assessing whether the second requirement is met, reviewing courts must consider whether the test chosen by the police was reasonable and whether the test was performed in a reasonable manner. Schmerber, 384 U.S. at 771.
"Searches justified by a valid warrant have a presumption of legality unless the opponent produces evidence rebutting the presumption of proper police conduct," Pacheco v. State, 347 S.W.3d 849, 855 (Tex. App.—Fort Worth 2011, no pet.), and "the reasonableness of the manner in which a DWI suspect's blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances surrounding the draw" regardless of whether "a blood draw is conducted pursuant to a warrant or not," Johnston, 336 S.W.3d at 661; see also State v. Villarreal, 475 S.W.3d 784, 793 (Tex. Crim. App. 2014) (rejecting argument that mandatory-blood-draw and implied-consent provisions of Transportation Code "form a valid alternative to the Fourth Amendment warrant requirement"). Reviewing courts should not apply a "rigid application of the rules concerning warrants" and should instead "review technical discrepancies" in the "issuance and execution of the warrant" "with a judicious eye"; "[t]o do otherwise would defeat the purpose behind the warrant requirement, and provide protection for those to whom the issue on appeal is not one based upon the substantive issue of probable cause but of technical default by the State." Green v. State, 799 S.W.2d 756, 757-58 (Tex. Crim. App. 1990). Moreover, "when construing the language contained within . . . search warrants, courts 'must do so in a common sense and realistic fashion and avoid hypertechnical analysis.'" State v. Redd, Nos. 03-13-00424—00425-CR, 2015 WL 9459776, at *4 (Tex. App.—Austin Dec. 16, 2015, no pet.) (mem. op., not designated for publication) (quoting Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim. App. 1976) (reading warrant as authorizing seizure of illegal drugs rather than as authorizing seizure of apartment as language of warrant might otherwise indicate)). "[I]n blood-draw cases when the State has obtained a warrant, it is not fatal that the State might draw blood 'in a manner other than that directed by the magistrate.'" Walters v. State, No. 02-11-00474-CR, 2013 WL 1149306, at *3 (Tex. App.—Fort Worth Mar. 21, 2013, no pet.) (mem. op., not designated for publication) (quoting Coleman v. State, 833 S.W.2d 286, 290 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd)). Instead, "the manner in which that warrant was executed is subject to judicial review for a determination of reasonableness." See Coleman, 833 S.W.2d at 290.
DISCUSSION
On appeal, the State contends that the trial court erred by granting the motion to suppress. More specifically, the State argues that the trial court erred by reading the warrant in a hypertechnical manner and, accordingly, concluding that Hofmeister was not authorized to perform the blood draw. In addition, the State asserts that the blood draw did not violate Gray's constitutional right to be free from unreasonable searches and seizures because the blood draw was reasonable when considered in light of the totality of the circumstances. See U.S. Const. amend. IV. Further, the State argues that Gray's rights were not violated because the warrant authorized the collection of her blood and because the police "substantially followed the" directives of the warrant by taking Gray to a person who was qualified to perform the blood draw and who performed the blood draw in a reasonable manner. Finally, the State contends that the trial court erred by limiting its consideration to the four corners of the search warrant because the "four-corners rule" applies to determinations of probable cause supporting search-warrant affidavits but does not apply to a determination of whether the execution of a search warrant complied with the governing constitutional requirements. See Smith v. State, 207 S.W.3d 787, 794 (Tex. Crim. App. 2006) (discussing four-corners rule). For all these reasons, the State urges that the trial court should have denied the motion to suppress and that the evidence obtained and the results of the blood tests should not have been excluded.
In its brief, the State lists two appellate issues: one involving the Fourth Amendment and one involving the Texas Constitution. However, the State noted in its brief that it is presuming "for purposes of this appeal" that the analysis is "the same" and that it "will discuss its points together." We will similarly address the arguments presented by the State as a single issue challenging the trial court's ruling. Cf. Johnson v. State, 912 S.W.2d 227, 235-36 (Tex. Crim. App. 1995) (noting that requirements for determining when person is seized under section 9 of Article I of Texas Constitution are same as requirements under Fourth Amendment).
Waiver
In her appellee's brief, Gray contends that the State waived the arguments listed above by failing to present them to the trial court during the suppression hearing. More specifically, Gray urges that at "no point did the State argue that the blood draw was permissible under the Constitution," "that the blood draw was reasonable under the totality of the circumstances," or "that the 'four corners' rule only applied to a determination of probable cause." In fact, Gray argues that the State limited its arguments during the hearing to an assertion that the Transportation Code "permitted Hofmeister to draw [her] blood, even if the warrant . . . did not." Accordingly, Gray contends that the State may not present the arguments challenging the trial court's ruling that it presents in its brief. Cf. Martinez v. State, 91 S.W.3d 331, 335-37 (Tex. Crim. App. 2002) (noting that "the party complaining on appeal (whether it be the State or the defendant) about a trial court's . . . suppression of evidence 'must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question,'" that appellate courts "usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case[] but was not raised," and that "forfeiture rule applies equally to . . . State and defendant" and concluding that State "may not argue for first time on appeal that" statute "did not apply" (quoting 1 Stephen Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal, § 103.2, at 14 (2d ed.1993))); see also Tex. R. App. P. 33.1 (stating that to preserve error for appeal, record must show that complaint was made to trial court and that trial court ruled on request or refused to rule and that "complaining party objected to the refusal").
We do not agree with Gray's suggestion that the State's arguments to the trial court during the suppression hearing are wholly separate from the arguments presented on appeal. During the hearing, the State spent a considerable amount of time asking about Hofmeister's training and experience in performing blood draws and about the number of blood draws that he had performed, and in its closing arguments, the State recounted Hofmeister's training and experience and argued that the warrant actually did authorize an individual like Hofmeister to perform the blood draw because the warrant directed Officer Matthew to take Gray to, among other possible options, "an individual who is trained to properly collect blood from the human body" even though a subsequent portion of the warrant did not contain the trained-individual option. Accordingly, the State was necessarily urging that the omission of the trained-individual option in the second portion of the warrant was inadvertent and that the trial court should not view the omission in a hypertechnical fashion as excluding otherwise trained individuals from performing the draw. Furthermore, we note that Gray argued in her motion to suppress that the search warrant was "improper and unlawful, in violation" of her constitutional rights and that the State asserted, as pointed out by Gray, that Hofmeister was an individual qualified by the Transportation Code to perform blood draws because he was a "licensed or certified . . . emergency medical technician-paramedic" authorized by a medical director to collect blood samples. See Tex. Transp. Code § 724.017(a)(5), (c) (setting out classes of individuals who "may take a blood specimen at the request or order of a peace officer," including "a licensed or certified . . . emergency medical technician-paramedic" if authorized by "the medical director for the entity"). By presenting this counterargument that the search was proper because the State substantially complied with the statute, the State was necessarily arguing that the blood draw was constitutionally permissible and suggesting that the trial court should look beyond the "four corners" of the warrant when making its determination regarding the propriety of the blood draw. In fact, as set out in more detail below, one way to establish that a blood draw was reasonable is to argue that the blood draw was performed by an individual who has been authorized under the Transportation Code to perform blood draws. In addition, the "totality of the circumstances" is the standard by which a court reviews the propriety of a search and applies regardless of whether the parties mentioned that phrase in their arguments.
We note that the State also argued during the suppression hearing that Hofmeister was authorized to collect the sample under the warrant because he fell within the category of a licensed clinical laboratory technologist, but the State does not repeat that argument on appeal.
For all of these reasons, we conclude that the arguments made by the State below align with those presented on appeal and, therefore, reject Gray's assertion that the State has waived its arguments on appeal.
Trial Court's Suppression Ruling
Having determined that the State did not waive its appellate arguments, we must now consider whether the trial court abused its discretion by granting the motion to suppress. When arguing that the evidence at issue should be suppressed, Gray did not argue to the trial court and does not argue on appeal that the police did not have a justification for seeking a warrant for the sample, that the warrant did not authorize the taking of a sample, that the blood test was not a reasonable testing choice, or that the blood draw was performed in an unsafe manner or in a manner not conforming to accepted medical practices. See Johnston, 336 S.W.3d at 659 (noting that "there is a presumption that venipuncture blood-draw tests are reasonable under the Fourth Amendment" and provide "reasonable means . . . to analyze an individual's blood alcohol level"); see also Schmerber, 384 U.S. at 771, 772 (determining that blood draw "by a physician in a hospital environment according to accepted medical practices" was not unreasonable search or seizure and did not "invite an unjustified element of personal risk of infection and pain"). Instead, Gray contends that the blood draw was "per se unreasonable" and was not done in a reasonable fashion "because the police disregarded the warrant's instructions" concerning who could perform the blood draw. Moreover, Gray urges that the deliberate decision to exclude an individual otherwise trained in performing blood draws from the list of authorized individuals in the warrant at issue is not "some 'technical' error" that could be overlooked. Finally, Gray contends that it was proper for the trial court to limit its consideration to the "four corners" of the warrant when determining whether Hofmeister was authorized to perform the blood draw and analogizes the review performed by the trial court to the longstanding manner in which reviewing courts determine whether a search-warrant affidavit is sufficient. See Smith, 207 S.W.3d at 794 (noting that "[t]he 'four corners' doctrine states that a court is to determine whether the magistrate had sufficient facts to establish probable cause to issue a search warrant based upon the 'four corners' of the affidavit" and determining that doctrine did not apply in that case (quoting Hankins v. State, 132 S.W.3d 380, 388-89 (Tex. Crim. App. 2004))).
As support for her assertion that the blood draw was per se unreasonable, Gray points to cases discussing criminal contempt, see, e.g., Ex parte Busby, 921 S.W.2d 389, 391, 393 (Tex. App.—Austin 1996, pet. ref'd) (stating that contempt order at issue was hybrid civil and criminal contempt order and that contempt order barred "the State from prosecuting Busby" for aggravated perjury); Ex parte Johns, 807 S.W.2d 768, 770, 771 (Tex. App.—Dallas 1991, no writ) (determining that contempt order requiring payment of "child support arrearage of $90,140.50" was civil, not criminal, contempt order), and urges that Officer Matthew "could have been subject to criminal contempt" for disregarding the magistrate's instructions. Assuming without deciding that criminal contempt could apply to circumstances in which a warrant was not executed in complete compliance with the warrant's instructions, we do not see how that fact would render the execution of the warrant at issue in this case per se unreasonable.
In her brief, Gray also references the doctrine in contract law requiring courts to ascertain the intent of contracting parties from the language within the four corners of their agreement, see Pinto Tech. Ventures, L.P. v. Sheldon, No. 16-0007, 2017 Tex. LEXIS 465, at *2 (Tex. May 19, 2017) (stating that under contract law, courts "must give effect to the parties' intent as expressed in the four corners of the document"), and suggests that the search warrant was "a contract between the officer and the magistrate." Further, Gray asserts that the terms of the search warrant were unambiguous and that, therefore, the trial court correctly limited its consideration to the four corners of the warrant rather than consider extrinsic evidence about whether the blood draw was reasonable. However, we have not found or been pointed to any governing law indicating that this doctrine of contract law has any applicability in the circumstances of this case.
As an initial matter, we note that the court of criminal appeals has explained that "[t]he four corners rule applies not to a review of the face of the warrant itself, but to a review of the accompanying affidavit or complaint that purports to supply the probable cause necessary to issue the warrant" and that it could conceive of "no justification for broadening the four-corners rule beyond the context of the supporting affidavit to also encompass the face of the warrant itself." See Black v. State, 362 S.W.3d 626, 636, 637 (Tex. Crim. App. 2012) (observing that although warrant affidavit must supply probable cause, face of warrant need not "identify the source for the issuing magistrate's finding of probable cause" and rejecting argument that "the four-corners rule prohibited the trial court from measuring the adequacy of probable cause against any other source of information" other than "clerk's defective complaint" identified in arrest warrant); cf. Bonds v. State, 403 S.W.3d 867, 875, 876 (Tex. Crim. App. 2013) (explaining that when determining if search warrant was "sufficiently particular" regarding structure to be searched, courts consider "the warrant's four corners" along with "incorporate[d] extrinsic facts" like officer's knowledge regarding structure discussed during suppression hearing); Dunn v. State, 951 S.W.2d 478, 479 (Tex. Crim. App. 1997) (considering information in record beyond face of warrant to determine that "the magistrate found probable cause to issue the warrant, signed [several] accompanying [and related] warrants, and intended but inadvertently failed to sign appellant's arrest warrant"). In this case, Gray is not challenging whether probable cause existed. For that reason, it is not entirely clear that the four corners rule could apply in the manner that she suggests.
Moreover, at least two of our sister courts of appeals have confronted similar issues regarding whether the results obtained from a blood draw should be suppressed because the individual who performed the draw did not fall within the categories of individuals specifically listed in the warrant as authorized to perform the draw. See Walters, 2013 WL 1149306, at *3; Coleman, 833 S.W.2d at 290. In ultimately determining that the results should not have been suppressed, neither court indicated that the taking of a sample by an individual falling outside the "four corners" of the warrant was per se unreasonable and instead considered whether the blood draw was reasonable under the circumstances. See Walters, 2013 WL 1149306, at *3 (overruling contention that because warrant listed "'physician, registered nurse, or qualified technician'" and did not list licensed vocational nurse, blood draw by "an LVN was unreasonable per se"); Coleman, 833 S.W.2d at 290 (noting that defendant was "not complaining that the taking of blood by a phlebotomist (blood collector) is unreasonable" or "that it was taken without a warrant" and was instead arguing that evidence should have been suppressed because blood draw was not obtained in compliance with warrant instructions that sample be collected by doctor and overruling complaint because "[t]he magistrate found there was probable cause for taking the blood sample of appellant," because "the blood was authorized to be drawn," "because "the manner in which appellant's blood was taken was reasonable," and because "execution of the warrant substantively followed the order of the magistrate"); see also Bailey v. State, No. 03-13-00566-CR, 2014 WL 3893069, at *2 (Tex. App.—Austin Aug. 8, 2014, no pet.) (mem. op., not designated for publication) (finding "nothing unreasonable about transporting Bailey to a hospital and having a registered nurse draw his blood there instead of the blood being taken from Bailey's body at the Lampsasas County Jail" even though search warrant did not specifically direct officer to transfer Bailey to hospital).
We similarly believe that the resolution of this case depends not on whether Hofmeister was specifically included within the list of people authorized to perform the draw by the warrant but on whether the blood draw was reasonable under the circumstances. Further, unlike in the cases above, in the current case, there is some indication that Hofmeister did actually fit within the types of professionals authorized under the warrant to perform the blood draw. Although Gray correctly points out that the warrant states that the sample will be collected by a "physician, registered nurse, licensed vocational nurse, [or] licensed clinical laboratory technologist," the warrant initially instructed Officer Matthew to take Gray "to a physician, registered nurse, licensed vocational nurse, licensed clinical laboratory technologist; or an individual who is trained to properly collect blood from the human body" so that a sample could be taken. (Emphasis added.) Reading the warrant in a realistic and not hypertechnical manner, the warrant arguably authorized the taking of a blood specimen by an individual who has been properly trained to do so, and as set out previously, Hofmeister testified that he is a licensed emergency medical technician who has had extensive training in drawing blood and who has performed numerous blood draws. See Johnston, 336 S.W.3d at 662 (determining, in case involving warrant to collect blood sample, that police officer was "qualified . . . to perform the venipuncture blood draw here" due to his "specific training and experience as an EMT").
Even assuming that the warrant did not authorize an individual with Hofmeister's training and experience to perform the blood draw, the trial court determined that Hofmeister was a licensed emergency medical technician who has been given authorization to draw blood by his medical director, and those facts would seem to place Hofmeister within one of the groups of medical professionals authorized by the Transportation Code to perform blood draws. See Tex. Transp. Code § 724.017(a)(5), (c). As explained by the court of criminal appeals, "one way to establish reasonableness under the Fourth Amendment" as it pertains to blood draws is to show that the blood draw was done in compliance with the blood-draw provisions of the Transportation Code. See Johnston, 336 S.W.3d at 661; see also Walters, 2013 WL 1149306, at *3 (commenting that fact that licensed vocational nurse is listed in Transportation Code provisions governing blood draws supports determination "that the State performed the blood draw in this case in a reasonable manner" even though licensed vocational nurse was not listed in warrant). Further, Gray does not assert that the blood draw was done in an unsafe or unsanitary manner, and Hofmeister's affidavit indicated that the sample was taken in a sanitary place and in a manner recognized as reliable by the scientific community.
Based on the totality of the circumstances, we must conclude that the requirements of the Fourth Amendment were met in this case and that trial court abused its discretion when it determined that the blood draw at issue was not conducted in a reasonable manner. Accordingly, we sustain the State's issue on appeal.
CONCLUSION
Having sustained the State's issue on appeal, we reverse the trial court's order granting Gray's motion to suppress and remand the case for further proceedings consistent with this opinion.
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Goodwin Reversed and Remanded Filed: June 22, 2017 Do Not Publish