Crider v. State

• Decision Date: 16 November 2011
• Docket Number: No. PD–0592–10.,PD–0592–10.
• Citation: 352 S.W.3d 704
• Parties: Robert Jackson CRIDER, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

352 S.W.3d 704

Robert Jackson CRIDER, Appellant,

v.The STATE of Texas.

No. PD–0592–10.

Court of Criminal Appeals of Texas.

Nov. 16, 2011.

Robert Jackson Crider, Farmersville, pro se.

Andrea L. Westerfeld, Asst. District Atty., McKinney, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY and ALCALA, JJ., joined.

A jury convicted appellant of driving while intoxicated after the trial judge denied his motion to suppress evidence obtained from a search warrant for blood. The court of appeals held that the search-warrant affidavit established probable cause to believe that evidence of intoxication would be found in appellant's blood even though the officer did not specify when, on the day before he obtained the search warrant, he had stopped appellant.¹ We granted appellant's petition to address whether a search-warrant affidavit for blood must contain the time the DWI arrestee was stopped.² This is a “bookend” case to State v. Jordan,³ in which we recently held that the search-warrant affidavit for blood in a DWI case established probable cause even though the affidavit did not explicitly state when the officer stopped the defendant because it was obvious from the context. Under the totality-of-the-circumstances standard set out in Jordan, the affidavit in this case is not sufficient to show probable cause because there could have been a twenty-five-hour gap between the time the officer first stopped appellant and the time he obtained a search warrant for blood. We therefore reverse the court of appeals.

I.

Wylie Police Sergeant Anthony Henderson executed a search-warrant affidavit on June 7, 2008, stating that he had probable cause to obtain blood from appellant whom he had arrested for DWI. The affidavit stated:

On or about 6–06–2008, I Sgt. A Henderson was stationary at the three way intersection of s/b E FM 544, Vinson Rd. And County Line Rd. When I observed suspect vehicle make a left hand turn onto n/b E FM 544 and Cedar Point. Upon making contact, the driver identified themselves as CRIDER, ROBERT JACKSON II. I detected a strong odor of alcoholic beverage, bloodshot eyes and his speech was thick-tongued. During Standardized field sobriety testing, I observed 4 clues during Horizontal Gaze Nystagmus, and CRIDER, ROBERT JACKSON II refused to perform the One Leg Stand Test and the Walk and Turn test. While speaking with CRIDER, ROBERT JACKSON II outside his vehicle I observed him swaying heavily. Based on these observations, the defendant CRIDER, ROBERT JACKSON II was arrested for driving while intoxicated. Defendant CRIDER, ROBERT JACKSON II was asked to give a breath specimen, which [he] refused.

A Collin County magistrate issued a search warrant based on Sgt. Henderson's affidavit at 1:07 a.m. on June 7, 2008.

At the motion to suppress hearing, the defense argued, inter alia, that the affidavit failed to establish probable cause to search for alcohol in appellant's blood “because the alcohol does dissipate from the blood” and the officer failed to put the time he had observed appellant driving while intoxicated in the affidavit. The time of the stop was required so that the magistrate “could have determined whether or not there was fresh probable cause.... Without that information, you can't determine whether or not to justify having blood forcibly taken from a citizen in the United States.”

The prosecutor anticipated the defense argument “that there is a full day, June 6th of 2008, where this crime could have occurred, and being the nature of blood-or alcohol in blood either absorbing or eliminating, that because there's a 24–hour period, we need to know a more specific time because of the nature of the blood.” But the prosecutor argued that “it is reasonable to infer that an officer is not going to wait four hours, five hours, ten hours, 12 hours, 24 hours to get this warrant executed.” To think that an officer would wait around that long “goes completely contrary to common knowledge and common sense.” Furthermore, “[a]ny delay in time is beneficial to the defendant,” so the officer is going to seek a search warrant for blood “as quickly as possible because not to do so would not benefit his ultimate objective[.]”

The trial judge noted the dearth of case law concerning staleness in a blood search warrant, and stated, “To tell you the truth, I think that we need some bright line law on the time on a search warrant.” He asked the parties to submit briefs, and then denied the motion to suppress in a written order.

After hearing the evidence at trial, the jury found appellant guilty of DWI, and the trial judge sentenced him to 90 days in the county jail, probated for one year, and an $800 fine.

In his sole issue on appeal, appellant claimed that the search-warrant affidavit failed to establish “recent” probable cause. The court of appeals, relying upon the “uninterrupted sequence of events outlined in the affidavit,” rejected this claim:

Viewing the facts and circumstances within the four corners of the affidavit, specifically the factual time-line given by the officer, interpreting the affidavit “in a common sense and realistic manner,” and drawing all reasonable inferences, we conclude the June 7, 2008, 1:07 a.m. finding of probable cause by the magistrate was of reasonable proximity to the June 6, 2008 arrest of appellant. We cannot say it was unreasonable for the magistrate to presume some evidence of intoxication would be found in appellant's blood when the warrant was signed.⁴

II.

The Fourth Amendment requires that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” ⁵ The probable-cause standard means that the affidavit must set out sufficient facts for the magistrate to conclude that the item to be seized will be on the described premises at the time the warrant issues and the search executed.⁶ Thus, in a seminal 1932 case, we first held that an affidavit

is inadequate if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that event upon which the probable cause was founded was not so remote as to render it ineffective.⁷

Affidavits are to be read “realistically and with common sense,” and reasonable inferences may be drawn from the facts and circumstances set out within the four corners of the affidavit.⁸ But there must be sufficient facts within the affidavit to support a probable-cause finding that the evidence is still available and in the same location. We agree that the “proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.” ⁹ No hard-and-fast rule sets the outer limit of time between stopping an apparently intoxicated driver and the existence of probable cause that evidence of intoxication will still be found within that person's blood. The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still available and in the same place is a function, not just of the watch or the calendar, but of the particular variables in the case:

(1) the type of crime—short-term intoxication versus long-term criminal enterprise or conspiracy;

(2) the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman;

(3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse); and

(4) the place to be searched—a “mere criminal forum of convenience or secure operational base.” ¹⁰

“[T]he fundamental point is that when the facts put forward to establish probable cause show only a single, nonrecurring crime occurring on a specific occasion, the question to be considered is how long after that [time or] date evidence of that single crime can be expected to remain at the scene.” ¹¹

Alcohol in a person's bloodstream disappears quite rapidly, thus the facts cited to support probable cause to search for alcohol in a DWI suspect's bloodstream become stale quite rapidly. Blood-alcohol levels are usually described in terms of blood-alcohol content (BAC). BAC refers to the concentration of alcohol in the blood, measured in grams of alcohol for every one hundred milliliters of blood volume.¹² Hypothetically, a person whose blood had one gram of alcohol for every one hundred milliliters of blood would have a BAC of 1 and a blood-alcohol concentration of 1% (“weight per volume”). This is hypothetical because a person with a BAC of 1 would literally be pickled in alcohol. A person whose blood contains 0.10 grams of alcohol for every one hundred milliliters of blood will have a BAC of 0.10 (a more realistic and typical situation). Every hour, the “average” person eliminates somewhere between 0.015 and 0.020 grams of alcohol for every one-hundred milliliters of blood.¹³ In other words, a BAC of 0.10 will go down by 0.015 to 0.020 every hour in an average person.

Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later because it takes at least four hours for the average person to eliminate 0.08 grams of alcohol (per one hundred milliliters of blood) at a rate of 0.02 grams of alcohol (per one hundred milliliters of blood) per hour. Put simply, it takes four hours of hourly 0.02 BAC decreases to make a BAC of...