State Of Mo. v. Dowdy, SD30381

CourtCourt of Appeal of Missouri (US)
PartiesSTATE OF MISSOURI, Appellant, v. NEIL E. DOWDY, Respondent.
Docket NumberNo. SD30381,SD30381
Decision Date19 January 2011

NEIL E. DOWDY, Respondent.

No. SD30381

Missouri Court of Appeals
Southern District
Division Two

Filed: January 19, 2011

Honorable Robert S. Wiley, Judge


Neil Dowdy ("Defendant") was charged with second-degree murder, armed criminal action, and unlawful use of a weapon for possessing a firearm while intoxicated. Defendant moved to suppress the results of a warrantless breath test of his blood alcohol content on the grounds that the search and seizure violated his federal and state constitutional rights.1 Following a hearing, the trial court granted Defendant's motion and suppressed the evidence because:

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Absent case authority from the U.S. Supreme Court or an appeals court in Missouri approving the taking of a blood sample in a non-DWI case as constitutional either as incident to an arrest or under the exigent circumstances exception to the warrant requirement, the court declines to approve the practice.2

The State appeals. We defer to the trial court's factual findings and credibility determinations and consider all evidence and reasonable inferences in the light most favorable to its ruling. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). Whether the Fourth Amendment was violated, however, is a legal issue that we determine de novo. Id.

Facts and Background

A residential altercation culminated in Defendant fatally shooting his wife's son at approximately 11:30 p.m. Officers were dispatched, with Captain Gideon arriving "[s]omewhere in the midnight hour. Give or take a few minutes." Defendant was already under arrest and in the back of a patrol car. Captain Gideon gave orders to perform a gunshot residue analysis, transport Defendant to the jail, and obtain a breath test of his blood alcohol level because Defendant displayed signs of intoxication at the crime scene.

It took about 45 minutes to transport Defendant, who was bleeding from the face and mouth, to the jail. After he arrived at 1:18 a.m., he was booked and advised that his blood alcohol level was needed to ensure that medical treatment was not necessary. Defendant later indicated that he was told (not asked) to blow into a

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breathalyzer, which he did at 1:53 a.m. He was not read Miranda warnings3 before the test or given an option about submitting to it, and officers never sought a search warrant.4

Case Law

Various Missouri cases, only one of which was cited to the trial court and then only in passing, indicate that it was error to suppress this evidence.

"[U]pon his arrest and as an incident to his arrest without a warrant, [a] person is subject to having a sample of his blood taken without his consent or a warrant, and said blood sample is admissible in evidence." State v. Setter, 721 S.W.2d 11, 16 (Mo.App. 1986)(citing Schmerber v. California, 384 U.S. 757 (1966)).

"Schmerber supports the general principle that the warrantless extraction of a blood sample without consent but incident to a lawful arrest is not an unconstitutional search and seizure and that the results of a blood test performed thereon are admissible in evidence." State v. Ikerman, 698 S.W.2d 902, 904-05 (Mo.App. 1985).

To like effect are these cases:

• State v. Trice, 747 S.W.2d 243, 246 (Mo.App. 1988) "Further, even had Trice been under arrest at the time the sample was taken and refused to submit to a test, he would have been subject to having a sample of his blood taken without his consent or a warrant," citing Setter.

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• State v. LeRette, 858 S.W.2d 816, 818-19 (Mo.App. 1993)-applied exigent circumstances exception to reverse trial court suppression of blood alcohol testing obtained without defendant's consent, citing Schmerber.
• Murphy v. Director of Revenue, 170 S.W.3d 507, 514 (Mo.App. 2005)--"In LeRette we recognized that the warrantless draw of blood, without consent, does not violate the Fourth Amendment's prohibition of unreasonable seizure when exigent circumstances exist. 858 S.W.2d at 819. Exigent circumstances arise from the need to move quickly because 'the percentage of alcohol in the bloodstream diminishes with time and... the delay caused by having to obtain a warrant might result in the destruction of evidence.' Id."
• Blydenburg v. David, 413 S.W.2d 284, 288 (Mo. banc 1967)-breath tests are reasonable and, unlike blood tests approved in Schmerber, do not require even minor intrusions into one's body.

Schmerber, in our supreme court's words, "has established controlling constitutional standards for determining the admissibility of the results of a similar sobriety test as evidence in a criminal case." Blydenburg, 413 S.W.2d at 287. The principles expressed in that case and others we have cited persuade us to reverse the suppression order and remand for further proceedings consistent with this opinion.

Daniel E. Scott, Chief Judge

Rahmeyer, P.J., dissents in separate opinion
Francis, J., concurs

Appellant's attorney: Tyson J. Martin
Respondent's attorney: Chris Koster, Jayne T. Woods

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I respectfully dissent. If we consider the facts in the light most favorable to the ruling, as we must under our standard of review, I would find no exception to the warrant requirement applies to this case. The trial court found that "[a]bsent case authority from the [Supreme Court of the United States] or an appeals court in Missouri approving the taking of a blood sample in a non-DWI case," and declined to approve the practice. While the majority opinion states, "[v]arious Missouri cases, only one of which was cited to the trial court and then only in passing, indicate that it was error to suppress this evidence," I disagree that the various cases hold in a

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non-driving case that it was error to suppress the evidence.5 I believe, as both parties stated, that this is a case of first impression in Missouri. As such, I would not casually extend the exceptions to the Fourth Amendment to non-driving cases. I would find that Defendant did not consent, exigent circumstances for the search did not exist, and the search was not incidental to arrest.

First, it would be helpful to review our standard of review and pertinent case law to determine this issue. "The burden of going forward with the evidence and the risk of nonpersuasion" at a suppression hearing are "upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled." Section 542.296.6;6 State v. Hampton, 959 S.W.2d 444, 450 (Mo. banc 1997). The ruling will be affirmed if it is not clearly erroneous. State v. Hoopingarner, 845 S.W.2d 89, 92 (Mo. App. E.D. 1993). We review the trial court's factual determinations only in determining whether they are supported by substantial evidence. Id The facts are viewed in the light most favorable to the ruling, and we disregard any contrary evidence and inferences. Id Whether the Fourth Amendment has been violated is a question of law we review de novo. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007).

The United States Constitution and the Missouri Constitution protect individuals from unreasonable searches and seizures.7 State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009). Specifically, the Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV. For the purposes of Fourth Amendment analysis, a breath test is a search. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616-17 (1989). A

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search conducted without a valid warrant is unconstitutional unless an exception applies. State v. Sullivan, 49 S.W.3d 800, 813 (Mo. App. W.D. 2001). Consent, exigent circumstances, and searches incident to arrest are recognized exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) ("[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99 (1967) (Exigent circumstances applied because "[s]peed here was essential, and only a thorough search of the house for persons and weapons could have insured that [the defendant] was the only man present and that the police had control of all weapons which could be used against them or to effect an escape."); United States v. Robinson, 414 U.S. 218, 235 (1973) (The fact of a lawful arrest establishes the authority to search, and in the case of a lawful arrest a full search of the person is a reasonable search under the Fourth Amendment.).

In the light most favorable to the trial court's ruling, the facts indicate that on the evening of December 3, 2008, Defendant was involved in an altercation at his residence with his wife's son, Del Moore, that resulted in Moore hitting Defendant and Defendant fatally shooting Moore at approximately 11:30 p.m. Paramedics and the Stone County Sheriff's Department (the "Department") were dispatched to the scene.

Three witnesses testified at the suppression hearing. Captain Tim Gideon and Deputy Chris Sowards testified for the State, while Defendant testified in his own...

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