State v. Flannigan

• Decision Date: 03 November 1998
• Docket Number: No. 1,CA-CR,1
• Citation: 978 P.2d 127,194 Ariz. 150
• Parties: 281 Ariz. Adv. Rep. 30 STATE of Arizona, Appellee, v. Billy Joe FLANNIGAN, Appellant. 97-0763.
• Court: Arizona Court of Appeals

Page 127

978 P.2d 127

281 Ariz. Adv. Rep. 30

STATE of Arizona, Appellee, v. Billy Joe FLANNIGAN, Appellant.

No. 1 CA-CR 97-0763.

Court of Appeals of Arizona Division 1, Department A.

Nov. 3, 1998.

Reconsideration Denied

Dec. 4, 1998.

Review Denied May 26, 1999.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Division

and Gregory A. McCarthy, Assistant Attorney General, Phoenix, Attorneys for Appellee

Dean W. Trebesch, Maricopa County Public Defender by Christopher V. Johns, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

GERBER, Judge.

¶1 Billy Joe Flannigan ("Flannigan") appeals his convictions and sentences for negligent homicide, aggravated assault and endangerment. Because we conclude that the trial court erred in denying his motion to suppress the results of a warrantless blood test, we reverse Flannigan's convictions and remand to the trial court for further proceedings.

FACTS ¹

¶2 The charges against Flannigan arise from an automobile accident in Mesa, Arizona on August 18, 1994. The undisputed evidence at trial established that he drove a flatbed tow truck through a red light and struck another automobile in the intersection, killing the driver of the other vehicle and injuring her two teenage passengers, one of them seriously.

¶3 The paramedics who treated Flannigan after the accident observed that both his blood pressure and pulse rate were high. When they tested him again approximately twenty-five minutes later, both rates remained high. They also observed that he was very nervous throughout the time that they attended him.

¶4 After conferring with the paramedics, Mesa Police Officer Ron Martinez spoke to Flannigan. Martinez, a certified drug recognition expert, noticed that he was "jittery" and manifested finger tremors. With Flannigan's consent, Martinez had another officer drive him to the police station so that he could perform a series of field sobriety tests.

¶5 Martinez met Flannigan at the station and read him his Miranda warnings. ² Beginning at 12:54 p.m., approximately one and one-half hours after the accident, Officer Martinez began a Drug Recognition Evaluation ("DRE") of Flannigan. Pursuant to a policy of the Mesa Police Department which required that two drug recognition experts participate in all DREs, Sergeant Patricia Bradley also observed the evaluation. The DRE consisted of several tests of his physical coordination, a breath test, and a horizontal gaze nystagmus ("HGN") test. It also included repeated monitoring of his pulse rate, blood pressure and temperature, all of which remained elevated throughout the evaluation. Additionally, the officers observed that Flannigan's nostrils were red, a possible indication that he had ingested a drug. He told the officers that he had taken four Vivarin tablets at approximately 7:00 p.m. the previous evening and that he had consumed three 52-ounce drinks of Mountain Dew or Coca-Cola the morning of the accident.

¶6 Believing that Flannigan was under the influence of a central nervous system stimulant, Officer Martinez arrested him and requested that he give a blood sample. The record does not indicate that he consented, nor did Officer Martinez or Sergeant Bradley obtain a warrant for the blood draw. Nevertheless, a phlebotomist drew his blood at the Mesa police station at 1:52 p.m. A toxicology screen detected the presence of amphetamine and methamphetamine in his blood.

¶7 The Maricopa County Grand Jury subsequently indicted Flannigan on one count each of reckless manslaughter, aggravated assault pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 13-1204(a)(2) upon a victim under fifteen years of age, and endangerment. A jury convicted him of aggravated assault, endangerment and negligent homicide as a lesser-included offense of manslaughter. The jury also found each felony to be a dangerous offense involving the use of a motor vehicle as a dangerous instrument in violation of A.R.S. section 13-604(P) (1994).

¶8 The trial court sentenced him to mitigated, concurrent terms of 4.5 years for negligent homicide, 7.5 years for aggravated assault and 2 years for endangerment. ³ He timely appealed his convictions and sentences to this court. We have jurisdiction over his appeal pursuant to article VI, section 9 of the Arizona Constitution and A.R.S. sections 12-120.21 (1992), 13-4031 (1989), and 13-4033(A)(Supp.1997).

DISCUSSION

I. MOTION TO SUPPRESS BLOOD TEST RESULTS

¶9 Prior to trial, Flannigan moved to suppress the results of his blood test, arguing that the warrantless seizure of his blood violated the Fourth Amendment because it was non-consensual and not otherwise justified by the presence of exigent circumstances. Officer Martinez and Sergeant Bradley testified at the suppression hearing that Flannigan's DRE indicated that he was under the influence of a central nervous system stimulant. Pursuant to Mesa Police Department procedure in all traffic accident cases involving serious injury or death, the officers did not attempt to obtain a warrant before conducting the blood draw. Instead, they relied on the department's policy that exigent circumstances always exist in vehicular aggravated assault and manslaughter cases. They conceded that it was possible to obtain a telephonic search warrant in fifteen to forty-five minutes, although the process can take longer.

¶10 Thomas Simonick, the Mesa Police Department criminalist who tested Flannigan's blood sample, testified that drugs, like alcohol, are evanescent in a person's blood system. Cocaine remains in the blood system for less time than alcohol, while methamphetamine remains in the blood for a longer period than alcohol. Specifically, methamphetamine has a half-life in blood of six to fifteen hours, while cocaine's half-life in blood is one to two hours. Methamphetamine metabolites, however, may be detected in urine for approximately twenty-four to forty-eight hours and cocaine metabolites may be detected in urine for approximately twelve to twenty-four hours. According to Simonick, it is impossible to tell by observing whether a person is under the influence of cocaine or methamphetamine. He also testified that, if a person is exhibiting physical symptoms caused by a stimulant (as Flannigan did throughout the DRE), a delay of fifteen to forty-five minutes in obtaining a blood sample probably would not preclude a criminalist from detecting evidence of the stimulant in the blood.

¶11 The trial court denied Flannigan's motion to suppress, concluding that the blood draw was constitutionally reasonable under the exigent circumstances exception to the warrant requirement, as that exception is explained in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). He maintains that the trial court erred in this conclusion.

¶12 In reviewing the denial of Flannigan's motion to suppress, we must defer to the trial court's factual findings absent an abuse of discretion. State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996). We review de novo the ultimate issue whether the warrantless blood draw complied with the dictates of the Fourth Amendment. See id., see also State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996); see Schmerber, 384 U.S. at 767, 86 S.Ct. 1826 (taking of blood sample is a search subject to the warrant requirement of fourth amendment).

¶13 At the outset, we note that this case does not involve an application of the Arizona implied consent statute in effect at the time of the arrest. See A.R.S. § 28-691 (1994). The implied consent statute in effect in 1994 would have applied only if the police had arrested Flannigan for a violation of the Uniform Act Regulating Highway Traffic, see A.R.S. Title 28, Chapter 6. See A.R.S. § 28-691(A) (1994). He was arrested for violating provisions of Title 13 of the Arizona Revised Statutes, not Title 28.

¶14 Similarly, because he did not sustain any injuries in the accident that required medical personnel to draw his blood, this case does not involve the medical purposes exception of A.R.S. section 28-692(J), which would have entitled the police to receive a sample of his blood regardless of his consent. See A.R.S. § 28-692(J) (1994); see also Lind v. Superior Court, 191 Ariz. 233, 236, 954 P.2d 1058, 1061 (App.1998).

¶15 The state argues for the first time on appeal that the warrantless seizure of Flannigan's blood was constitutionally permissible because he consented to it. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)(consent to search constitutes exception to warrant requirement); State v. Groshong, 175 Ariz. 67, 70-71, 852 P.2d 1251, 1254-55 (App.1993). The state waived this argument for purposes of appeal because it never attempted to prove consent at the suppression hearing.

¶16 Moreover, even absent waiver, we would reject the state's argument because the record lacks evidence of Flannigan's actual consent to the blood draw. "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (citations omitted); see also Ariz. R.Crim. P. 16.2(b)("The prosecutor shall have the burden of proving, by a preponderance of the evidence, the lawfulness in all respects of the acquisition of all evidence which the prosecutor will use at trial."). At most, the record demonstrates only that Flannigan never expressly refused to submit to the blood draw. This evidence is insufficient to demonstrate actual consent.

¶17 Absent express consent to the blood draw, the police would have been entitled to conduct the warrantless seizure of his blood only if (1) they had probable cause to believe that h...