State v. Ikerman, 50116

• Decision Date: 03 September 1985
• Docket Number: No. 50116,50116
• Citation: 698 S.W.2d 902
• Parties: STATE of Missouri, Appellant, v. Jerry Dean IKERMAN, Respondent.
• Court: Missouri Court of Appeals

Page 902

698 S.W.2d 902

STATE of Missouri, Appellant, v. Jerry Dean IKERMAN, Respondent.

No. 50116.

Missouri Court of Appeals,

Eastern District,

Division Two.

Sept. 3, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 17, 1985.

Application to Transfer Denied

Nov. 21, 1985.

Larry H. Ferrell, Pros. Atty., H. Morley Swingle, Cape Girardeau, for appellant.

Kenny C. Hulshof, Jackson, for respondent.

SIMON, Presiding Judge.

The trial court granted defendant's pretrial motion to suppress evidence of test results based on a blood sample taken from defendant. The state appeals pursuant to § 547.200 RSMo Supp.1984. (All further references shall be to RSMo Supp.1984 unless otherwise indicated.) The state disputes the trial court finding that the blood sample had been taken from defendant in violation of § 577.041 because defendant refused his consent to the blood test and in violation of defendant's Miranda rights because the police ignored defendant's request to speak with his counsel. Our review of the trial court's ruling on the motion to suppress is limited to a determination of whether the evidence was sufficient to sustain its finding. State v. Baskerville, 616 S.W.2d 839, 843 (Mo.1981); State v. Rainbolt, 676 S.W.2d 527, 528 (Mo.App.1984). We affirm.

Defendant was involved in a traffic accident on January 18, 1985, when his car collided with another. When a policeman first arrived at the scene about 6:45 p.m., paramedics were attending the injured driver of the other car. Defendant, although bleeding and apparently suffering from a head injury, inquired about the other driver, and told the officer that he was alright and that his brakes had failed. When asked if he had been drinking, defendant turned away, then responded he had consumed two beers. Upon inspection of defendant's car, the officer noticed several beer cans, including one opened, and detected a strong odor of alcohol. After checking the brakes, he determined they were fine. The driver of the other car and defendant were taken to the hospital. Defendant's car was taken to the police station where the police inventoried its contents and discovered a baggie of marijuana underneath the floor mat on the driver's side.

Another officer, Officer Eakins, arrived at the hospital around 7:40 p.m. to interview defendant about the accident. He asked defendant what happened at the accident. Defendant claimed his brakes had failed and admitted he had been drinking. Eakins smelled the odor of alcohol on defendant's breath and noticed his eyes were bloodshot and watery. The officer informed defendant that he had reason to believe defendant had been too intoxicated to drive and requested he submit to a blood test. Defendant declined, indicating that he did not want to take the test at that time. The officer then explained to defendant the consequence of refusing to take the test. About five minutes later, at 7:56 p.m., two other police officers arrived and Officer Eakins informed them that defendant had refused to give a blood sample.

One of these officers, Officer Casteel, had a tape recorder on which he noted the time, date, place, and persons present at the hospital. He advised defendant of his Miranda rights, which defendant acknowledged that he understood. A lengthy discussion ensued with defendant eventually agreeing to give the blood sample. After talking briefly with defendant and obtaining his signature on a written consent form, one of the hospital nurses drew a blood sample from defendant. Defendant was subsequently charged with: (1) assault in violation of § 565.060.1(4); (2) possession of marijuana in violation of § 195.020; and (3) driving a motor vehicle with excessive blood alcohol content in violation of § 577.012. The trial court made extensive findings of fact which shall be related in the discussion of the state's points relied on.

The state's first point addresses defendant's motion to dismiss the interlocutory appeal as untimely. The trial court's order was issued on Friday, May 10, 1985, and the state's notice of appeal was filed on Thursday, May 16, 1985. Since § 547.200.4 prescribes that the notice of appeal be filed within five days, Rule 20.01 applies so that Saturdays, Sundays, and legal holidays are excluded in computing the time. Therefore, we conclude that the notice of appeal was timely filed, and deny defendant's motion to dismiss the appeal.

The state's second point contends that the trial court erred in suppressing the blood sample, arguing that the officers had the right to take the blood sample from defendant without his consent, a warrant, or an arrest. The state argues that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) provides that, where police officers have probable cause to believe defendant has committed a crime in which intoxication is an element and exigent circumstances exist, the taking of a blood sample in a reasonable manner without consent, warrant, or arrest is constitutionally permissible. If we accept the state's contention that the defendant had not been arrested, we must reject its position that Schmerber controls. 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. See 384 U.S. at 771, 86 S.Ct. at 1836. (Emphasis added.)

We are troubled by the state's stance that defendant had not been arrested. The trial court assumed a different posture and in its findings of fact states the following:

Although both officers said the defendant was not under arrest, the Court notes that the defendant was then in an emergency room, specifically examination room 5, at the time these officers spoke with him. He told Officer Eakins no to his request; when Officer Casteel spoke with the defendant, there were three officers in the examination room being Eakins, Casteel and Officer Robert McCoy. Although the officers may never have said the "magic words" that the defendant was under arrest, the setting with the number of officers being present, the warnings given by both Eakins and Casteel concerning the loss of driving privileges and the reading of the Miranda rights certainly gives a strong impression that the defendant was under arrest.

Section 544.180 RSMo 1978 provides that "an arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise." Under the foregoing statute an arrest is made by the defendant submitting to the custody of the officer or by an actual restraint. The statute does not require any particular words to be used by the officer to effectuate the arrest. The determination of whether an arrest has occurred for Fourth Amendment purposes does not depend upon whether the officers announced that they were placing the suspect under arrest. Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824, 835-36 (1979); United States v. Rose, 731 F.2d 1337, 1342 (8th Cir.), cert. den. 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984).

The state's emphasis upon the officers' testimony that they did not consider defendant to be under arrest reflects a misunderstanding of the law. A person is "under arrest" from the moment a peace officer takes control of his movements. State v. Kimball, 613 S.W.2d 932, 938 (Mo.App.1981). Here, although not physically or actively restrained, as with handcuffs, defendant was surrounded by several police officers and given his Miranda rights. It is unlikely that defendant reasonably entertained the belief that he was free to go. The officers' actions are tantamount to arrest where their conduct is more intrusive than necessary for an investigative stop. United States v. Rose, 731 F.2d at 1342. The evidence was sufficient to support the trial court's finding that defendant was arrested, although not formally.

Accepting the trial court's view that defendant had been arrested, Schmerber, standing alone, would compel the conclusion that the warrantless search without consent comports with constitutional due process permitting the blood sample to be taken and to be admissible evidence where defendant has first been arrested. Furthermore, our legislature responded to Schmerber by its enactment, like many other states, of an "implied consent" statute, § 577.020, which states in pertinent part:

1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of Sections 577.010 to 577.041, a chemical test or tests of his breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of his blood if arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition. The test shall be administered at the direction of the arresting law enforcement officer whenever the person has been arrested for the offense.

Thus, under the aegis of Schmerber, the implied consent statute authorizing a "search," i.e., the extraction of blood for a blood alcohol test, without a warrant or actual consent does not offend the constitutional guarantees of due process or of freedom from unreasonable search and seizure of one who has first been arrested.

However, in tandem with § 577.020, the "implied consent" statute, the Missouri legislature also enacted § 577.041, a "refusal" statute. Section 577.041 provides, in part:

1. If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his...