State v. Romano

• Decision Date: 09 June 2017
• Docket Number: No. 199PA16,199PA16
• Citation: 369 N.C. 678,800 S.E.2d 644
• Parties: STATE of North Carolina v. Joseph Mario ROMANO
• Court: North Carolina Supreme Court

369 N.C. 678

800 S.E.2d 644

STATE of North Carolina

v.Joseph Mario ROMANO

No. 199PA16

Supreme Court of North Carolina.

Filed June 9, 2017

Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy Attorney General, for the State-appellant/appellee.

Glenn Gerding, Appellate Defender, by Constance E. Widenhouse and Andrew DeSimone, Assistant Appellate Defenders, for defendant-appellant/appellee.

BEASLEY, Justice.

The issue before us in this case is whether N.C.G.S. § 20-16.2(b), which authorizes law enforcement to obtain a blood sample from an unconscious defendant who is suspected of driving while impaired without first obtaining a search warrant, was unconstitutionally applied to defendant. The trial court suppressed the results of defendant's blood test on Fourth Amendment grounds, and the Court of Appeals affirmed that decision. We now affirm the opinion of the Court of Appeals as modified herein.

On 6 October 2014, defendant was indicted for felony habitual driving while impaired and driving while his license was revoked. These charges were based on events that occurred on 17 February 2014. On 26 January 2015, defendant filed a pretrial motion to suppress all evidence gathered after his arrest. The motion was heard on 2 and 3 February 2015.

Based on the evidence presented at the suppression hearing, the trial court found the following facts. On 17 February 2014, Officer Tammy Bryson responded to a dispatch indicating that a white male wearing his sweater backwards and carrying a liquor bottle had stopped his SUV in the travel portion of a public road, gotten out of the vehicle, and stumbled across the multilane highway. Officer Bryson found Joseph Romano (defendant), who matched the description of the driver, sitting behind a restaurant "approximately 400 feet from the abandoned SUV." Officer Bryson observed that defendant was making incoherent statements, that his speech was slurred, that he was unable to stand due to his obvious intoxication, and that he smelled strongly of alcohol and vomit. Officer Bryson determined that defendant's faculties were appreciably impaired. Defendant was arrested for driving while impaired (DWI), and, due to his extreme level of intoxication, defendant was transported to a hospital for medical treatment. Officer Bryson requested the assistance of Sergeant Ann Fowler, a Drug Recognition Expert.

Defendant was belligerent and combative throughout his encounters with law enforcement and medical personnel. At the hospital, medical staff and law enforcement attempted to restrain defendant. Medical personnel determined it was necessary to medicate defendant to calm him down. Sergeant Fowler told the treating nurse "that she would likely need a blood draw for law enforcement purposes." Before defendant was medicated, Sergeant Fowler did not "advise[ ] [him] of his chemical analysis rights," "request[ ] that he submit[ ] to a blood draw," or obtain a warrant for a blood search. After defendant was medically subdued, the treating nurse drew blood for medical treatment purposes; however, the nurse drew more blood than was needed for treatment purposes and offered the additional blood for law enforcement use. Before accepting the blood sample, Sergeant Fowler attempted to get defendant's consent to the blood draw or receipt of the evidence, but she was unable to wake him. The trial court found as fact that "[d]ue to his medically induced state, the Defendant was rendered unable to meaningfully receive and consider his blood test rights, unable to give or withhold his informed consent, and/or unable to exercise his right to refuse the warrantless test."

During this entire series of events, multiple officers were present to assist with the investigation, "such that an officer could have left to drive the relatively short distance (only a few miles) to the Buncombe County Magistrate's Office to obtain a search warrant." Sergeant Fowler was familiar with the blood search warrant procedure, and search warrants for a blood draw are fill-in-the-blank forms that are not time-consuming; moreover, magistrates were on duty and available during the relevant time period. Sergeant Fowler did not attempt to obtain a warrant for defendant's blood nor did she believe any exigency existed. Instead, she "expressly relied upon the statutory authorization set forth in [subsection] 20-16.2(b)," which allows the taking and testing of blood from a person who has committed a DWI if the person is "unconscious or otherwise in a condition that makes the person incapable of refusal." After taking possession of defendant's blood, Sergeant Fowler "drove to the Buncombe County Magistrate's Office and swore out warrants for the present charges," and then returned to the hospital and served the warrants on defendant. The trial court found that "nothing prevent[ed] her from obtaining a search warrant [for defendant's blood] at the same time she [obtained the other warrants] and then subsequently seizing the blood."

The trial court quoted Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), which states that "a warrantless search of the person is reasonable only if it falls within a recognized exception," such as "when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Id. at ––––, 133 S.Ct. at 1558 (citations omitted). A court "looks to the totality of circumstances" to determine whether exigent circumstances justified law enforcement in acting without a warrant. Id. at ––––, 133 S.Ct. at 1559 (citations omitted).

The trial court concluded as a matter of law that the seizure of defendant's blood "was a search subject to Fourth Amendment protection," and, under "a totality of the circumstances test, no exigency existed justifying a warrantless search." The court concluded that N.C.G.S. § 20-16.2(b) "creates a per se exigency exception to the warrant requirement," and as applied here violates the holding in McNeely . Therefore, "any subsequent testing performed by law enforcement on the seized blood must be suppressed."

At the conclusion of the hearing on 3 February 2015, the court ruled orally on defendant's motions to suppress. The court then filed written orders on 23 March 2015.¹ The State timely appealed the trial court's order suppressing the blood test results.

The Court of Appeals affirmed the trial court's order suppressing the test results of the blood that Sergeant Fowler obtained from defendant at the hospital. State v. Romano , ––– N.C. App. ––––, ––––, 785 S.E.2d 168, 175 (2016). The court quoted McNeely ’s holding that " ‘the natural metabolization of alcohol in the bloodstream’ does not present a ‘per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.’ " Id. at ––––, 785 S.E.2d at 173 (quoting McNeely , 569 U.S. at ––––, 133 S.Ct. at 1556 ). The Court of Appeals determined that N.C.G.S. § 20-16.2(b) could not justify a warrantless blood draw from an unconscious DWI defendant because McNeely "sharply prohibits per se warrant exceptions for blood draw searches." Id. at ––––, 785 S.E.2d at 174.

Applying N.C.G.S. § 20-16.2(b) to the instant case, the Court of Appeals opined that "the record suggests, but does not affirmatively show, that [Sergeant] Fowler had ‘reasonable grounds’ to believe Defendant ... was intoxicated while he drove his SUV," as opposed to his becoming intoxicated while drinking rum after leaving his vehicle. Id. at ––––, 785 S.E.2d at 174. The court added: "More importantly, Fowler testified that she did not attempt to obtain a search warrant at any time, even though the magistrate's office was ‘a couple of miles’ away from the hospital." Id. at ––––, 785 S.E.2d at 174. The court concluded that

[t]he State's post hoc actions do not overcome the presumption that the warrantless search is unreasonable, and it offends the Fourth Amendment, the State Constitution, and McNeely . As the party seeking the warrant exception, the State did not carry its burden in proving "the exigencies of the situation made that [warrantless] course imperative." Coolidge [v. New Hampshire ], 403 U.S. [443,] 455, 91 S.[ ]Ct. 2022[, 2032, 29 L.Ed.2d 564 (1971) ]. Under the totality of the circumstances, considering the alleged exigencies of the situation, the warrantless blood draw was not objectively reasonable. See McNeely , [569] U.S. at ––––, 133 S.[ ]Ct. at 1558.

Romano , ––– N.C. App. at ––––, 785 S.E.2d at 174 (second alteration in original).

The Court of Appeals also concluded that neither the independent source doctrine nor the good faith exception to the warrant requirement applied in this case. Id. at ––––, 785 S.E.2d at 174-75. The court first recognized that the State raised these arguments for the first time on appeal. Then, the court noted that under a previous Court of Appeals decision, "[t]he independent source doctrine permits the introduction of evidence initially discovered [during], or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality." Id. at ––––, 785 S.E.2d at 174 (quoting State v. Robinson , 148 N.C. App. 422, 429, 560 S.E.2d 154, 159 (2002) ). The court determined that "[t]he sequence of events in this case does not follow this framework," in that the attending nurse knew that defendant was going to be arrested for DWI and that officers wanted his blood drawn. Id. at ––––, 785 S.E.2d at 174. As such, the court concluded that "the nurse cannot be an independent lawful source." Id. at ––––, 785 S.E.2d at 174. Additionally, the Court of Appeals concluded that "[t]he good faith exception," which "allows police officers to objectively and reasonably rely on a magistrate's warrant that is later found to be invalid," id. at ––––, 785 S.E.2d at 174 (citation omitted), was not applicable...