State v. Swan, 02-14-00416-CR

• Decision Date: 21 January 2016
• Docket Number: NO. 02-14-00416-CR,02-14-00416-CR
• Citation: 483 S.W.3d 760
• Parties: The State of Texas, State v. Laura Ann Swan, Appellee
• Court: Texas Court of Appeals

483 S.W.3d 760

The State of Texas, State

v.Laura Ann Swan, Appellee

NO. 02-14-00416-CR

Court of Appeals of Texas, Fort Worth.

DELIVERED: January 21, 2016

Attorneys for State: Sharen Wilson, Criminal District Attorney; Debra A. Windsor, Chief Of Post-Conviction; Tanya S. Dohoney, Pamela A. Boggess, Assistant Criminal District Attorneys, Tarrant County District Attorney's Office, Fort Worth, Texas

Attorney for Appellee: Ray Napolitan, Law Office Of Jim Shaw, Fort Worth, Texas

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

OPINION

TERRIE LIVINGSTON

, CHIEF JUSTICE

The State of Texas appeals the trial court's order granting appellee Laura Ann Swan's motion to suppress the results of a blood test for alcohol. In three points, the State contends that the warrantless, nonconsensual blood draw of appellee that the police conducted under the mandatory language of a Texas statute was not unconstitutional and that even if the blood draw was unconstitutional, evidence related to it should not be suppressed because a police officer believed that he was acting constitutionally under the statute. We affirm the trial court's suppression order.

Background Facts

One early morning in February 2012, Hurst police officer Brian Charnock received information that while traveling on a state highway, a driver was swerving, was increasing and reducing speed, and was otherwise driving recklessly. Officer Charnock was too far away from the location of the driver's vehicle to follow and observe it, so he drove toward the address associated with the vehicle.¹ On the way there, Officer Charnock saw the vehicle he was searching for, which was being driven by appellee. Appellee made a turn without signaling, and Officer Charnock conducted a traffic stop.

When Officer Charnock approached appellee's vehicle, he smelled a strong odor of alcohol. Appellee denied having recently drunk alcohol. Officer Charnock asked appellee to perform field sobriety tests, and she refused. Appellee's refusal to perform the tests made Officer Charnock believe that she was "hiding something." Officer Charnock arrested appellee for failing to present her driver's license, but he also believed that he had probable cause to arrest her for driving while intoxicated (DWI).

Officer Charnock transported appellee to a jail. While there, he noticed that she had "droopy eyes," and he could still smell alcohol on her.² Officer Charnock gave appellee certain warnings and asked her to give a sample of her blood for the testing of alcohol content. She refused. Officer Charnock learned that appellee had two prior convictions for DWI, and he prepared to conduct a search and seizure of her blood under section 724.012 of the transportation code

.³ He took her to an emergency room near the police department, where a sample of her blood was seized. Officer Charnock did not obtain a warrant before seizing the blood sample because he "didn't need the warrant at the time based on the two prior convictions. And timewise, it wouldn't have been expedient."⁴

A Tarrant County grand jury indicted appellee for DWI. The indictment included a paragraph alleging that she had two prior final convictions for DWI.

Appellee filed a motion to suppress the results of the blood test. She argued that although the State had searched for and seized her blood under the provisions of section 724.012

, the nonconsensual search and seizure were unconstitutional under the United States Supreme Court's Missouri v. McNeely⁵ decision because they were unsupported by a search warrant or by exigent circumstances that precluded the police from obtaining a warrant.

In response, the State argued that the search and seizure of appellee's blood were reasonable and valid. Specifically, the State contended that section 724.012

mandated the search and seizure of appellee's blood, that the police relied on this statute when seizing the blood, and that the decision in McNeely did not invalidate the requirements of the statute. The State asserted in part,

The concept relied upon in vehicular-intoxication enactments across the country—implied-consent—is a statutory term of art that incorporates Fourth Amendment principles. Pursuant to the Texas implied-consent statutory framework, a defendant's implied consent is valid as a constitutionally sufficient alternative to the warrant preference. Driving on a roadway (and obtaining a license, if applicable) is a privilege, not a right; by doing so, a defendant impliedly consents to providing a sample when suspected of intoxication-related crimes.... This statutory framework was promulgated to protect the strong state interest in eradicating drunk driving. It involves a type of consent that can be actual, not simply implied. And it requires a quantum of evidence equal to the constitutional level for seizing a person, a scenario that results in limiting a person's expectation of privacy. When the statute's predicates are fulfilled, the search is narrowly limited, excludes significant officer discretion, and seeks a very specific type of evidence that has a direct nexus to the offense committed, similar to a search incident to arrest. For these combined reasons, implied consent draws are reasonable under the Fourth Amendment; they involve a compilation of factors weighed throughout years of jurisprudence that support warrantless searches and seizures.

....

McNeely

did not alter application of the Texas implied-consent provisions—statutes which incorporate constitutional protections. When an officer follows the mandate [of the implied-consent provisions], the officer acts within the bounds of constitutional reasonableness.

In its lengthy written response in the trial court, the State also explained that at that time, the Texas Court of Criminal Appeals had not yet "weigh[ed] in" on whether the decision in McNeely

impacted section 724.012. Finally, the State argued that even if the mandatory blood-draw under section 724.012 was unreasonable, evidence flowing from the blood-draw should not be excluded because the police seized appellee's blood while believing that the statute's requirements were valid and constitutional.

After holding a hearing,⁶ the trial court granted appellee's motion to suppress the results of her blood alcohol test. The court found that appellee's detention and arrest were lawful but that the search and seizure of her blood were unlawful because they occurred without a warrant, without her consent, and without exigent circumstances. The State brought this interlocutory appeal.⁷

The Trial Court's Suppression Decision

On appeal, as in the trial court, the State relies on section 724.012

to support the constitutionality of the search and seizure of appellee's blood; the State contends that this appeal "involves the application of Fourth Amendment principles to warrantless, non-consensual, statutorily-mandated blood draws." The State alternatively contends that if section 724.012's mandatory blood-draw provisions did not provide a constitutional basis for the search and seizure of appellee's blood, Officer Charnock's belief in the constitutional application of that provision at the time of the search and seizure precludes suppression of appellee's blood test results. Based on precedential and persuasive authority, we cannot agree with either proposition.

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007)

; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673

; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005) ; Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.Crim.App.2002).

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV

; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672 ; see Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.), cert. denied, 558 U.S. 1093, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672–73 ; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005) ; Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).

Whether a search is reasonable is a question of law that we review de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004)

. Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a balancing of the public interest and the individual's right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the "specifically defined and well-established" exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003).

The principal issue raised in this appeal, as discussed by the State in its first and second points, is whether a warrantless, nonconsensual blood draw conducted only under the basis of section 724.012

's mandatory provisions (in other words, without exigent circumstances or another established exception to the general requirement of obtaining a search warrant)⁸ violates the Fourth Amendment. As ...