State v. Tripp
| Citation | 197 P.3d 99,2008 UT App 388 |
| Decision Date | 30 October 2008 |
| Docket Number | No. 20060972-CA.,20060972-CA. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Susan TRIPP, Defendant and Appellant. |
| Court | Court of Appeals of Utah |
Ronald J. Yengich, Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges GREENWOOD, BILLINGS, and ORME.
¶ 1 Alleging error in the denial of her pretrial motion to suppress evidence, Susan Tripp appeals from her jury conviction of automobile homicide. We conclude that the appeal is well-taken, reverse the trial court's denial of the motion to suppress evidence, and remand for a new trial.
¶ 2 "The legal analysis of search and seizure cases is highly fact dependent." State v. Brake, 2004 UT 95, ¶ 2, 103 P.3d 699. We therefore recite the facts in some detail.
¶ 3 On April 23, 2004, Tripp was driving eastbound on the Old Bingham Highway in Salt Lake County, Utah. She stopped at the stop sign at the U-111 intersection and, after stopping, pulled out and collided with a motorcyclist traveling southbound on U-111.1 The motorcyclist died soon after from injuries sustained in the crash.
¶ 4 Police and emergency personnel immediately arrived on the scene, including West Jordan Police Officer Saunders, who asked Tripp if he could obtain a blood sample from her. Although Officer Saunders testified at trial that he did not observe any signs indicating that Tripp was impaired and that he did not have any reasonable suspicion that she was under the influence of any substance, he testified that he seeks blood draws in serious accidents as a matter of course. And the trial court, in its findings, indicated that "[n]o officer detected the odor of alcohol on the defendant, nor did they observe any obvious signs of impairment, such as poor balance or slurred speech." Tripp denied consuming alcohol or prescription drugs when asked by Officer Saunders.
¶ 5 Tripp told Officer Saunders that she did not want to submit to a blood test because she did not like needles but that she was willing to consent to a urinalysis. Officer Saunders then conferred with an automobile homicide investigator, Detective Roberts, informing him that Tripp was unwilling to submit to a blood draw because she was scared of needles. After some discussion, the two officers determined that a blood sample was necessary and decided to renew the effort to obtain Tripp's consent for a blood draw.2
¶ 6 Detective Roberts then approached Tripp and again asked for her consent to a blood draw, which she refused to provide— again citing her fear of needles. She renewed the offer to furnish a urine sample and, indeed, a blood sample—provided a needle was not used to obtain it. Detective Roberts told Tripp that he did not know of any other way to obtain blood and suggested that her fear of needles was something that could be worked around. Detective Roberts explained that the department's blood technician was highly skilled and would be able to do the draw quickly and relatively painlessly. During this exchange, Detective Roberts observed that Tripp appeared nervous, was shaking, and had red eyes without any tears. Detective Roberts testified that he began to believe that Tripp was impaired, based on her apparent lack of concern for the victim, her continual smoking, and the fact that the redness in her eyes was not dissipating. He also acknowledged that it was normal for an individual involved in a serious accident to be shaky and nervous.
¶ 7 Because Detective Roberts's further attempts to obtain Tripp's consent were unsuccessful, he approached the department's victims' rights advocates, whose presence is often requested at the scene of serious accidents, for assistance, to see "if they could calm [Tripp] down and ... have her become more relaxed to the idea of having a blood draw." In the presence of Tripp's family— who had arrived at the scene a few minutes after the accident—and the advocates, Detective Roberts again asked Tripp to submit to a blood draw, and Tripp "adamantly refused to submit." Based on this refusal and protestations from Tripp's family at his repeated requests for a blood draw, Detective Roberts took Tripp into custody,3 removing her from her vehicle and placing her in the back of a police vehicle. Detective Roberts told Tripp that she was now in custody and that he was going to obtain a warrant and force the blood draw. Detective Roberts, however, never tried to secure the warrant because the blood technician, Brian Davis, arrived on the scene immediately after this exchange.
¶ 8 Detective Roberts explained the situation to Davis—that Tripp would not consent, that it was going to take several hours to obtain a warrant, and that he would call Davis back once the warrant had been obtained. Upon learning that Tripp refused consent only because of her fear of needles, Davis replied, Davis then went to talk with Tripp in the back of Officer Monson's patrol car.
¶ 9 Davis tried to reassure Tripp of the relative ease and painlessness of the blood draw procedure. Tripp insisted that she was afraid and that even her own doctor would not draw her blood because of her fear. Davis testified that he thought he would be able to obtain her consent based on his reassurances, told this to Detective Roberts, and said, Davis then put a tourniquet on Tripp's arm to see "if we can find a spot that would be easy to do this," to which Tripp responded, "Okay, we'll go ahead and do that." Tripp stuck her arm out for Davis to apply the tourniquet. Davis told her that he found an easy site and that "we can go ahead and [take] care of this." Davis testified that Tripp probably did not know that he had his equipment ready and that he was prepared to draw her blood and that he "just kind of stuck her with the needle as quick as [he] could and got the blood done." During the draw, Tripp was in a police car with an officer outside the door covering her eyes, a victims' rights advocate kneeling in front of her holding one of her hands, and Davis outside the car door holding her arm in such a way that she could not see it. Cecilia Budd, the victims' rights advocate who was with her, consistently reassured Tripp and told her that she had seen Davis draw blood before and that he was very good. After the draw, Tripp became calm and was surprised that the blood draw was done.
¶ 10 Officer Monson, who witnessed the blood draw, testified that He also testified that she was but that she had "offered her arm." Budd testified that, at times, Tripp was uncontrollably crying. The blood draw showed a metabolite of cocaine and a blood alcohol level just above the legal limit.
¶ 11 The State charged Tripp with automobile homicide, a third degree felony, in violation of Utah Code section 76-5-207(2), see Utah Code Ann. § 76-5-207(2) (Supp.2007), and with failure to yield the right of way, a class C misdemeanor, in violation of Utah Code section 41-6-72.10(3), see Utah Code Ann. § 41-6-72.10(3) (1998) (current version at Utah Code Ann. § 41-6a-902 (2005)). Tripp moved to suppress the blood test results. After an evidentiary hearing, the motion to suppress was denied. The trial court found that Tripp voluntarily consented to the blood draw, that her initial refusal was based "solely on her fear of needles, and [that] the evidence demonstrates that at the time of the blood draw the defendant's fear was resolved." Having been convicted following a jury trial, Tripp now appeals.
¶ 12 Tripp argues that the trial court erred in denying her motion to suppress. Specifically, Tripp challenges the trial court's finding that she consented to the blood draw.4 State v. Veteto, 2000 UT 62, ¶ 8, 6 P.3d 1133 (citation and internal quotation marks omitted). Further, we grant no deference to the trial court in its application of the law to its factual findings. See State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699.5
¶ 13 The Fourth Amendment prohibits unreasonable searches and seizures, including in situations where blood is drawn from a suspect and then analyzed. See State v. Bredehoft, 966 P.2d 285, 292 (Utah Ct.App. 1998) (citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)), cert. denied, 982 P.2d 88 (Utah 1999). "[S]earches conducted ... without [warrants] ... are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted). Such exceptions include searches based on valid consent, see State v. Arroyo, 796 P.2d 684, 687 (Utah 1990), and searches based on probable cause where exigent circumstances obviate the need for a warrant, see State v. Rodriguez, 2007 UT 15, ¶ 16, 156 P.3d 771.
¶ 14 We start with consideration of whether Tripp consented voluntarily to the blood draw. "[C]onsent which is not voluntarily given is invalid." Arroyo, 796 P.2d at 688. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bredehoft, 966 P.2d at 292-93. The appropriate standard to determine whether consent is voluntary "is the totality of the circumstances test." State v. Hansen, 2002 UT 125, ¶ 56, 63 P.3d 650. "Under the totality of the...
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