Whitlow v. Commonwealth

• Decision Date: 13 June 2019
• Docket Number: 2018-SC-000188-MR
• Parties: Suzanne Marie WHITLOW, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

575 S.W.3d 663

Suzanne Marie WHITLOW, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2018-SC-000188-MR

Supreme Court of Kentucky.

JUNE 13, 2019

COUNSEL FOR APPELLANT: Jerry Lee Wright, JERRY L. WRIGHT, P.S.C.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, William Robert Long, Jr., Assistant Attorney General, Office of Criminal Appeals.

OPINION OF THE COURT BY JUSTICE HUGHES

Suzanne Marie Whitlow appeals as a matter of right from the Fayette Circuit Court judgment sentencing her to twenty years in prison. Whitlow was driving while intoxicated in Lexington, Kentucky, when she struck and killed two pedestrians standing on a sidewalk. After the incident, Whitlow was transported to the hospital for minor injuries, and a police officer obtained a court order directing the hospital to test her blood for drugs and alcohol. Whitlow moved to suppress the blood test results, arguing that the "court order" was not a search warrant and therefore the testing violated her Fourth Amendment rights. The trial court denied her motion, and Whitlow entered a conditional guilty plea to four charges, including two counts of second-degree manslaughter, specifically preserving her right to appeal the denial of the suppression motion. Finding no error, we affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of October 29, 2016, Whitlow operated a black Dodge vehicle which left the roadway and drove onto a city sidewalk, striking and killing a Louisville police officer and a University of Kentucky employee. After the incident, Whitlow was transported to the University of Kentucky Medical Center for treatment of minor injuries she sustained.¹ While at the hospital, a Lexington police officer met with Whitlow and immediately observed a strong odor of alcohol on her breath. The officer informed Whitlow of her rights and asked if she would be willing to speak with him. She gave verbal consent that she understood her rights and was willing to speak with the officer, but she refused to consent to the taking of a blood sample.

After the officer’s conversation with Whitlow, he prepared an affidavit titled "Affidavit in Support of and Petition for Court Order." The affidavit, in its entirety, states:

Comes the affiant, a peace officer of the Lexington Police Department, who personally appeared before the undersigned and being first duly sworn now on oath deposes and affirms the information contained herein is completely truthful based upon facts discovered during an open investigation and based on this information is seeking a court ordered blood draw from the below listed motor vehicle operator involved in a fatal motor vehicle collision pursuant to KRS 189A. 105(3)(b).

Pursuant to KRS 189A.105(3)(b) affiant is seeking the following:

• Alcohol in the blood of; Whitlow, Suzanne, SSN (redacted), 01/21/90

• Controlled substance in the blood of; Whitlow, Suzanne, SSN (redacted), 01/21/90

• Controlled substance in the body of;

• Physical evidence in the body of;

• Controlled substance in the urine of;

Affiant has been an officer in the aforementioned agency for a period of 17 years and the information and observations contained herein were received and made in his/her capacity as an officer thereof.

On the 29th day of October, 2017 (sic) at approximately 2:34 am, affiant received information from/observed:

A Collision Reconstruction Unit call out was initiated concerning a collision which occurred on South Upper Street between Bolivar and Scott Street. The collision involved a black 2010 Dodge passenger vehicle versus two pedestrians. Both pedestrians were killed as a result of the collision.

Ms. Suzanne Whitlow was the only person present with the vehicle upon officers' arrival and was transported to the University of Kentucky Emergency Room to be checked out for injuries; she was bleeding from the face. Ms. Whitlow made conflicting statements to initial responding officers indicating she was not driving at the time of the collision but later stated that she was driving. Officers indicated she exhibited signs of being under the influence of intoxicants.

Responding to the hospital, I met with Ms. Whitlow and immediately observed a strong odor of alcoholic beverages on her breath and person. I explained to Ms. Whitlow her rights in accordance with the Miranda court precedence (sic) and asked if she would be willing to speak to me. She gave verbal consent that she understood her rights and was willing to speak with me.

Ms. Whitlow exhibited very slurred speech and her ability to communicate was extremely choppy with her continued tangents and inability to string together continued coherent thoughts and explanations. She told this investigator she was not the driver but then also admitted that she "might have told the police officer I was driving." She explained that an unknown person was driving her vehicle.

Witness, Michael Ruhe, a paramedic for the University of Kentucky Hospital was riding in an ambulance and behind the black Dodge when the collision occurred. He saw the car bounce off the brick wall and come to a rest. He immediately jumped out of the ambulance and went to the black car to set the emergency brake and turn the car off. He says only one person was in the vehicle when he got up to it and that he is certain there were no other persons in it. He described the person as sitting in the driver’s seat with her feet in the floorboard but her body slumped over into the passenger’s seat. He gave a matching physical description and clothing description of Ms. Whitlow.

Ms. Whitlow had only one shoe on when transported to the University of Kentucky Hospital. She confirmed the one shoe in her room was her shoe when asked; the matching shoe was observed in the driver’s floorboard of the vehicle. Ms. Whitlow is also one of the two registered owners of this vehicle. Ms. Whitlow has facial injuries from which she is bleeding and the driver’s airbag was observed to have blood on it.

Affiant has reasonable and probable cause to believe that grounds exist for the issuance of a Court Order pursuant to KRS 189A.105(3)(b) which states a motor vehicle accident in which there is a fatality or physical injury the court is not prohibited from issuing a court order requiring blood or urine testing; in a motor vehicle accident in which there is a fatality, the investigating officer shall seek a search warrant for blood, breath or urine testing unless the testing has already been done by consent; and to obtain and preserve the aforementioned evidence, based on the aforementioned facts information and circumstances and prays that a Court Order be issued, that the evidence be removed from the above-mentioned person and delivered into the custody of the Lexington Police Department and brought before any Court and/or retained subject to order of said Court, such substances being evidence in the matter of the violation of the laws of the Commonwealth of Kentucky.

The officer signed the affidavit, which was subscribed and sworn to before a Fayette District Court judge on October 29, 2016, at 5:30 a.m. The judge then issued a "Court Order," which states as follows:

To: Whitlow, Suzanne, SSN (redacted), 01/21/90 and University of Kentucky Hospital Staff

Proof having been made before me by a peace officer of the Lexington Police Department, that there is probable and reasonable cause for the issuance of this Court Order as set forth in the affidavit attached hereto and made part hereof as if fully set out herein; you are commanded to have a blood sample removed from your person by the University of Kentucky medical staff and released to members of the Lexington Police Department Collision Reconstruction Unit to obtain the following evidence: a blood sample for testing for intoxicating substances in your body and upon removal of same, you are ORDERED to deliver such evidence into the custody of Officer (redacted), who shall take possession of it and retain it in his custody subject to a subsequent order of this Court or the Fayette Circuit Court, or to have the sample tested for intoxicating substances by the Kentucky State Police Lab, until further order of this Court or the Fayette Circuit Court, such evidence being pertinent to an offense against the peace and dignity of the Commonwealth of Kentucky.²

The order was signed by the district court judge at 5:30 a.m. on October 29, 2016, and executed by the officer, who took possession of the blood sample taken from Whitlow by a nurse at the hospital. Whitlow’s blood alcohol content was tested approximately three hours after the incident and measured 0.237 grams per 100 milliliters, nearly three times the legal limit.

On February 7, 2017, Whitlow was charged with two counts of second-degree manslaughter, one count of operating a motor vehicle under the influence of alcohol with aggravating circumstances, second offense, and being a persistent felony offender in the second degree (PFO II). On April 24, 2017, Whitlow filed a motion to suppress the blood test, asserting that the taking of her blood pursuant to the court order violated her Fourth Amendment rights. Whitlow and the Commonwealth submitted briefs on the issue, and the trial court conducted a hearing on June 8, 2017.

Whitlow argued correctly that the statute cited by the officer in the affidavit, Kentucky Revised Statute (KRS) 189A.105(3)(b), is not an actual statute because while there is a paragraph (3), there is no subsection (b) in that paragraph. Further, Whitlow stated that the applicable statute, KRS 189A.105(2)(b), provides no authority for a court to issue a "court order" to obtain a blood sample and that absent the requisite search warrant, the blood test violated the Fourth Amendment. The Commonwealth responded that in this case, a search warrant and a court order were synonymous but even if the court held otherwise, the blood test was conducted in good faith as a result of reasonable reliance on the court’s order.

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