Opinion
E065019
01-22-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTHONY MORENO, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kristen Kinnaird Chenelia and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1401346) OPINION APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kristen Kinnaird Chenelia and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David Anthony Moreno appeals from the trial court's order denying his motion to suppress evidence. For the reasons set forth post, we find that the trial court properly denied defendant's suppression motion.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On October 8, 2015, a first amended information charged defendant with two counts of driving under the influence of alcohol with prior convictions under Vehicle Code section 23550 and 23550.5 (counts 1, 3; Veh. Code, § 23152, subd. (a)); and two counts of driving while having a 0.08 percent or more blood alcohol level with prior convictions under Vehicle Code sections 23550/23550.5 (counts 2, 4; Veh. Code, § 23152, subd. (b).) The information also alleged that (1) as to counts 1 and 2, defendant's concentration of blood alcohol was 0.20 percent or more under Vehicle Code section 23667, as to counts 1 and 2; and (2) as to counts 3 and 4, defendant's concentration of blood alcohol was 0.15 percent or more under Vehicle Code section 23578. As to all counts, the information alleged that defendant had three prison prior convictions under Penal Code section 667.5, subdivision (b).
Prior to trial, defendant admitted his three prior drunk-driving convictions, but not that he had served prison time. On October 29, 2015, a jury found defendant guilty of the four substantive charges. The trial court found true the prison priors.
On December 8, 2015, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
1. DRIVING UNDER THE INFLUENCE ON JULY 26, 2013—COUNTS 3 AND 4
At approximately 11:00 p.m. on July 26, 2013, Rialto Police Officer Robert Muir noticed a small gray Ford swerving within its lane. When the Ford made a left-hand turn, the turn was so wide it almost struck the curb; at the last minute, it jerked and corrected itself. Muir activated the lights to his patrol car. The Ford did not immediately pull over, instead, it drifted first to the left so that a quarter of the vehicle was on the wrong side of the road, and then pulled quickly to the right. This occurred for about 50 yards before the Ford finally pulled over. The windshield of the Ford was broken, with pieces missing. Defendant was the driver of the vehicle. Muir believed defendant was under the influence: his eyes were glassy and red, he was unsteady on his feet, and both the car and defendant emitted a "large" odor of alcohol. Muir handcuffed defendant and called for a DUI officer.
Officer Michael Gissel, a DUI specialist with the Fontana Police Department, responded to the call. Gissel observed that defendant's eyes were bloodshot and watery, his breath and body both smelled of alcohol, and his speech was slurred. Defendant was shuffling his feet while he walked, he didn't pick his feet up off the ground; and his arms were raised for balance. The windshield of defendant's car was shattered.
Sylors Chem, a San Bernardino Sheriff's Department criminalist assigned to the forensic alcohol unit, testified defendant's blood alcohol content (BAC) was 0.188.
Defendant does not challenge this blood draw; at the time, he was on mandatory supervision with search terms.
2. DRIVING UNDER THE INFLUENCE ON JANUARY 20, 2014—COUNTS 1 AND 2
At approximately 2:00 a.m. on January 20, 2014, defendant was driving his vehicle and hit a parked car. The collision roused Jeannie Wicklund, who ran outside; she saw that her Buick Roadmaster had been rear-ended and pushed into the middle of the street. She found the driver of the vehicle, identified as defendant at trial, slumped over in the vehicle; the airbags had deployed. Defendant was mumbling, smelled of alcohol, and appeared injured. Wicklund called 911 and turned off the vehicle's ignition. Defendant was unable to get out of the car; Wicklund told him to stay still.
San Bernardino County Sheriff's Deputy Travis Buell responded to the 911 call. Buell contacted defendant in the driver's seat of defendant's Ford Focus. At this first contact, it "appeared like [defendant] was in an altered state"; defendant was incoherent, possibly injured and intoxicated. Once Buell started talking to defendant, he noticed defendant's speech was slurred, his eyes were bloodshot and watery, and he had dilated pupils. The smell of alcohol overpowered the smell from the deployed airbags. Buell asked defendant if he was okay and defendant just stared at him. The deputy asked additional questions, and defendant responded that he was driving home; he admitted he had been drinking. Defendant tried to get out of the car; he struggled to do so and the deputy told him to stay seated and wait for the paramedics. The deputy did not conduct any field sobriety tests or preliminary alcohol screenings (PAS) because he didn't want to exacerbate possible injuries, and defendant was having difficulty breathing. The deputy believed, based on everything he had observed, that defendant had been driving under the influence. Paramedics arrived and took defendant to the hospital, where his blood was drawn. Defendant's BAC was 0.275 percent.
DISCUSSION
Defendant contends that the trial court erred in denying defendant's motion (based on unreasonable search and seizure) to suppress the results of his blood draw on January 20, 2014. Defendant argues he did not provide valid consent and there were no exigent circumstances; counts 1 and 2 must be reversed. We disagree; we hold that defendant provided valid consent.
A. BACKGROUND
Defendant filed a motion to suppress evidence resulting from a warrantless blood draw conducted in violation of his Fourth Amendment Rights against unreasonable searches and seizures. The People's opposition stated that defendant gave consent, and other means to test defendant's BAC were not feasible in light of his injuries and suspected "controlled substance" consumption.
The motion was heard on October 9, 2016. At the commencement of the hearing, the parties stipulated that defendant's blood was drawn without a warrant and his blood alcohol content was 0.27 percent.
Deputy Buell testified that on January 20, 2014, he responded to a vehicle collision in Victorville. The passenger side wheels of a Ford Focus were up on the sidewalk, the rest of the vehicle was in the road. A Buick was pushed away from the curb. Defendant was in the driver's seat of the Ford. There was severe damage to the front bumper of the Ford, and the airbags had been deployed. In the deputy's opinion, the Ford was totaled.
When Deputy Buell first started asking defendant questions, defendant just stared at him. Defendant told the deputy that he was driving home and indicated he had consumed alcohol. The deputy noticed that defendant had numerous symptoms consistent with being under the influence of alcohol, methamphetamine or another controlled substance, including dilated pupils, bloodshot and watery eyes, and slurred speech. Deputy Buell also noticed the odor of alcohol. Defendant indicated at some point that his torso and legs were in pain. Defendant appeared injured so Deputy Buell did not perform any field sobriety tests. Deputy Buell also did not perform any PAS tests because defendant was only able to take shallow breaths.
It was Deputy Buell's lay opinion that defendant was in an altered state of consciousness because of his intoxication level and his injuries. The paramedics arrived approximately 10 to 15 minutes after Deputy Buell's arrival and placed defendant on a gurney. Deputy Buell remembered having a coherent conversation with defendant. The deputy asked defendant if he would consent to a blood draw and defendant agreed. Deputy Buell recalled defendant struggling to respond to simple questions posed by paramedics. The paramedics took defendant to Desert Valley Hospital, which was less than five minutes away.
Deputy Buell remained at the scene 15 to 20 minutes more to investigate the accident. He spoke with Jeannie Wicklund, the reporting party, at the scene. Inside a compartment in the Ford's driver's side door the deputy found a marijuana pipe with burnt marijuana residue. In the glove compartment was a container with marijuana residue. Backup deputies arrived at the scene; Deputy Buell went to the hospital when he was done at the scene. He estimated this took less than one hour.
At the hospital, Nurse King drew defendant's blood. The nurse asked for defendant to provide his arm so she could draw blood and defendant complied. Defendant was conscious and coherent. Defendant indicated he was experiencing pain in his legs and torso. Defendant did not give any indication he was opposed to having his blood drawn. At the hospital, Deputy Buell informed defendant a criminal report would be forwarded to the district attorney's office.
Deputy Buell did not get a warrant because defendant gave consent at the scene. Also, defendant was responsive and complied with Nurse King's request that defendant produce his arm for the blood draw.
Defendant called criminalist Sylors Chem to testify as an expert on alcohol and its effects on mental impairment. Chem explained that someone with a 0.08 BAC is impaired for driving safely because it impacted their ability to process information and make judgments. The impairment increased the higher the BAC.
The prosecutor argued that defendant gave consent to Deputy Buell at the scene and did not withdraw his consent when giving blood at the hospital. The totality of the circumstances showed a valid consent and no need for a warrant. Defendant was also suspected of being under the influence of marijuana, which created an exigency of circumstances since it is not known how controlled substances affect the body, distinguishing the current case from Missouri v. McNeely (2013) 133 S.Ct. 1552 (McNeely), that only addressed the dissipation of alcohol. The prosecutor added exigent circumstances also existed because the deputy remained at the scene and investigated the accident, but for no more than one hour.
Defense counsel argued that defendant's consent was not knowing, intelligent and voluntary because he lacked the capacity to consent. Defendant was injured, was in an altered state of consciousness, and had difficulty responding to questions. Moreover, counsel argued Deputy Buell could not create his own exigency, pointing out that the deputy had resources such as other officers at the scene that he did not use. Finally, defense counsel argued that there was no implied consent.
The trial court ruled that under the implied consent law, defendant consented to be tested when he chose to drive. Based on the totality of the circumstances, defendant expressly consented at the scene and his actions at the hospital showed further consent at the time of the blood draw. Additionally, the trial court found that there was exigency due to the deputy's need to transport defendant to the hospital for medical attention, and at the same time, the deputy's need to investigate the accident.
The issue of whether a warrantless blood draw is valid because a defendant expressly consented to chemical testing when he applied for a driver's license (Veh. Code, § 13384), or because he was "deemed to have given his . . . consent" under California's implied consent law (Veh. Code, § 23612) is pending before the California Supreme Court in People v. Arredondo (2016) 245 Cal.App.4th 186, review granted June 8, 2016, S233582. Because we affirm the trial court's ruling on other grounds, we need not address this issue. --------
B. LEGAL BACKGROUND
" ' "In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." [Citation.] On appeal we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision.' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364-365, quoting People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
"Under the current provisions of the California Constitution, evidence sought to be introduced at a criminal trial is subject to suppression as the fruit of an unconstitutional search and seizure 'only if exclusion is . . . mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment [of the United States Constitution].' " (People v. Maikhio (2011) 51 Cal.4th 1074, 1089, quoting In re Lance W. (1985) 37 Cal.3d 873, 896; see Cal. Const., art I, § 28, subd. (f)(2).)
1. DEFENDANTS WARRANTLESS BLOOD DRAW DID NOT VIOLATE THE FOUR TH AMENDMENT BECAUSE HE FREELY AND VOLUNTARILY CONSENTED TO A BLOOD TEST, AND IT WAS CONDUCTED IN A REASONABLE MANNER
a) The Fourth Amendment Does Not Mandate That All Warrantless Blood Draws Be Supported by Exigent Circumstances
"The Fourth Amendment provides: [¶] 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' " (Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 2482].)
"The Fourth Amendment generally requires police to secure a warrant before conducting a search." (Maryland v. Dyson (1999) 527 U.S. 465, 466, citing California v. Carney (1985) 471 U.S. 386, 390-391.) Put another way, "[t]he Fourth Amendment demonstrates a 'strong preference for searches conducted pursuant to a warrant . . . .' " (Ornelas v. United States (1996) 517 U.S. 690, 699, quoting Illinois v. Gates (1983) 462 U.S. 213, 236.) "[I]t is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' " (Mincey v. Arizona (1978) 437 U.S. 385, 390, quoting Katz v. United States (1967) 389 U.S. 347, 357.)
On two occasions, the United States Supreme Court has addressed whether a warrantless blood test in a DUI case violated the Fourth Amendment. In Schmerber v. California (1966) 384 U.S. 757 (Schmerber), the defendant was taken to the hospital following an automobile accident and, against his express refusal on the advice of counsel, the police directed a physician to draw defendant's blood to be tested for the presence of alcohol. (Id. at pp. 758-759.) Among other things, the United States Supreme Court in Schmerber addressed whether the warrantless blood test violated the Fourth Amendment. The high court concluded that "compulsory administration of a blood test" was a search under the Fourth Amendment. (Id. at p. 767.) Although "there was plainly probable cause" to arrest the defendant on suspicion of DUI, the court found that the search could not be justified as a search incident to arrest because the cases articulating that exception to the warrant requirement "have little applicability with respect to searches involving intrusions beyond the body's surface." (Id. at pp. 768-769.)
The court in Schmerber noted that "[s]earch warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned." (Schmerber, supra, 384 U.S. at p. 770.) However, the court concluded that the arresting officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." (Ibid.) The high court acknowledged "that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system," and because the defendant had to be rushed to the hospital and the officers had to investigate the accident scene, it concluded "there was no time to seek out a magistrate and secure a warrant." (Id. at pp. 770-771.) Under those "special facts," the court held that the warrantless search was justified. (Id. at p. 771.)
More recently, in McNeely, the defendant refused to take a breathalyzer test during a DUI investigation and again when being transported to the police station, in order to measure his BAC, so the arresting officer transported the defendant to a nearby hospital. (McNeely, supra, 133 S.Ct. at pp. 1556-1557.) At the hospital, the arresting officer read an admonition to the defendant under the Missouri implied consent law, and "explained to [the defendant] that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license . . . and [his refusal] could be used against him in a future prosecution." (Ibid.) The defendant refused to submit to the blood test so the arresting officer directed a laboratory technician to draw a blood sample. (Id. at p. 1557.) The United States Supreme Court granted certiorari in McNeely to resolve a split in authority on the question of "whether the natural metabolization of alcohol in the bloodstream presents 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 pp. 1556, 1558.)
The majority in McNeely held that the natural dissipation of alcohol in the bloodstream does not create exigent circumstances in every DUI case. (McNeely, supra, 133 S.Ct. at pp. 1563, 1568 (maj. opn. of Sotomayor, J.).) "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." (Id. at p. 1561.) Although the court had no "doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test," the high court held that the state was required to make such a showing under the totality of the circumstances and on a case-by-case basis. (Id. at pp. 1561, 1563.)
McNeely had no occasion to address whether a warrantless blood draw is reasonable under the Fourth Amendment under another exception to the warrant requirement. In both McNeely and Schmerber, the defendants refused to consent, so the sole issue in those cases was whether exigent circumstances supported nonconsensual searches. McNeely did not hold that a warrantless blood test is reasonable under the Fourth Amendment only when exigent circumstances are present. " ' "It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered." ' " (People v. Knoller (2007) 41 Cal.4th 139, 154-155; accord, Cooper Industries v. Aviall Services (2004) 543 U.S. 157, 170 [" 'Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents' "].) Therefore, we must determine whether another recognized exception to the warrant requirement will justify defendant's blood draw.
b) Actual Consent to a Blood Draw Satisfies the Fourth Amendment
Having concluded that McNeely did not hold that warrantless blood draws may only be justified under the Fourth Amendment by establishing exigent circumstances under the totality of the circumstances, we conclude that free and voluntary submission to a blood test, after receiving an advisement under the implied consent law, constitutes actual consent to a blood draw under the Fourth Amendment.
The exigent circumstances doctrine is not the only recognized exception to the general requirement of obtaining a warrant before conducting a search. "It is 'well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.' " (People v. Woods (1999) 21 Cal.4th 668, 674, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219; see Katz v. United States, supra, 389 U.S. at p. 358, fn. 22 ["A search to which an individual consents meets Fourth Amendment requirements"]; Fernandez v. California (2014) ___ U.S. ___ [134 S.Ct. 1126, 1137] ["A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant"]; People v. Ledesma (1987) 43 Cal.3d 171, 233 ["Failure to comply with the warrant requirement is . . . not fatal when consent is given"].)
c) Defendant Freely and Voluntarily Consented to the Blood Draw
"To be effective, consent must be voluntary." (People v. Ledesma, supra, 43 Cal.3d at p. 234.) "[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority." (Florida v. Royer (1983) 460 U.S. 491, 497.) "The voluntariness of consent is a question of fact to be determined from the totality of circumstances. [Citations.] If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., 'that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority.' " (People v. Boyer (2006) 38 Cal.4th 412, 445-446.)
" 'The . . . voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, "The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence." ' " (People v. Monterroso (2004) 34 Cal.4th 743, 758, quoting People v. James (1977) 19 Cal.3d 99, 107.)
In this case, Deputy Buell's testimony regarding defendant's responses and actions provide substantial evidence to support the trial court's factual finding that defendant gave consent to have his blood drawn. Buell came upon defendant sitting in the driver's seat after being in a car accident. The deputy asked defendant if he was okay and what happened, and stayed with him until the paramedics arrived. He described defendant as showing symptoms of being under the influence of alcohol or drugs, and appeared injured. Defendant, however, was able to communicate with the deputy that he was injured, and told the deputy that he was on his way home and had been drinking. Buell could not conduct a PAS or filed sobriety test because of defendant's injuries so he asked to have defendant's blood drawn. Defendant agreed. There is nothing to indicate that defendant did not understand what was happening and there was no indication of a showing of force or coercion.
Defendant struggled to answer some of the paramedics' simple questions, but not necessarily because he did not know the answers. Deputy Buell asked for consent to draw defendant's blood and received a verbal response of yes. Consistent with Buell's experience and understanding, defendant allowed the nurse at the hospital to take his blood sample. When the nurse asked for defendant's arm, he gave it willingly; defendant's actions indicate he clearly understood and acquiesced to the request. The trial court heard Buell testify that defendant gave his consent to a blood draw.
Therefore, the undisputed evidence in the record demonstrates that defendant verbally agreed to a blood test to Deputy Buell, and that he did not verbally refuse to give a blood sample or demonstrate a desire to withdraw his consent either verbally or by physically resisting the nurse's attempt to draw his blood at the hospital. The trial court found the deputy's testimony as credible. " 'As the finder of fact . . . the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.' " (People v. Tully (2012) 54 Cal.4th 952, 979.) "Moreover, the reviewing court 'must accept the trial court's resolution of disputed facts and its assessment of credibility.' " (Ibid.)
Under the totality of the circumstances, we conclude that defendant freely and voluntarily consented to his blood being drawn.
Even if we were to conclude that a warrantless blood draw may not be justified under the consent exception to the warrant requirement, and that a warrantless blood draw is only justified under the exigent circumstances doctrine, we would still affirm the trial court by applying the good faith exception to the exclusionary rule. In Herring v. U.S. (2009) 555 U.S. 135, 137, the United States Supreme Court stated, the "exclusionary rule is not an individual right and applies only where it ' "result[s] in appreciable deterrence." ' " (Id. at p. 141; see also People v. Robinson (2010) 47 Cal.4th 1104, 1124.) Therefore, deterrence is needed—and exclusion is therefore proper—only where the law enforcement action in question constitutes " 'deliberate,' 'reckless,' or 'grossly negligent' " or systematically negligent police conduct. (Davis v. U.S. (2011) 564 U.S. 229.) Absent such "culpable conduct," the exclusionary rule should not be used simply to remedy a Fourth Amendment violation. (Ibid.) Accordingly, the exclusionary rule does not apply when "police act[] with an objectively reasonable good faith belief that their conduct is lawful." (Id. at p. 2427.)
Here, Deputy Buell stated he did not get a warrant because defendant gave consent at the scene and complied with the blood draw at the hospital. He reasonably relied on defendant's verbal consent to a blood draw, followed by defendant's compliance with the nurse taking the blood. It was objectively reasonable for the deputy to interpret this as express consent by defendant and that a warrant was not necessary. Buell was acting in good faith when he made the decision not to pursue a warrant.
DISPOSITION
The order denying defendant's motion to suppress is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.