Opinion
A149715
01-10-2017
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; ZACHARY KATZ, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC081375A)
Petitioner, the People, filed a second petition for a writ of mandate in this matter, challenging the superior court's second order granting real party in interest, Zachary Katz', motion to suppress his blood alcohol test results pursuant to Penal Code section 1538.5. We previously determined that those test results were admissible under an inevitable discovery theory, but permitted Katz to renew his suppression motion below if he could present evidence that that doctrine was inapplicable. At that hearing the superior court determined that Katz "sufficiently contradicted the doctrine of inevitable discovery," and granted the suppression motion. We conclude, however, that Katz did not adequately contradict the inevitable discovery doctrine and direct the superior court to vacate that order and enter an order denying the motion to suppress.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed summary of the facts of this case up through the filing of the People's first appellate petition is found in our March 29, 2016 opinion, People v. Superior Court, A146834, 2016 Cal.App.Unpub. LEXIS 2337. Briefly, Katz was driving on the wrong side of the highway, and hit the victim's car head-on, causing a fatality, and damaging a third vehicle. When the highway patrol first encountered Katz he was trapped in his car, smelled of alcohol, and had slurred speech and red, watery eyes. Two preliminary alcohol screening samples were taken and showed a .158% and .160% blood alcohol content, respectively. He was arrested for driving under the influence and transported to a hospital, where he admitted that he had consumed two mixed drinks that evening. The officer told Katz that he had to submit either to a breath or blood test, but the blood test was only available at the hospital where Katz had been taken. Katz acquiesced to the blood test and a phlebotomist drew his blood without encountering any resistance—verbal or otherwise. The officer did not read Katz any formal admonition regarding his right to refuse the test and the consequences of any refusal; the officer reported that, although he did not recall Katz' precise words, Katz agreed to take the test. The officer was aware of a phone number to call if a warrant were required, but, given his subjective belief that Katz had consented, did not think it was.
The People's Request for Judicial Notice, requesting that we take judicial notice of the record and briefing in the prior writ proceeding is granted. (Evid. Code §§ 452, subd. (d) & 459.)
Based on the totality of the circumstances, including the fact that Katz was not given a meaningful choice about taking the test, the superior court concluded that he had not voluntarily consented to the blood draw; accordingly, it suppressed the test results. On November 24, 2015, the People filed a petition for a writ of mandate challenging the superior court's decision. Invoking, the Palma procedure we determined that the test results were admissible because they would have inevitably been discovered even if the officer had not erroneously concluded that Katz had given his valid consent because they were ready, willing, and able to obtain a warrant. Because the inevitable discovery doctrine had not been litigated below, however, we allowed Katz to present evidence which would demonstrate that this doctrine was inapplicable if he thought he could do so. (People v. Superior Court, supra at *12, fn. 2.)
Katz attempted to do so on October 14, 2016 at a superior court evidentiary hearing. At the hearing, the officer testified about the procedure for obtaining a warrant if a suspect declines to take a blood or breath test. Based on his training, the officer believed Katz had consented to the blood draw because he did not verbally refuse to take the test and was not combative. The officer testified that he would not have tried to obtain the blood without a warrant had Katz said, "No," pulled away, or signaled in any way that he was refusing. Instead, he would have contacted the on-call district attorney, to contact the on-call judge, to obtain a warrant.
The superior court concluded: "Officer Rich has testified in more detail and has stated pretty clearly that it is the CHP policy not to request a search warrant unless the defendant refuses. Again, we get back to in [sic] Officer Rich's mind — even though he can't state what the defendant said—he believed the defendant had consented. So he was never going to go apply for a search warrant. . . . [¶] So given those particular facts and testimony, has the defense contradicted sufficiently the doctrine of inevitable discovery, applying it to the facts in this case. And I think the Court is finding that the defense has sufficiently contradicted the doctrine of inevitable discovery."
A jury trial was set for December 5, 2016. On November 1, 2016 the People filed the instant petition and stay request. On November 10 we temporarily stayed the trial, requested informal briefing, and provided notice pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 that, if appropriate, we might issue a peremptory writ in the first instance.
DISCUSSION
Pursuant to the law-of-the-case doctrine, the trial court is bound by our initial determination regarding the suppression motion unless the evidence introduced on remand is not "substantially the same" or if the trial court's redetermination is based on new or different evidence. (See People v. Mattson (1990) 50 Cal.3d 826, 850; People v. Anderson (2008) 169 Cal.App.4th 321, 333.) Although some new details were adduced at the renewed suppression hearing, the basic outline of what happened remained unchanged: (1) the officer believed he had Katz's valid consent and, therefore, did not pursue a warrant; (2) but for the belief that Katz had consented, the officer would have obtained a warrant; and (3) probable cause for the issuance of a warrant existed. As such, the essential facts, as they emerged in the two suppression hearings, are substantially the same.
Katz attempts to distinguish Mattson and Anderson on the grounds that neither dealt with Fourth Amendment search issues but, rather the admissibility of confessions based on Fifth and Sixth Amendment concerns. Regardless, we see no reason why the operation of the law-of-the-case doctrine would differ from the standard enunciated in those cases and decline to apply a different standard.
Katz contends that the law-of-the-case doctrine does not apply because there was a change in the controlling law between the first and second writ petitions. Specifically, he maintains that Birchfield v. North Dakota (2016) 579 U.S. ___, (136 S.Ct. 2160), issued six days after we issued our remittitur in the earlier case, changed the controlling law, such that the inevitable discovery doctrine no longer applies to warrantless, blood-draw, driving-under-the-influence cases. We disagree; Katz reads Birchfield too broadly. In Birchfield the Supreme Court consolidated three lower court cases (id. at p. 2174) and determined that the incident-to-arrest search exception (id. at p. 2185), implied consent exception, based on the threat of committing a criminal offense, (id. at p. 2186), and the exigent circumstances exception (id. at p. 2186) did not justify a warrantless blood draw. The Supreme Court wrote, "Unable to see any other basis on which to justify a warrantless test of Birchfield's blood, we conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed." (Ibid.) Katz argues that it is "unthinkable" that the Birchfield Court overlooked the inevitable discovery doctrine: hence, it must not be applicable to driving-under-the-influence, warrantless blood-draw cases. But there is no reason to think the court "overlooked" the inevitable discovery doctrine—a factual basis for the application of the doctrine in that instance might not have been established or the parties simply might not have argued the issue. Regardless, a case that does not consider a particular issue is not binding authority on that issue. (People v. Brown (2012) 54 Cal.4th 314, 330.) Thus, Birchfield did not change the relevant law between the issuance of our first writ in this case and now; it is not a bar to the application of the inevitable discovery doctrine in this case.
In Birchfield the inapplicability of the exigent circumstances exception was based on a lack of case-specific evidence that would have made it applicable. (Id. at p. 2186.)
In its ruling the superior court focused on two quotes from our prior decision. First, the superior court observes, "Here's what I found fascinating this time round when I read the appellate opinion again. On the first page it says, 'Respondent Superior Court granted the motion after finding that under the totality of the circumstances Katz had not voluntarily consented to submit to a blood test.' " The superior court then contrasts that with the statement from our opinion, "If Katz had not consented to the blood draw . . ." It concluded that we changed the facts which it had determined. When read in isolation, we understand the apparent contradiction that perplexed the superior court; but, when read in context any seeming contradiction rapidly evaporates. The first quote accurately summarizes the superior court's finding that Katz had not voluntarily consented to the blood test. The second quote does not suggest that we disagreed with the superior court's finding — if Katz had effectively consented to the blood draw, there would have been absolutely no need for us to discuss the inevitable discovery doctrine. His consent would have ended the judicial inquiry. We only considered the inevitable discovery doctrine because there was no valid consent. Read in context, our meaning clearly was that if the officer had appreciated that Katz had not consented to the blood draw, he would have sought a warrant. Thus, the law-of-the-case doctrine is not inapplicable due to a perceived factual error in our prior decision.
Katz also argues that the law-of-the-case doctrine is inapplicable to this case because we misapplied binding precedent — Nix v. Williams (1984) 467 U.S. 431 Specifically, Katz focuses on language that the factual predicate for invoking inevitable discovery must be based on "demonstrated historical facts." (See Nix, supra at 444, fn. 5; see also Nix at pp. 456-457, Stevens, J. conc. Opn.) Although Katz overlooks them, there are adequate historical facts here to support the inevitable discovery doctrine. Specifically, the officer's observations, notes and conclusions, were precisely what would have been necessary to establish probable cause for the issuance of a warrant: (1) Katz was driving the wrong way on a highway; (2) he smelled of alcohol; (3) he had slurred speech; (4) he had red, watery eyes; (5) he admitted to drinking that evening; and (6) he had two preliminary screening breath tests, exceeding .08%, suggesting intoxication. The officer also explained to Katz that he had to take either a blood or a breath test, but only the blood test was available at the hospital. In short, the officer was doing precisely what he needed to do to obtain a warrant, if that became necessary. Because he believed that Katz had consented, however, he concluded Katz' blood could be drawn without one. This is directly analogous to what took place in Nix. There the police were involved in a search, which was headed towards discovering the victim's body. The police called off the search, however, once they believed that the suspect would lead them to the body. Although their questioning the suspect was improper, the evidence discovered by that questioning was admissible because it inevitably would have been discovered by the search. Similarly, here Katz' blood alcohol level would inevitably have been discovered even if the officer had not erroneously believed Katz had consented to the blood draw. Consequently, the superior court's order suppressing Katz' blood alcohol level should be reversed.
Katz also attacks the California Highway Patrol (CHP) policy requiring an affirmative verbal refusal or physical resistance to demonstrate lack of consent, suggesting that the application of this policy would erroneously allow a warrantless blood draw from an unconscious driver. Nothing in the facts of this case, however, calls upon us to discuss the proper procedure for obtaining blood draws from unconscious people. We express no opinion on the reported CHP policy requiring a refusal to submit to or resistance to a blood draw in order to indicate a lack of consent. --------
CONCLUSION
The Palma procedure is appropriate "when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue." (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1273 & 1240-1241.) The San Mateo Superior Court is ordered to vacate its October 14, 2016 order suppressing the results of Katz' blood draw and to enter a new and different order denying the motion to suppress. The temporary stay issued by this court on November 10, 2016 shall be automatically dissolved when the superior court complies with this decision.
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P. J. /s/_________
Siggins, J.