Opinion
NO. 03-14-00651-CR
03-02-2016
The State of Texas, Appellant v. Gerardo Jerry Ayala, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. D-1-DC-13-200850, HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDINGMEMORANDUM OPINION
Following his arrest for the felony offense of driving while intoxicated, appellee Gerardo Jerry Ayala's blood was drawn without a warrant pursuant to section 724.012(b) of the Texas Transportation Code, commonly known as the mandatory-blood-draw statute. Prior to trial, Ayala filed a motion to suppress evidence relating to the results of the blood draw, which the district court granted following a hearing. In four points of error on appeal, the State asserts that the district court abused its discretion in granting the motion to suppress. Guided by recent precedents from the United States Supreme Court and the Texas Court of Criminal Appeals, as well as this Court's own precedents applying those binding authorities, we will affirm the district court's order.
See Tex. Penal Code §§ 49.04(a), 49.09(b)(2).
See Tex. Transp. Code § 724.012(b).
BACKGROUND
At the hearing on the motion to suppress, the district court heard evidence that on February 9, 2013, at approximately 5:30 p.m., Sergeant Adam Masters of the Austin Police Department (APD) was dispatched to the scene of an automobile collision in South Austin. Masters testified that when he arrived, he was informed by the Austin Fire Department that there were no injuries to report and that no one required medical attention or transport to a hospital. Masters then made contact with Ayala, one of the drivers involved in the collision, concluded that Ayala was possibly intoxicated, and called for a DWI unit to assist with the investigation. APD Corporal Brandon Kunkel and Officer Brian Brejcha responded to the call. Officer Brejcha testified that he administered one of the standardized field sobriety tests to Ayala but that Ayala refused to perform the others. Subsequently, Brejcha recounted, he arrested Ayala for driving while intoxicated and asked for a specimen of Ayala's blood. According to Brejcha, Ayala refused. After learning that Ayala had two prior convictions for driving while intoxicated—which, pursuant to section 724.012(b) of the Texas Transportation Code, is a circumstance that required Brejcha to initiate procedures for obtaining a mandatory blood draw—Brejcha proceeded to transport Ayala to the Travis County Jail, where, Brejcha testified, a phlebotomist withdrew a sample of Ayala's blood. According to Corporal Kunkel, who had supervised the DWI investigation, the only reason the officers took Ayala's blood without obtaining a warrant was because the Transportation Code allowed them to do so. Kunkel testified that Ayala's blood was drawn approximately two hours after they had begun their investigation and that, if they had waited to obtain a warrant, approximately 30 minutes would have been added to that time.
At the conclusion of the hearing, the district court granted the motion to suppress and entered a written order to that effect. The court based its ruling on the following conclusions of law:
• Officer Brejcha had probable cause to arrest the defendant.This appeal by the State followed.
• Officer Brejcha acted in good faith when he relied on Tex. Transp. Code §§ 724.011 and 724.012(b) to draw blood.
• The officer did not obtain a search warrant.
• The Defendant did not consent to a taking of a specimen of his breath or blood.
• There were no exigent circumstances in this case.
• Because there was no warrant and no exigent circumstances, the blood draw in the defendant's case violated the Fourth Amendment to the U.S. Constitution. See Missouri v. McNeely, 133 S. Ct. 1552 (2013).
In McNeely, the United States Supreme Court rejected the argument that "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." 133 S. Ct. at 1556. Instead, the Court held, "exigency in this context must be determined case by case based on the totality of the circumstances." Id. In this case, the State does not dispute the district court's conclusion that there were no exigent circumstances.
STANDARD OF REVIEW
In reviewing a trial court's ruling on a motion to suppress, "an appellate court must apply a standard of abuse of discretion and overturn the trial court's ruling only if it is outside the zone of reasonable disagreement." We will uphold the court's ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. "The appellate court must apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations." In this case, we review de novo the trial court's application of the law of search and seizure to the facts.
Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
See Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).
Martinez, 348 S.W.3d at 922 (citing Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)).
See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2011); Thompson v. State, 408 S.W.3d 614, 621 (Tex. App.—Austin 2013, no pet.); see also State v. Villarreal, 475 S.W.3d 784, 798 (Tex. Crim. App. 2014) ("[B]ecause the facts are undisputed and the questions before us are matters of law, we apply a de novo standard of review."); Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) ("On appeal, the question of whether a specific search or seizure is 'reasonable' under the Fourth Amendment is subject to de novo review. Despite its fact-sensitive analysis, 'reasonableness' is ultimately a question of substantive Fourth Amendment law.").
ANALYSIS
In its first and second points of error, the State asserts that the blood-draw evidence was admissible because either (1) the statute that authorized the warrantless blood draw, section 724.012(b) of the Transportation Code, was "constitutionally reasonable under the Fourth Amendment" or, alternatively, (2) Ayala was "deemed to have consented to the taking of a specimen" pursuant to section 724.011(a) of the Transportation Code. In its third and fourth points of error, the State asserts that, even if the blood-draw evidence was obtained in violation of the Fourth Amendment, the Texas and federal exclusionary rules do not require the evidence to be suppressed.
See Tex. Transp. Code § 724.012(b).
See id. § 724.011(a) ("If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, . . the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.").
Whether the evidence was obtained in violation of the Fourth Amendment
"In general, to comply with the Fourth Amendment, a search of a person pursuant to a criminal investigation (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances." "A defendant who alleges a Fourth Amendment violation has the burden of producing evidence that rebuts the presumption of proper police conduct. He may carry this burden by establishing that the seizure occurred without a warrant." "The burden then shifts to the State to prove the reasonableness of the seizure." Here, it was undisputed at the suppression hearing that Ayala's blood was drawn without a warrant. Thus, the burden was on the State to prove that the warrantless seizure of Ayala's blood was reasonable under the circumstances or done with his consent. In its first point of error, the State urges that the warrantless blood draw in this case was reasonable by virtue of the fact that it was conducted in accordance with section 724.012(b) of the Transportation Code. In its second point of error, the State argues in the alternative that Ayala "impliedly consented" to the blood draw.
Villarreal, 475 S.W.3d at 795.
State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011).
Id.
See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
However, as the State concedes in its brief, the arguments raised in its first and second points of error are "directly contradicted" by State v. Villarreal, a recent decision by the Court of Criminal Appeals regarding the constitutionality of warrantless, mandatory blood draws. In Villarreal, the Court of Criminal Appeals held that "a nonconsensual search of a DWI suspect's blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment." The court explained that the Transportation Code provisions on which the State relied to excuse compliance with the warrant requirement "do not, taken by themselves, form a constitutionally valid alternative to the Fourth Amendment warrant requirement," and the court "reject[ed] the State's assertion that a warrantless, nonconsensual blood draw conducted pursuant to those provisions can fall under one of the established exceptions to the warrant requirement."
See 475 S.W.3d at 787. Although Villarreal was decided prior to the filing of the State's brief, the State has explained that it raised arguments contrary to Villarrreal because the Court of Criminal Appeals had initially granted a motion for rehearing in the case, see 2015 Tex. Crim. App. LEXIS 201 (Tex. Crim. App. Feb. 25, 2015), and the State wanted to preserve these arguments in the event that the original decision in Villarreal was reversed on rehearing. However, on December 16, 2015, the Court of Criminal Appeals concluded that the State's motion for rehearing had been improvidently granted and denied the motion for rehearing, making its original decision final at that time. See 2015 Tex. Crim. App. LEXIS 1402 (Tex. Crim. App. Dec. 16, 2015).
475 S.W.3d at 815.
Id. at 813.
The Villarreal court "further reject[ed] the State's suggestion"—similar to the argument raised by the State in its first point of error here—"that such a search may be upheld under a general Fourth Amendment balancing test." Although the court "agree[d] with the State's contention that the government has a substantial interest in preventing drunk driving," it "disagree[d] that a balancing test is appropriate given the context" of "an active criminal investigation, [] when the primary goal of law-enforcement activity is the gathering of evidence." In that context, the court observed, the United States Supreme Court has repeatedly held that "a warrantless search of a person is unreasonable unless it falls within an established exception to the warrant requirement." The court "decline[d] to disregard this well-established principle in favor of a more generalized balancing-of-interests test."
Id.
Id. at 808-09.
Id. at 809 (citing Riley v. California, 134 S. Ct. 2473, 2482 (2014); McNeely, 133 S. Ct. at 1558; Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602, 619 (1989)).
Id.
Regarding the State's alternative argument, raised in its second point of error, that a suspect's "implied consent" to a mandatory blood draw obviates the need to obtain a warrant, the Villarreal court also rejected this contention. The court explained that "to constitute a valid waiver of Fourth Amendment rights through consent, a suspect's consent to search must be freely and voluntarily given," and the suspect must possess "the ability to limit or revoke it." According to the court, "[i]t would be wholly inconsistent with these principles to uphold the warrantless search of a suspect's blood on the basis of consent when a suspect has, as in the present case, expressly and unequivocally refused to submit to the search." "That explicit refusal to submit to blood testing," the court concluded, "overrides the existence of any implied consent, and, unless some other justification for the search applies, there remains no valid basis for conducting a warrantless search under those circumstances."
Id. at 799.
Id. at 800.
Id.
Again, the State concedes on appeal that Villarreal applies here and that the high court's decision in that case "directly contradicts" the arguments raised in the State's first and second points of error. We agree that it does. Accordingly, we overrule the State's first and second points of error.
Applicability of exclusionary rules
We next address the State's third and fourth points of error, in which it asserts that the blood-draw evidence in this case, even if obtained in violation of the Fourth Amendment, should not have been suppressed because of various exceptions to the Texas and federal exclusionary rules. Specifically, in its third point of error, the State claims that the evidence should not have been suppressed pursuant to the Texas exclusionary rule because the officers did not violate the law as it existed at the time Ayala's blood was drawn. In its fourth point of error, the State asserts that the evidence should not have been suppressed pursuant to the federal exclusionary rule because the officers acted in good-faith reliance on the statutory provisions of the Transportation Code discussed above, as well as cases decided prior to McNeely and Villarreal holding that the natural dissipation of alcohol in a person's bloodstream constituted an "exigent circumstance" sufficient to justify dispensing with the Fourth Amendment's warrant requirement.
See, e.g., Aliff v. State, 627 S.W.2d 166, 169-70 (Tex. Crim. App. 1982); State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref'd); Weaver v. State, 721 S.W.2d 495, 497 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd).
The Texas exclusionary rule, found in article 38.23 of the Code of Criminal Procedure, provides that "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." The Legislature has authorized only one exception to this rule: "It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause." There is no exception to the Texas exclusionary rule based on an officer's compliance with the law as it existed at the time of the search or his good-faith reliance on anything other than a warrant. In this case, it is undisputed that there was no warrant. Consequently, the exception to article 38.23 does not apply here, as this and other Texas courts have repeatedly held in similar mandatory-blood-draw cases. Therefore, we cannot conclude that the district court abused its discretion in suppressing the evidence pursuant to the Texas exclusionary rule.
Tex. Code Crim. Proc. art. 38.23(a).
Id. art. 38.23(b) (emphasis added).
See, e.g., State v. Molden, No. 03-14-00166-CR, 2016 Tex. App. LEXIS 1539, at *12-14 (Tex. App.—Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); State v. Hill, No. 03-13-00834-CR, 2016 Tex. App. LEXIS 1540, at *11-13 (Tex. App.—Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); Roop v. State, No. 03-13-00141-CR, 2016 Tex. App. LEXIS 1541, at *16-17 (Tex. App.—Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); State v. Munoz, 474 S.W.3d 8, 16 (Tex. App.—El Paso 2015, no pet.); State v. Tercero, 467 S.W.3d 1, 10-11 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Burks v. State, 454 S.W.3d 705, 709 (Tex. App.—Fort Worth 2015, no pet.) State v. Anderson, 445 S.W.3d 895, 912 (Tex. App.—Beaumont 2014, no pet.); Forsyth v. State, 438 S.W.3d 216, 224-25 (Tex. App.—Eastland 2014, pet. ref'd); see also State v. Esher, No. 05-14-00694-CR, 2015 Tex. App. LEXIS 7722, at *10-11 (Tex. App.—Dallas July 27, 2015, no pet.) (mem. op., not designated for publication); Gentry v. State, No. 12-13-00168-CR, 2014 Tex. App. LEXIS 9538, at *6-7 (Tex. App.—Tyler Aug. 27, 2014, no pet.) (mem. op., not designated for publication); Fitzgerald v. State, 2014 Tex. App. LEXIS 8208, at *6 (Tex. App.—San Antonio July 30, 2014, no pet.) (mem. op., not designated for publication).
We note that the applicability of the exclusionary rule to evidence obtained from a warrantless, mandatory blood draw is an issue that is currently pending before the Court of Criminal Appeals. See Cole v. State, 454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted). But unless and until that court instructs us otherwise, we adhere to the exception to the Texas exclusionary rule that the Legislature has expressly authorized. See State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) ("But Article 38.23 already contains one express exception, see Subsection (b) thereof, and according to the rules of statutory construction, where a statute contains an express exception, its terms must apply in all cases not excepted."); Garcia v. State, 829 S.W.2d 796, 800 (Tex. Crim. App. 1992) ("Certainly, the Legislature has the prerogative to amend Article 38.23 to enact the specific exception to its rule if it chooses. Until that time, however, we must enforce the statute as written, excluding all illegally obtained evidence, with the single exception as set out in the statute."); see also 67 Tex. Jur. 3d Statutes § 117 (2015) ("In construing a statute, it is not ordinarily permissible to imply an exception, proviso, or restriction or to enlarge an exception so as to include cases not within its terms."). Cf. Wehrenberg v. State, 416 S.W.3d 458, 470-71 (Tex. Crim. App. 2013) (concluding that "independent source doctrine" may be basis for admitting otherwise inadmissible evidence because that doctrine "is consistent with the plain terms of the Texas exclusionary rule"); State v. Johnson, 871 S.W.2d 744, 750-51 (Tex. Crim. App. 1994) (reaching similar conclusion regarding "attenuation of taint" doctrine).
As for the federal exclusionary rule, which is a judicially created remedy that requires the suppression of evidence obtained in violation of the Fourth Amendment, it is true, as the State observes, that there are exceptions to that rule based on an officer's good-faith reliance on the law as it existed at the time of the officer's actions. However, it is well settled that the Texas exclusionary rule is broader in scope and provides more protection to a suspect than its federal counterpart. Because we have already concluded that the district court would not have abused its discretion in suppressing the evidence pursuant to the Texas exclusionary rule, we need not address whether the evidence should have been suppressed pursuant to the federal exclusionary rule. We overrule the State's third and fourth points of error.
See Arizona v. Evans, 514 U.S. 1, 10 (1995); United States v. Leon, 468 U.S. 897, 906 (1984).
See Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011) (holding that "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule"); Illinois v. Krull, 480 U.S. 340, 360 (1987) (holding that evidence obtained by officer acting in good-faith reliance on statute that is later determined to be unconstitutional is not subject to exclusionary rule).
See Wilson v. State, 311 S.W.3d 452, 458-59 (Tex. Crim. App. 2010); Miles v. State, 241 S.W.3d 28, 34 (Tex. Crim. App. 2007); Melendez v. State, 467 S.W.3d 586, 592 (Tex. App.—San Antonio 2015, no pet.); Tercero, 467 S.W.3d at 10; see also 40 George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 7.10 (3d ed. 2011) ("Article 38.23 of the Code of Criminal Procedure imposes what is probably the broadest state exclusionary requirement of any American jurisdiction."); 1 C. McCormick & R. Ray, Texas Law of Evidence, § 473 (2d ed. 1956) ("The Texas [exclusionary] statute lays down a rule far broader than that existing in any other state and goes much beyond the doctrine of the [federal] cases.").
See Tex. R. App. P. 47.1; Valtierra, 310 S.W.3d at 447-48 ("We will sustain the trial court's ruling [on a motion to suppress] if that ruling is 'reasonably supported by the record and is correct on any theory of law applicable to the case.'" (quoting Dixon, 206 S.W.3d at 590)); see also Greer v. State, No. 01-14-00033-CR, 2015 Tex. App. LEXIS 10892, at *5 (Tex. App.—Houston [1st Dist.] Oct. 22, 2015, pet. filed) ("Even if evidence is admissible as an exception to the federal rule, it may, nonetheless, still be excluded by Article 38.23."); 40 Dix & Schmolesky § 7:7 ("The States also remain free to exclude evidence obtained in violation of federal constitutional or statutory requirements even if exclusion is not required by federal law."). --------
CONCLUSION
We affirm the district court's order granting the motion to suppress.
/s/_________
Bob Pemberton, Justice Before Chief Justice Rose, Justices Pemberton and Field Affirmed Filed: March 2, 2016 Do Not Publish