Opinion
NO. 03-14-00179-CR
03-11-2016
The State of Texas, Appellant v. Alan Hughes, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. D-1-DC-201119, HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDINGMEMORANDUM OPINION
Following his arrest for the felony offense of driving while intoxicated, appellee Alan Hughes'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, Hughes 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. Following recent opinions by this Court applying binding precedents from the United States Supreme Court and the Texas Court of Criminal Appeals, 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 the night of February 22, 2013, Officer Kevin Garvey of the Austin Police Department (APD) initiated a traffic stop on a vehicle after observing it fail to signal a lane change. Officer Garvey testified that upon making contact with the driver, later identified as Hughes, Garvey observed signs of intoxication, including an odor of alcohol on Hughes's person, bloodshot eyes, and a delayed response to questioning. Another APD officer, Bryan Brejcha, attempted to conduct field sobriety tests on Hughes but, Brejcha recounted, Hughes was uncooperative and refused to perform the tests. Brejcha testified that he subsequently arrested Hughes for driving while intoxicated and requested a sample of Hughes's breath or blood. According to Brejcha, Hughes refused. Then, after learning that Hughes had three prior convictions for driving while intoxicated, Brejcha "went through the process to initiate a mandatory blood draw per the Transportation Code." On cross-examination, Brejcha acknowledged that Hughes did not consent to the blood draw, that he did not obtain a search warrant for Hughes's blood, and that the sole basis for his decision to order the blood draw without obtaining a warrant was because the Transportation Code allowed him to do so. 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 Bryan Brejcha had probable cause to arrest the defendant.
• The blood draw complied with Tex. Transp. Code §§ 724.011 and 724.012(b).
• Officer Bryan Brejcha relied on Tex. Transp. Code §§ 724.011 and 724.012(b) to draw blood.
• The defendant did not consent to providing a specimen of his blood.This appeal by the State followed.
• The officer did not obtain a search warrant.
• There were no exigent circumstances in this case.
• Because there was no warrant, no consent and no exigent circumstances, this seizure of Defendant's blood violated the Fourth Amendment to the Constitution of the United States. 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 922-23 (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 point of error, the State asserts that the blood-draw evidence is admissible because warrantless blood draws, which the State contends are authorized by section 724.012(b) of the Transportation Code, are "reasonable" under a traditional Fourth-Amendment balancing test. In its second point of error, the State argues in the alternative that the evidence is admissible because Hughes "impliedly consented" to the blood draw 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 evidence was obtained in violation of the Fourth Amendment, the federal and state 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.").
The State's arguments in its first and second points of error have been previously addressed and rejected in State v. Villarreal, a recent decision by the Texas Court of Criminal Appeals regarding the constitutionality of warrantless, mandatory blood draws. In Villarreal, the court 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 in late 2014, 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), which created uncertainty among the lower courts concerning its precedential value. 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 decision final at that time. See 2015 Tex. Crim. App. LEXIS 1402 (Tex. Crim. App. Dec. 16, 2015). In its reply brief, the State acknowledges that Villarreal "directly contradicts" the arguments raised in its first and second points of error.
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.
In State v. Ayala, this Court followed the binding precedent of Villarreal and rejected arguments similar to the ones raised by the State in its first and second points of error here. This Court and other intermediate courts have done the same in prior cases. Consistent with the precedent established in these and other cases, we overrule the State's first and second points of error.
See No. 03-14-00651-CR, 2016 Tex. App. LEXIS 2166, at *6-10 (Tex. App.—Austin Mar. 2, 2016, no pet. h.) (mem. op., not designated for publication).
See State v. Molden, ___ S.W.3d ___, No. 03-14-00166-CR, 2016 Tex. App. LEXIS 1539, at *4-9 (Tex. App.—Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); State v. Hill, ___ S.W.3d ___, No. 03-13-00834-CR, 2016 Tex. App. LEXIS 1540, at *3-8 (Tex. App.—Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); Roop v. State, ___ S.W.3d ___, 2016 Tex. App. LEXIS 1541, at *11-13 (Tex. App.—Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); see also State v. Munoz, 474 S.W.3d 8, 13-14 (Tex. App.—El Paso 2015, no pet.); State v. Tercero, 467 S.W.3d 1, 6-9 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd); Chidyausiku v. State, 457 S.W.3d 627, 630-31 (Tex. App.—Fort Worth 2015, no pet.); State v. Garcia, 457 S.W.3d 546, 547-48 (Tex. App.—San Antonio 2015, no pet.); Lloyd v. State, 453 S.W.3d 544, 546-48 (Tex. App.—Dallas 2014, pet. ref'd).
This Court and others have also previously addressed and rejected the arguments raised in the State's third and fourth points of error regarding the applicability of the state and federal exclusionary rules. In Ayala, this Court observed that the Texas exclusionary rule, article 38.23 of the Code of Criminal Procedure, broadly "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.'" This Court further observed that 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.'" This Court concluded, contrary to what the State argued in Ayala and is again urging here, that there is no exception based on an officer's compliance with the law as it existed at the time of the search. This Court's holding in Ayala followed a long line of cases from this Court and others reaching a similar conclusion regarding the applicability of the Texas exclusionary rule to blood-draw evidence obtained in violation of the Fourth Amendment. Following Ayala and the cases on which it relied, we cannot conclude that the district court abused its discretion in suppressing the blood-draw evidence pursuant to the Texas exclusionary rule.
2016 Tex. App. LEXIS 2166, at *11 (quoting Tex. Code Crim. Proc. art. 38.23(a)).
Id. (quoting Tex. Code Crim. Proc. art. 38.23(b)).
Id. at *11-12.
See Molden, 2016 Tex. App. LEXIS 1539, at *12-15; Hill, 2016 Tex. App. LEXIS 1540, at *10-14; Roop, 2016 Tex. App. LEXIS 1541, at *15-17; Munoz, 474 S.W.3d at 16; Tercero, 467 S.W.3d at 10-11; 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 here, as we did in Ayala, that the applicability of the exclusionary rule to evidence obtained from a warrantless 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 applicability of the judicially created federal exclusionary rule, which contains exceptions that are not present in the Texas exclusionary rule, we reach the same conclusion here that we did in Ayala—because the Texas exclusionary rule is broader in scope and provides more protection to a suspect than its federal counterpart, we can uphold the district court's ruling on the theory that the Texas exclusionary rule requires suppression of the evidence, without needing to further address the applicability of 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 2016 Tex. App. LEXIS 2166, at *13-15; see also 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 State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006))); 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 Justices Puryear, Pemberton, and Bourland Affirmed Filed: March 11, 2016 Do Not Publish