Opinion
No. 05-16-00518-CR
03-31-2017
THE STATE OF TEXAS, Appellant v. HYO YU, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F-1512283-J
MEMORANDUM OPINION
Before Justices Fillmore, Evans, and Boatright
Opinion by Justice Fillmore
The State appeals the trial court's order granting appellee Hyo Yu's pretrial motion to suppress evidence of a blood draw and derived from the blood draw. In a single issue, the State contends the trial court abused its discretion in granting the motion to suppress because the State produced a facially valid search warrant and Yu failed to prove the search warrant was invalid. We reverse the trial court's order granting the motion to suppress and remand the case to the trial court for further proceedings.
Procedural Background
On June 7, 2015, Yu was arrested in Dallas County, Texas, by the Carrollton Police Department and charged with a third offense of driving while intoxicated (DWI). See TEX. PENAL CODE ANN. §§ 12.34(a) (West 2011), 49.04(a), & 49.09(b)(2) (West Supp. 2016). A search warrant for a blood draw was obtained by Whitney Gaspard, the Carrollton Police Department officer who arrested Yu. Yu filed a motion to suppress evidence of the blood draw and derived from the blood draw (the motion to suppress), asserting the evidence had been obtained in violation of articles 18.01(b) and (c) and 38.23 of the code of criminal procedure, see TEX. CODE CRIM. PROC. ANN. arts. 18.01(b), (c) (West Supp. 2015) & 38.23 (West 2005), the Fourth and Fourteenth Amendments of the United States Constitution, see U.S. CONST. amends. IV & XIV, and article I, section 9 of the Texas Constitution, see TEX. CONST. art. I, § 9.
Under the exclusionary rule found in article 38.23 of the code of criminal procedure, evidence obtained in violation of the United States and Texas constitutions and federal and state laws is inadmissible against the accused. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). The Fourth Amendment to the United States Constitution mandates that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." U.S. CONST. amend. IV; see also TEX. CODE CRIM. PROC. ANN. art. 1.06 (West 2005). The Fourth Amendment was made applicable to the States by the Fourteenth Amendment. Maryland v. Pringle, 540 U.S. 366, 369 (2003). Article I, section 9 of the Texas Constitution and the Fourth Amendment to the United States Constitution "are the same in all material aspects." White v. State, 746 S.W.2d 775, 776 (Tex. App.—Dallas 1985, no pet.).
Peace officers may obtain a defendant's blood specimen in connection with a DWI investigation through a search warrant issued by a magistrate. See TEX. CODE CRIM. PROC. ANN. arts. 18.01(a), (j); see Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). Obtaining a blood sample has been found to be a search and seizure within the meaning of the Fourth Amendment to the United States Constitution. See Sanchez v. State, 365 S.W.3d 681, 684 (Tex. Crim. App. 2012); Beeman, 86 S.W.3d at 616 (citing Schmerber v. California, 384 U.S. 757 (1966)).
On March 30, 2016, following a hearing on Yu's motion to suppress, the trial court filed findings of fact and conclusions of law and signed an order denying Yu's motion to suppress. Yu filed a motion to reconsider the order denying his motion to suppress and, following a hearing, the trial court signed an April 29, 2016 order granting Yu's motion to suppress. The State filed a motion to vacate the trial court's order granting Yu's motion to suppress. On May 2, 2106, the trial court signed an order denying the State's motion to vacate the order granting Yu's motion to suppress and again granting Yu's motion to suppress. The State filed this appeal of the trial court's order granting Yu's motion to suppress.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016). We review the trial court's factual findings for an abuse of discretion, but review the trial court's application of the law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We afford almost total deference to the trial court's determination of historical facts, "especially if those are based on an assessment of credibility and demeanor." Brodnex, 485 S.W.3d at 436 (quoting Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). We give the same deference to the trial court's conclusions with respect to mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We review mixed questions of law and fact that do not turn on credibility and demeanor as well as purely legal questions de novo. Brodnex, 485 S.W.3d at 436. If the trial court's ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, we must sustain it. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
Discussion
In a single issue, the State asserts the trial court abused its discretion in granting Yu's motion to suppress because the State produced a facially valid search warrant and Yu failed to prove the warrant was invalid.
When a defendant challenges the validity of a search warrant and the State produces a facially valid search warrant, the burden of proof is on the defendant "to go forward with such proof as he may produce to show the invalidity of the warrant." Rumsey v. State, 675 S.W.2d 517, 520-21 (Tex. Crim. App. 1984), partially disavowed on other grounds by Miller v. State, 736 S.W.2d 643, 648 (Tex. Crim. App. 1987). Yu's counsel acknowledged at the hearing of his motion to suppress that introduction of the facially valid search warrant by the State shifted the burden to Yu to prove the warrant is invalid. See Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986) (once State produces evidence of a search warrant, burden of proof shifts to defendant to show invalidity of warrant), disapproved on other grounds by Handy v. State, 189 S.W.3d 296, 299 n.2 (Tex. Crim. App. 2006).
See also Morgan v. State, No. 05-98-02079-CR, 2001 WL 856955, at *4 (Tex. App.—Dallas July 31, 2001, no pet.) (not designated for publication); Henson v. State, No. 05-94-01762-CR, 1996 WL 457452, at *2 (Tex. App.—Dallas Aug. 14, 1996, no pet.) (not designated for publication).
At oral argument of this appeal, Yu's counsel also acknowledged the search warrant at issue is facially valid.
The only evidence offered by Yu at the hearing of his motion to suppress was the testimony of the Carrollton Police Department arresting officer, Whitney Gaspard. Gaspard testified that on June 7, 2015, Yu refused a request for a blood sample after he was stopped for a suspected DWI offense. Yu was arrested for DWI and Gaspard then followed the after-hours procedure for obtaining a blood draw search warrant that had been utilized by the Carrollton Police Department for about three years. According to Gaspard, the after-hours procedure entails obtaining the electronic signature of a magistrate on a search warrant, which facilitates more expeditious issuance of search warrants and more accurate blood alcohol concentration test results because there is less elapsed time for dissipation of alcohol in the blood.
Gaspard testified that prior to adoption of the current procedure, police officers were required to go to a judge's home to obtain an after-hours search warrant for a blood draw. The search warrant in this case was electronically signed at 3:05 a.m. on June 7, 2015, together with an order for assistance in execution of search warrant signed at the same time.
See Riley v. California, 134 S. Ct. 2473, 2493 (2014) ("Recent technological advances . . . have . . . made the process of obtaining a warrant itself more efficient."); Missouri v. McNeely, 133 S. Ct. 1552, 1562 (2013) (plurality op.) ("Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.").
See McNeely, 133 S. Ct. at 1560 ("It is true that as a result of the human body's natural metabolic processes, the alcohol level in a person's blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated.").
Gaspard testified regarding the specific process she utilized for obtaining the blood draw search warrant at issue in this case. Gaspard prepared an affidavit in support of a search warrant and a proposed search warrant. She then swore to and signed her affidavit before Christian Gaytan, a detention officer at the Carrollton jail who is a notary public. Gaspard scanned the affidavit and search warrant and e-mailed them to Judge Dana Huffman, a magistrate. Gaspard then spoke to Judge Huffman by telephone to apprise her that a proposed search warrant had been e-mailed to her for review. Gaspard did not communicate any information regarding the facts of the case or content of the affidavit to Judge Huffman over the telephone. After awaiting a response from Judge Huffman, Gaspard received the blood draw search warrant, which bore an electronic signature of Judge Huffman and an electronic "Municipal Court in Carrollton, Texas" seal, by return e-mail from Judge Huffman's e-mail address.
Gaspard did not personally observe Judge Huffman sign the search warrant. Gaspard testified she had not met Judge Huffman in person but had spoken to her on the telephone many times prior to June 7, 2015. Gaspard assumed the person she spoke with by telephone on June 7, 2015, was Judge Huffman; the person answered a call to Judge Huffman's telephone number and Gaspard had spoken to that person many times before. Gaspard utilized Judge Huffman's e-mail address for forwarding the affidavit in support of the search warrant and the proposed search warrant. Thereafter, Gaspard received by e-mail the returned search warrant from Judge Huffman's e-mail address bearing Judge Huffman's signature and an official "Municipal Court in Carrollton, Texas" seal electronically affixed to the search warrant. Gaspard did not know how Judge Huffman's electronic signature became affixed to the search warrant but "imagined" that was accomplished by means of a computer program.
The trial court filed findings of fact and conclusions of law on March 30, 2016. "[H]aving considered the evidence presented at the hearing on [Yu]'s motion to suppress, [Yu]'s motion, and the arguments of counsel," the trial court found the search warrant "was signed electronically by the magistrate, although there was no official procedure adopted by the Texas legislature until September 2016 for electronically signed warrants." The trial court further found:
The trial court's finding incorrectly references September 2016. Article 18.01 of the code of criminal procedure was amended effective September 1, 2015, by adding section (b-1) which provides:
(1) For purposes of this article, a magistrate may consider information communicated by telephone or other reliable electronic means in determining whether to issue a search warrant. The magistrate may examine an applicant for a search warrant and any person on whose testimony the application is based. The applicant or other person must be placed under oath before the examination.Act of May 26, 2015, 84th Leg., R.S., ch. 683, § 1, art. 18.01, 2015 Gen. Laws 2156, 2156-57 (amended 2015) (current version at TEX. CODE CRIM. PROC. ANN. art. 18.01(b-1) (West Supp. 2015)). Article 18.01 of the code of criminal procedure, as amended, applies only to search warrants issued on or after September 1, 2015, the effective date of the amendments, and search warrants issued before September 1, 2015 are governed by the law in effect on the date the warrant was issued. See id. §§ 2, 3, 2015 Gen. Laws at 2157. The search warrant at issue in this appeal was issued before September 1, 2015. Thus, article 18.01(b-1) of the code of criminal procedure is inapplicable to the search warrant at issue in this appeal. Yu has not referred us to legal authority holding the method used on June 7, 2015, for procuring the search warrant at issue was prohibited or impermissible.
(2) If an applicant for a search warrant attests to the contents of an affidavit submitted by reliable electronic means, the magistrate must acknowledge the attestation in writing on the affidavit. If the magistrate considers additional testimony or exhibits, the magistrate must:
(A) ensure that the testimony is recorded verbatim by an electronic recording device, by a court reporter, or in writing;
(B) ensure that any recording or reporter's notes are transcribed and that the transcription is certified as accurate and is preserved;
(C) sign, certify the accuracy of, and preserve any other written record; and
(D) ensure that the exhibits are preserved.
(3) An applicant for a search warrant who submits information as authorized by this subsection must prepare a proposed duplicate original of the warrant and must read or otherwise transmit its contents verbatim to the magistrate. A magistrate must enter into an original search warrant the contents of a proposed duplicate original that are read to the magistrate. If the applicant transmits the contents by reliable electronic means, the transmission received by the magistrate may serve as the original search warrant.
(4) The magistrate may modify a search warrant that is submitted as described by Subdivision (3). If the magistrate modifies the warrant, the magistrate must:
(A) transmit the modified version to the applicant by reliable electronic means; or
(B) file the modified original and direct the applicant to modify the proposed duplicate original accordingly.
(5) A magistrate who issues a search warrant for which information is provided by telephone or reliable electronic means must:
(A) sign the original documents;
(B) enter the date and time of issuance on the warrant; and
(C) transmit the warrant by reliable electronic means to the applicant or direct the applicant to sign the judge's name and enter the date and time on the duplicate original.
(6) Evidence obtained pursuant to a search warrant for which information was provided in accordance with this subsection is not subject to suppression on the ground that issuing the warrant in compliance with this subsection was unreasonable under the circumstances, absent a finding of bad faith.
The Carrollton police department had a procedure for electronic filing that allowed Officer Whitney Gaspard to swear to an affidavit for the warrant at the jail and then send the warrant request to the magistrate at home electronically. The officer then called the magistrate to let her know she was sending the warrant request. Officer Gaspard had never met the magistrate personally but had talked to her several times on the phone and recognized her voice. They did not discuss any of the facts of the case. A short time later the warrant was electronically returned to the jail with the magistrate's signature.
Yu filed objections to the trial court's findings that Gaspard "then called the magistrate to let her know she was sending the warrant request. Officer Gaspard had never met the magistrate personally but had talked to her several times on the phone and recognized her voice." However, the record does not contain any order of the trial court withdrawing the March 30, 2016 findings of fact or sustaining Yu's objections. Further, Yu has not challenged those findings of fact on appeal. "The trial court's findings of fact are binding upon the court of appeals, unless challenged on appeal." Lombardo v. Bhattacharyya, 437 S.W.3d 658, 668 (Tex. App.—Dallas 2014, pet. denied).
Yu's claim that the search warrant is invalid is based on Gaspard's testimony she had not personally met Judge Huffman. Yu asserts a question is raised as to whether the search warrant was electronically signed and returned by e-mail to Gaspard by Judge Huffman. Yu argues Gaspard's testimony "prevents a finding" that Gaspard's affidavit in support of the search warrant was presented to Judge Huffman and that Judge Huffman personally affixed her signature to the search warrant.
Raising a question as to whether Judge Huffman reviewed, electronically signed, affixed the seal to, and returned the search warrant does not constitute evidence that Judge Huffman did not do so. Yu did not adduce testimony from Judge Huffman that she did not review, electronically sign, affix the seal to, and return the search warrant. Requiring the State to adduce that testimony after Yu raised the question of authenticity of the electronic signature would impermissibly shift Yu's burden to prove the facially valid search warrant was invalid. See Russell, 717 S.W.2d at 9-10.
Our review of the evidence presented at the hearing of Yu's motion to suppress reveals Yu failed to meet his burden to prove the search warrant was invalid. Yu offered no evidence indicating that the electronic signature of the judge on the search warrant was entered by anyone other than Judge Huffman or that the search warrant was transmitted electronically to Gaspard by anyone other than Judge Huffman, and Yu points to no evidence in the record that otherwise establishes the search warrant was invalid. Questioning the validity of the search warrant based only on surmise or speculation that someone other than Judge Huffman may have affixed the judge's signature to the document is insufficient to meet Yu's burden of proof to establish the invalidity of the search warrant. O'Neal, 276 S.W.2d at 873-74. Thus, Yu failed to meet his burden of proof that the facially valid search warrant was invalid. See Russell, 717 S.W.2d at 9-10; Rumsey, 675 S.W.2d at 520-21.
See also Seabolt v. State, No. 05-89-00990-CR, 1992 WL 90723, at *3 (Tex. App.—Dallas Apr. 23, 1992, pet. ref'd) (op. on remand) (not designated for publication) (State produced evidence of warrant and supporting affidavit and burden shifted to defendant to show warrant was invalid; defendant offered no evidence which showed he was not on premises when the warrant issued and thus failed to show warrant was invalid).
We conclude the trial court abused its discretion by granting the motion to suppress. We resolve the State's sole issue in its favor. Accordingly, we reverse the trial court's order granting Yu's motion to suppress and remand this case to the trial court for further proceedings.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 160518F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F-1512283-J.
Opinion delivered by Justice Fillmore, Justices Evans and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered this 31st day of March, 2017.