Court of Criminal Appeals of Tennessee, Nashville
Session March 11, 2014
Appeal from the Circuit Court for Williamson County No. IICR017004 James G. Martin, III, Judge
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Kim R. Helper, District Attorney General; and Carlin C. Hess, Assistant District Attorney General, for the appellee, State of Tennessee.
Bernard F. McEvoy, Nashville, Tennessee, for the appellant, James Dean Wells.
John Everett Williams, J., delivered the opinion of the Court, in which Jerry L. Smith, J., joined and NORMA MCGEE OGLE, J., concurs in results only.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant was apprehended approximately one-half mile from the scene of an accident, and his blood was forcibly drawn after police determined there was probable cause to believe he had been driving while intoxicated and that he had a previous DUI conviction. The defendant moved to suppress the evidence of his blood alcohol content, arguing that the statute was unconstitutional and that his Fourth Amendment rights had been violated. The State responded that there were exigent circumstances supporting the search and that the defendant had no constitutional right to refuse.
At the suppression hearing, Officer Cory Kroeger testified that on May 12, 2012, at approximately 3:45 a.m., another officer called him to the site of an accident via radio. He arrived and saw that a truck had crossed the opposing lane of traffic and had gone off the road, striking a utility pole and a small building, completely destroying the front end of the vehicle, and cracking the foundation of the building. The unoccupied vehicle had Missouri tags and was registered to the defendant, and it was strewn with papers containing his local contact information. "At least" five officers had responded to the scene, and one of them was canvassing nearby hotels looking for the driver of the vehicle. The clerk at a hotel located a quarter of a mile from the accident indicated that a man had just come in asking to use the phone; the clerk had sent the man to a gas station one-half mile from the site of the accident.
The defendant was located at the gas station, emanating a strong scent of alcohol and standing unsteadily on his feet. Officer Kroeger testified that approximately twenty minutes had passed since he first responded to the accident. The defendant had abrasions on his shins and forearms but denied driving his car that evening,  informing police that the car was at his apartment to the best of his knowledge. He acknowledged drinking at four bars that night, and he told police he had ridden to the bars on the back of a friend's motorcycle. The defendant agreed to take field sobriety tests and did not perform satisfactorily on four of the five tests. The tests took approximately twelve to fifteen minutes to complete. The defendant was subsequently arrested for DUI and other offenses. Officer Kroeger determined through dispatch that the defendant had a prior DUI conviction.
Officer Kroeger asked the defendant to submit to blood alcohol testing, and the defendant refused. Officer Kroeger read the implied consent law to the defendant. Officer Kroeger then took the defendant to the hospital across the street, where they were met by a sixth, supervising officer, for a nonconsensual blood draw. The blood was drawn at 5:30 a.m.
Officer Kroeger testified that he had never prepared a search warrant and did not know how long it would take. He testified that the jail, where a magistrate was available to issue warrants twenty-four hours per day, seven days each week, was a five to ten minute drive from the gas station. Officer Kroeger testified that the laptop in his vehicle did not have email or internet but could receive information through dispatch; he did not know if it was possible to get a warrant by telephone.
Casey Ashworth, a magistrate in Williamson County,  confirmed that a magistrate was always available in the jail to issue a warrant. He testified that it would usually take ten minutes to review and sign a warrant. Generally, there was not a line of officers seeking warrants, but when there was, the magistrates allowed time-sensitive matters to go first. He testified that to his knowledge, none of the magistrates at the jail had issued a warrant by telephone.
The trial court suppressed the evidence, concluding that the statute unconstitutionally mandated the blood draw. In holding the statute unconstitutional, the trial court found that Tennessee Code Annotated section 55-10-406(f)(2) creates a per se exception to the warrant requirement and mandates a warrantless search. The trial court concluded that the natural dissipation of blood alcohol was not, without more, a sufficient exigency to justify a warrantless search and that the statute was, therefore, unconstitutional. The trial court further found that exigent circumstances did not exist in this particular case. It based its conclusion on the fact that the wreck was discovered at 3:45 a.m.; that it took approximately twenty minutes to locate the defendant; that five officers were working the scene and available to assist with obtaining a warrant and transporting the defendant; that it would have taken approximately ten minutes to drive to the jail and ten to obtain a warrant; and that the defendant waited at the hospital, which was essentially across the street from the gas station, for an hour to have his blood drawn at 5:30 a.m.
The State applied for an interlocutory appeal, which the trial court approved and this court granted. On appeal, the State argues that the mandatory blood draw was supported by two exceptions to the warrant requirement: exigent circumstances and consent.
I. Standard of Review
A trial court's findings of fact made during a hearing on a motion to suppress are binding on an appellate court unless the evidence preponderates otherwise. State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012). "Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable and legitimate inferences drawn from the evidence. Id. The trial court's application of law to the facts, however, is reviewed de novo with no presumption of correctness. Williamson, 368 S.W.3d at 473. Issues of constitutional interpretation and other questions of law are reviewed de novo. Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009).
II. Prohibition Against Unreasonable Searches and Seizures
The Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution prohibit unreasonable searches and seizures. Tennessee's constitutional protections regarding searches and seizures are identical in intent and purpose to those in the federal constitution. State v. Turner, 297 S.W.3d 155, 165 (Tenn. 2009). In evaluating whether a search or seizure has violated the federal or state constitutions, we keep in mind that "[r]easonableness is the 'touchstone of the Fourth Amendment.'" State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). The Fourth Amendment "deems reasonable those searches conducted pursuant to a warrant issued 'upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'" State v. Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006) (quoting U.S. Const. amend. IV).
"[T]he physical intrusion occasioned by a blood draw 'infringes an expectation of privacy'" and the chemical analysis of blood is also an invasion of an individual's privacy interests. Id. (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616 (1989)). "Such an invasion of bodily integrity implicates an individual's 'most personal and deep-rooted expectations of privacy.'" Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013) (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). Accordingly, the blood of the accused cannot be drawn or analyzed unless the search is a reasonable one under the Fourth Amendment. Scarborough, 201 S.W.3d at 616; see Schmerber v. California, 384 U.S. 757, 767 (1966). A warrantless search is presumptively unreasonable, and "evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement." State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). One such exception is a search conducted under exigent circumstances to prevent the imminent destruction of evidence. Talley, 307 S.W.3d at 729. Another is consent. Id.
The State contends that the blood draw in this case was constitutional under the exigent circumstances exception. The State also submits that the search and the statute are both constitutional under the consent exception to the warrant requirement pursuant to the implied consent law. Finally, the State argues that the statute is, in any event, constitutional because its silence on the subject of a warrant does not explicitly eliminate the warrant requirement.
III. Exigent Circumstances
Because we "do not decide constitutional questions unless resolution is absolutely necessary to determining the issues in the case and adjudicating the rights of the parties, " we first consider whether the search in this instance was justified under the exigent circumstances exception to the warrant requirement. Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (quoting State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002)); see also Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (noting that if issues can be resolved on non-constitutional grounds, the court should avoid ruling on constitutional issues).
In Schmerber v. California, the United States Supreme Court upheld a warrantless blood draw in a DUI case under the exigent circumstances exception to the warrant requirement 384 U.S. 757, 770 (1966). The driver and his companion had both sustained injuries, and although the court emphasized that the exigency existed "[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, " id. at 770-71, several courts subsequently read Schmerber to stand for the proposition that the gradual disappearance of alcohol from the blood was itself an exigency which did away with the warrant requirement. See, e.g., State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008) ("The rapid, natural dissipation of alcohol in the blood creates single-factor exigent circumstances that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular operation"); State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993). In Tennessee, some courts likewise concluded that the changing nature of blood alcohol levels intrinsically constituted exigent circumstances. State v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn. Crim. App. 2001) ("Based upon the fact that evidence of blood alcohol content begins to diminish shortly after drinking stops, a compulsory breath or blood test, taken with or without the consent of the donor, falls within the exigent circumstances exception to the warrant requirement."); but see State v. Bowman, 327 S.W.3d 69, 85 (Tenn. Crim. App. 2009) (analyzing circumstances of arrest and availability of warrant to determine the existence of exigent circumstances in vehicular homicide); State v. Copeland, No. W2000-00346-CCA-R3-CD, 2001 WL 359235 (Tenn. Crim. App. 2001) (same).
Last year, however, the Supreme Court clarified that Schmerber did not in fact create a per se exigency exempting blood alcohol tests from the warrant requirement. Missouri v. McNeely, 133 S.Ct. 1552, 1556 (2013) . Instead, the court concluded that the exigency must be determined based on the totality of the circumstances, and that the metabolization of alcohol was one of the factors to be considered in evaluating whether the circumstances were exigent. Id. at 1559, 1563. The Court held that "[i]n 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 1561. The Court found it significant that technological innovations may make it possible to obtain a warrant without causing significant delay in the drawing of the blood of the accused. Id. at 1561-63.
The trial court here examined the totality of the circumstances and concluded that exigent circumstances did not exist. In making this determination, the trial court found that five officers were simultaneously investigating the incident, that a magistrate was on duty in a building ten minutes from the place where the defendant was apprehended, and that it took a magistrate an average of ten minutes to review a warrant. The trial court further found that the defendant waited at the hospital, which was essentially across the street from the gas station where he was apprehended, for approximately one hour until his blood was drawn at 5:30 a.m. These factual findings are binding on the appellate court unless the evidence preponderates otherwise. Based on the time elapsed between the violation and the blood draw, the speed with which a warrant could have been obtained, and the availability of law enforcement personnel to obtain the warrant, we conclude that the circumstances were not exigent, as the record demonstrates that police could have "reasonably obtain[ed] a ...