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State v. Nunnery

Court of Criminal Appeals of Tennessee, Nashville

July 13, 2017

STATE OF TENNESSEE
v.
ARNOLD TRAVIS NUNNERY

         Session: April 19, 2017

         Appeal from the Circuit Court for Lewis County No. 2015-CR-84 Deanna B. Johnson, Judge

         The Defendant was indicted for driving under the influence of an intoxicant (DUI); driving with a blood alcohol concentration of .08 or more (DUI per se); DUI, second offense; and unlawful possession of a weapon. The Defendant filed a motion to suppress evidence obtained as a result of a blood draw taken pursuant to a search warrant, and the trial court granted the motion. The State sought and was granted permission to appeal pursuant to Tennessee Rule of Appellate Procedure 9. We hold that the police officer's execution of the search warrant was unconstitutional, that exigent circumstances did not justify the blood draw, and that the good faith exception does not apply. Accordingly, we affirm the trial court's judgment suppressing the results of the blood draw and remand the case to the trial court for further proceedings consistent with this opinion.

         Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed; Remanded

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Kim R. Helper, District Attorney General; and Nichole Dusche', Assistant District Attorney General, for the appellant, State of Tennessee.

          Vanessa Pettigrew Bryan, District Public Defender; and Jakob Schwendimann, Assistant Public Defender, for the appellee, Arnold Travis Nunnery.

          John Everett Williams, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         Following a traffic stop in Lewis County, Tennessee, the Defendant was arrested for DUI. After the Defendant refused to consent to a blood draw, the arresting officer obtained a search warrant. The search warrant, which was signed by the local magistrate, "commanded" the officer to "take custody of the suspect and transport the suspect to a person qualified to draw blood in Lewis County, Tennessee" and to "search for, seize and maintain as evidence the property described in said Affidavit, to-wit: human blood from the body of the [Defendant]."

         The arresting officer transported the Defendant to a hospital in Lewis County, but the registered nurse declined to draw the Defendant's blood because the Defendant refused to cooperate. After contacting an assistant district attorney, the officer transported the Defendant to a hospital in Perry County, where a registered nurse drew the Defendant's blood.

         The Defendant was subsequently indicted on charges of DUI; DUI per se; DUI, second offense; and unlawful possession of a weapon. The Defendant filed a motion to suppress evidence obtained as a result of the blood draw. He alleged that the search warrant required that it be executed in Lewis County and medical personnel in Perry County were not authorized to draw his blood based on the language of the search warrant. The State filed multiple responses in which it contended that the issuance and execution of the search warrant complied with Tennessee Rule of Criminal Procedure 41, that the registered nurse who drew the Defendant's blood was authorized to do so, and that the blood draw was otherwise justified based on exigent circumstances.

         During the suppression hearing, Lieutenant Robert Earl Taylor of the Hohenwald Police Department testified that on July 17, 2014, at approximately 7:16 p.m., a caller reported observing someone throwing beer cans out of a white Chevrolet pick-up truck that was traveling into the town on Highway 48 North. Lieutenant Taylor attempted to locate the truck. He saw a truck matching the description pull into a driveway, back up onto the street, and drive down the street. As the truck passed in front of Lieutenant Taylor, he observed that the driver was not wearing a seatbelt. Lieutenant Taylor followed the truck until he confirmed with the dispatcher that it was the truck for which he was searching. Lieutenant Taylor then activated his blue lights and attempted to stop the truck. He said the truck did not stop immediately. Rather, the truck traveled through an intersection, continued to travel at a very slow rate of speed, and turned left onto a street approximately 150 to 200 yards away from the intersection. The truck then entered a driveway. The time of the stop was 7:24 p.m.

         As Lieutenant Taylor approached the truck, the driver, whom the officer identified as the Defendant, rolled up the window and stepped out of the truck. Lieutenant Taylor detected an odor of alcohol coming from the truck or the Defendant. The Defendant's face and head were extremely red; his eyes were glassy; and he was unsteady on his feet. When Lieutenant Taylor asked the Defendant if he had been drinking alcohol, the Defendant replied that he drank five beers after he left work at 4:30 p.m. Lieutenant Taylor said that the Defendant's speech was slurred and that the Defendant did not want to speak to him.

         Lieutenant Taylor asked the Defendant for his driver's license and proof of insurance. The Defendant provided him with his license and an expired insurance card. The Defendant said he believed he had an updated insurance card in the glove compartment of his truck and requested permission to retrieve it. Lieutenant Taylor saw a shotgun leaned up against the seat of the truck and asked the Defendant whether it was loaded. The Defendant responded, "[W]hat good is it if it's not loaded?" As a result, Lieutenant Taylor did not allow the Defendant to retrieve the insurance card. Lieutenant Taylor had the Defendant perform field sobriety tests, including the "Walk and Turn" and the "One-Leg Stand." Lieutenant Taylor said the Defendant's performance on the tests was "very poor."

         Lieutenant Taylor arrested the Defendant for DUI. He sought the Defendant's consent for a blood draw and read the implied consent form to the Defendant. The Defendant refused to sign the implied consent form and stated that "no one was sticking him with a needle." Lieutenant Taylor contacted the dispatcher and learned that the Defendant had prior convictions for DUI in 1989 and in 2008. At 7:44 p.m., Lieutenant Taylor transported the Defendant to the Lewis County Jail and began the process of obtaining a search warrant.

         While the Defendant was in jail, Lieutenant Taylor completed the application for the search warrant and the supporting affidavit at the police department. The magistrate met Lieutenant Taylor at the police department and signed the search warrant at 8:28 p.m.

         The magistrate also signed an "Order for Assistance in Execution of Search Warrant" that was directed to "any physician, nurse, medical technician, or phlebotomist, licensed by the State of Tennessee, or other person qualified in the intravenous removal of human blood." This order was a preprinted form that noted that a search warrant had been issued for a blood draw. The Defendant's information was handwritten in blanks in the form order. The form order "commanded" the medical professional to cooperate with the officer requesting assistance in the execution of the warrant. The form order also provided that "[a]ny individual who fails to comply with this Order when requested shall be liable for contempt of this Court and subject to all penalties authorized by law."

         Upon obtaining the search warrant, Lieutenant Taylor retrieved the Defendant from the Lewis County Jail and transported him to a medical facility in Lewis County to draw his blood. They arrived at the medical facility approximately ten to fifteen minutes after Lieutenant Taylor obtained the search warrant. Lieutenant Taylor met with Joe Lineberry, the on-duty nurse, and asked him to assist in the blood draw. Lieutenant Taylor said the Defendant was combative and repeated that "nobody is sticking a needle in him, nobody is taking his blood." Mr. Lineberry declined to draw the Defendant's blood and informed the officer that the facility's policy was to decline to withdraw blood by force from someone who refused to cooperate.

         Lieutenant Taylor reminded Mr. Lineberry that he had a search warrant, but Mr. Lineberry stated that he could not draw the Defendant's blood due to the policy of the medical facility. Lieutenant Taylor had Mr. Lineberry sign a "State of Tennessee Medical Provider Refusal to Comply with TCA 55-10-406(f) Request for Blood Withdrawal." The form set out section 55-10-406(f) and noted that its effective date as January 1, 2012. The form provided as follows:

I have been informed that as of July 1, 2009 the law mandates that an officer SHALL cause a driver to be tested as described in the copy of the code section printed above regardless of whether the driver does or does not consent. Despite having been informed of this code section and understanding that I refuse to comply with the lawful request of a duly licensed law enforcement officer[, ] I have chosen to refuse to withdraw the above individual's blood. I understand I may be called to testify in Court to explain why the law enforcement officer was unable to comply with the requirements of TCA 55-10-406(f).[1]

         Lieutenant Taylor then contacted Assistant District Attorney General Stacy Edmondson. He said they "attempted to contact Hickman County and Perry County to find out [in] which facility … [they] could serve the warrant." Lieutenant Taylor then transported the Defendant to a medical facility in Perry County, which was approximately twenty miles away and required thirty minutes of travel time. Lieutenant Taylor explained that he wanted to obtain a blood sample as soon as possible because the alcohol level in a person's system typically decreases over time.

         Upon arriving at the medical facility in Perry County, Lieutenant Taylor was joined by a deputy with the Perry County Sheriff's Department. Lieutenant Taylor met with the nurse who was on duty and provided her with a copy of the search warrant. According to Lieutenant Taylor, the Defendant was still combative and continued to state that "no one is sticking a needle in [him], no one is taking [his] blood." The nurse spoke to the Defendant, but the Defendant refused to submit a blood sample. The Defendant was told that he would be strapped down if he refused to comply. The ...


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