Weems, Daniel James , 493 S.W.3d 574 ( 2016 )


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  •           IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. PD-0635-14
    DANIEL JAMES WEEMS, Appellant
    v.
    THE STATE OF TEXAS
    ON STATE’S PETITION FOR DISCRETIONARY REVIEW
    FROM THE FOURTH COURT OF APPEALS
    BEXAR COUNTY
    K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J, and
    M EYERS, J OHNSON, H ERVEY, A LCALA, R ICHARDSON, and N EWELL, JJ., joined. Y EARY,
    J., not participating.
    OPINION
    At his felony driving-while-intoxicated trial, Daniel Weems moved to suppress the
    results of a warrantless blood draw. The trial judge denied his request. The court of appeals
    reversed, holding, among other things, that the State failed to establish that Weems’s
    warrantless blood draw was justified by exigent circumstances. We agree and affirm the
    court of appeals’ judgment.
    WEEMS—2
    I.
    A. Trial
    Around midnight in early June 2011, Weems drove himself and a friend back to his
    house from a nearby bar where the two had been drinking. On the way, Weems’s car started
    to slowly veer off the road, flipped over on to its roof, and struck a utility pole. Shortly after
    the accident, a passing car stopped after seeing the car on its roof with its tires still spinning.
    The driver was the first on the scene. She saw Weems get out of the vehicle through the
    driver’s side window. Weems got out of the car and tried to stand, but was stumbling and
    having difficulty maintaining his balance. When she asked if he was okay or if he was drunk,
    Weems said he was drunk. He then ran from the scene. Weems’s passenger was leaning
    against a post and was “beat up pretty bad from the accident.” The driver of the passing car
    noticed a strong smell of alcohol coming from the inside of the car. She called 911.
    Bexar County Sheriff’s Deputy Munoz was dispatched to the scene, where, according
    to the caller, the driver left the scene of the accident. As he approached the area, Munoz
    stopped his car when a woman waved him down. She pointed to a parked car and told him
    that someone was under her car and that he did not belong there. When Munoz approached
    the parked car, he saw an injured man under the car matching the driver’s description.
    Munoz detained Weems at 12:17 a.m. and noticed Weems’s bloodshot eyes, slurred speech,
    bloodied face, and inability to stand on his own.
    Deputy Bustamante took Weems into his custody where Munoz detained him roughly
    WEEMS—3
    a quarter of a mile away from the accident scene. Bustamante immediately noticed the strong
    odor of alcohol on Weems’s breath, his bloodshot eyes, his unsteadiness on his feet, and his
    slurred speech. Because Bustamante believed that Weems suffered injuries as a result of the
    accident, he did not conduct any field-sobriety tests. Based on his observations, Bustamante
    concluded that Weems had lost the normal use of his mental and physical faculties due to
    alcohol1 and arrested Weems on suspicion of driving while intoxicated.
    Weems refused to give a breath or blood sample after being read the statutory
    warnings about the consequences of refusal. Weems was treated by EMS at the scene. But
    because he complained about neck and back pain, EMS transported him to University
    Hospital. Bustamante followed the ambulance to the hospital. It took only a “couple of
    minutes” to get from the accident scene to the hospital.
    Based on his injuries, Weems was placed in the hospital’s trauma unit. Once
    Bustamante arrived at the hospital he filled out a form requesting a blood draw and gave it
    to the nurse in charge. Because the hospital was particularly busy that night, Weems’s blood
    was taken at 2:30 a.m., over two hours after his arrest. Subsequent testing indicated a blood-
    alcohol concentration of .18 grams per deciliter, well above the .08 gram per deciliter
    definition of intoxication.2
    Weems sought to suppress the blood-test results at trial, relying on the United States
    1
    See T EX. P ENAL C ODE § 49.01(2)(A) (defining intoxication as “not having the
    normal use of mental or physical faculties.”).
    2
    See 
    id. § 49.01(1)–(2).
                                                                                     WEEMS—4
    Supreme Court’s opinion in Missouri v. McNeely3 decided in the middle of his trial. Without
    making any findings of fact or conclusions of law, the judge overruled Weems’s objection
    and admitted the test results. The jury convicted Weems of felony DWI and, after finding
    the enhancement allegation true, assessed a sentence of eight years’ confinement.
    B. Court of Appeals
    On appeal, Weems argued that the judge erred in failing to suppress the warrantless
    blood-draw results. The Fourth Court of Appeals agreed and found its admission harmful.4
    In reaching its conclusion, the court held that a warrantless search of a person is reasonable
    only if it falls within a recognized exception to the Fourth Amendment’s warrant
    requirement.5 In light of Missouri v. McNeely, the court held that Texas’s implied consent
    and mandatory blood-draw schemes do not constitute warrant-requirement exceptions.6 The
    court further held that the record developed at trial did not support admitting the evidence
    under the exigency exception.7
    We granted the State’s petition for discretionary review that asserted four grounds:
    1.        Are the “established exceptions” to the “warrant requirement” the exclusive
    way of determining whether a particular warrantless search or seizure is
    3
    
    133 S. Ct. 1552
    (2013).
    4
    Weems v. State, 
    434 S.W.3d 655
    , 667 (Tex. App.—San Antonio 2014).
    5
    
    Id. at 659.
           6
    
    Id. at 664–65.
           7
    
    Id. at 665–67.
                                                                                        WEEMS—5
    reasonable under the Fourth Amendment?
    2.         Is a warrantless, nonconsensual search administered in compliance with
    Transportation Code section 724.012(b) reasonable under the Fourth
    Amendment?
    3.         Did the court of appeals err in its interpretation of section 724.012(b) by
    suggesting that the statute does not dispense with a search warrant?
    4.         Did the court of appeals err in its conclusion that there were no exigent
    circumstances?
    II.
    We review a trial judge’s ruling on a motion to suppress under a bifurcated standard
    of review.8       First, we afford almost total deference to a trial judge’s determination of
    historical facts. The judge is the sole trier of fact and judge of witnesses’ credibility and the
    weight to be given their testimony.9 When findings of fact are not entered, we view the
    evidence in the light most favorable to the judge’s ruling and assume the judge made implicit
    findings of fact that support the ruling as long as the record supports those findings.10
    Second, we review a judge’s application of the law to the facts de novo.11 We will sustain
    the judge’s ruling if the record reasonably supports that ruling and is correct on any theory
    of law applicable to the case.12
    8
    Turrubiate v. State, 
    399 S.W.3d 147
    , 150 (Tex. Crim. App. 2013).
    9
    Valtierra v. State, 
    310 S.W.3d 442
    , 447 (Tex. Crim. App. 2010).
    10
    
    Id. 11 Id.
           12
    
    Id. at 447–48.
                                                                                      WEEMS—6
    A. The Fourth Amendment
    The Fourth Amendment provides in pertinent part that “[t]he right of the people to be
    secure in their persons, houses, papers, and effects, against unreasonable searches and
    seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” 13 A
    warrantless search of a person is reasonable only if it falls within a recognized exception.14
    Bodily intrusions implicate an individual’s “most personal and deep-rooted expectations of
    privacy,” and therefore are considered searches that fall under the Fourth Amendment’s
    warrant requirement.15 There are several exceptions to the warrant requirement, but the
    instant case involves only one: a warrantless search performed to prevent imminent evidence
    destruction.16 The delineated warrant-requirement exceptions are permitted because each is
    potentially reasonable and “there is a compelling need for official action and no time to
    secure a warrant.” 17
    B. The Fourth Amendment and Texas’s Transportation Code
    
    13 U.S. C
    ONST. amend. IV.
    14
    State v. Villarreal, 
    475 S.W.3d 784
    , 796 (Tex. Crim. App. 2015), reh’g denied,
    
    475 S.W.3d 817
    (Tex. Crim. App. 2015) (per curiam).
    15
    
    McNeely, 133 S. Ct. at 1558
    –59 (quoting Winston v. Lee, 
    470 U.S. 753
    , 760
    (1985)).
    16
    See Cupp v. Murphy, 
    412 U.S. 291
    , 296 (1973).
    17
    
    McNeely, 133 S. Ct. at 1559
    (quoting Michigan v. Tyler, 
    436 U.S. 499
    , 509
    (1978)).
    WEEMS—7
    In State v. Villarreal,18 this Court considered and resolved the State’s first three
    grounds for review against it. This Court considered and rejected the circumstances and
    interests that the State asserts in support for its argument that a search pursuant to §
    724.012(b) is reasonable; namely, (1) § 724.012(b) is a reasonable statute under the “special
    needs” exception; (2) the State has a compelling interest in securing the most probative
    evidence; (3) § 724.012(b)’s command protects against arbitrary police conduct; and (4) and
    Weems has a diminished privacy interest.19 We need not address these arguments.
    The State also maintains the court of appeals misconstrued § 724.012(b) by holding
    that the statute does not eliminate the need for search warrants in certain limited situations,
    when in fact it does. However, this Court necessarily found against this argument by
    holding, that without an issued warrant, a search was unreasonable unless it fit an established
    warrant-requirement exception.20      The Court also considered and necessarily rejected
    essentially the same argument on rehearing.21 But Villarreal, like McNeeley itself, did not
    present an opportunity to address whether circumstances surrounding a warrantless blood
    draw satisfied the exigency exception and rendered the search constitutionally permissible.
    
    18 475 S.W.3d at 784
    .
    19
    
    Id. at 808–09
    (holding that a warrantless search is reasonable only if it falls
    within a recognized exception to the warrant requirement and that a balancing test to
    determine whether the search was reasonableness is not appropriate).
    20
    See 
    id. 21 See
    id. at 817 
    (per curiam) (opinion on reh’g).
    WEEMS—8
    C. Exigency and Warrantless Blood Draws
    As Villarreal made plain, a warrantless search is per se unreasonable unless it falls
    within a well-recognized exception to the warrant requirement.22 The exigency exception
    operates “when the exigencies of the situation make the needs of law enforcement so
    compelling that a warrantless search is objectively reasonable under the Fourth
    Amendment.”23 Exigency potentially provides for a reasonable, yet warrantless search
    “because ‘there is compelling need for official action and no time to secure a warrant.’” 24
    Whether law enforcement faced an emergency that justifies acting without a warrant calls for
    a case-by-case determination based on the totality of circumstances.25 “[A] warrantless
    search must be strictly circumscribed by the exigencies which justify its initiation.” 26 An
    exigency analysis requires an objective evaluation of the facts reasonably available to the
    officer at the time of the search.27
    In Schmerber v. California, the United States Supreme Court held that, based on the
    22
    
    Villarreal, 475 S.W.3d at 808
    –09 (holding that the Texas Transportation Code
    provisions requiring a blood draw under certain circumstances did not create a Fourth
    Amendment exception).
    23
    
    McNeely, 133 S. Ct. at 1558
    (quoting Kentucky v. King, 
    131 S. Ct. 1849
    , 1856
    (2011)).
    24
    
    Id. at 1559
    (quoting Michigan v. Tyler, 
    436 U.S. 499
    , 509 (1978)).
    25
    
    Id. at 1559
    .
    26
    Mincey v. Arizona, 
    437 U.S. 385
    , 393 (1978).
    27
    Brigham City, Utah v. Stuart, 
    547 U.S. 398
    , 404 (2006).
    WEEMS—9
    circumstances surrounding the search, a warrantless seizure of a driver’s blood was
    reasonable.28 Schmerber and his companion were injured and taken to a hospital after
    Schmerber’s car skidded, crossed the road, and struck a tree.29 While Schmerber was at the
    hospital, a police officer directed a physician to take a sample of Schmerber’s blood.
    Subsequent testing indicated a sufficient amount of alcohol in his blood to suggest
    intoxication. Although a bodily intrusion calls for the same individual protections that the
    warrant requirement provides for the search of a home and the seizure of one’s papers, the
    Schmerber Court held that the seizing officer “might reasonably have believed that he was
    confronted with an emergency, in which the delay necessary to obtain a warrant, under the
    circumstances, threatened the destruction of evidence.” 30
    Adopting a totality-of-circumstances approach,31 the Court held that the circumstances
    surrounding the blood draw rendered the warrantless search reasonable: (1) the officer had
    probable cause that Schmerber operated a vehicle while intoxicated;32 (2) alcohol in the body
    naturally dissipates after drinking stops;33 (3) the lack of time to procure a warrant because
    28
    Schmerber v. California, 
    384 U.S. 757
    , 770–72 (1966).
    29
    
    Id. at 785,
    n.2.
    30
    
    Id. at 770
    (internal quotations omitted).
    31
    
    Id. at 768,
    771–72.
    32
    
    Id. at 768–69.
           33
    
    Id. at 770
    .
    WEEMS—10
    of the time taken to transport Schmerber to a hospital and investigate the accident scene;34
    (4) the highly effective means of determining whether an individual is intoxicated;35 (5)
    venipuncture is a common procedure and usually “involves virtually no risk, trauma, or
    pain”;36 and (6) the test was performed in a reasonable manner.37
    The Supreme Court granted certiorari in Missouri v. McNeely to resolve a split of
    authority occurring in Schmerber’s wake as to whether the body’s natural metabolization of
    alcohol in the bloodstream creates a “per se exigency that justifies an exception to the Fourth
    Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving
    cases.”38 The Court unequivocally answered the question in the negative.39
    When McNeely moved to suppress the blood test results under the Fourth
    Amendment, the prosecution argued that alcohol’s natural dissipation in the bloodstream
    alone created a per se exigency under the Fourth Amendment.40 In its petition for certiorari,
    Missouri relied exclusively on its argument that the body’s natural dissipation of alcohol
    alone created an exigent circumstance; it did not challenge the lower court’s holding by
    34
    
    Id. at 770
    –71.
    35
    
    Id. at 771.
           36
    
    Id. 37 Id.
    at 771–72.
    38
    
    McNeely, 133 S. Ct. at 1556
    .
    39
    
    Id. at 1563.
           40
    
    Id. at 1558.
                                                                                   WEEMS—11
    contending that the blood draw was reasonable under the exigency exception for other
    reasons.41 Rejecting Missouri’s per se approach, the Court reaffirmed that a proper exigency
    analysis considers the totality of the circumstances—the approach it adopted in Schmerber.42
    By the Court’s own admission, the McNeely opinion is decidedly narrow. The Court
    repeatedly noted that the record and Missouri’s arguments “[did] not provide the Court with
    an adequate analytic framework for a detailed discussion of all the relevant factors that can
    be taken into account in determining the reasonableness of acting without a warrant.” 43 Yet
    the McNeely majority opinion went on for some length about when exigency may be found
    in the blood-draw context. The Court announced that “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.”44 But the Court
    would still consider alcohol’s natural dissipation over time (and the attendant evidence
    destruction) the antagonizing factor central to law enforcement’s decision whether to seek
    a warrant or proceed with a warrantless seizure: “We do not doubt that some circumstances
    41
    
    Id. at 1568.
           42
    
    Id. at 1559
    –60 (“Our decision in Schmerber applied this totality of the
    circumstances approach.”).
    43
    
    Id. at 1568.
    See also 
    id. at 1567
    (“The State did not argue that there were
    exigent circumstances in this particular case . . . .”), 
    id. at 1568
    (stating that whether
    delays in obtaining a warrant will justify a blood draw without a warrant is an “inquiry
    [that] ought not to be pursued here where the question is not properly before this Court.”).
    44
    
    Id. at 1561.
                                                                                       WEEMS—12
    will make obtaining a warrant impractical such that the dissipation of alcohol from the
    bloodstream will support an exigency justifying a properly conducted warrantless blood
    test.” 45
    While dissipation alone does not permit a warrantless search of a suspect’s blood,
    there may be circumstances surrounding law enforcement’s decision to forego obtaining a
    warrant that withstand Fourth Amendment scrutiny. In addition to natural dissipation, the
    Court noted circumstances relevant to an exigency analysis of a warrantless blood draw.
    They include “the procedures in place for obtaining a warrant,”46 “the availability of a
    magistrate judge,”47 and “the practical problems of obtaining a warrant within a timeframe
    that still preserves the opportunity to obtain reliable evidence.”48 Although the Court’s
    highlighted circumstances carry uncertain precedential value in light of the case’s posture,
    we nonetheless consider them persuasive and applicable.
    III.
    On review of the totality of the circumstances found in the record, we conclude that
    Weems’s warrantless blood draw was not justified by exigent circumstances. While there is
    45
    
    Id. See also
    id. at 1568 
    (“It suffices to say that the metabolization of alcohol in
    the bloodstream and the ensuing loss of evidence are among the factors that must be
    considered in deciding whether a warrant is required.”).
    46
    
    Id. at 1568.
                47
    
    Id. 48 Id.
                                                                                   WEEMS—13
    an aspect of the circumstances surrounding Weems’s blood draw weighing in favor of
    finding an exigency, the totality of the circumstances found in the record do not warrant an
    exigency finding.
    The record establishes that Weems crashed his car around 11:30 p.m. and ran from
    the scene of the accident. It took law enforcement approximately forty minutes to locate
    Weems who actively hid from law enforcement under a car approximately a half a mile from
    the accident. Weems’s own actions certainly delayed law enforcement’s ability to take him
    into custody and consequently placed law enforcement at a temporal disadvantage. While
    evading law enforcement by fleeing the accident scene and hiding, Weems’s blood alcohol
    concentration potentially continued to diminish, and with it, possible evidence to prove or
    disprove his level of intoxication at the time of driving.49 Villarreal does not, nor does
    McNeely itself, require us to turn a blind eye to alcohol’s evanscence and the body’s natural
    dissipation of alcohol in our calculus of determining whether exigency existed. Aside from
    Weems’s own self-imposed delay and the forty minutes worth of alcohol dissipation, little
    else in the record lends support to finding exigency in this case.
    The record is silent on whether Deputy Bustamante knew that, upon arriving at the
    hospital, it would take over two hours for hospital personnel to draw Weems’s blood. And
    to charge the substantial actual delay in securing Weems’s blood sample against
    49
    See T EX. P ENAL C ODE § 49.04(a) (West 2012) (requiring intoxication “while
    operating a motor vehicle”).
    WEEMS—14
    Bustamante’s decision to forego a warrant would impermissibly measure Bustamante’s
    action against hindsight’s omniscience.50 However, Deputy Bustamante did not express
    surprise over the delay in securing Weems’s blood sample. He acknowledged that “since it
    was a Sunday morning, hospitals tend to get kind of busy, kind of packed due to the fact that
    there’s crashes, you know, people getting sick all the time,” and that “[w]e have no control
    over—normally when we request a form, depending how busy they are, sometimes it takes
    a long time just—just to draw someone’s blood.” The deputy’s testimony suggests that
    substantial delay in obtaining Weems’s blood was at least forseeable.
    Bustamante described that the routine practice is to transport DWI arrestees to the San
    Antonio Magistrate’s Office where they are asked to consent to a blood draw. If they do, the
    draw is performed immediately at that location. If arrestees do not consent, the officers will
    draft an affidavit and present it to a magistrate to obtain a warrant. The record does not
    reflect how long this process normally takes. But in this instance, Bustamante testified that,
    because Weems complained of neck and back pain, Weems was transported to the hospital
    and the hospital decided it was best to keep him there for observation. The record does not
    reflect what procedures, if any, existed for obtaining a warrant when an arrestee is taken to
    50
    See Ryburn v. Huff, 
    132 S. Ct. 987
    , 992 (2012) (per curiam) (instructing that
    “reasonableness must be judged from the perspective of a reasonable officer on the scene,
    rather than with the 20/20 vision of hindsight and that the calculus of reasonableness must
    embody allowance for the fact that police officers are often forced to make split-second
    judgments—in circumstances that are tense, uncertain, and rapidly evolving.”) (internal
    quotations omitted).
    WEEMS—15
    the hospital or whether Bustamante could have reasonably obtained a warrant, and if so, how
    long that process would have taken. We are therefore left with the inability to weigh the time
    and effort required to obtain a warrant against the circumstances that informed Bustamante’s
    decision to order the warrantless blood draw. Although the record does not definitively
    establish that a magistrate was available at the time Weems’s blood was drawn, Bustamante’s
    testimony suggests that a magistrate is normally available to review Bexar County Sheriff’s
    deputies’ search-warrant requests.
    Although both this case’s record and that presented in Schmerber involved an alcohol-
    involved accident, the similarity of the two records end there. In Schmerber, the Court noted
    “where time had to be taken to bring the accused to the hospital and to investigate the scene
    of the accident, there was no time to seek out a magistrate and secure a warrant.” 51 This
    passage does not accurately describe the circumstances surrounding Weems’s blood draw.
    First, Deputy Bustamante testified that the hospital was only a “couple of minutes” away.
    So transporting Weems to the hospital did not necessarily make obtaining a warrant
    impractical or unduly delay the taking of Weems’s blood to the extent that natural dissipation
    would significantly undermine a blood test’s efficacy. Second, Bustamante was not alone
    charged with both investigating the scene of the accident and escorting Weems to the hospital
    for treatment. Deputy Shannon—Bustamante’s instructor—waited with Bustamante and
    Weems at the hospital until Weems’s blood was taken. Once the blood was drawn, Shannon
    51
    
    Schmerber, 384 U.S. at 770
    –71.
    WEEMS—16
    left the hospital to place the blood sample in the evidence locker at the Magistrate’s Office
    for subsequent testing. Another officers’ presence or the “hypothetically available officer”
    that, in theory, could have secured a warrant in the arresting officer’s stead will certainly not
    render all warrantless blood draws a Fourth Amendment violation, nor do we suggest it is a
    circumstance that the State must disprove in every case to justify a warrantless search under
    an exigency theory. But this record establishes that Shannon was with Bustamante and
    Weems throughout the investigation and while they were at the hospital waiting for Weems’s
    blood to be drawn. On this particular record, Shannon’s continued presence distinguishes
    Schmerber from the present case and militates against a finding that practical problems
    prevented the State from obtaining a warrant within a time frame that preserved the
    opportunity to obtain reliable evidence.52
    IV.
    McNeely commands that “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.”53 On this record, the State is
    unable to demonstrate that practical problems existed in obtaining a warrant “within a
    timeframe that still preserved the opportunity to obtain reliable evidence.”54 The State failed
    52
    See 
    McNeely, 133 S. Ct. at 1568
    .
    53
    
    Id. at 1561.
           54
    See 
    id. at 1568
    .
    WEEMS—17
    to meet its burden and establish that exigency circumstances existed to satisfy the Fourth
    Amendment’s reasonableness standard.55
    The court of appeals’ judgment is affirmed.
    DELIVERED: May 25, 2016
    PUBLISH
    55
    See Ford v. State, 
    158 S.W.3d 488
    , 493 (Tex. Crim. App. 2005) (stating that it
    is the State’s burden to establish that a warrantless search was reasonable).