Flores, Jose Angel Jr.

PD-0071-15 PD-0071-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/13/2015 4:04:58 PM Accepted 2/17/2015 3:00:09 PM ABEL ACOSTA No. 04-13-00754-CR CLERK

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JOSE ANGEL FLORES, JR., Appellant v. THE STATE OF TEXAS, Appellee

Appeal from Guadalupe County

• • * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

• • * * * * February 17, 2015 LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney Bar I.D. No. 24031632

P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512-463-1660 (Telephone) 512-463-5724 (Fax)

Oral Argument Requested

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

• • The parties to the trial court’s judgment are the State of Texas and Appellant, Jose Angel Flores, Jr.
• • The trial judge was Hon. Frank Follis.
• • Counsel for the State at trial was Joe Buitron, 211 W. Court Street, Seguin, Texas 78155.
• • Counsel for the State before the Court of Appeals was Christopher M. Eaton, Guadalupe County Attorney, 211 W. Court Street, 3rd Floor, Seguin, Texas 78155.
• • Counsel for the State before the Court of Criminal Appeals is Stacey M. Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.
• • Counsel for Appellant at trial was W. David Friesenhahn, 314 N. Austin Street, Seguin, Texas 78155.
• • Counsel for Appellant before the Court of Appeals was Susan Schoon, 118 S. Union Avenue, New Braunfels, Texas 78130.

TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4 GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Is a warrantless, mandatory blood draw conducted pursuant to TEX. TRANS. CODE § 724.012(b)(3)(B)—the repeat offender provision— reasonable under the Fourth Amendment?

2. Do the federal and state (TEX. CODE CRIM. PROC. art. 38.23) exclusionary rules require suppression when, at the time of the search, the warrantless blood draw was authorized by TEX. TRANS. CODE § 724.012(b)(3)(B) and binding caselaw?

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-10 PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 APPENDIX (Opinion of the Court of Appeals)

i

INDEX OF AUTHORITIES

Cases Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . 6-7 Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . 6 New York v. Belton, 453 U.S. 454 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).. . . . . . . . . . . . . . . . . . . . 6 Davis v. United States, 131 S. Ct. 2419 (2011). . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 9 Douds v. State, PD-0857-14 (granted Sept. 17, 2014).. . . . . . . . . . . . . . . . . . . . . . . 5

Flores v. State, No. 04-13-00754-CR, 2014 Tex. App. LEXIS 13418 (Tex. App.—San Antonio Dec. 17, 2014) (not designated for publication). . . . . . . . . . . . 2, 3 n.1, 3-4

Arizona v. Gant, 556 U.S. 332 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan. 14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . 6 Karnev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . 6 Illinois v. Krull, 480 U.S. 342 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . 9 Missouri v. McNeely, 133 S. Ct. 1552 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7 Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . 7

Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan. 15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ii Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . 9 Schmerber v. California, 384 U.S. 757 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014, reh’g filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Weems v. State, 2014 Tex. App. LEXIS 5109 (2014). . . . . . . . . . . . . . . . . . . 4, 4 n.2

Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov. 17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 n.3

Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013). . . . . . . . . . . . . 8 n.4 Wilson v. State, 311 S.W. 3d 452 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . 9 Statutes TEX. CODE CRIM. PROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2 TEX. TRANS. CODE § 724.012(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6 TEX. TRANS. CODE § 724.012(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 n.1, 8

iii

No. 04-13-00754-CR

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JOSE ANGEL FLORES, JR., Appellant v. THE STATE OF TEXAS, Appellee

Appeal from Guadalupe County

• • * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

• • * * * * TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney respectfully urges this Court to grant review.

STATEMENT REGARDING ORAL ARGUMENT

The State requests oral argument on Ground 2. This Court has not yet addressed whether the federal and state (TEX. CODE CRIM. PROC. art. 38.23) exclusionary rules require suppression when, at the time of the search, warrantless blood draws were authorized by TEX. TRANS. CODE § 724.012(b) and binding *2 caselaw. Discussion would assist the Court in determining (1) whether the federal good-faith exception applies, and (2) whether the principles underlying the federal good-faith exception also support a determination that the blood was not “obtained . . . in violation” of the law. See TEX. CODE CRIM. PROC. art. 38.23.

STATEMENT OF THE CASE

The trial court denied Appellant’s suppression motion that challenged the warrantless draw of his blood under TEX. TRANS. CODE § 724.012(b)(3)(B) based on the Supreme Court’s then-recent decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). After accepting Appellant’s no contest plea to misdemeanor driving while intoxicated, the trial court found him guilty and sentenced him to ninety days’ in jail and assessed a $1,000 fine. 4 RR 4; 5 RR 5.

STATEMENT OF PROCEDURAL HISTORY

The court of appeals reversed the denial of Appellant’s motion to suppress. Flores v. State, No. 04-13-00754-CR, 2014 Tex. App. LEXIS 13418 (Tex. App.—San Antonio Dec. 17, 2014) (not designated for publication). The State did not seek rehearing.

STATEMENT OF FACTS

Blood Draw Evidence

The court of appeals summarized the facts relating to the blood draw as follows:

On November 3, 2009, at about 8:00 p.m., Flores was stopped for a traffic violation by Deputy Robert Williams and asked to provide a breath specimen. Flores refused. He was then arrested and placed inside Deputy Williams’s patrol vehicle. While en route to the jail, Deputy Williams called dispatch and asked that a background check be run on Flores. Deputy Williams was informed by dispatch that Flores had two prior convictions for DWI. Deputy Williams then took Flores to the medical center so that a blood sample could be taken from Flores pursuant to section 724.012(b)(3)(B) of the Texas Transportation Code. Deputy Williams did not obtain a warrant for the blood draw.1

Flores, 2014 Tex. App. LEXIS 13418, at *1-2. Court of Appeals

The court of appeals reversed the trial court’s suppression ruling. Relying on this Court’s decision in Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014, reh’g filed), the court held that the draw violated the Fourth Amendment. Flores, 2014 Tex. App. LEXIS 13418, at *4-7. Regarding the propriety of suppression, the State claimed that the blood was not “obtained . . . in violation” of the law under Article 38.23 because, at the time of the

1 It was later determined that Appellant did not have two prior DWI convictions. Flores, 2014 Tex. App. LEXIS 13418, at *2. The trial court granted Flores’ first suppression motion on the basis that TEX. TRANS. CODE § 724.012(b)(3)(B) had been violated. Id. at *2. The court of appeals reversed and remanded the case to the trial court. Id. On remand, Appellant challenged the blood draw under McNeely. Id.

draw, warrantless draws under Section 724.012(b)(3)(B) were lawful. Id. at *7-9. The court, however, concluded that the statute does not dispense with the warrant requirement; thus, blood obtained in the absence of a warrant or other recognized exception to the warrant requirement violates the Fourth Amendment. Id. at *8. Finally, citing its decision in Weems v. State, 434 S.W.3d 655, 666-67 (Tex. App.—San Antonio 2014),2 the court declined to apply the good-faith exception to the federal and state exclusionary rules. Flores, 2014 Tex. App. LEXIS 13418, at *9.

GROUNDS FOR REVIEW

1. Is a warrantless, mandatory blood draw conducted pursuant to TEX. TRANS. CODE § 724.012(b)(3)(B)—the repeat offender provision— reasonable under the Fourth Amendment?

2. Do the federal and state (TEX. CODE CRIM. PROC. art. 38.23) exclusionary rules require suppression when, at the time of the search, the warrantless blood draw was authorized by TEX. TRANS. CODE § 724.012(b)(3)(B) and binding caselaw?

2 Weems held that the good-faith exceptions recognized by the Supreme Court do not apply to Texas’ exclusionary rule. 434 S.W.3d at 666-67.

ARGUMENT

1. The draw was reasonable under the Fourth Amendment.

The warrantless blood draw, conducted under Section 724.012(b)(3)(B), was reasonable under Fourth Amendment jurisprudence. Review should be granted because the same issue is pending on rehearing in Villarreal v. State, and in Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan. 14, 2015), and Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan. 15, 2015), and Douds v. State, PD-0857-14 (granted Sept. 17, 2014).3

2. The federal and state exclusionary rules do not require suppression because police relied on binding law authorizing the search at the time it was conducted.

Federal Exclusionary Rule

The Supreme Court has held that the good-faith exception to the Fourth Amendment’s exclusionary rule applies when law enforcement, at the time of the search, acted objectively reasonably by relying on (1) a statute, which was later declared unconstitutional, or (2) binding judicial precedent, which was subsequently overruled. Illinois v. Krull, 480 U.S. 342, 349-57 (1987) (statutes); Davis v. United States, 131 S. Ct. 2419, 2428-34 (2011) (caselaw).

The good-faith exception is applicable here. First, the police relied on the

3 Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov. 17, 2014), does not implicate the repeat offender provision.

mandatory blood draw statute authorizing the search without a warrant. TEX. TRANS. CODE § 724.012(b); see Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). At the time of the search, the statute was presumptively constitutional. See Karnev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (“Statutes are presumed to be constitutional until it is determined otherwise.”). The statute, by its plain terms, does not require police to obtain a warrant. To conclude otherwise conflicts with the rules of statutory construction and this Court’s recognition that the statute implicitly dispenses with the warrant requirement. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991) (courts are prohibited from adding to or subtracting from a statute’s plain text); State v. Johnston, 336 S.W.3d 649, 660 (Tex. Crim. App. 2011) (“Chapter 724 of the Texas Transportation Code, which contains Texas’ implied consent statutes, governs the State’s ability to obtain a breath or blood sample from a DWI suspect when there is no warrant.”) (citing Beeman, 86 S.W.3d 613 at 616).

Second, the police could have reasonably relied on Texas precedent holding that dissipation of alcohol from the blood stream constitutes exigency which, combined with probable cause and a reasonable method of drawing blood, does not require a warrant. In Aliff v. State, this Court upheld the warrantless blood draw from a DWI suspect because there was probable cause to arrest, the draw was “unintrusive,” and alcohol is “quickly consumed” and “would be lost forever.” 627 S.W.2d 166, 169-70 *7 (Tex. Crim. App. 1982); see also Pesina v. State, 676 S.W.2d 122, 123-27 (Tex. Crim. App. 1984) (same). The Court concluded: “In the present case the exigency of rapidly dissipating alcohol justified the search.” Id. Understanding Aliff as establishing a dissipation exigency per se rule is not unreasonable because the need for probable cause and the reasonableness of venipuncture blood draws were already settled by Schmerber v. California. 384 U.S. 757, 768-71 (1966). Such a view was not uncommon; McNeely acknowledged a nation-wide split of authority on the issue. 133 S. Ct. at 1558.

But what about the fact that McNeely did not announce a new rule of law? The Court’s decision makes clear that McNeely explained what Schmerber stood for all along. Id. at 1559-61. However, that lower courts wrongly interpreted Supreme Court authority does not bar the application of the good-faith exception. In Arizona v. Gant, the Supreme Court recognized that many courts misconstrued New York v. Belton, 453 U.S. 454 (1981), to create a bright-line entitlement rule to a vehicle search after a recent occupant’s arrest, regardless of whether the passenger compartment is within reach. 556 U.S. 332, 342-43 (2009).

The issue in Davis v. United States was whether it is appropriate to apply the exclusionary rule to a pre-Gant search that was, at the time of the search, permissible under Eleventh Circuit precedent adopting the erroneous Belton “entitlement” rule. *8 131 U.S. at 2424-28. According to the Court, because the officers complied with binding caselaw at the time, their conduct was objectively reasonable. Id. at 2429. Thus, the Court decided to apply the good-faith exception because the circumstances did not involve police misconduct—the problem the exclusionary rule was developed to deter. Id. at 2492, 2432.

Here, the officer withdrew Appellant’s blood under the authority of a valid statute and binding precedent. Therefore, applying the exclusionary rule would not serve the rule’s purpose. For purposes of the Fourth Amendment, the good-faith exception precludes suppression. Texas’ Exclusionary Rule

Contrary to the court of appeals’ determination, suppression is not required or justified under Texas’ exclusionary rule either. Article 38.23 prohibits the use of evidence “obtained . . . in violation” of the law.4 TEX. CODE CRIM. PROC. art. 38.23(a). Not every violation of the law is subject to exclusion under Article 38.23. This Court has not applied the plain language of the statute and instead has read into it a requirement that the violation be related “to the purpose of the exclusionary rule

4 As observed by Judge Price, the federal exclusionary rule’s “labels” (i.e., “exceptions”) do not apply to Article 38.23, though the overall concept and rationale underlying them may be applicable. Wehrenberg v. State, 416 S.W.3d 458, 475-76 (Tex. Crim. App. 2013) (Price, J., concurring). The correct inquiry is, “Was the evidence ‘obtained’ by virtue of the primary illegality.” Id. at 476.

or to the prevention of the illegal procurement of evidence of crime.” Wilson v. State, 311 S.W. 3d 452, 459 (Tex. Crim. App. 2010). In Miles v. State, the Court held that a person’s violation of traffic laws in order to make a citizen’s arrest did not implicate Article 38.23, noting that “only those acts which violate a person’s privacy rights or property interests are subject to the state or federal exclusionary rule.” 241 S.W.3d 28, 36, 46 (Tex. Crim. App. 2007). And in Rocha v. State, the Court held that Article 38.23 does not apply to evidence obtained in violation of the Vienna Convention because the treaty is intended to protect nations; it does not create enforceable individual rights. 16 S.W.3d 1, 18-19 (Tex. Crim. App. 2000).

A similar suppression exemption should be recognized here because the primary purpose of Article 38.23 is not furthered when a search was conducted pursuant to a presumptively valid statute and case law interpreting it. Like the federal exclusionary rule, the purpose of Article 38.23 is to deter police misconduct. Miles, 241 S.W.3d at 36. Here, because the officer acted lawfully at the time of the search by relying on a statute and binding precedent from this Court, the blood was not “obtained . . . in violation” of the law. A decision overruling a law that was valid at the time of the search should not operate retroactively for purposes of the remedy in Article 38.23. See Davis, 131 S. Ct. at 2430-32 (distinguishing retroactive application from the availability of the remedy of suppression). In this case, there was no police *10 misconduct to remedy.

PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals grant review and reverse the decision of the court of appeals.

Respectfully submitted,

LISA C. McMINN State Prosecuting Attorney Bar I.D. No.13803300

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney Bar I.D. No. 24031632

P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512-463-1660 (Telephone) 512-463-5724 (Fax)

CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this document contains 1,661 words, exclusive of the items excepted by TEX. R. APP. P. 9.4(i)(1).

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the State’s Petition for Discretionary Review has been served on February 13, 2015, via certified electronic service provider to:

Hon. Christopher M. Eaton Guadalupe County Attorney’s Office 211 West Court Street, 3rd Floor Seguin, Texas 78155 chris.eaton@co.guadalupe.tx.us

Hon. Susan Schoon Zamora & Schoon, PLLC 118 S. Union Avenue New Braunfels, Texas 78130 sschoon@zslawoffice.com

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney

APPENDIX

1 of 100 DOCUMENTS

Jose Angel FLORES Jr., Appellant v. The STATE of Texas, Appellee

No. 04-13-00754-CR

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

2014 Tex. App. LEXIS 13418

December 17, 2014, Delivered December 17, 2014, Filed

NOTICE: PLEASE CONSULT THE TEXAS RULES On November 3, 2009, at about 8:00 p.m., Flores OF APPELLATE PROCEDURE FOR CITATION OF was stopped for a traffic violation by Deputy Robert UNPUBLISHED OPINIONS. Williams and asked to provide a breath specimen. Flores refused. He was then arrested and placed inside Deputy PRIOR HISTORY: [*1] From the County Court at Williams's patrol vehicle. While en route to the jail, Law No. 2, Guadalupe County, Texas. Trial Court No. Deputy Williams called dispatch and asked that a CCL-10-0869. Honorable Frank Follis, Judge Presiding. background check be run on Flores. [*2] Deputy State v. Flores, 392 S.W.3d 229, 2012 Tex. App. LEXIS Williams was informed by dispatch that Flores had two 9995 (Tex. App. San Antonio, 2012) prior convictions for DWI. Deputy Williams then took Flores to the medical center so that a blood sample could DISPOSITION: REVERSED AND REMANDED. be taken from Flores pursuant to section 724.012(b)(3)(B) of the Texas Transportation Code. Deputy Williams did not obtain a warrant for the blood COUNSEL: For APPELLANT: Susan Lee Schoon, draw. It was later determined that Flores did not, in fact, Zamora & Schoon, PLLC, New Braunfels, TX. have two prior convictions for DWI. For APPELLEE: Christopher M. Eaton, Guadalupe This is the second time we have heard an appeal County - Assistant Attorney, Seguin, TX. from a decision in the underlying cause. In the first appeal, State v. Flores, 392 S.W.3d 229 (Tex. App.--San JUDGES: Opinion by: Karen Angelini, Justice. Sitting: Antonio 2012, pet. ref'd), the State appealed the trial Catherine Stone, Chief Justice, Karen Angelini, Justice, court's interlocutory order granting Flores's first motion Rebeca C. Martinez, Justice. to suppress, which had been based on a statutory violation of section 724.012(b)(3)(B). We reversed the OPINION BY: Karen Angelini trial court's order, holding that Flores had not met his burden of making a prima facie showing of a statutory OPINION violation under section 724.012(b)(3)(B). On remand, Flores filed a second motion to suppress based on the MEMORANDUM OPINION Supreme Court's recent decision in McNeely, arguing that the mandatory blood draw violated his rights under the REVERSED AND REMANDED Fourth Amendment. Jose Angel Flores Jr. appeals the trial court's denial On July 17, 2013, at the hearing on Flores's second of his motion to suppress blood evidence, arguing his motion to suppress, the trial court took judicial notice of motion should have been granted pursuant to the the testimony that was provided in the first suppression Supreme Court's recent decision in Missouri v. McNeely, hearing. Deputy Williams then provided additional 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). Because we testimony. Deputy Williams testified [*3] that the agree that Flores's motion to suppress should have been normal business hours for the Guadalupe County offices granted, we reverse the judgment of the trial court and were 8:00 a.m. to 5:00 p.m. and that judges are not remand the cause for a new trial. readily available after hours. According to Deputy Williams, there must be "special circumstances" before BACKGROUND

Page 2 2014 Tex. App. LEXIS 13418, *

an officer can attempt to locate a judge outside of normal 2014 WL 6734178, at *20. Thus, the court of criminal business hours, and "to do that, [the officer] ha[s] to go appeals "reject[ed] the State's assertion that a warrantless, up [his] chain of command." Deputy Williams testified nonconsensual blood draw conducted pursuant to those that at that time, he would need to contact and notify his provisions [of the Transportation Code] can fall under supervisor, Sergeant Strauss, that he needed a warrant. one of the established exceptions to the warrant Deputy Williams testified that he did not attempt to requirement." Id. The court of criminal appeals further obtain a warrant to authorize the blood draw on Flores. "reject[ed] the State's suggestion that such a search may Deputy Williams explained that he did not believe he be upheld under a general Fourth Amendment balancing needed a warrant under section 724.012(b)(3)(B). On test." Id. cross-examination, Deputy Williams confirmed that his department did, in fact, have procedures for obtaining a 1 When the trial court held its hearing on warrant after normal business hours. After hearing all the Flores's second suppression motion, it did not evidence presented, the trial court denied Flores's second have the benefit of this court's decision in Weems. motion to suppress. Flores then pled guilty and now Alternatively, the State argues that a recognized appeals the denial of his pre-trial motion to suppress. exception to the Fourth Amendment's warrant requirement applies in this case--exigent circumstances. DISCUSSION The State points to the testimony of Deputy Williams Flores argues that the warrantless blood draw that the traffic stop occurred after normal business hours performed on him violated his rights under the Fourth and that before requesting a warrant, Deputy Williams Amendment to the Constitution. For support, Flores relies would have to go up his chain of command, which began on the Supreme Court's [*4] decision in McNeely and with Sergeant Strauss. We disagree with the State that this court's decision in Weems v. State, 434 S.W.3d 655 this record supports exigent circumstances. Exigent (Tex. App.--San Antonio 2014, pet. granted).1 In Weems, circumstances "applies when [*6] the exigencies of the 434 S.W.3d at 665, we analyzed McNeely and concluded situation make the needs of law enforcement so that section 724.012(b)(3)(B) does not constitute a valid compelling that a warrantless search is objectively exception to the Fourth Amendment's warrant reasonable under the Fourth Amendment." McNeely, 133 requirement. The State recognizes the applicability of our S. Ct. at 1558. The State had the burden below to prove holding in Weems, but argues that we should reconsider the warrantless search was reasonable pursuant to the our holding in Weems. We need not do so, however, as exigent circumstances exception under the totality of the the Texas Court of Criminal Appeals recently held in circumstances. See Amador v. State, 275 S.W.3d 872 State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. (Tex. Crim. App. 2009); Gutierrez v. State, 221 S.W.3d App. LEXIS 1898, 2014 WL 6734178, at *20 (Tex. Crim. 680, 686 (Tex. Crim. App. 2007). App. Nov. 26, 2014), that "the provisions in the The only evidence presented at the hearing was from Transportation Code do not, taken by themselves, form a Deputy Williams, who confirmed that his department constitutionally valid alternative to the Fourth did, in fact, have procedures for obtaining a warrant after Amendment warrant requirement." The court of criminal normal business hours. His knowledge on these appeals explained that "the Supreme Court's holding in procedures was limited. Deputy Williams knew that he McNeely makes clear that drawing the blood of an had to contact his supervisor, but did not know what individual suspected of DWI falls under the category of occurred after he did so. Deputy Williams testified he cases holding that 'a warrantless search of a person is made no attempt to secure such a warrant by following reasonable only if it falls within a recognized exception' these procedures. Thus, this record is limited in its to the warrant requirement." Villarreal, 2014 Tex. Crim. testimony regarding "procedures in place for obtaining a App. LEXIS 1898, 2014 WL 6734178, at *20 (quoting warrant or the availability of a magistrate judge." McNeely, 133 S. Ct. at 1558) (emphasis added). The McNeely, 133 S. Ct. at 1568. It also does not reflect "the court of criminal appeals emphasized that the McNeely practical problems of obtaining a warrant within a Court "explained that such an intrusion implicates an timeframe that still preserves the opportunity to obtain individual's 'most personal and deep-rooted expectations reliable evidence." Id. We therefore conclude that this of privacy.'" Villarreal, 2014 Tex. Crim. App. LEXIS record does not show that under the totality of the 1898, 2014 WL 6734178, at *20 (quoting McNeely, 133 circumstances, the warrantless blood draw was [*7] S. Ct. at 1558). According to the court of criminal justified by the exigent circumstances exception to the appeals, "[t]hese principles from McNeely--the Fourth Amendment's warrant requirement. See Weems, recognition of the [*5] substantial privacy interests at 434 S.W.3d at 666. stake and the applicability of the traditional Fourth Amendment framework that requires either a warrant or As the State did not show that the warrantless blood an applicable exception--apply with equal force to this draw was reasonable under the Fourth Amendment, case." Villarreal, 2014 Tex. Crim. App. LEXIS 1898, Flores's second motion to suppress should have been

Page 3 2014 Tex. App. LEXIS 13418, *

granted. After the trial court denied Flores's second language contained within the provisions in the Texas motion to suppress, he decided to plead guilty. We Transportation Code "is silent as to whether a law- cannot determine beyond a reasonable doubt that the trial enforcement officer conducting a mandatory, court's failure to grant his motion to suppress did not nonconsensual search of a DWI suspect's blood is contribute in some measure to the State's leverage in required to first seek a warrant." Further, warrantless obtaining Flores's guilty plea and thus to Flores's seizures have always been impermissible under the conviction. See TEX. R. APP. P. 44.2(a); Kennedy v. State, Fourth Amendment unless founded on a recognized 338 S.W.3d 84, 102-03 (Tex. App.--Austin 2011, no pet.). exception. See United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). In Villarreal, Finally, the State argues that even if we hold that 2014 Tex. Crim. App. LEXIS 1898, 2014 WL 6734178, at Flores's rights under the Fourth Amendment were *19, the court of criminal appeals emphasized that the violated by the warrantless, nonconsensual blood draw, Texas Legislature "may not restrict guaranteed rights set the Texas exclusionary rule as enunciated in article out in constitutional provisions." According to the court 38.23(a) should not apply. According to the State, the of criminal appeals, "[t]o the extent [*9] the mandatory- blood draw was not taken "in violation" of law. See TEX. blood-draw statute may be interpreted as authorizing a CODE OF CRIM. PROC. ANN. art. 38.23(a) (West 2005) warrantless search that would violate a defendant's rights ("No evidence obtained by an officer or other person in under the Fourth Amendment, it cannot do so." Id. violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the The State also argues the Texas exclusionary rule United States of America, shall be admitted in evidence and federal exclusionary rule should not apply because against the accused on the trial of any criminal case."). the officer relied on section 724.012(b)(3)(B) in good The State [*8] argues that "it is indisputable that the faith. We rejected this argument in Weems and in state of the law on November 3, 2009, was that subsequent cases. See Weems, 434 S.W.3d at 666-67; see warrantless blood draws made pursuant to section also McNeil, 443 S.W.3d at 303; Fitzgerald v. State, No. 724.012(b)(3)(B) were permissible and was not seized in 04-13-00662-CR, 2014 Tex. App. LEXIS 8208, 2014 WL violation of the law as it was understood on that day." 3747270, at *2 (Tex. App.--San Antonio July 30, 2014, We disagree with the State. Section 724.012(b)(3)(B) pet. filed). does not explicitly authorize a warrantless search. Weems, 434 S.W.3d at 666; see also McNeil v. State, 443 CONCLUSION S.W.3d 295, 303 (Tex. App.--San Antonio 2014, pet. Because the warrantless blood draw violated Flores's filed). It "does not address or purport to dispense with the rights under the Fourth Amendment, his second motion to Fourth Amendment's warrant requirement for blood suppress should have been granted. We thus reverse the draws." Weems, 434 S.W.3d at 666 (citation omitted). In judgment of the trial court and remand for a new trial. responding "to the contention that the Legislature has clearly indicated its desire to create a new exception to Karen Angelini, Justice the warrant requirement," the Texas Court of Criminal Appeals observed in Villarreal, 2014 Tex. Crim. App. Do not publish LEXIS 1898, 2014 WL 6734178, at *19, that the statutory