California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of Riverside County. Super.Ct. Nos. APP1300100 and RIM1216935 Becky Dugan, Judge.
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Michael J. Kennedy for Defendant and Appellant.
Steven L. Harmon, Public Defender, and Joseph J. Martinez, Deputy Public Defender, for the Riverside County Office of the Public Defender as Amicus Curiae on behalf of Defendant and Appellant.
Bartell & Hensel, Donald J. Bartell, Lara J. Gressley and Jared D. Bartell for the California DUI Lawyers Association as Amicus Curiae on behalf of Defendant and Appellant.
Paul E. Zellerbach and Michael Hestrin, District Attorneys, and Matt Reilly, Deputy District Attorney, for Plaintiff and Respondent.
MCKINSTER ACTING P. J.
In Missouri v. McNeely (2013) 569 U.S. ___ [185 L.Ed.2d 696, 133 S.Ct. 1552] (McNeely), the United States Supreme Court held that, before the police may conduct a nonconsensual blood test of a motorist who is arrested on suspicion of driving under the influence (DUI) of alcohol, the police must either obtain a warrant from a detached magistrate or later show that exigent circumstances prevented them from timely obtaining a warrant. (569 U.S. at p. ___ [133 S.Ct. at p. 1563.) The high court also held that the natural dissipation of alcohol in a driver’s bloodstream does not create exigent circumstances in every case, and that the government must show on a case-by-case basis that a warrantless blood draw was reasonable under the Fourth Amendment to the United States Constitution. (569 U.S. at pp. ___, ___ [133 S.Ct. at pp. 1563, 1568.)
In this case, defendant and appellant Anthony A. Harris appealed from the denial of his motion to suppress evidence obtained during a blood test taken after he was arrested on suspicion of DUI. The superior court appellate division affirmed the order denying defendant’s motion to suppress. The appellate division did not address whether exigent circumstances supported the warrantless blood test because the People did not argue that exigent
circumstances existed, and because the court concluded defendant consented to the test after the arresting officer advised defendant of the consequences of refusing to submit. The appellate division held that McNeely did not foreclose consensual blood tests conducted under the implied consent law, and that defendant’s voluntarily and freely given consent satisfied the Fourth Amendment.
We transferred the appeal from the superior court appellate division to decide an important issue of statewide importance and to secure uniformity of decision and, thereafter, we directed the parties to submit supplemental briefs addressing, inter alia, the impact of McNeely on this case. (Cal. Rules of Court, rules 8.1002, 8.1012(a)(1).) We conclude that McNeely does not govern defendant’s case; that actual consent to a blood test satisfies the Fourth Amendment; that defendant’s submission to the blood test in this case was freely and voluntarily given and did not violate the Fourth Amendment; and that the record contains substantial evidence that defendant’s blood draw was conducted in a reasonable manner.
Even assuming that McNeely is applicable and that defendant’s warrantless blood test may only be supported by exigent circumstances, which the People did not argue and the facts do not demonstrate, we conclude that the evidence in this case may not be suppressed because the good faith exception to the exclusionary rule applies here. Defendant’s blood test was taken before the United States Supreme Court decided McNeely, and at a time when the California courts uniformly held that probable cause of DUI and the natural dissipation of alcohol or drugs in the bloodstream was sufficient to justify a warrantless blood test. Because the police obtained defendant’s blood sample without a warrant in reliance on binding precedent, excluding the evidence in this case would not achieve the exclusionary rule’s purpose of deterring future Fourth Amendment violations.
Therefore, we affirm the order denying defendant’s motion to suppress.
FACTS AND PROCEDURAL HISTORY
On December 13, 2012, the People charged defendant by misdemeanor complaint with one count of driving a motor vehicle under the influence of a drug or alcohol (Veh. Code, § 23152, subd. (a)), and with one count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Defendant pleaded not guilty to both charges at his January 14, 2013
arraignment, and on March 22, 2013, he filed a motion to suppress evidence. (Pen. Code, § 1538.5.)
A. Motion to Suppress
In his written motion, defendant asserted that, incident to his arrest on suspicion of DUI, “he was forced to submit to a blood test.” Defendant argued that the People bore the burden of establishing that the warrantless search was reasonable under the Fourth Amendment, and that the blood test was conducted in a reasonable manner.
In its opposition, the People argued the warrantless search in this case was reasonable under the Fourth Amendment because, contrary to the suggestion in the motion to suppress, defendant was not forced to submit to the blood test but consented to it. The People also argued the blood test was performed in a reasonable manner because it was conducted by a trained professional and was observed by an experienced drug recognition expert. Finally, anticipating that defendant would rely on the recently decided decision in McNeely, the People argued that, even if the search was invalid under McNeely, the trial court should apply the good faith exception to the exclusionary rule because the search was conducted under then-existing law that a blood draw based on probable cause of DUI did not require a warrant or a separate showing of exigent circumstances.
At the hearing on defendant’s motion, Deputy Robinson of the Riverside County Sheriff’s Department testified that at approximately 5:00 p.m. on October 16, 2012, he was on motorcycle patrol near the transition of the 60 and 215 freeways. Deputy Robinson paced defendant’s silver Honda driving approximately 90 miles per hour, and witnessed the vehicle crossing all four lanes of traffic without using a turn signal. He testified the vehicle was traveling well over the 65 miles per hour speed limit, and that crossing all four lanes without using a turn signal was an unsafe maneuver. Deputy Robinson initiated a traffic stop.
Using the loud speaker on his motorcycle, Deputy Robinson directed defendant to pull over to the right shoulder. Defendant did not follow Deputy
Robinson’s direction, and instead came to a stop in the center median of the freeway. Deputy Robinson dismounted from his motorcycle, approached defendant, and asked for defendant’s driver’s license and vehicle registration. While speaking to defendant, Deputy Robinson observed objective symptoms of impairment with a stimulant. Defendant had a flushed, rigid face, his pupils were dilated, his eyes were bloodshot and watery, and he made “jerky movements.” Therefore, Deputy Robinson asked defendant to get out of his vehicle so Deputy Robinson could perform field sobriety tests.
Deputy Robinson testified that he was an expert in drug recognition, that he was trained in administering and interpreting the results of field sobriety examinations, and that he had advanced training in DUI investigations. Deputy Robinson conducted the horizontal gaze nystagmus examination, the Romberg examination, and other traditional field sobriety tests on defendant. Based on defendant’s performance on those examinations, Deputy Robinson concluded that defendant was under the influence of a controlled substance and, he placed defendant under arrest.
Deputy Robinson told defendant that, based on the deputy’s belief that defendant was under the influence of a drug, defendant was required to submit to a chemical blood test. Deputy Robinson advised defendant that he did not have the right to talk to a lawyer when deciding whether to submit to the chemical test, that refusal to submit to the test would result in the suspension of his driver’s license, and that refusal could be used against him in court. Defendant responded, “okay, ” and Deputy Robinson testified that at no time did defendant appear unwilling to provide a blood sample. Deputy Robinson was transported by another deputy to the Moreno Valley Sheriff’s station.
At the sheriff’s station, a phlebotomist with whom Deputy Robinson had previously worked drew defendant’s blood. Deputy Robinson observed the phlebotomist swab the inside of defendant’s right elbow with what appeared to be a disinfectant. The phlebotomist then obtained a blood sample from defendant using a hypodermic syringe. Deputy Robinson testified that defendant did not resist the blood draw or say, “no, I don’t want to do this.” The phlebotomist packaged the sample, and Deputy Robinson placed it into the station’s blood depository.
On cross-examination, Deputy Robinson testified that he did not attempt to obtain a warrant before the blood test was conducted on defendant. He also testified that he twice told defendant that he was required to submit to the blood test.
Defendant testified that his blood was drawn while he was inside “kind of a holding cell.” He also testified that his hands were handcuffed behind his
back and to a bar on his seat when his blood was drawn, and that Deputy Robinson was not present at the time.
On cross-examination, defendant testified that he had used a “very little” amount of methamphetamine on the day of his arrest. When asked if he had taken any ecstasy, defendant said he took one pill two days earlier. Defendant testified that, other than making him feel alert, he felt fine from the methamphetamine. Finally, defendant testified that the methamphetamine he took that day and the ecstasy he took earlier in the week had no effect on his memory or on his ability to perceive the events happening around him.
Defendant’s attorney argued that, under McNeely, “a search warrant is required for drunk driving blood draws.” He characterized as “absurd” the People’s argument that the blood draw was consensual. “The officer said, ‘You are required to do this.’ If an officer comes to your door and says, ‘You are required to let me in, ’ so you stand back so they can come in, that is not a consensual entry.” Counsel also argued the People introduced no evidence that the blood draw was conducted in a medically approved manner.
After hearing solely from defense counsel, the trial court denied the motion. With respect to defendant’s argument that the blood draw was not consensual, the court noted, “You’re right, it’s not consensual in the sense there [are] repercussions if you refuse. He doesn’t deny or dispute he was told that. He was told, you are required to take this, and if you don’t take it, X, Y, and Z will follow as a consequence if you refuse. [¶] He chose not to refuse because he didn’t want all of the consequences. Is that a forced consent? Sure it is. Is it legal? Yes.”
B. Appeal to the Appellate Division of the Superior Court
Defendant appealed to the appellate division of the superior court from the order denying his motion to suppress. (Pen. Code, § 1538.5, subd. (j).) In his brief, defendant argued the trial court erred by denying his motion to suppress because McNeely reaffirmed the holding in Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826] (Schmerber) that a blood draw in DUI cases requires either a warrant or exigent circumstances above and beyond the natural dissipation of alcohol or drugs in the blood, and that the blood sample taken in this case was supported by neither. He also argued the People did not introduce evidence that the blood sample was taken in a professional manner and in a medical setting, as mandated by Schmerber, and that blood draws taken by police contractors in a police station do not satisfy the Fourth Amendment. Finally, defendant argued the blood test was not consensual because his submission was coercively obtained pursuant to the implied consent law and did not constitute free, voluntary, and unequivocal consent for purposes of the Fourth Amendment.
In its respondent’s brief, the People argued that, notwithstanding McNeely, consent is a recognized exception to the warrant requirement, and the search in this case was reasonable under the Fourth Amendment because defendant did, in fact, consent to the search. The People argued that consent to a blood test given after being advised of the consequences of refusal is not coerced. With respect to the manner in which the blood draw was conducted, the People argued that defendant’s reliance on Schmerber was misplaced because, according to the People, that decision set forth the constitutional requirements for a nonsconsensual blood draw and did not address the manner in which a consensual blood draw must be taken. In any event, the People argued the defendant’s blood was drawn “in the usual, commonplace manner.” Finally, the People argued in a footnote that, if the appellate division were to conclude that the blood draw violated defendant’s Fourth Amendment rights, under the good faith exception to the exclusionary rule the evidence should not be suppressed.
In a partially published per curiam opinion, the superior court appellate division affirmed the denial of defendant’s motion to suppress. (People v. Harris (2014) 225 Cal.App.4th Supp. 1 [170 Cal.Rptr.3d 729] (Harris).) In the published portion of the decision, the appellate division noted that, prior to McNeely, California courts uniformly interpreted Schmerber as permitting forced blood draws based solely on probable cause of DUI because the natural dissipation of alcohol or drugs in the blood was itself an exigent circumstance. (Id. at p. Supp. 5.) The appellate division concluded that McNeely “repudiated the long-standing California interpretation of Schmerber.” (Id. at p. Supp. 6.) Because the People did not argue that defendant’s blood draw was supported by exigent circumstances, the appellate division did not address whether such circumstances existed. (225 Cal.App.4th at p. Supp. 6.) Instead, the appellate division focused on whether defendant’s consent to the blood draw satisfied the Fourth Amendment independent of McNeely. (225 Cal.App.4th at p. Supp. 6.)
Although the appellate division concluded that McNeely did not rule out consensual blood draws, the court concluded that McNeely forced a reexamination of the implied consent law and narrowed the circumstances under which a warrantless, forced blood draw may be justified under the implied consent law. (Harris, supra, 225 Cal.App.4th at p. Supp. 7.) The court concluded that, after McNeely, “a ...