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Date: 05-18-2019

Case Style:


Case Number: 2019 OK CR 6

Judge: Scott Rowland

Court: Oklahoma Court of Criminal Appeals

Plaintiff's Attorney: CRAIG LADD

Defendant's Attorney: JAMES I. ENGLISH, III


The facts of this case are not in dispute. Stewart lost control of his Chevy Avalanche while driving northbound on U.S. Highway 77 in Carter County on May 28, 2015. His car came to rest in the opposite lane of traffic where a van driven by Gerald Letkiewicz struck him broadside. Both Letkiewicz and Stewart's front seat passenger, Justin Skinner, died at the crash site. Though Stewart and his three other passengers sustained injuries, they survived. Stewart's injuries were critical and he was flown to an Oklahoma City trauma center for emergency medical treatment where he remained in a coma for several weeks. Shortly after Stewart's arrival at the hospital, and about three hours after the fatal crash, a registered nurse, acting at the direction of a state trooper without a search warrant or Stewart's consent, drew a sample of his blood. Subsequent testing revealed the presence of methamphetamine and marijuana in Stewart's system. Meanwhile, troopers found methamphetamine, scales, smoking pipes, and pills while looking for identification inside Stewart's car at the crash site.
3 Stewart argues the warrantless, nonconsensual seizure of his blood and subsequent admission of its chemical analysis at trial violated his state and federal constitutional guarantees against unreasonable searches and seizures. U.S. Amend IV; Okla.Const. Art. 2, 30. The district court denied his motion to suppress, ruling Title 47 O.S.2011, 10-104(B) permitted the seizure of his blood without any search warrant or showing of probable cause and exigent circumstances. Because that statute and its authorization for the warrantless seizure of a suspect's blood in serious vehicle accidents was explicitly upheld by this Court in Cripps v. State, 2016 OK CR 14, 387 P.3d 906, cert. denied, ___U.S.___, 137 S.Ct. 2186, 198 L.Ed.2d 254 (2017), he urges the overruling of that case.
4 In Schmerber v. California, 384 U.S. 757, 758-60, 86 S.Ct. 1826, 1829, 16 L.Ed.2d 908 (1966), a defendant convicted of driving under the influence of alcohol challenged the warrantless seizure and testing of his blood that was performed at the direction of police while he was being treated at a hospital for injuries suffered in a vehicle crash. The arresting officer smelled the odor of alcohol and observed other signs of intoxication on the defendant at the crash scene, and again at the hospital within two hours of the crash. Schmerber, 384 U.S. at 768-69, 86 S.Ct. at 1835. The Supreme Court upheld the warrantless seizure of the blood sample based in part upon the body's natural dissipation of alcohol. Id., 384 U.S. at 770-71, 86 S.Ct. at 1835-36. The Supreme Court stated:
The officer in the present case, however, 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,' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly 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, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.
5 In Missouri v. McNeely, 569 U.S. 141, 145, 133 S.Ct. 1552, 1556, 185 L. Ed.2d 696 (2013), the Supreme Court made clear that the body's natural dissipation of alcohol does not itself create a per se rule of exigency which permits a warrantless search and seizure of a suspect's blood in every drunk-driving case. Rather, just as in all other Fourth Amendment contexts, "[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." McNeely, 569 U.S. at 156, 133 S.Ct. at 1563. This pronouncement means that in addition to having probable cause to support the search, police must also obtain a warrant unless there is some exigent circumstance where "the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Id., 569 U.S. at 148-49, 133 S.Ct. at 1558 (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011)).
6 Title 47, Section 10-104(B) of the Oklahoma Statutes reads:
Any driver of any vehicle involved in an accident who could be cited for any traffic offense where said accident resulted in the immediate death or great bodily injury, as defined in subsection B of Section 646 of Title 21 of the Oklahoma Statutes, of any person shall submit to drug and alcohol testing as soon as practicable after such accident occurs. The traffic offense violation shall constitute probable cause for purposes of Section 752 of this title and the procedures found in Section 752 of this title shall be followed to determine the presence of alcohol or controlled dangerous substances within the driver's blood system.
7 This statute "creates a per se rule requiring nonconsensual blood testing of a driver involved in an accident who could be cited for a traffic offense, where the accident involves either a fatality or great bodily injury of any person, including the driver." Cripps, 2016 OK CR 14, 8, 387 P.3d at 909 (emphasis in original).
8 The Cripps Court held that because 47 O.S.2011, 10-104(B) applied only when there was an accident involving death or great bodily injury, its per se rule survived McNeely. Cripps, 2016 OK CR 14, 8, 387 P.3d at 909. We now find that this analysis and construction of Section 10-104(B) cannot withstand scrutiny under the Fourth Amendment and we overrule Cripps as well as Bemo v. State, 2013 OK CR 4, 298 P.3d 1190, Sanders v. State, 2002 OK CR 42, 60 P.3d 1048, and Guest v. State, 2002 OK CR 5, 42 P.3d 289, insofar as these cases are inconsistent with this opinion.
9 In Cripps, we found Section 10-104(B) beyond the reach of McNeely because its per se rule was different from the Missouri rule struck down in McNeely. We explained:
The exigent circumstance justifying the per se rule in 10--104(B) is the existence of great bodily injury or a fatality to persons including the driver. Put another way, 10--104(B) does not depend solely on the dissipation of alcohol in the bloodstream over time as an exigent circumstance . . . . The majority in McNeely rejected the claim that states needed a per se rule based on the dissipation of alcohol in the blood in order to promote enforcement of laws against drunk driving. The per se rule found unconstitutional in McNeely is simply a different rule from the per se rule in 10--104(B), and the difference is material.
Cripps, 2016 OK CR 14, 8, 387 P.3d at 909. Undoubtedly driving under the influence is a significant public safety problem and the enactment of statutes like Section 10-104(B) seek to assist law enforcement in uncovering evidence for prosecution of those who drive under the influence resulting in tragic consequences. The blanket rule in Section 10-104(B), however, like the dissipation of alcohol in the bloodstream in McNeely, substitutes one per se rule of exigency for another. This distinction is simply at odds with the central point of McNeely that no such blanket rule will satisfy the Fourth Amendment requirement of individualized consideration of the existence of probable cause and exigent circumstances to justify the taking of a blood sample from a driver without a warrant.
10 Indeed, Section 10-104(B) goes even further than the per se rule rejected in the McNeely case. It provides not only a per se rule of exigency in such cases, but also a per se finding of probable cause, completely eliminating any role of the magistrate in ruling upon probable cause or exigency either before or after the seizure of a suspect's blood. This departs from a foundational Fourth Amendment principle which requires probable cause be determined by a neutral and detached magistrate on a case-by-case basis.
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
Johnson v. United States, 333 U.S. 10, 13--14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). While Section 10-104(B) does not delegate the finding of probable cause to law enforcement officers, its inherent pronouncement of probable cause in an entire category of cases has impermissibly dispensed with the necessity of an individualized assessment of probable cause by a magistrate on a case-by-case basis.
11 In Shadwick v. City of Tampa, 407 U.S. 345, 352, 92 S.Ct. 2119, 2123-24, 32 L.Ed.2d 783 (1972), the Supreme Court upheld the review and issuance of search warrants by a municipal court clerk employed by the judicial branch, but voiced doubt about the constitutionality of such review being performed by non-judicial branch personnel. "Many persons may not qualify as the kind of 'public civil officers' we have come to associate with the term 'magistrate.' Had the Tampa clerk been entirely divorced from a judicial position, this case would have presented different considerations." Id., 407 U.S. at 352, 92 S.Ct. at 2124. See also, United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 317, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972)("The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates.")
12 An analogous attempt to legislate a Fourth Amendment standard was at issue in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), wherein the Supreme Court considered New York's "stop and frisk" statute, which allowed police to detain any person whom they reasonably suspected of committing certain crimes. Declining the parties' invitation to rule on whether the challenged statute was facially constitutional, the Court instead focused solely on whether the facts known to the officer at the time of a given stop constituted reasonable suspicion to detain.
The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case....No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment....
The question in this Court upon review of a state-approved search or seizure 'is not whether the search (or seizure) was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.'
(citations omitted). Sibron, 392 U.S. at 59 & 61, 88 S.Ct. at 1901-02. Similarly, in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Supreme Court rejected a facial challenge to the constitutionality of a statute permitting police to use deadly force to apprehend all fleeing felons. Instead, the majority held that the statute was constitutional as applied to serious crimes where there was probable cause to believe the suspect posed a danger to others and the use of deadly force was necessary to prevent the suspect's escape. Garner, 471 U.S. at 11-12; 105 S.Ct. at 1701.
13 Section 10-104(B) gives no consideration to the "concrete factual context of the individual case," nor does it allow for "neutral contemplation by a magistrate of the grounds for the search." Sibron, 392 U.S. at 59; 88 S.Ct. at 1901. If the Legislature may substitute a fatality or serious injury vehicle crash for a judicial finding of probable cause, it could substitute most any other factual scenario as well and the requirement of a neutral and detached magistrate becomes nothing more than a default position in the absence of legislative action. "The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great." Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835.
14 Following the Supreme Court's lead in Sibron and Garner, we stop short of holding that Section 10-104(B) is unconstitutional on its face, but we hold that more than simple compliance with the statute is required in order to justify the warrantless seizure of blood from an intoxicated driving suspect. There must be an individualized determination of probable cause by a magistrate based upon the totality of the facts of each case, and the issuance of a search warrant, unless some exigent circumstance(s) renders it impractical to obtain a warrant beforehand.1 In those cases where police act without a warrant, a magistrate will rule upon the existence of probable cause and exigent circumstances, if and when the seizure is later challenged through a motion to suppress.2 These are the same, familiar Fourth Amendment principles applied in nearly every other Fourth Amendment search and seizure context.
15 In the case now before us, the record shows troopers found drugs and drug paraphernalia in Stewart's vehicle at the crash site, evidence highly significant to the question of whether there was probable cause to draw Stewart's blood. The record also shows that neither the investigating officers nor prosecutors sought to rely upon that evidence for probable cause, instead and understandably relying upon the categorical probable cause rule of Section 10-104(B) as interpreted by Cripps. This resulted in hardly any attention to developing a thorough factual record of these particular facts below and, as Stewart correctly points out, it is not clear when the drugs were discovered relative to the taking of his blood at the hospital in Oklahoma City.
16 Whether or how much it matters when the actual discovery of the drug evidence was made in the course of these events need not detain us long, because the exclusionary rule simply does not apply to Fourth Amendment violations where the officers involved relied on a state statute which they are entitled to assume is constitutional. Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). The Court in Krull explained
The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer's actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.
Id., 480 U.S. at 349--50, 107 S.Ct. at 1167. The purpose of the exclusionary rule is to deter police misconduct and where, as here, there is no demonstrable police misconduct there is nothing to deter by suppressing evidence. The trooper's reliance in this case on Section 10-104(B) as the basis for drawing Stewart's blood was objectively reasonable and unquestionably done in good faith. See State v. Sittingdown, 2010 OK CR 22, 17-18, 240 P.3d 714, 718. Had the record been further developed, it is highly likely it would have shown the existence of probable cause and exigent circumstances sufficient to justify Stewart's warrantless, nonconsensual blood draw. Regardless, the fruits of a search and seizure conducted pursuant to a state statute need not be suppressed even if the statute is subsequently invalidated if the officer, as in this case, acted in objectively reasonable reliance upon it and abided by its terms. See id., 2010 OK CR 22, 17, 240 P.3d at 718. For these reasons, we find the warrantless, nonconsensual taking of Stewart's blood and subsequent admission of its chemical analysis warrants no relief in this case.

Outcome: The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Plaintiff's Experts:

Defendant's Experts:


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