DANIEL E. SCOTT, Chief Judge.
Neil Dowdy ("Defendant") was charged with second-degree murder, armed criminal action, and unlawful use of a weapon for possessing a firearm while intoxicated. Defendant moved to suppress the results of a warrantless breath test of his blood alcohol content on the grounds that the search and seizure violated his federal and state constitutional rights.
The State appeals. We defer to the trial court's factual findings and credibility determinations and consider all evidence and reasonable inferences in the light most favorable to its ruling. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). Whether the Fourth Amendment was violated, however, is a legal issue that we determine de novo. Id.
A residential altercation culminated in Defendant fatally shooting his wife's son at approximately 11:30 p.m. Officers were dispatched, with Captain Gideon arriving "[s]omewhere in the midnight hour. Give or take a few minutes." Defendant was already under arrest and in the back of a patrol car. Captain Gideon gave orders to perform a gunshot residue analysis, transport Defendant to the jail, and obtain a breath test of his blood alcohol level because Defendant displayed signs of intoxication at the crime scene.
It took about 45 minutes to transport Defendant, who was bleeding from the face and mouth, to the jail. After he arrived at 1:18 a.m., he was booked and advised that his blood alcohol level was needed to ensure that medical treatment was not necessary. Defendant later indicated that he was told (not asked) to blow into a breathalyzer, which he did at 1:53 a.m. He was not read Miranda warnings
Various Missouri cases, only one of which was cited to the trial court and then only in passing, indicate that it was error to suppress this evidence.
"[U]pon his arrest and as an incident to his arrest without a warrant, [a] person is subject to having a sample of his blood taken without his consent or a warrant, and said blood sample is admissible in evidence." State v. Setter, 721 S.W.2d 11, 16 (Mo.App.1986)(citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)).
"Schmerber supports the general principle that the warrantless extraction of a blood sample without consent but incident to a lawful arrest is not an unconstitutional search and seizure and that the results of a blood test performed thereon are admissible in evidence." State v. Ikerman, 698 S.W.2d 902, 904-05 (Mo.App.1985).
To like effect are these cases:
Schmerber, in our supreme court's words, "has established controlling constitutional standards for determining the admissibility of the results of a similar sobriety test as evidence in a criminal case." Blydenburg, 413 S.W.2d at 287. The principles expressed in that case and others we have cited persuade us to reverse the suppression order and remand for further proceedings consistent with this opinion.
RAHMEYER, P.J., dissents in separate opinion.
BATES, J., concurs.
NANCY STEFFEN RAHMEYER, Presiding Judge, dissenting.
I respectfully dissent. If we consider the facts in the light most favorable to the ruling, as we must under our standard of review, I would find no exception to the warrant requirement applies to this case. The trial court found that "[a]bsent case authority from the [Supreme Court of the United States] or an appeals court in Missouri approving the taking of a blood sample in a non-DWI case," and declined to approve the practice. While the majority opinion states, "[v]arious Missouri cases, only one of which was cited to the trial court and then only in passing, indicate that it was error to suppress this evidence," I disagree that the various cases hold in a non-driving case that it was error to suppress the evidence.
First, it would be helpful to review our standard of review and pertinent case law to determine this issue. "The burden of going forward with the evidence and the risk of nonpersuasion" at a suppression hearing are "upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled."
The United States Constitution and the Missouri Constitution protect individuals from unreasonable searches and seizures.
In the light most favorable to the trial court's ruling, the facts indicate that on the evening of December 3, 2008, Defendant was involved in an altercation at his residence with his wife's son, Del Moore, that resulted in Moore hitting Defendant and Defendant fatally shooting Moore at approximately 11:30 p.m. Paramedics and the Stone County Sheriff's Department (the "Department") were dispatched to the scene.
Three witnesses testified at the suppression hearing. Captain Tim Gideon and Deputy Chris Sowards testified for the State, while Defendant testified in his own defense. Captain Gideon arrived at the scene "[s]omewhere in the midnight hour. Give or take a few minutes." By the time Captain Gideon arrived, Defendant was already under arrest and in the back of a patrol car, on suspicion of being the suspect in the shooting. Captain Gideon ordered a deputy to perform a gunshot residue analysis on Defendant, then to transport Defendant to the Stone County jail and requested his deputies to secure
Defendant was transported from the scene to the jail around 12:30 a.m., and arrived at 1:18 a.m. After being booked into jail,
For the consent exception to apply, proper consent must be voluntarily given. State v. Allen, 277 S.W.3d 314, 317 (Mo. App. S.D.2009). "Consent is voluntary if an objective observer, considering the totality of the circumstances, would find that consent was given by a free and unconstrained choice." Id. "The test applied to determine if consent is free and voluntary is whether, in light of the totality of the circumstances, consent was given without coercion, express or implied." United States v. Sanders, 424 F.3d 768, 773 (8th Cir.2005). Whether consent was voluntary or the product of duress or coercion "is a question of fact to be determined from the totality of the circumstances." State v. Petrone, 836 S.W.2d 484, 488 (Mo.App. S.D.1992).
The following factors are among those commonly used to determine if consent was voluntarily given: "(1) the number of officers present; (2) the degree to which the officers emphasized their authority; (3) whether weapons were displayed; (4) whether the officers were misleading or fraudulent; and (5) evidence regarding what was said or done by the person giving the consent." State v. Cromer, 186 S.W.3d 333, 347 (Mo.App. W.D.2005). Two additional factors include whether the individual from whom consent was requested was in custody when the request was made and whether the individual was intoxicated. United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001) (Environmental factors relevant to the issue of the voluntariness of a defendant's consent to search include, among other things, the length of time the defendant was detained and whether the defendant "was in custody or under arrest when the consent was given."); United States v. Watters, 572 F.3d 479, 483 (8th Cir.2009) ("Factors relevant to the voluntariness of a defendant's consent include whether the defendant was intoxicated, but intoxication alone does not render consent invalid."). Consent is involuntary if the officer "has reason to know that the consent was not knowingly granted." State v. Earl, 140 S.W.3d 639, 641 (Mo.App. W.D. 2004). Lastly, the State must show more than mere acquiescence to a claim of lawful authority to show valid consent. State v. Reese, 625 S.W.2d 130, 132 (Mo. banc 1981).
A search incident to an arrest is an exception to the Fourth Amendment's warrant requirement that allows officers to search a person and the area within his immediate control without a warrant. State v. Williams, 978 S.W.2d 454, 459 (Mo.App. E.D.1998). One rationale justifying the exception is the need to prevent the destruction of evidence. State v. Achter, 512 S.W.2d 894, 900 (Mo.App. Spfd.D.1974). A search is incident to an arrest only if conducted substantially contemporaneously in time and place with the arrest unless a valid reason for the delay is provided. Id. at 901; United States v. Willis, 37 F.3d 313, 318 (7th Cir.1994) (finding that a search must be contemporaneous with the arrest to be valid).
I would find no error in denying the search as valid under the search incident to an arrest exception to the Fourth Amendment warrant requirement. The majority cites State v. Setter, 721 S.W.2d 11, 16 (Mo.App. W.D.1986), for the proposition that upon arrest and as an incident to an arrest without a warrant, a person is subject to having a sample of his blood taken without consent and the blood sample is admissible in evidence. Although the statement quoted is contained in the Setter opinion, the majority ignores the facts and holding of Setter. Setter was charged with manslaughter following an accident where he was allegedly driving while in an intoxicated condition. Setter, 721 S.W.2d at 14. The first issue presented in Setter was whether section 577.039 applies to arrests for involuntary manslaughter. Id. at 14-16. That issue has no relevance to this case. The second issue presented was whether the warrantless administration of the blood alcohol test was constitutionally permissible. Id. at 17. The court specifically noted that any contention concerning a constitutional violation was meritless because
Id. at 17. In this case, the majority opinion acknowledges that Defendant was not read the Miranda warnings nor given an option about submitting to the test.
Most importantly, Setter cites for its authority regarding blood tests State v. Ikerman, 698 S.W.2d 902 (Mo.App. E.D. 1985), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Id. at 15-18. Schmerber and Ikerman involve driving while intoxicated offenses. In Schmerber,
Schmerber, 384 U.S. at 758-59, 86 S.Ct. 1826 (footnotes omitted). The issue presented was "whether the chemical analysis introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure." Id. at 766-67, 86 S.Ct. 1826. In deciding to allow the evidence, the Supreme Court of the United States used the following rationale:
Id. at 768-71, 86 S.Ct. 1826 (footnotes omitted) (emphasis added).
Likewise, Ikerman was involved in a traffic accident and refused the blood test; he was then advised of his Miranda rights and eventually agreed to give a blood sample. Ikerman, 698 S.W.2d at 904. Even so, the trial court suppressed the blood sample. Id. at 903. The State appealed arguing that Schmerber provided that "where police officers have probable cause to believe defendant has committed a crime in which intoxication is an element and exigent circumstances exist, the taking of a blood sample in a reasonable manner without consent, warrant, or arrest is constitutionally permissible." Id. at 904. The appellate court affirmed the suppression of the evidence, after assuming Ikerman had been arrested, and specifically noted that Ikerman had been given his Miranda rights, requested counsel and then was ignored in that request. Id. at 905, 907. Again, in this case, Defendant was not even given any Miranda warnings prior to the breath test.
The majority also cites to Blydenburg v. David, 413 S.W.2d 284, 285-86 (Mo. banc 1967), and Murphy v. Dir. of Revenue, 170 S.W.3d 507, 508 (Mo.App. W.D.2005); both are civil license revocation cases of people accused of driving while intoxicated, and, therefore, by their own terms, are wholly inapplicable to this case. Furthermore, in one of those cases, Blydenburg, no blood or breath test was ever taken from the allegedly drunk driver. 413 S.W.2d at 286. Likewise, State v. Trice, 747 S.W.2d 243 (Mo.App. W.D.1988), is completely inapposite. Even though the court in dicta, and citing Setter, stated that Trice would have been subject to having a sample of his blood taken without his consent or a warrant, the facts are that the blood alcohol test was taken pursuant to a search warrant and the court found that Trice was not even under arrest, thus not implicating section 577.041. Id. at 246.
Defendant was already under arrest when Captain Gideon arrived at the scene "[s]omewhere in the midnight hour. Give or take a few minutes." Defendant was arrested prior to midnight and told to take the breath test two hours later. The search was too remote in time to be incidental to arrest and no valid reason for delay of the breath test was offered. As the trial judge aptly noted the lack of case authority for the taking of a blood sample in a non-DWI case, I too would not expand the "incident to an arrest" exception.
The third exception to the constitutional requirement for a search warrant, raised in this appeal, is when there are "exigent circumstances." "Exigent circumstances exist when there is a compelling need for official action and no time to secure a warrant." United States v. Marshall, 157 F.3d 477,
The majority opinion also cites to State v. Lerette, 858 S.W.2d 816 (Mo.App. W.D. 1993). Lerette cites to Schmerber's special facts and lack of time to seek out a magistrate and search warrant. Id. at 818. Here, the trial court was free to make the determination that there was adequate time to seek out a magistrate and obtain a warrant. I believe Lerette, as well as the other cited cases, stand more for the proposition of limiting Fourth Amendment exceptions to driving cases rather than extending them. In Lerette, the Western District of this Court stated: "Time is of the essence when testing for alcohol in the bloodstream. The combination of these factors sets out exigent circumstances which are sufficient to require that the police be allowed to test drunk drivers without first having to obtain a warrant." Id. at 818-19 (quoting United States v. Reid, 929 F.2d 990, 994 (4th Cir.1991)).
In Reid, the Fourth Circuit framed the expanded exception in terms of the tragedy inherent in drinking and driving:
Reid, 929 F.2d at 993.
Here, the trial court heard evidence that a call was placed to the police department and the sheriff's department and paramedics arrived at Defendant's home between 11:30 p.m. and 12:30 a.m. Defendant was arrested during that time period and transferred to jail at 12:30 a.m. Defendant arrived at jail at 1:18 a.m. The breath test was not given until 1:53 a.m. In the light most favorable to the ruling, the State had two hours to obtain a search warrant. The State has not shown that "real immediate and serious consequences" would "certainly occur" if they postponed action to obtain a warrant and failed to secure a breath test from Defendant without obtaining a warrant. See Williams, 354 F.3d at 503 (discussing the real immediate and serious consequences certain to occur standard in exigent circumstances analysis). The facts as the trial court found them did not present a literal "now or never" preservation of evidence issue.
I would affirm the suppression of the breath test.