People v. Schaufele , 325 P.3d 1060 ( 2014 )

JUSTICE HOOD

announced the judgment of the Court.

11 Jack Lee Schaufele was involved in a motor vehicle accident that resulted in injuries to himself and others. One hour and four minutes later, while Schaufele lay unresponsive at the hospital, a police officer told a nurse to draw Schaufele's blood for alcohol analysis. It is undisputed that the officer and her co-workers never considered applying for a search warrant. The People later sought to use evidence from that blood draw in prosecuting Schaufele for vehicular assault, driving under the influence, driving under the influence per se, and careless driving.

T 2 In this interlocutory appeal, we consider whether the trial court applied the proper legal test when it suppressed evidence stemming from the blood draw. The People also ask us to adopt a new approach in evaluating whether exigent cireumstances justify a war-rantless blood draw of a suspected drunk driver, an approach based solely upon the length of time required to secure a search warrant.

3 We affirm the trial court's suppression order. We hold that the trial court properly adhered to Missouri v. McNeely, — U.S. —, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), in suppressing evidence of Schaufele's blood draw. We reject the People's invitation to disregard the majority opinion in McNeely, which instructs a trial court to consider the totality of the cireumstances, and to adopt instead Chief Justice Roberts's concurring and dissenting opinion that "a warrantless blood draw may ensue" if "an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant." Id. at 1578 (Roberts, C.J., concurring in part and dissenting in part).

{4 Although only four justices expressly rejected Chief Justice Roberts's proposed modified per se rule, the Chief Justice's proposed approach garnered only three votes, and we do not feel at liberty to adopt it here.

I. Facts and Procedural History

5 The trial court conducted an evidentia-ry hearing and made pertinent factual findings in its order granting Schaufele's motion to suppress. The People do not contest these findings, which are summarized below.

T 6 Schaufele was involved in a motor vehicle accident at about 7:10 a.m. The first police officer to arrive at the scene, Alden Langert,¹ observed that, although Schaufele was conscious, he was sluggish, his speech was mumbled and unintelligible, and he was largely nonresponsive to the officer's questions. The second officer to arrive, Patrick Andrews, described Schaufele as speaking with a "thick tongue"; he also noted that Schaufele had bloodshot, watery eyes and described his responses as "sluggish," "delayed," and "hesitant."

T7 Officers Langert and Andrews did not smell alcohol on Schaufele's person or in the immediate vicinity, but they nevertheless concluded that Schaufele's behavior was consistent with either intoxication or a head injury. Likewise, a paramedic at the scene smelled Schaufele's breath at close range to assess whether aleohol was involved and did not smell anything indicative of alcohol consumption. Officer Andrews did not believe that probable cause then existed to arrest Schaufele for driving while intoxicated or impaired. Thus, he did not attempt to get a warrant for a nonconsensual blood test, nor did he instruct any other officers to seek Schaufele's consent for a blood draw or to obtain a warrantless blood draw without his consent.

T8 Meanwhile, another officer, Suzanne Beckstrom, arrived at the scene. Officer Andrews briefed her about Schaufele's lethargic manner and slurred speech and told her to follow the ambulance to the hospital to continue investigating.

T9 Paramedics transported Schaufele to the hospital at 7:36 a.m. Officer Beckstrom followed. When she attempted to speak with Schaufele at the hospital, Officer Beckstrom detected the "stale odor of alcohol" on his breath and body. She also noticed that his responses to her questions were unintelligible, his eyes were red and watery, and his speech was slurred.

T10 Based on these observations, Officer Beckstrom decided that she had probable cause to conduct a blood draw. She attempted to speak with Schaufele to provide an advisement under Colorado's express consent law, but was unable to do so because he was either unconscious or sleeping. Officer Beckstrom then told a nurse to draw Schau-fele's blood for alcohol analysis. The blood draw took place at 8:14 a.m.-one hour and four minutes after the reported time of the accident. A forensic analysis of the blood sample established that Schaufele's blood alcohol level was .205 grams of alcohol per one hundred milliliters of blood-well over the statutory threshold.

{ 11 The police officers did not obtain, or seek to obtain, a warrant. At the suppression hearing, Officers Langert, Andrews, and Beckstrom testified that they were aware that the Greenwood Village Police Department, the Office of the District Attorney, the county attorneys in Arapahoe County, and the Colorado judicial branch all have established procedures in place (which may be initiated by computers in police cars) that would have enabled them to apply for and obtain a search warrant for a blood test on an exigent basis. But none of them had ever applied for an expedited warrant, and none of them did so here.²

1 12 The police ultimately determined that Schaufele caused the accident. He was charged with vehicular assault, driving under the influence, driving under the influence per se, and careless driving resulting in death or injury.

113 Before trial, Schaufele successfully moved to suppress evidence from the war-rantless blood draw. In response, the People filed a motion for reconsideration, which-for the first time-suggested that the trial court should invoke the modified per se rule proposed by Chief Justice Roberts and endorsed by only two other members of the Supreme Court.³ The trial court denied the motion.

1 14 The People then filed an interlocutory appeal under section 16-12-102(2), C.R.S. (2013), and C.A.R. 4.1, conceding that the trial court reached the right conclusion under existing law, but nonetheless urging with singular focus that we should reverse the trial court under the modified per se rule proposed by Chief Justice Roberts.

HI. Standard of Review

115 Suppression cases typically involve a mixed question of fact and law. People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo.2009). In reviewing a suppression order, we defer to the trial court's findings of fact. We will not overturn those factual findings if competent evidence in the record supports them. People v. Castaneda, 249 P.3d 1119, 1122 (Colo.2011). We review the trial court's application of the law de novo. Id.; accord People v. Brunsting, 2013 CO 55, ¶ 15, 307 P.3d 1073, 1078, cert. denied, — U.S. —, 134 S.Ct. 789, 187 L.Ed.2d 601 (2013).⁴

116 Where, as here, a constitutional right is implicated, we assess whether the trial court "applied an erroneous legal standard or came to a conclusion of constitutional law that is inconsistent with or unsupported by the factual findings," considering the court's legal conclusion "under the totality of the cireumstances." People v. Syrie 101 P.3d 219, 222 (Colo.2004).

III. Analysis

{17 In seeking to reverse the trial court's suppression order, the People pose the following question: "Under the Fourth Amendment, do exigent cireumstances justify a war-rantless blood draw of a drunk driver if the police reasonably believe the blood can be drawn before a warrant can be secured?" In positing this question, they invite us to adopt the modified per se rule proposed by Chief Justice Roberts. Because we feel constrained by binding precedent of the Supreme Court, we decline to do so.

118 We begin with a brief discussion of the Fourth Amendment's applicability to blood draws. We next discuss the totality of the cireumstances test for exigency that the Supreme Court articulated in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and reiterated in the majority opinion in McNeely. We then examine whether the trial court correctly applied this test in evaluating the constitutionality of Schaufele's blood draw and determine that it did. We conclude by considering the People's invitation to shun the majority opinion in McNeely and to embrace instead the rule that Chief Justice Roberts proposed in his concurring and dissenting opinion. We reject that invitation.

A. The Fourth Amendment

T19 The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. "[A] warrantless search of the person is reasonable only if it falls within a recognized exception." McNeely, 133 S.Ct. at 1558.

120 A blood draw is a search because it is "a compelled physical intrusion beneath [a defendant's] skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation." Id. This constitutes "an invasion of bodily integrity [that] implicates an individual's 'most personal and deep-rooted expectations of privacy.'" Id. (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985)); see also Schmerber, 384 U.S. at 770, 86 S.Ct. 1826 (emphasizing the "indisputable and great" importance of a warrant before a law enforcement officer "invade[s] another's body in search of evidence of guilt"); Grassi v. People, 2014 CO 12, ¶23, 320 P.3d 332, 338 ("Drawing blood from an unconscious party is a search that is 'subject to the protections of the Fourth Amendment to the United States Constitution.' In the motor vehicle context, the police infringe upon these protections if they draw blood from a non-consenting driver absent probable cause that he committed an alcohol-related driving offense." (quoting People v. Schall, 59 P.3d 848, 851 (Colo.2002))).

B. McNeely

21 In McNeely, the Supreme Court expanded upon the decision it issued forty-seven years earlier in Schmerber, when the Court first enumerated the criteria to analyze the constitutional propriety of involuntary blood draws. See 384 U.S. at 768-71, 86 S.Ct. 1826. We summarized those criteria in People v. Sutherland, 683 P.2d 1192 (Colo.1984):

First, there must be probable cause for the arrest of the defendant on an aleohol-relat-ed driving offense. Second, there must be a clear indication that the blood sample will provide evidence of the defendant's level of intoxication. Third, exigent circumstances must exist which make it impractical to obtain a search warrant. Fourth, the test must be a reasonable one and must be conducted in a reasonable manner.

Id. at 1194 (citing Schmerber, 384 U.S. at 757, 86 S.Ct. 1826).

122 McNeely provided further guidance about the third criterion-the existence of exigent cireumstances-again in the blood draw context. Like Schaufele, the defendant there was subject to a statutory implied consent law due to his operation of a motor vehicle.⁵ Yet he successfully moved to suppress his blood draw results, arguing that the blood draw violated the Fourth Amendment because the police officer who ordered it did not attempt to secure a warrant. 183 S.Ct. at 1557.

123 The Supreme Court considered "whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases." Id. at 1556. A majority of the Court expressly rejected a categorical rule and held, "consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances." Id.; see also id. at 1558, 1561 (referencing the need to assess the totality of the circumstances and conduct a "careful case-by-case assessment of exigency" and explicitly rejecting the " 'considerable overgen-eralization' that a per se rule would reflect" (quoting Richards v. Wisconsin, 520 U.S. 385, 393, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997))).⁶

24 We have since characterized the Supreme Court's approach to exigency in McNeely as "a 'finely tuned fact-based approach." See Brunsting, 128, 307 P.8d at 1080. We have also emphasized that the Court's totality of the cirenmstances approach "is intended to be malleable enough to address the 'variety of circumstances [that] may give rise to an exigency sufficient to justify a warrantless search'" Id. (quoting McNeely, 188 S.Ct. at 1559). And we have characterized the approach as "a flexible exception that is measured by a fact-specific reasonableness inquiry." Id.

C. The Trial Court's Totality of the Circumstances Analysis

11 25 Consistent with Schmerber, McNeely, and our case law interpreting and applying those decisions, the trial court considered the totality of the cireumstances surrounding the nonconsensual and warrantless draw of Schaufele's blood.

126 First, the trial court conducted a probable cause analysis. It concluded that the police officers did not have probable cause to believe that Schaufele was operating his vehicle while intoxicated during the initial investigation at the accident scene. But, applying the fellow officer rule,⁷ it determined that, as of 8:14 am. (when the blood draw took place), Officer Beckstrom did have probable cause to believe that Schaufele had driven while intoxicated.

T27 Next, the trial court examined the interrelationship between federal constitutional law and Colorado's statutory framework for alcohol-related driving offenses. The trial court noted that the Fourth Amendment prohibits blood draws unless Justified either by a warrant or by exigent cireumstances that make obtaining a warrant impractical. The trial court also recognized that the warrant requirement is waived when the subject of a search provides express consent, and that Colorado statutory law establishes express consent for all drivers when a police officer has probable cause to believe that a driver has committed the offense of driving while under the influence.⁸

128 Further, the trial court correctly noted that, notwithstanding Missouri's implied consent statute, the Supreme Court presumed in MeNeely that the Fourth Amendment requires a search warrant before a blood draw, absent exigent circumstances. See McNeely, 188 S.Ct. at 1561. And it correctly noted that our own case law makes clear that Colorado's express consent statute does not abrogate constitutional requirements. See People v. Smith, 254 P.3d 1158, 1162 (Colo.2011) ("The combined result of sections 42-4-1301.1(8) and 18-3-205 is that a police officer may perform blood tests on a driver without his or her consent if the officer has probable cause to believe the driver has committed vehicular assault under the influence of alcohol or drugs, subject to the constitutional limitations of Schmerber.") (emphasis added); Sutherland, 688 P.2d at 1194 (noting that under Schmerber "exigent circumstances must exist which make it impractical to obtain a search warrant" before a blood draw).

129 After considering these principles, the trial court suppressed the results of the blood draw, reasoning that the officers had failed to procure a search warrant and the People had not established exigent cireum-stances sufficient to justify the lack of a warrant. It did so after analyzing: (1) the chronology of events; (2) whether the investigation delayed the officers' ability to obtain a search warrant; (8) whether transporting Schaufele to the hospital delayed the officers' ability to obtain a search warrant; and (4) the availability of an expedited warrant process and whether Officer Beckstrom could have used it before the alcohol in Schaufele's blood dissipated to such a degree that it would have lost its inculpatory value.

D. Applying McNeely

30 Although the People structured their initial arguments to the trial court based on the totality of the circumstances standard, they do not challenge the court's application of that standard on appeal.

{31 Instead, the People tailor their arguments to the separate standard that Chief Justice Roberts proposed in his concurring and dissenting opinion in MceNeely:

In my view, the proper rule is straightforward. Our cases establish that there is an exigent cireumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of aleohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent cireumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent cireumstances exception applies by its terms, and the blood may be drawn without a warrant.

133 S.Ct. at 1569 (Roberts, C.J., concurring in part and dissenting in part).

1 32 Although the People extol the virtues of this proposal at great length, the Chief Justice's proposed modified per se rule garnered the support of only two of his colleagues. We decline to adopt a proposed rule that cireumvents the holding in MceNeety, a proposed rule that even Chief Justice Roberts admitted the majority "resists." See id. at 1574.

$33 We have a duty to follow the Court's existing instructions concerning federal constitutional law. See United States v. Howard, 742 F.3d 18334, 1843 n. 8 (lith Cir. 2014) ("As we hope our decision in this case shows, we serupulously follow Supreme Court decisions. It is not our role to critique their reasoning or to criticize their holdings, and we do not intend to do so here. To borrow a metaphor in vogue, we don't grade the Justices' papers, they grade ours.... The [Supreme Court's decision] is the law of the land, which must be and will be followed unless and until the Supreme Court decides it should not be.")⁹

1834 We recognize that Justice Kennedy hinted that the Supreme Court may want to provide additional guidance on how to effectively implement its totality of the cireum-stances approach in a future case so as to "give important, practical instruction to arresting officers"-'"instruction that in any number of instances would allow a warrant-less blood test in order to preserve the critical evidence." 188 S.Ct. at 1569 (Kennedy, J., concurring in part); see also id. ("And this Court, in due course, may find it appropriate and necessary to consider a case permitting it to provide more guidance than it undertakes to give today.").

135 But we do not have the power to ignore Supreme Court precedent concerning the federal constitution based on speculation about how the Court might rule in the future. See, e.g., People v. Hopkins, 2013 COA 74, ¶¶ 24, 25, 328 P.3d 253 (rejecting the defendant's contention that the court should ignore the holding in Almendares-Torrez v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 850 (1998), because Justice Thomas stated in a concurrence in a later case that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided"); see also People v. Nunn, 148 P.3d 222, 225 (Colo.App.2006) (same). So, until a majority of the Supreme Court tells us otherwise, we must apply the totality of the circumstances approach (that Justice Kennedy clearly joined).

{ 36 Indeed, the Supreme Court has cautioned against permutations by each state supreme court that would apply federal constitutional law in a way that "would change the uniform 'law of the land into a crazy quilt." Kansas v. Marsh, 548 U.S. 163, 185, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) (Sea-lia, J., concurring).

E. Justice Kennedy's Concurrence

137 The People assert that the majority opinion in MeNeely does not preclude adoption of Chief Justice Roberts's proposal because only four justices expressly rejected his proposal. See 133 S.Ct. at 1563-67 (parts II.C, III). But Justice Kennedy's refusal to join the plurality opinion critiquing Chief Justice Roberts's proposal cannot be interpreted to constitute affirmative support for that proposal. Justice Kennedy's position is more appropriately measured by the legal principles he embraced. In the end, he joined a majority opinion that does far more than simply reject Missouri's argument that warrantless blood draws should be permitted in every case. Justice Kennedy united with the rest of the majority on critical concepts that are inherently inconsistent with Chief Justice Roberts's proposal.

138 For instance, one part of the majority opinion reiterates the importance of securing a warrant before drawing a blood sample. See id. at 1558 ("[The importance of requiring authorization by a 'neutral and detached magistrate' before allowing a law enforcement officer to 'invade another's body in search of evidence of guilt is indisputable and great' " (quoting Schmerber, 384 U.S. at 770, 86 S.Ct. 1826)) (part ILA).

1389 Other parts of the majority opinion articulate a totality of the circumstances standard and explicitly reject a per se rule focusing on only one consideration. Seq, eg., id. at 1556 (emphasizing that "exigency in this context must be determined case by case based on the totality of the cireumstances") (introduction to majority opinion); id. at 1559 (characterizing totality of the cireumstances test as a "finely tuned approach to Fourth Amendment reasonableness" and noting "the fact-specific nature of the reasonableness inquiry" (citations and internal quotation marks omitted)) (part ILA); id. at 1561 (explaining the importance of deciding each case on its facts and not accepting "the considerable overgeneralization that a per se rule would reflect" (citation and internal quotation marks omitted)) (part IL.B); id. at 1568 (acknowledging that the relevant factors in determining whether a warrantless search is reasonable "will no doubt vary depending upon the circumstances in the case") (part IV).

{40 The holding in the majority opinion that Justice Kennedy joined thus directly conflicts with the approach advocated by Chief Justice Roberts, which singles out only one cireumstance-the amount of time it takes to seek and receive a warrant-to the exclusion of all others.

IV. Conclusion

41 The People seek to exploit some discord among the justices in McNeely to implement a fundamental change in Fourth Amendment jurisprudence in Colorado. But a majority of the Supreme Court has spoken, and has spoken clearly. We are duty-bound to follow that precedent.

42 We hold that the trial court properly adhered to MeNeely in suppressing evidence of Schaufele's blood draw. In so holding, we do not mean to imply that a warrant is always necessary in involuntary blood draw cases. But here, the trial court's analysis is consistent with McNeely 's holding that the Fourth Amendment requires officers in drunk-driving investigations to obtain a warrant before drawing a blood sample when they can do so without significantly undermining the efficacy of the search, and the People do not challenge how the trial court applied the totality of the cireumstances standard set forth in the majority opinion in MeNeely. Consequently, we affirm the trial court's suppression order.

JUSTICE BOATRIGHT concurs in the judgment, and CHIEF JUSTICE RICE joins in the concurrence in the judgment. JUSTICE EID dissents, and JUSTICE COATS joins in the dissent.

1 . In its suppression order, the trial court referred to Officer "Lankert"; however, the transcript of the evidentiary hearing makes clear that the officer's correct surname is Langert.

2 . After admitting to their lack of experience with expedited warrants, the officers speculated that obtaining an expedited search warrant would have taken anywhere from one to four hours.

3 . Justice Thomas did not join, endorse, or even address Chief Justice Roberts's proposal in his dissenting opinion. Instead, he advanced the position that when there is probable cause to believe that a suspect has been driving under the influence of alcohol, a warrantless blood draw does not violate the Fourth Amendment because the body's natural metabolization of alcohol constitutes an exigent circumstance. 133 S.Ct. at 1574 (Thomas, J., dissenting).

4 . Schaufele asserts as an alternative argument that the People appeal the trial court's denial of the motion to reconsider the suppression order, not the suppression order itself; accordingly, he urges this court to apply an abuse of discretion standard of review. Our cases with a similar procedural history show, however, that this court still reviews the underlying suppression order as a mixed question of law and fact, even when the order was challenged by way of a motion to reconsider. See, eg., People v. Cunningham, 2013 CO 71, ¶¶7 n. 3, 9, 314 P.3d 1289, 1291 & n. 3; Bonilla-Barraza, 209 P.3d at 1093-94; People v. Jiminez, 863 P.2d 981, 983 (Colo.1993). The text of these opinions does not allow us to discern whether the prosecution restricted its appeals to the arguments raised in opposition to the motions to suppress. Nevertheless, Jiminez shows that this court will review the underlying suppression order even when the prosecution's arguments on a motion for reconsideration reveal a shift in focus. See 863 P.2d at 983 (district court's suppression order was based entirely on determination that defendant did not knowingly and intelligently waive his rights before interrogation, but the prosecution argued in its motion for reconsideration that suppression is improper in the absence of police coercion}.

5 . The events underlying McNeely took place in Missouri. Although Colorado's provision is phrased in terms of "expressed consent," its language and effect are similar to Missouri's "implied consent" law. Compare § 42-4-1301.1, C.R.S. (2013), with Mo. Ann. Stat. § 577.020(1) (West 2013).

6 . Five justices-Justices Sotomayor, Scalia, Kennedy, Ginsburg, and Kagan-joined the majority opinion. In addition, four of those justices-Justices Sotomayor, Scalia, Ginsburg, and Ka-gan-issued a plurality opinion, and Justice Kennedy issued a concurring opinion. Chief Justice Roberts-joined by Justices Breyer and Alito-issued an opinion concurring in part and dissenting in part. And Justice Thomas issued a dissenting opinion.

7 . The fellow officer rule "operates to impute information that the police possess as a whole to an individual officer." Grassi, 113, 320 P.3d at 336. Recognizing that law enforcement officers routinely engage in coordinated investigations, we recently held that "the fellow officer rule imputes information that the police possess as a whole to an individual officer who effects a search or arrest if (1) that officer acts pursuant to a coordinated investigation and (2) the police possess the information at the time of the search or arrest." Id. at 121, 320 P.3d at 338.

8 . Section 42-4-1301.1(1) provides that "[alny person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person's consent to the provisions of this section." Of relevance here, section 42-4-1301.1(2)(a)(I) provides that a driver shall be required to cooperate in a blood test for alcohol analysis when requested and directed by a law enforcement officer having probable cause to believe that the person was driving under the influence of alcohol. And section 42-4-1301.1(8) provides that a driver who is unconscious shall be tested to determine his blood alcohol content as provided in this section.

9 . Our Oklahoma counterpart has aptly explained:

Because the United States Supreme Court has spoken, this Court is not free to impose its own view of the law as it pertains to the competing interests involved.... We are doubly bound to uphold the law of the land. Our limited role, like the role of all state courts in such cases, is to apply federal constitutional law, not to make it nor to guess what it may become.

In re: Initiative Petition No. 349, State Question No. 642, 838 P.2d 1, 7 (Okla.1992).