State v. John N. Willis ( 2016 )


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  •           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FIFTH DISTRICT
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    STATE OF FLORIDA,
    Appellant/Cross-Appellee,
    v.                                             Case No. 5D14-1654
    WADE F. LILES,
    Appellee/Cross-Appellant.
    ________________________________/
    Opinion filed April 8, 2016
    Appeal from the Circuit Court
    for Orange County,
    Michael Murphy, Judge.
    Pamela Jo Bondi, Attorney General,
    Tallahassee, and Kristen L. Davenport,
    Assistant Attorney General, Daytona
    Beach, for Appellant/Cross-Appellee.
    William R. Ponall and Michael J. Snure,
    of Snure & Ponall, P.A., Winter Park,
    for Appellee/Cross-Appellant.
    ______________________________________________________________________
    STATE OF FLORIDA,
    Appellant,
    v.                                             Case No. 5D15-405
    JOHN NATHAN WILLIS,
    Appellee.
    ________________________________/
    Appeal from the Circuit Court
    for Orange County,
    Timothy R. Shea, Judge.
    Pamela Jo Bondi, Attorney General,
    Tallahassee, and Kristen L. Davenport,
    Assistant Attorney General, Daytona
    Beach, for Appellee.
    James S. Purdy, Public Defender, and
    Jeri Delgado, Nancy Ryan and Anne
    Moorman Reeves, Assistant Public
    Defenders, Daytona Beach, and Aaron
    D. Delgado, of Damore, Delgado,
    Romanik & Rawlins, Daytona Beach, for
    Appellee.
    ORFINGER, J.
    The State of Florida appeals two orders suppressing the results of warrantless
    blood draws taken from Wade F. Liles and John Nathan Willis during drunk driving
    investigations involving separate traffic crash fatalities.1 In both cases, the trial courts
    found that, pursuant to the United States Supreme Court's holding in Missouri v.
    McNeely, 
    133 S. Ct. 1552
    (2013), the blood draw results were inadmissible because the
    blood was obtained without a warrant, consent, or any other recognized exception to the
    warrant requirement. The State argues that section 316.1933(1)(a), Florida Statutes
    (2011), is a general exception to the warrant requirement that applies even after
    McNeely. We disagree, but reverse based on the good-faith exception set forth in
    United States v. Leon, 
    468 U.S. 897
    (1984).
    Wade Liles and John Willis were involved in separate fatal traffic crashes in 2011
    and 2012.      While investigating these traffic fatalities, the investigating officers saw
    1
    We have consolidated these cases for purposes of disposition only.
    2
    indications that Liles and Willis may have been under the influence of alcohol when the
    crashes occurred and requested blood draws pursuant to section 316.1933(1)(a),
    Florida Statutes (2011). Both Liles and Willis initially refused. However, they ultimately
    complied with the warrantless blood draws after being told that law enforcement would
    forcibly take their blood, if necessary. After Liles and Willis were arrested and charged,
    both filed motions to suppress the results of the warrantless blood draws. Both trial
    courts granted the motions, finding that McNeely either required a warrant or exigent
    circumstances, and that the Leon good-faith exception to the exclusionary rule did not
    apply.
    The review of a trial court's ruling on a motion to suppress is a mixed question of
    law and fact that uses a two-step approach. We defer to the trial court's findings of fact,
    provided that they are supported by competent, substantial evidence, but review de
    novo a trial court's application of law to the historical facts. E.g., Delhall v. State, 
    95 So. 3d
    134, 150 (Fla. 2012); Connor v. State, 
    803 So. 2d 598
    , 605 (Fla. 2001); Ferguson v.
    State, 41 Fla. L. Weekly D62, D62 (Fla. 5th DCA Dec. 31, 2015).
    The Fourth Amendment protects against unreasonable searches and seizures.
    Amend. IV, U.S. Const. A blood draw conducted at the direction of the police is a
    search and seizure under the Fourth Amendment. Schmerber v. California, 
    384 U.S. 757
    , 767 (1966); State v. Geiss, 
    70 So. 3d 642
    , 646 (Fla. 5th DCA 2011). To comply
    with the Fourth Amendment, law enforcement officers must obtain a warrant or consent
    for a blood draw, or there must be some other exception to the warrant requirement.
    See Kilburn v. State, 
    54 So. 3d 625
    , 627 (Fla. 1st DCA 2011). When, as here, no
    warrant is obtained, “[t]he state has the burden to prove that an exception to the warrant
    3
    requirement applies.” 
    Id. To satisfy
    that burden, the State argues that the warrantless
    searches in these cases were reasonable under either of two exceptions: consent or
    exigent circumstances.
    Consent
    A search conducted without a warrant issued upon probable cause is per se
    unreasonable under the Fourth Amendment, subject only to a few well-established
    exceptions.      Katz v. United States, 
    389 U.S. 347
    , 357 (1967).       One of the well-
    established exceptions to the requirements of both a warrant and probable cause is a
    search conducted pursuant to consent. Davis v. United States, 
    328 U.S. 582
    , 593-94
    (1946). The State argues that the warrantless blood draws here should be upheld
    under the consent exception to the warrant requirement.
    The State concedes that Liles and Willis did not give actual consent to the blood
    draws.       However, it argues that both blood samples were properly drawn on the
    authority found in section 316.1933(1)(a), Florida Statutes (2011), the mandatory blood-
    draw provision of Florida’s implied consent statutory scheme,2 which provides as
    follows:
    2
    This Court and other Florida courts have consistently recognized that section
    316.1933 is part of the trilogy of statutes comprising the implied consent statutory
    scheme. See, e.g., State v. Kleiber, 
    175 So. 3d 319
    , 321 (Fla. 5th DCA 2015); State v.
    Murray, 
    51 So. 3d 593
    , 595 n.1 (Fla. 5th DCA 2011); Kurecka v. State, 
    67 So. 3d 1052
    ,
    1060 (Fla. 4th DCA 2010); State, Dep’t of Highway Safety & Motor Vehicles v. Boesch,
    
    979 So. 2d 1024
    , 1026 n.1 (Fla. 3d DCA 2008); Bruch v. State, 
    954 So. 2d 1242
    , 1244
    (Fla. 4th DCA 2007). Under this statutory scheme, section 316.1932 provides that any
    person who drives a motor vehicle is deemed to have given consent to blood alcohol
    testing if the driver is lawfully arrested on suspicion of a drunk driving offense. §
    316.1932, Fla. Stat. (2011). Section 316.1933, Florida Statutes (2011), requires a
    police officer to obtain a driver’s blood when the officer has probable cause to believe
    an impaired driver has caused death or serious injury to a human being and to use
    reasonable force if necessary. Finally, section 316.1934, Florida Statutes (2011), sets
    4
    If a law enforcement officer has probable cause to believe
    that a motor vehicle driven by or in the actual physical
    control of a person under the influence of alcoholic
    beverages, any chemical substances, or any controlled
    substances has caused the death or serious bodily injury of
    a human being, a law enforcement officer shall require the
    person driving or in actual physical control of the motor
    vehicle to submit to a test of the person’s blood for the
    purpose of determining the alcoholic content thereof or the
    presence of chemical substances as set forth in s. 877.111
    or any substance controlled under chapter 893. The law
    enforcement officer may use reasonable force if necessary
    to require such person to submit to the administration of the
    blood test. The blood test shall be performed in a reasonable
    manner. Notwithstanding s. 316.1932, the testing required
    by this paragraph need not be incidental to a lawful arrest of
    the person.
    In Williams v. State, 
    167 So. 3d 483
    , 490-91 (Fla. 5th DCA 2015), review
    granted, No. SC15-1417, 
    2015 WL 9594290
    (Fla. Dec. 30, 2015), this Court recognized
    that statutory implied consent was not equivalent to Fourth Amendment consent,
    explaining that valid consent has long been recognized as a “jealously and carefully
    drawn” exception to the warrant requirement and for a search based upon consent to be
    valid, it must be freely and voluntarily given and cannot be the product of coercion.
    Further, statutory implied consent laws do “not constitute a per se exception to the
    warrant requirement.” 
    Id. at 491;
    see also State v. Fierro, 
    853 N.W.2d 235
    , 237 (S.D.
    2014) (indicating that implied-consent statute did not constitute stand-alone exception to
    warrant requirement). Based on Williams, even if we agree with the State that Liles and
    Willis impliedly consented to the blood draws by driving, they explicitly revoked that
    consent when they refused to submit to the blood draws. Because Liles and Willis did
    forth various legal presumptions associated with different blood alcohol levels and the
    testing methods. The mandate found in section 316.1933 is a directive to law
    enforcement to perform the test. See State v. Serrago, 
    875 So. 2d 815
    , 818 (Fla. 2d
    DCA 2004) (citing State v. Webb, 
    753 So. 2d 145
    (Fla. 3d DCA 2000)).
    5
    not consent to the blood draws, we conclude that the warrantless blood searches were
    not authorized by the consent exception.
    Exigency
    The State next contends that exigent circumstances exists to justify the
    warrantless blood draws. This exception to the warrant requirement “applies when the
    exigencies of the situation make the needs of law enforcement so compelling that a
    warrantless search is objectively reasonable under the Fourth Amendment.” 
    McNeely, 133 S. Ct. at 1558
    (quoting Kentucky v. King, 
    563 U.S. 452
    , 460 (2011)). Applying that
    exception, the United States Supreme Court upheld the constitutionality of a warrantless
    blood draw in Schmerber when the officer reasonably believed that the delay involved in
    securing a warrant would result in the dissipation of alcohol in a driver’s 
    blood. 384 U.S. at 772
    . Forty-seven years later, in McNeely, the Supreme Court clarified Schmerber,
    holding that the natural metabolization of alcohol in the bloodstream does not create a
    per se exigency justifying warrantless, nonconsensual blood testing in all DUI cases,
    though it is a relevant consideration in determining if exigent circumstances 
    exist. 133 S. Ct. at 1568
    .    Hence, “[a]fter McNeely, law enforcement officers [are] no longer
    categorically permitted to obtain a suspect’s blood sample without a warrant simply
    because the alcohol [is] leaving the suspect’s blood stream.”          Commonwealth v.
    Duncan, No. 2013-SC-000742-DG, 
    2015 WL 2266474
    , at *5 (Ky. May 14, 2015).
    In drunk driving investigations, the Fourth Amendment mandates that officers
    obtain a warrant unless excused by an exception to the warrant requirement. 
    McNeely, 133 S. Ct. at 1561
    . The McNeely Court observed that a warrantless search in exigent
    circumstances is reasonable when “there is compelling need for official action and no
    6
    time to secure a warrant.” 
    Id. at 1559
    (quoting Michigan v. Tyler, 
    436 U.S. 499
    , 509
    (1978)).   However, there is no general justification for applying the exigent
    circumstances exception when “officers can reasonably obtain a warrant before a blood
    sample can be drawn without significantly undermining the efficacy of the search.” 
    Id. at 1561.3
    Here, as both trial courts found, the State failed to present sufficient evidence
    that exigent circumstances existed to support the warrantless blood draws under the
    totality of the circumstances in either case. Indeed, the State made no effort to do so,
    as the blood draws were based solely on the officers’ reliance on section 316.1933(1).
    See 
    McNeely, 133 S. Ct. at 1567
    (explaining because state had relied on per se
    approach, “the arresting officer did not identify any other factors that would suggest he
    faced an emergency or unusual delay in securing a warrant”).
    We decline to adopt the State’s argument that McNeely does not apply in these
    cases and that the Schmerber rule is as broad as previously believed. After McNeely,
    law enforcement must obtain a warrant or later show that exigent circumstances
    prevented them from doing so. Following McNeely, we must read section 316.1933,
    Florida Statutes, as a directive to law enforcement to obtain blood samples in serious
    and deadly crashes when probable cause exists to suggest impaired driving. To comply
    with McNeely, the statute must assume the blood draw will be obtained with a warrant,
    absent consent or proof of exigent circumstances. Cf. State v. Won, No. SCWC-12-
    3
    The Court reiterated that the question of the reasonableness of a warrantless
    search should be answered on a case-by-case basis considering the totality of the
    circumstances. 
    McNeely, 133 S. Ct. at 1563
    . McNeely identified certain facts that
    establish whether an exigent circumstance exists, including: natural dissipation of
    alcohol from the body, the time to seek out a magistrate to review a warrant, a DUI
    involving a crash where an investigation must be conducted, and the availability of
    electronic or telephonic warrants. 
    Id. at 1560-62.
    7
    0000858, 
    2015 WL 10384497
    (Haw. Nov. 25, 2015) (discussing McNeely, and stating
    that pursuant to statute, warrantless blood alcohol test may be required from driver
    involved in collision resulting in injury or death so long as: (1) police have probable
    cause to believe that driver has committed DUI offense and that blood sample will
    evidence that offense; (2) exigent circumstances are present; and (3) sample is
    obtained in reasonable manner).
    Good Faith and the Exclusionary Rule
    Although we conclude that neither the consent nor exigent circumstances
    exceptions applies to these cases, we nonetheless reverse the suppression of the blood
    draws based on the police officers’ good-faith reliance on section 316.1933.         The
    exclusionary rule is a judicially-created remedy adopted to protect Fourth Amendment
    rights by deterring illegal searches and seizures. Davis v. United States, 
    131 S. Ct. 2419
    , 2426 (2011). It is intended to deter police misconduct, not to remedy the prior
    invasion of a defendant's constitutional rights. Montgomery v. State, 
    69 So. 3d 1023
    ,
    1033 (Fla. 5th DCA 2011). Because the primary purpose of the exclusionary rule is to
    “deter future unlawful police conduct,” Stone v. Powell, 
    428 U.S. 465
    , 484 (1976), the
    rule has not been applied in certain circumstances, such as when an officer acts in
    objectively reasonable reliance on a subsequently invalidated statute, Illinois v. Krull,
    
    480 U.S. 340
    , 355 (1987).
    Applying the objective standard of reasonableness mandated by Krull to the facts
    presented here, we conclude that, before McNeely, it was reasonable for the officers to
    have a good-faith belief in the constitutional validity of a warrantless blood draw
    authorized by section 316.1933(1)(a). See, e.g., State v. Bender, 
    382 So. 2d 697
    , 698
    8
    (Fla. 1980) (“There is no constitutional impediment to a blood alcohol analysis with or
    without consent where probable cause has been established.”); State v. McInnis, 
    581 So. 2d 1370
    , 1373 (Fla. 5th DCA 1991) (recognizing no constitutional right not to have
    blood drawn for testing by brute force and against suspect’s will); see also State v.
    Langsford, 
    816 So. 2d 136
    , 138-39 (Fla. 4th DCA 2002) (holding forcible blood
    extraction from defendant does not violate Fourth Amendment when defendant is under
    arrest for DUI provided there is probable cause to arrest defendant for DUI, and blood is
    extracted in reasonable manner by medical personnel, pursuant to medically-approved
    procedures).
    Exclusion of the blood in these two cases would have no deterrent effect on
    future police misconduct. See United States v. Calandra, 
    414 U.S. 338
    , 347 (1974)
    (recognizing that exclusionary rule’s primary purpose is to deter future unlawful police
    conduct, not repair it, and thus, not designed to safeguard personal constitutional right
    of party aggrieved); United States v. Master, 
    614 F.3d 236
    , 243 (6th Cir. 2010) (noting
    that Supreme Court's recent jurisprudence weighed more toward preserving evidence
    for use in obtaining convictions, even if illegally seized, than toward excluding evidence
    in order to deter police misconduct unless officers engaged in deliberate, reckless, or
    grossly negligent conduct); Brown v. State, 
    24 So. 3d 671
    , 681 (Fla. 5th DCA 2009) (“To
    apply the exclusionary rule in this case cannot possibly deter police because they did
    exactly what they were trained to do based on what we (judges) told them was
    appropriate.”). Instead, applying the exclusionary rule in this case would deprive the
    State of the benefit of evidence obtained as a result of the officers’ good-faith conduct.
    
    Leon, 468 U.S. at 907-08
    (“Particularly when law enforcement officers have acted in
    9
    objective good faith . . ., the magnitude of the benefit conferred on such guilty
    defendants [by the exclusionary rule] offends basic concepts of the criminal justice
    system.”).
    Accordingly, although we conclude that Liles and Willis both suffered a Fourth
    Amendment violation, based on the good-faith exception, the trial courts should not
    have suppressed the results of warrantless blood draws taken before the issuance of
    McNeely.4 See, e.g., People v. Harrison, No. 5–15–0048, 
    2016 WL 683829
    (Ill. App. Ct.
    Feb. 18, 2016) (holding that good-faith exception applied to preclude suppression of
    blood draw results because at time of warrantless, nonconsensual blood draw, McNeely
    had yet to be decided and binding precedent allowed for such draws in all DUI cases);
    State v. Lindquist, 
    869 N.W.2d 863
    , 877-78 (Minn. 2015) (holding that results of
    defendant’s blood test were admissible under good-faith exception, where officer relied
    on and complied with binding appellate precedent, which was later abrogated, that
    allowed warrantless blood draw when there was probable cause to believe that
    defendant was intoxicated when she caused motor vehicle accident); Byars v. State,
    
    336 P.3d 939
    , 947-48 (Nev. 2014) (holding that admission of blood draw evidence was
    not erroneous because, pre-McNeely, officer had reasonable good-faith belief in
    constitutional validity of warrantless blood draw); State v. Foster, 
    856 N.W.2d 847
    , 859-
    60 (Wis. 2014) (holding that good-faith exception to exclusionary rule applied to
    4
    Liles’s cross-appeal, challenging whether there was probable cause for the
    warrantless blood draw pursuant to section 316.1933(1)(a), is without merit. See Dep’t
    of Highway Safety & Motor Vehicles v. Rose, 
    105 So. 3d 22
    , 24 (Fla. 2d DCA 2012)
    (recognizing that determination of probable cause to arrest for DUI is based on several
    factors, including odor of alcohol on driver’s breath as well as defendant’s slurred
    speech, lack of balance or dexterity, flushed face, bloodshot eyes, admissions, and poor
    performance on field sobriety exercises).
    10
    evidence obtained as result of warrantless, nonconsensual blood draw following arrest
    of defendant on suspicion of operating vehicle while under influence of intoxicant since
    police officers conducting blood draw acted in objectively reasonable belief that their
    conduct did not violate Fourth Amendment; at time of draw, Supreme Court had not yet
    announced McNeely rule); accord State v. Taylor, 
    79 So. 3d 876
    , 878 (Fla. 4th DCA
    2012) (holding that good-faith exception applied to police officer's search of defendant's
    vehicle where search occurred prior to issuance of Supreme Court's decision that made
    such search unlawful); 
    Montgomery, 69 So. 3d at 1033
    (holding that, although
    defendant was stopped based on unconstitutional noise ordinance, good-faith exception
    applied to drug evidence recovered because ordinance was not held unconstitutional
    until after stop was made and officer's reliance on statute was objectively reasonable;
    exclusion of drugs found in defendant's car would have had no deterrent effect on future
    police misconduct and would have deprived state of benefit of evidence obtained as
    result of officer's good-faith conduct).
    REVERSED AND REMANDED.
    TORPY and EDWARDS, JJ., concur.
    11