Donald F. Huff v. State ( 2015 )


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  •                                                                         ACCEPTED
    04-13-00891-CR
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    5/7/2015 4:17:33 PM
    KEITH HOTTLE
    CLERK
    No. 04-13-00891-CR
    In the
    Fourth Court of Appeals District of Texas
    San Antonio, Texas
    DONALD F. HUFF,
    Appellant
    v.
    STATE OF TEXAS,
    Appellee
    On appeal from the 226th Judicial District Court
    Bexar County, Texas
    Trial Cause No. 2011-CR-2990
    STATE’S MOTION FOR REHEARING
    NICHOLAS “NICO” LAHOOD
    Criminal District Attorney
    NATHAN E. MOREY
    Assistant Criminal District Attorney
    State Bar No. 24074756
    CRIMINAL DISTRICT ATTORNEY’S OFFICE
    Bexar County, Texas
    101 West Nueva Street, Suite 370
    San Antonio, Texas 78205
    Voice: (210) 335-2414
    Fax: (210) 335-2436
    Email: nathan.morey@bexar.org
    Attorneys for the State of Texas
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    TABLE OF CONTENTS
    TABLE OF CONTENTS ................................................................................................. ii
    INDEX OF AUTHORITIES............................................................................................. iii
    STATEMENT OF THE CASE ...........................................................................................1
    GROUNDS FOR REHEARING .........................................................................................2
    ARGUMENT .................................................................................................................3
    Ground One: The Court’s opinion contravenes a basic tenet of the
    Fourth Amendment by relying on the officer’s subjective
    intent............................................................................................3
    Applicable Law: The Fourth Amendment and an Officer’s Subjective
    Intent ...........................................................................................................3
    Application of the Law to the Present Record .................................................4
    Ground Two: The Court’s opinion implies an incorrect legal standard
    for exigent circumstances. ..........................................................6
    Applicable Law: McNeely ...............................................................................6
    Application of the Law to the Present Record .................................................7
    Conclusion               .....................................................................................................8
    PRAYER .......................................................................................................................9
    CERTIFICATE OF SERVICE ..........................................................................................10
    CERTIFICATE OF COMPLIANCE ..................................................................................10
    ii
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    INDEX OF AUTHORITIES
    Statutes:
    TEX. CODE CRIM. PROC. art. 18.02 ........................................................................8
    TEX. PENAL CODE § 19.02(b) ................................................................................1
    Cases:
    Aliff v. State,
    
    627 S.W.2d 166
    (Tex. Crim. App. [Panel Op.] 1982).................................7, 9
    Ashcroft v. al-Kidd,
    
    131 S. Ct. 2074
    (2011).....................................................................................3
    Brinegar v. United States,
    
    338 U.S. 160
    (1949).........................................................................................4
    Cole v. State,
    
    454 S.W.3d 89
    (Tex. App.—Texarkana 2014),
    pet. granted, No. PD-0077-15,
    No. 2015 Tex. Crim. App. LEXIS 508 (Tex. Crim. App. Apr. 22, 2015) ......6
    Devenpeck v. Alford,
    
    543 U.S. 146
    (2004).....................................................................................3, 5
    Heien v. North Carolina,
    
    135 S. Ct. 530
    (2014)...................................................................................4, 5
    Hill v. California,
    
    401 U.S. 797
    (1971).....................................................................................4, 5
    Huff v. State,
    No. 04-13-00891-CR, ___ S.W.3d ___
    (Tex. App.—San Antonio 2015, no pet. h.) ................................................1, 6
    Kentucky v. King,
    
    131 S. Ct. 1849
    (2011).....................................................................................4
    Mincey v. Arizona,
    
    437 U.S. 385
    (1978).........................................................................................4
    iii
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    Missouri v. McNeely,
    
    133 S. Ct. 1552
    (2013)........................................................................ 6, 7, 8, 9
    Ryburn v. Huff,
    
    132 S. Ct. 987
    (2012).......................................................................................7
    Schmerber v. Califorina,
    
    384 U.S. 757
    (1966).....................................................................................6, 9
    Scott v. United States,
    
    436 U.S. 128
    (1978).........................................................................................3
    United States v. Sharpe,
    
    470 U.S. 675
    (1985).....................................................................................7, 8
    Whren v. United States,
    
    517 U.S. 806
    (1996).....................................................................................3, 5
    Rules:
    TEX. R. APP. P. 9.4(i)(2)(B) ...............................................................................10
    TEX. R. APP. P. 9.4(i)(3) .....................................................................................10
    TEX. R. APP. P. 9.5(b).........................................................................................10
    TEX. R. APP. P. 49.1. .............................................................................................1
    iv
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    TO THE HONORABLE FOURTH COURT OF APPEALS:
    NOW COMES the State of Texas, by and through Nicholas “Nico” LaHood,
    criminal district attorney of Bexar County, Texas, and the undersigned assistant
    criminal district attorney, with the filing of the following Motion for Rehearing.
    STATEMENT OF THE CASE
    Donald F. Huff, hereinafter referred to as Appellant, was charged by
    indictment with murder (C.R. at 19). See TEX. PENAL CODE § 19.02(b). This
    Court reversed the trial courts judgment on the basis that evidence was admitted
    during trial that was seized in violation of the Fourth Amendment. Huff v. State,
    No. 04-13-00891-CR, ___ S.W.3d ___ (Tex. App.—San Antonio 2015, no pet. h.).
    The State now asks this Court to reconsider its previous judgment and opinion.
    See TEX. R. APP. P. 49.1.
    1
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    GROUNDS FOR REHEARING
    Ground One: The Court’s opinion contravenes a basic tenet of the Fourth
    Amendment by relying on the officer’s subjective intent.
    Ground Two: The Court’s opinion implies an incorrect legal standard for exigent
    circumstances.
    2
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    ARGUMENT
    Ground One: The Court’s opinion contravenes a basic tenet of the Fourth
    Amendment by relying on the officer’s subjective intent.
    In deciding whether the instant blood draw was supported by exigent
    circumstances, this Court relied almost entirely on the officer’s subjective intent.
    This Court also relied on the trial court’s conclusion, which appears to have also
    erroneously relied on the officer’s subjective intent. Huff, at *29–30. Because the
    Supreme Court has repeatedly stated that an officer’s subjective intent does not
    control a Fourth Amendment analysis, this Court should reconsider its original
    opinion.
    Applicable Law: The Fourth Amendment and an Officer’s Subjective Intent
    It is axiomatic that the subjective intent of the officer is irrelevant to the
    lawfulness of a search or seizure. Ashcroft v. al-Kidd, 
    131 S. Ct. 2074
    , 2080
    (2011); Devenpeck v. Alford, 
    543 U.S. 146
    , 154–55 (2004); Bond v. United States,
    
    529 U.S. 334
    , 339 n.2 (2000); Whren v. United States, 
    517 U.S. 806
    , 813 (1996).
    A court must decide whether “the circumstances, viewed objectively, justify the
    challenged action.” 
    Ashcroft, 131 S. Ct. at 2080
    (quoting Scott v. United States,
    
    436 U.S. 128
    , 138 (1978) (alterations omitted)). Consistent with this principle, the
    Supreme Court has stated that police may conduct a warrantless search “when the
    exigencies of the situation make the needs of law enforcement so compelling that a
    3
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    warrantless search is objectively reasonable under the Fourth Amendment.”
    Kentucky v. King, 
    131 S. Ct. 1849
    , 1856 (2011) (quoting Mincey v. Arizona, 
    437 U.S. 385
    , 394 (1978) (emphasis added, internal quotes and alterations omitted)).
    Along this same line is the equally axiomatic rule that an officer does not
    have to be right so long as he is reasonable. See Hill v. California, 
    401 U.S. 797
    ,
    804 (1971) (officer’s factual mistake was reasonable and did not invalidate search
    and seizure). “To be reasonable is not to be perfect, and so the Fourth Amendment
    allows for some mistakes on the part of government officials, giving them ‘fair
    leeway for enforcing the law in the community’s protection.’” Heien v. North
    Carolina, 
    135 S. Ct. 530
    , 536 (2014) (quoting Brinegar v. United States, 
    338 U.S. 160
    , 176 (1949)).
    Application of the Law to the Present Record
    The question in the present case should not tunr on Officer Peeler’s opinion.
    Rather, the question should be whether an objective assessment of the facts support
    a finding of exigent circumstances. Contrary to the trial court’s ruling and this
    Court’s opinion, the record supports such a finding.
    Peeler initially had to block off traffic when he arrived at the scene of a
    major accident (V R.R. at 10). Then his supervisor asked him to handle the DWI
    portion of the accident investigation (V R.R. at 10). Once Peeler asked Appellant
    to perform standardized field sobriety tests, he requested EMS treatment (V R.R. at
    4
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    12). Peeler was unable to request a blood specimen from Appellant until 10:53 PM
    (V R.R. at 15). In addition, there was no expedited process to obtain a blood-
    warrant in 2009 (V R.R. at 14, 15). The blood was ultimately drawn by a nurse at
    the hospital at 11:36 PM (V R.R. at 15). This Court should have analyzed these
    facts from an objective perspective. Instead, this Court and the trial court rested its
    ruling and opinion on the officer’s conclusory response to Appellant’s leading
    question: “Where there any exigent circumstances that prevented you from getting
    a warrant?” “No, sir.” (V R.R. at 19). But the officer testified to more.
    The Fourth Amendment does not require Peeler to subjectively believe that
    exigent circumstances were present, see 
    Devenpeck, 543 U.S. at 154
    –55; 
    Whren, 517 U.S. at 813
    , nor does it require him to be factually correct as to the sufficiency
    of exigent circumstances, see 
    Heien, 135 S. Ct. at 536
    ; 
    Hill, 401 U.S. at 804
    . This
    Court’s exigency analysis contains no reference to any objective facts and relies
    solely on Peeler’s subjective belief (supported by a single response to a leading
    question). See Huff, at *29–32. The State respectfully asks this Court to reissue its
    opinion with an exigency analysis based on objective facts and consistent with the
    above cited precedent.
    5
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    Ground Two: The Court’s opinion implies an incorrect legal standard for exigent
    circumstances.
    This Court and the trial court concluded that there were no exigent
    circumstances because “the officer never thought of obtaining a warrant because it
    was not standard procedure.” Huff, at *31. This conclusion is inconsistent with
    McNeely’s holding.
    Applicable Law: McNeely
    In Missouri v. McNeely, 
    133 S. Ct. 1552
    (2013), the Supreme Court
    reaffirmed its previous holding in Schmerber v. Califorina, 
    384 U.S. 757
    (1966).
    In that case the Court concluded that a warrantless blood draw was administered
    under exigent circumstances after a suspect was transported to a hospital following
    a car crash. 
    McNeely, 133 S. Ct. at 1559
    –60 (citing Schmerber). The McNeely
    Court referred to the crash circumstances in Schmerber as “special facts” and
    distinguished Schmerber’s car crash scenario from McNeely’s run-of-the-mill DWI
    arrest. 
    McNeely, 133 S. Ct. at 1559
    –61. The question, according to McNeely, is
    not whether the officer can obtain a warrant. The question is whether police can
    obtain a warrant “without significantly undermining the efficacy of the search.”
    
    Id. at 1561.1
    The McNeely plurality warned reviewing courts not to view an
    1
    The Court of Criminal Appeals recently granted the State’s petition for discretionary
    review of the Texarkana Court of Appeals decision in Cole v. State, 
    454 S.W.3d 89
    (Tex. App.—
    Texarkana 2014), pet. granted, No. PD-0077-15, No. 2015 Tex. Crim. App. LEXIS 508 (Tex.
    Crim. App. Apr. 22, 2015). The first ground presented in the Cole PDR is: “Did the Court of
    6
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    officer’s action with “the 20/20 vision of hindsight” when answering this question.
    
    Id. at 1564
    (plurality op.) (quoting Ryburn v. Huff, 
    132 S. Ct. 987
    , 992 (2012)). It
    is always important that courts review an officer’s conduct for objective
    reasonableness and not whether he took the most reasonable course of action
    amongst a set of reasonable alternatives. United States v. Sharpe, 
    470 U.S. 675
    ,
    686–87 (1985).
    The Court of Criminal Appeals has previously concluded that exigent
    circumstances existed in a case similar to both Schmerber and the present case.
    See Aliff v. State, 
    627 S.W.2d 166
    , 168–70 (Tex. Crim. App. [Panel Op.] 1982)
    (blood draw of manslaughter suspect in hospital who was not under arrest did not
    violate Fourth Amendment).
    Application of the Law to the Present Record
    In the present case, Officer Peeler followed Appellant to the hospital, but
    was not able to speak with him and ask him for a consensual blood test until 10:53
    PM—nearly three hours after the initial crash (V R.R. at 12–15). The blood was
    ultimately drawn pursuant to the mandatory law at 11:36 PM (V R.R. at 15). Had
    Peeler sought a warrant at that point, without the current “no refusal procedures” in
    Appeals conduct an incorrect exigent circumstances analysis when it required proof of a ‘now or
    never’ level of urgency?”          See Court of Criminal Appeals’ Issues Page at
    http://www.txcourts.gov/media/914405/issues04292015.pdf. The Court is also reviewing other
    McNeely issues involving car crashes in the cases of Douds v. State, No. PD-0857-14, and
    Weems v. State, No. PD-0635-14.
    7
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    place, he would have compromised “the efficacy of the search,” i.e., the probative
    value of the blood. 
    McNeely, 133 S. Ct. at 1561
    . Accordingly, Peeler’s actions
    were consistent with McNeely and Schmerber.
    Of course, this Court could second guess Peeler and conclude that he should
    have applied for a warrant based on his initial observations at the scene—
    specifically, the odor on Appellant’s breath, the clues observed during the HGN
    test, and the fact that Appellant lost control of his motorcycle.           However, a
    magistrate need not ever issue a warrant.          He may issue a warrant if he is
    convinced that the officer has probable cause. See TEX. CODE CRIM. PROC. art.
    18.02. And a magistrate would be acting well within the law to decline to issue the
    warrant if the officer had not first requested a voluntary breath specimen or
    obtained a refusal. This Court should not fault Peeler for first attempting to obtain
    Appellant’s consent or refusal because a refusal to voluntarily submit a blood or
    breath specimen has probative value in a DWI investigation. 
    McNeely, 133 S. Ct. at 1564
    (plurality op.); 
    Sharpe, 470 U.S. at 686
    –87.            By the time Appellant
    refused, too much time had already passed and Peeler was reasonable to proceed
    without a warrant.
    Conclusion
    This Court’s exigency analysis turns on Officer’s Peeler’s subjective intent
    and ignores the objective facts and whether, based on those facts, obtaining a
    8
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    search warrant would have significantly undermined the “efficacy of the search.”
    
    McNeely, 133 S. Ct. at 1561
    . Regardless of whether the mandatory blood draw
    provision of the Transportation Code is by itself is a reasonable alternative to a
    search warrant (a question still pending), Officer Peeler’s conduct was reasonable
    in light of general Fourth Amendment principles and precedent from both the
    Supreme Court and the Court of Criminal Appeals. See 
    Schmerber, 384 U.S. at 766
    –71; 
    Aliff, 627 S.W.2d at 168
    –70.
    PRAYER
    WHEREFORE, PREMISES CONSIDERED, Appellee State prays this
    reconsider its judgment and opinion of April 8, 2015, and issue a new judgment
    and opinion affirming the trial court’s judgment of conviction and sentence.
    Respectfully submitted,
    NICHOLAS “NICO” LAHOOD
    Criminal District Attorney
    Bexar County, Texas
    /s/ Nathan E. Morey
    NATHAN E. MOREY
    Assistant Criminal District Attorney
    State Bar No. 24074756
    101 West Nueva, Suite 370
    San Antonio, Texas 78205
    Voice: (210) 335-2414
    Fax: (210) 335-2436
    Email: nathan.morey@bexar.org
    Attorneys for Appellant State of Texas
    9
    HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing
    CERTIFICATE OF SERVICE
    I, Nathan E. Morey, hereby certify that, pursuant to Texas Rule of Appellate
    Procedure 9.5(b), a true and correct copy of the above and foregoing brief was
    emailed to Dayna Jones on Thursday, May 7, 2015.
    CERTIFICATE OF COMPLIANCE
    I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate
    Procedure 9.4(i)(2)(B) and 9.4(i)(3), the above and foregoing Motion for
    Rehearing contains 2,324 words according to the “word count” feature of
    Microsoft Office.
    /s/ Nathan E. Morey
    NATHAN E. MOREY
    Assistant Criminal District Attorney
    State Bar No. 24074756
    101 West Nueva, Suite 370
    San Antonio, Texas 78205
    Voice: (210) 335-2414
    Fax: (210) 335-2436
    Email: nathan.morey@bexar.org
    Attorney for Appellant State
    cc: DAYNA L. JONES
    Attorney at Law
    State Bar No. 24049450
    206 East Locust Street
    San Antonio, Texas 78212
    Voice: (210) 255-8525
    Fax: (210) 249-0116
    Email: daynaj33@gmail.com
    Attorney for Appellant
    10