                                                                                        07/13/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                April 19, 2017 Session

          STATE OF TENNESSEE v. ARNOLD TRAVIS NUNNERY

                   Appeal from the Circuit Court for Lewis County
                    No. 2015-CR-84 Deanna B. Johnson, Judge
                      ___________________________________

                           No. M2016-01932-CCA-R9-CD
                       ___________________________________


The Defendant was indicted for driving under the influence of an intoxicant (DUI);
driving with a blood alcohol concentration of .08 or more (DUI per se); DUI, second
offense; and unlawful possession of a weapon. The Defendant filed a motion to suppress
evidence obtained as a result of a blood draw taken pursuant to a search warrant, and the
trial court granted the motion. The State sought and was granted permission to appeal
pursuant to Tennessee Rule of Appellate Procedure 9. We hold that the police officer’s
execution of the search warrant was unconstitutional, that exigent circumstances did not
justify the blood draw, and that the good faith exception does not apply. Accordingly, we
affirm the trial court’s judgment suppressing the results of the blood draw and remand the
case to the trial court for further proceedings consistent with this opinion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed;
                                   Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Nichole Dusche',
Assistant District Attorney General, for the appellant, State of Tennessee.

Vanessa Pettigrew Bryan, District Public Defender; and Jakob Schwendimann, Assistant
Public Defender, for the appellee, Arnold Travis Nunnery.


                                       OPINION
                    FACTUAL AND PROCEDURAL HISTORY

       Following a traffic stop in Lewis County, Tennessee, the Defendant was arrested
for DUI. After the Defendant refused to consent to a blood draw, the arresting officer
obtained a search warrant. The search warrant, which was signed by the local magistrate,
“commanded” the officer to “take custody of the suspect and transport the suspect to a
person qualified to draw blood in Lewis County, Tennessee” and to “search for, seize and
maintain as evidence the property described in said Affidavit, to-wit: human blood from
the body of the [Defendant].”

       The arresting officer transported the Defendant to a hospital in Lewis County, but
the registered nurse declined to draw the Defendant’s blood because the Defendant
refused to cooperate. After contacting an assistant district attorney, the officer
transported the Defendant to a hospital in Perry County, where a registered nurse drew
the Defendant’s blood.

        The Defendant was subsequently indicted on charges of DUI; DUI per se; DUI,
second offense; and unlawful possession of a weapon. The Defendant filed a motion to
suppress evidence obtained as a result of the blood draw. He alleged that the search
warrant required that it be executed in Lewis County and medical personnel in Perry
County were not authorized to draw his blood based on the language of the search
warrant. The State filed multiple responses in which it contended that the issuance and
execution of the search warrant complied with Tennessee Rule of Criminal Procedure 41,
that the registered nurse who drew the Defendant’s blood was authorized to do so, and
that the blood draw was otherwise justified based on exigent circumstances.

        During the suppression hearing, Lieutenant Robert Earl Taylor of the Hohenwald
Police Department testified that on July 17, 2014, at approximately 7:16 p.m., a caller
reported observing someone throwing beer cans out of a white Chevrolet pick-up truck
that was traveling into the town on Highway 48 North. Lieutenant Taylor attempted to
locate the truck. He saw a truck matching the description pull into a driveway, back up
onto the street, and drive down the street. As the truck passed in front of Lieutenant
Taylor, he observed that the driver was not wearing a seatbelt. Lieutenant Taylor
followed the truck until he confirmed with the dispatcher that it was the truck for which
he was searching. Lieutenant Taylor then activated his blue lights and attempted to stop
the truck. He said the truck did not stop immediately. Rather, the truck traveled through
an intersection, continued to travel at a very slow rate of speed, and turned left onto a
street approximately 150 to 200 yards away from the intersection. The truck then entered
a driveway. The time of the stop was 7:24 p.m.



                                          -2-
       As Lieutenant Taylor approached the truck, the driver, whom the officer identified
as the Defendant, rolled up the window and stepped out of the truck. Lieutenant Taylor
detected an odor of alcohol coming from the truck or the Defendant. The Defendant’s
face and head were extremely red; his eyes were glassy; and he was unsteady on his feet.
When Lieutenant Taylor asked the Defendant if he had been drinking alcohol, the
Defendant replied that he drank five beers after he left work at 4:30 p.m. Lieutenant
Taylor said that the Defendant’s speech was slurred and that the Defendant did not want
to speak to him.

       Lieutenant Taylor asked the Defendant for his driver’s license and proof of
insurance. The Defendant provided him with his license and an expired insurance card.
The Defendant said he believed he had an updated insurance card in the glove
compartment of his truck and requested permission to retrieve it. Lieutenant Taylor saw
a shotgun leaned up against the seat of the truck and asked the Defendant whether it was
loaded. The Defendant responded, “[W]hat good is it if it’s not loaded?” As a result,
Lieutenant Taylor did not allow the Defendant to retrieve the insurance card. Lieutenant
Taylor had the Defendant perform field sobriety tests, including the “Walk and Turn” and
the “One-Leg Stand.” Lieutenant Taylor said the Defendant’s performance on the tests
was “very poor.”

       Lieutenant Taylor arrested the Defendant for DUI. He sought the Defendant’s
consent for a blood draw and read the implied consent form to the Defendant. The
Defendant refused to sign the implied consent form and stated that “no one was sticking
him with a needle.” Lieutenant Taylor contacted the dispatcher and learned that the
Defendant had prior convictions for DUI in 1989 and in 2008. At 7:44 p.m., Lieutenant
Taylor transported the Defendant to the Lewis County Jail and began the process of
obtaining a search warrant.

       While the Defendant was in jail, Lieutenant Taylor completed the application for
the search warrant and the supporting affidavit at the police department. The magistrate
met Lieutenant Taylor at the police department and signed the search warrant at 8:28 p.m.

       The magistrate also signed an “Order for Assistance in Execution of Search
Warrant” that was directed to “any physician, nurse, medical technician, or phlebotomist,
licensed by the State of Tennessee, or other person qualified in the intravenous removal
of human blood.” This order was a preprinted form that noted that a search warrant had
been issued for a blood draw. The Defendant’s information was handwritten in blanks in
the form order. The form order “commanded” the medical professional to cooperate with
the officer requesting assistance in the execution of the warrant. The form order also
provided that “[a]ny individual who fails to comply with this Order when requested

                                          -3-
shall be liable for contempt of this Court and subject to all penalties authorized by
law.”

       Upon obtaining the search warrant, Lieutenant Taylor retrieved the Defendant
from the Lewis County Jail and transported him to a medical facility in Lewis County to
draw his blood. They arrived at the medical facility approximately ten to fifteen minutes
after Lieutenant Taylor obtained the search warrant. Lieutenant Taylor met with Joe
Lineberry, the on-duty nurse, and asked him to assist in the blood draw. Lieutenant
Taylor said the Defendant was combative and repeated that “nobody is sticking a needle
in him, nobody is taking his blood.” Mr. Lineberry declined to draw the Defendant’s
blood and informed the officer that the facility’s policy was to decline to withdraw blood
by force from someone who refused to cooperate.

      Lieutenant Taylor reminded Mr. Lineberry that he had a search warrant, but Mr.
Lineberry stated that he could not draw the Defendant’s blood due to the policy of the
medical facility. Lieutenant Taylor had Mr. Lineberry sign a “State of Tennessee
Medical Provider Refusal to Comply with TCA 55-10-406(f) Request for Blood
Withdrawal.” The form set out section 55-10-406(f) and noted that its effective date as
January 1, 2012. The form provided as follows:

       I have been informed that as of July 1, 2009 the law mandates that an
       officer SHALL cause a driver to be tested as described in the copy of the
       code section printed above regardless of whether the driver does or does
       not consent. Despite having been informed of this code section and
       understanding that I refuse to comply with the lawful request of a duly
       licensed law enforcement officer[,] I have chosen to refuse to withdraw the
       above individual’s blood. I understand I may be called to testify in Court to
       explain why the law enforcement officer was unable to comply with the
       requirements of TCA 55-10-406(f).1

       Lieutenant Taylor then contacted Assistant District Attorney General Stacy
Edmondson. He said they “attempted to contact Hickman County and Perry County to
find out [in] which facility … [they] could serve the warrant.” Lieutenant Taylor then
transported the Defendant to a medical facility in Perry County, which was
approximately twenty miles away and required thirty minutes of travel time. Lieutenant
Taylor explained that he wanted to obtain a blood sample as soon as possible because the
alcohol level in a person’s system typically decreases over time.

       1
         Tennessee Code Annotated section 55-10-406 was amended, effective July 1, 2014. The statute
was reorganized such that section 55-10-406 no longer includes subsection (f). Thus, it appears that the
form signed by Mr. Lineberry was outdated.
                                                 -4-
       Upon arriving at the medical facility in Perry County, Lieutenant Taylor was
joined by a deputy with the Perry County Sheriff’s Department. Lieutenant Taylor met
with the nurse who was on duty and provided her with a copy of the search warrant.
According to Lieutenant Taylor, the Defendant was still combative and continued to state
that “no one is sticking a needle in [him], no one is taking [his] blood.” The nurse spoke
to the Defendant, but the Defendant refused to submit a blood sample. The Defendant
was told that he would be strapped down if he refused to comply. The staff doctor then
spoke to the Defendant for approximately five minutes, after which the Defendant
complied with the blood draw without being strapped down.

        The nurse drew the Defendant’s blood at 9:55 p.m. Lieutenant Taylor said more
than two and one-half hours elapsed between the time of the stop and the blood draw. He
sealed the blood sample and submitted it to the Tennessee Bureau of Investigation (TBI)
for testing.

      On cross-examination, Lieutenant Taylor stated that Phyllis Whitehead, the
magistrate who signed the search warrant, lived just outside the city limits and
approximately five minutes from the police department where she signed the search
warrant. Lieutenant Taylor described the Defendant as primarily verbally combative.
The officer stated that at one point, the Defendant threatened physical harm, stating that
“he had head and feet even though he was handcuffed.”

       Mr. Lineberry was the only person whom Lieutenant Taylor saw working at the
Lewis County medical facility that night. Lieutenant Taylor said that while a doctor also
worked at the facility, he did not see the doctor that night. Lieutenant Taylor did not
request to speak to the doctor or to Mr. Lineberry’s supervisor. He acknowledged that
those authorized to draw blood included phlebotomists, registered nurses, physician
assistants, doctors, and emergency medical technicians (EMTs). He also acknowledged
that an EMT was typically on duty in Lewis County at all hours of the day. Lieutenant
Taylor stated that the EMTs in Lewis County generally were required to follow the same
guidelines as the medical facility where Mr. Lineberry worked. Lieutenant Taylor did
not contact an EMT in Lewis County to determine whether he or she would draw the
Defendant’s blood. He stated that no other healthcare providers in Lewis County were
open during that hour. He explained that he transported the Defendant to Perry County
because he believed the facility was closer than the facility in Hickman County.

      Ms. Leah Watkins, the Director of Nurses at Perry Community Hospital, testified
that Ms. Jennifer Tatum Eaves, a registered nurse at the hospital, drew the Defendant’s
blood. Ms. Eaves passed away prior to the suppression hearing. Ms. Watkins stated that
Ms. Eaves was qualified to draw blood throughout the state, including Perry County. Ms.
Watkins then stated that Ms. Eaves would have been qualified to draw blood in Lewis
                                          -5-
County had she been employed in Lewis County. On cross-examination, Ms. Watkins
clarified that to her knowledge, a nurse must be employed in Lewis County to be able to
draw blood in the county.

        Special Agent Kelly Hopkins, a forensic scientist with the TBI’s Toxicology Unit,
was accepted by the trial court as an expert in toxicology. Special Agent Hopkins tested
the Defendant’s blood sample and determined that the level of ethanol or ethyl alcohol in
his blood was .205 grams percent. She stated that the results represented the level of
ethanol in the Defendant’s blood at the time of the blood draw. She also stated that as a
result, it is important to draw a suspect’s blood as close to the time of the stop as possible.

        Special Agent Hopkins testified that if a driver’s blood alcohol level was .08
percent at the time of the stop and his blood was not drawn until two and one-half hours
later, his blood alcohol level could be higher, lower, or the same as his level at the time of
the stop. She noted that once a person reaches complete absorption, the person
metabolizes alcohol at a rate of 0.01 to 0.02 grams percent per hour, which roughly
equals one drink or one can of beer per hour. She stated that had the Defendant reached
complete absorption at the time of the stop, his blood alcohol level would have been .02
to .04 grams percent higher at the time of the stop two and one-half hours earlier. She
also stated that the Defendant’s blood alcohol level at the time of the stop could have
been lower than his level at the time of the blood draw if he had consumed alcohol
shortly prior to the stop and had been “on the upside of the alcohol curve” such that his
body was still absorbing alcohol. Special Agent Hopkins said she believed that “it is
tough for an individual to consume that amount of alcohol that quickly right before the
time of the stop.”

       On cross-examination, Special Agent Hopkins testified that the time necessary to
reach complete absorption is dependent upon several factors. She explained that a person
who has an empty stomach can reach complete absorption within fifteen to twenty
minutes from his or her last drink. She further explained that consumption of food could
delay absorption for thirty minutes to two hours after the person’s last drink. Other
factors that affect alcohol absorption include the type of alcohol consumed, how fast the
alcohol was consumed, and the concentration of the alcohol in the drink. Special Agent
Hopkins did not receive any information regarding any of these factors or information
regarding the Defendant’s height and weight in testing the Defendant’s blood. Special
Agent Hopkins testified that even if complete absorption had been reached, it could be
several hours before a blood alcohol concentration of .20 grams percent would
completely dissipate from a person’s system.

       Following arguments by both parties, the trial court made oral findings and
granted the Defendant’s motion to suppress the evidence obtained as a result of the blood
                                             -6-
draw. The trial court found that the Defendant’s blood was not seized in Lewis County
as required by the search warrant and that Ms. Eaves was not qualified to draw blood in
Lewis County because she was not employed there. The trial court noted that the
jurisdiction of the magistrate who issued the search warrant was limited to Lewis County
and that she did not have jurisdiction to authorize searches in Perry County. The trial
court concluded that the blood draw was “unlawful, unconstitutional, and not authorized
by this search warrant.” The trial court found that no exigent circumstances existed to
justify the blood draw.

        The trial court subsequently entered a written order granting the Defendant’s
motion. The trial court first cited to the Fourth Amendment of the United States
Constitution and article I, section 7 of the Tennessee Constitution and stated that blood
cannot be drawn unless the search is reasonable under the Fourth Amendment. The trial
court found that pursuant to Tennessee Rule of Criminal Procedure 41(a), the magistrate
who issued the search warrant only had jurisdiction to authorize searches in Lewis
County and could not authorize searches in Perry County. The trial court also found that
the terms of the search warrant required that the Defendant’s blood be seized in Lewis
County and be drawn by a nurse who was qualified to draw blood in Lewis County. The
trial court found that the Defendant’s blood was seized in Perry County and that the nurse
who drew the Defendant’s blood was not qualified to do so in Lewis County. Thus, the
trial court concluded that the search warrant was not properly executed.

        The trial court also rejected the State’s contention that exigent circumstances
justified the blood draw. The trial court noted that the concern of the dissipation of a
person’s blood alcohol level alone does not constitute exigent circumstances justifying a
warrantless blood draw. The trial court also noted that although Mr. Lineberry declined
to draw the Defendant’s blood, Lieutenant Taylor did not ask to speak to a doctor or Mr.
Lineberry’s supervisor and did not take the Defendant to anyone else authorized to draw
blood in Lewis County, such as an EMT.

        The trial court rejected the State’s argument that it would have taken too much
time to obtain a warrant in Perry County because Lieutenant Taylor would have had to
return the Defendant to the Lewis County jail, drive to Perry County to obtain a search
warrant from the Perry County magistrate, drive back to Lewis County to retrieve the
Defendant, and then transport the Defendant to a medical facility in Perry County. The
trial court found that no evidence was presented to explain why Lieutenant Taylor could
not have obtained the assistance of another officer to transport the Defendant to the
medical facility in Perry County while Lieutenant Taylor obtained the search warrant in
Perry County. The trial court also found that Special Agent Hopkins or another expert



                                          -7-
would have been able to calculate the Defendant’s blood alcohol content even after the
passage of time.2

       Thereafter, the State filed a motion in the trial court requesting permission to seek
an interlocutory appeal in this court pursuant to Tennessee Rule of Appellate Procedure
9. The trial court granted the State’s motion, and this court subsequently granted the
State’s application for permission to appeal the trial court’s order granting the
Defendant’s motion to suppress.

                                              ANALYSIS

       A trial court’s factual findings made during a motion to suppress are binding on an
appellate court unless the evidence preponderates against them. State v. Saylor, 117
S.W.3d 239, 244 (Tenn. 2003). Determinations of witness credibility and the resolution
of conflicts in the evidence are left to the trial court. State v. Riels, 216 S.W.3d 737, 753
(Tenn. 2007). The prevailing party is entitled to the strongest legitimate view of the
evidence and to all reasonable inferences drawn from the evidence. State v. Day, 263
S.W.3d 891, 900 (Tenn. 2008). A trial court’s conclusions of law are reviewed de novo.
State v. Sawyer, 156 S.W.3d 531, 533 (Tenn. 2005). Likewise, a trial court’s application
of law to the facts is reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

                                           A. Search Warrant

       The State asserts that the issuance and the execution of the search warrant were
proper and that the trial court erred in concluding otherwise. According to the State, the
Defendant did not challenge the blood draw in the trial court on constitutional grounds,
and the trial court’s order was “somewhat unclear on this point.” The State argues that,
nevertheless, the issuance of the search warrant was constitutional. The State further
argues that the issuance and execution of the search warrant did not violate Tennessee
Rule of Criminal Procedure 41 or Tennessee Code Annotated sections 40-6-101—108.

       The Defendant concedes that the issuance of the search warrant complied with
constitutional and statutory law. Rather, he maintains that the execution of the search
warrant was unconstitutional because the police officer’s actions exceeded the scope and
authority of the search warrant.            The Defendant further maintains that the
constitutionality of the execution of the search warrant was litigated in the trial court.


        2
           The trial court rejected the Defendant’s argument that the search was invalid because the officer
failed to complete the return in accordance of Tennessee Rule of Criminal Procedure 41(f)(1). This issue,
however, is not raised on appeal.
                                                   -8-
        Although inartfully pled, the Defendant cited to the Fourth Amendment to the
United States Constitution and article I, section 7 of the Tennessee Constitution in his
motion to suppress and challenged the execution of the search warrant. In its oral
findings, the trial court specifically found that the blood draw was unconstitutional. The
trial court also discussed the application of the Fourth Amendment to blood draws in its
written order before finding that the search warrant was not properly executed.
Accordingly, we conclude that the issue of the constitutionality of the execution of the
search warrant is properly before this court.

       The Fourth Amendment to the United States Constitution guarantees “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures” and provides that “no [w]arrants shall issue, but
upon probable cause.” U.S. Const. amend. IV. The Fourth Amendment applies to the
States through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
Article I, section 7 of the Tennessee Constitution guarantees that “the people shall be
secure in their persons, houses, papers and possessions, from unreasonable searches and
seizures.” Tenn. Const. art. I, § 7. Our supreme court has recognized that article I,
section 7 “is identical in intent and purpose with the Fourth Amendment.” State v.
Reynolds, 504 S.W.3d 283, 303 (Tenn. 2016) (citations omitted). The taking of a blood
sample constitutes a “search” that is afforded protection under the Fourth Amendment
and article I, section 7. See Birchfield v. North Dakota, 136 S.Ct. 2160, 2173 (2016);
Reynolds, 504 S.W.3d at 304.

       Although the Fourth Amendment and article I, section 7 do not “specify when a
warrant must be obtained, the general rule is that a warrant ordinarily should be obtained
because warrants are the safeguard against unreasonable searches.” Reynolds, 504
S.W.3d at 304 (citing Kentucky v. King, 563 U.S. 452 (2001); State v. Meeks, 262 S.W.3d
710, 722 (Tenn. 2008)). The Defendant does not challenge the issuance of the search
warrant allowing the officer to obtain a blood sample. Rather, he challenges the officer’s
execution of the search warrant.

       “The general touchstone of reasonableness which governs Fourth Amendment
analysis … governs the method of execution of the warrant.” United States v. Ramirez,
523 U.S. 65, 71 (1998); see State v. Tommy Kaye Thompson, No. M2014-00596-CCA-
R3-CD, 2015 WL 1756448, at *6 (Tenn. Crim. App. Apr. 15, 2015). The United States
Supreme Court has recognized that “the Fourth Amendment confines an officer executing
a search warrant strictly within the bounds set by the warrant.” Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 394-95 n. 7 (1971); see
Dalia v. United States, 441 U.S. 238, 260 (1979). The language of the search warrant
must be strictly construed. United States v. Wright, 468 F.2d 1184, 1185 (6th Cir. 1972)

                                          -9-
(citation omitted); see State v. Bob Wilson, No. 153, 1988 WL 42652, at *2 (Tenn. Crim.
App. May 4, 1988).

        The search warrant authorizing the blood draw commanded the officer to “take
custody of the suspect and transport the suspect to a person qualified to draw blood in
Lewis County, Tennessee,” and to “search for, seize and maintain as evidence the
property described in said Affidavit, to-wit: human blood from the body of the
[Defendant].” In granting the Defendant’s motion to suppress, the trial court analyzed
this language as requiring that the blood draw occur in Lewis County and that the person
who was to draw the Defendant’s blood be qualified to do so in Lewis County. The
jurisdiction of the magistrate who signed the search warrant was limited to Lewis County,
and she did not have the authority to issue a search warrant for a search outside of Lewis
County. See Tenn. R. Crim. P. 41(a) (“A magistrate with jurisdiction in the county where
the property sought is located may issue a search warrant authorized by this rule.”).3
Given this jurisdictional limitation, the search warrant can be fairly interpreted as
requiring that the blood draw take place in Lewis County. Regardless, the proof
presented at the suppression hearing established that the officer transported the Defendant
to Perry County, where the blood draw occurred, and that the nurse who drew the
Defendant’s blood was not qualified to draw blood in Lewis County. Thus, the condition
was not met regardless of whether the warrant required that the blood draw occur in
Lewis County or that the person who drew the blood be qualified to do so in Lewis
County. Accordingly, we must determine whether the officer’s failure to abide by the
requirements of the search warrant during its execution rendered the blood draw
unconstitutional.

        In Jones v. Kirchner, 835 F.3d 74, 84-85 (D.C. Cir. 2016), the arrestee brought a
civil action against law enforcement officers, alleging in part that the officers violated his
Fourth Amendment rights by executing a search warrant at his residence at 4:45 a.m.
when the search warrant expressly stated that the search was not to occur before 6:00
a.m. In the arrestee’s appeal of the trial court’s dismissal of his claims, the arrestee
argued that the search was unlawful because it violated an express limitation on the face
of the search warrant. Id. at 84. In analyzing the issue, the United States Court of
Appeals for the District of Columbia recognized that “[u]nlike rules of criminal
procedure and other sub-constitutional bodies of law, violations of which may be
unlawful but are not necessarily unconstitutional, … compliance with the limitations of a
warrant is required by the Constitution itself.” Id. at 84-85 (citing Virginia v. Moore, 553
U.S. 164, 176 (2008); Bivens, 403 U.S. at 394-95 n.7). The court concluded that by

       3
          We note that the search warrant complied with Tennessee Rule of Criminal Procedure 41(a) at
the time of the issuance because the Defendant was located in Lewis County when the magistrate issued
the search warrant.
                                               - 10 -
executing the search warrant during a time period outside of the period mandated by the
warrant, the officers exceeded the authorization provided in the search warrant and,
therefore, violated the Fourth Amendment. Id. at 85.

        The court recognized that the warrant requirement “‘provides the detached
scrutiny of a neutral magistrate, which is a more reliable safeguard against improper
searches than the hurried judgment of a law enforcement officer engaged in the often
competitive enterprise of ferreting out crime.’” Id. at 85-86 (quoting United States v.
Leon, 468 U.S. 897, 913-14 (1984)). The court noted that if the officers believed that the
limitation on the search warrant was improvident or merely a drafting error, the officers
had other options, such as contacting the magistrate to authorize nighttime execution. Id.
at 86. The court concluded that “[s]imply ignoring the timing limitation was not among
the choices lawfully available to the officers in this case.” Id. The court, nevertheless,
determined that the officers were entitled to qualified immunity on different grounds. Id.

      The Fourth Amendment and article I, section 7 do not require the limitations that
were included in the search warrant in the present case. Nevertheless, once the
magistrate included the conditions in the search warrant, the execution of the search
warrant within those limitations was constitutionally required. See Bivens, 403 U.S. at
394-95 n.7; Jones, 835 F.3d at 84-85.

       Once Mr. Lineberry declined to draw the Defendant’s blood, the officer had
multiple avenues in which to proceed. The officer could have contacted the magistrate
about the limitations, requested assistance from Mr. Lineberry’s supervisor or the doctor
on duty at the medical facility in Lewis County, requested a Lewis County EMT draw the
Defendant’s blood, or obtained a search warrant in Perry County. Instead, after
contacting an assistant district attorney, who has no authority under the law to choose to
ignore the limitations of a search warrant, the officer chose to disregard the limitations
included in the search warrant by the magistrate. In doing so, the officer exceeded the
authorization provided in the search warrant, rendering the execution of the search
warrant unconstitutional. See Jones, 835 F.3d at 85.

       This court has previously held that an officer’s alteration of a search warrant
changing the route to the premises to be searched prior to the execution of the warrant
rendered the search warrant void. See Bob Wilson, 1988 WL 42652, at *2. While
describing the alteration as “minimal,” this court reasoned that

      to condone an alteration of a search warrant by a law enforcement officer in
      these circumstances would open the door to other alterations in other
      circumstances. This would require trial courts and the appellate courts to
      begin drawing distinctions between “significant” alterations by officers and
                                          - 11 -
       “insignificant” or “minimal” alterations. Given the history of strict
       construction of search warrants by the courts of this state, and the great
       power vested in officers armed with a search warrant, there is no reason to
       embark on a ride down that slippery slope.
Id.

       Although the present case involves the officer’s failure to abide by the terms of the
search warrant, we believe that the reasoning in Bob Wilson also applies to the present
case. To condone the failure to abide by the limitations included in the search warrant in
this case would open the door to officers’ failing to abide by conditions in search
warrants in other cases. It also would require courts to distinguish between the failure to
abide by significant limitations and insignificant limitations. We, like this court in Bob
Wilson, see “no reason to embark on a ride down that slippery slope.” Id. Rather, we
conclude that the officer’s failure to abide by the terms of the search warrant during its
execution rendered the blood draw unconstitutional.

                                 B. Exigent Circumstances

        The State contends that the blood draw was proper under the exigent
circumstances exception to the warrant requirement. The Defendant responds that the
trial court correctly found that there were no exigent circumstances supporting the blood
draw. We agree with the Defendant.

       Exigent circumstances dispense with the warrant requirement when “‘the
exigencies of the situation’ make the needs of law enforcement so compelling that the
warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v.
Arizona, 437 U.S. 385, 394 (1978) (quoting McDonald v. United States, 335 U.S. 451,
456 (1948)). In determining whether this exception applies, “the inquiry is whether the
circumstances give rise to an objectively reasonable belief that there was a compelling
need to act and insufficient time to obtain a warrant.” State v. Meeks, 262 S.W.3d 719,
723 (Tenn. 2008) (footnote omitted). Mere speculation, however, is insufficient to
establish exigency. Id. at 723-24. Rather, “the State must rely upon specific and
articulable facts and the reasonable inferences drawn from them.” Id. at 724 (footnotes
omitted). We must examine the totality of the circumstances in determining whether
there were exigent circumstances that justified acting without a warrant. Missouri v.
McNeely, 133 S.Ct. 1552, 1559 (2013). “The circumstances are viewed by an objective
perspective,” and the officer’s subjective intent is irrelevant. Meeks, 262 S.W.3d at 724.

        Circumstances that give rise to an exigency sufficient to justify a warrantless
search include the prevention of “the imminent destruction of evidence.” Id. at 723
(citation omitted). The United States Supreme Court has recognized that “the percentage
                                           - 12 -
of alcohol in the blood begins to diminish shortly after drinking stops, as the body
functions to eliminate it from the system.” Schmerber v. California, 384 U.S. 757, 770
(1966); see McNeely, 133 S.Ct. at 1560. However, although the natural dissipation of
alcohol from the blood may be a factor in determining exigency, it does not create a per
se exigency sufficient to dispense with the warrant requirement. McNeely, 133 S.Ct. at
1563. In rejecting the per se exigency rule, the Supreme Court concluded, “In those
drunk-driving investigations where police officers can reasonably obtain a warrant before
a blood sample can be drawn without significantly undermining the efficacy of the
search, the Fourth Amendment mandates that they do so.” Id. at 1561 (citing McDonald,
335 U.S. at 456). The Court stated that “no plausible justification for an exception to the
warrant requirement” would exist when the warrant process would not “significantly
increase the delay before the blood test … because an officer can take steps to secure a
warrant while the suspect is being transported to a medical facility by another officer.”
Id. Accordingly, the “exigency … must be determined case by case based on the totality
of the circumstances.” Id. at 1556.

       The State maintains that “[t]he circumstances of this case, where [Lieutenant]
Taylor properly obtained a warrant and only moved to a different county because of a
recalcitrant nurse, support a finding that exigent circumstances justified a warrantless
blood draw.” We disagree with the State’s characterization of Mr. Lineberry as
“recalcitrant.” While Tennessee Code Annotated section 55-10-406 lists those who are
authorized to draw the blood of someone accused of a drunken driving related offense,
neither this statute nor any other Tennessee statute compels medical personnel to forcibly
draw a suspect’s blood whenever requested by an officer to do so. It has been recognized
that multiple ethical and safety concerns arise from a forcible blood draw by medical
personnel. See, e.g. Jacob M. Appel, Nonconsensual Blood Draws and Dual Loyalty:
When Bodily Integrity Conflicts with the Public Health, 17 J. Health Care L. & Pol’y 129,
149-54 (2014); E. John Wherry, Jr., DWI Blood Alcohol Testing: Responding to a
Proposal Compelling Medical Personnel to Withdraw Blood, 18 Seton Hall Legis. J. 655,
657, 670-71 (1994). Moveover, medical personnel should not be threatened, coerced, or
intimidated into delay treating a sick or injured patient in order to forcibly draw the blood
from a suspected drunk driver, who is uninjured and was not involved in an accident, for
the sole purpose of assisting the officer in securing evidence. Given the safety and
ethical concerns and the primary purpose of medical facilities to treat those who are sick
and injured, a policy by a medical facility to decline to engage in forcible blood draws is
reasonable. Contrary to the State’s characterization of Mr. Lineberry as “recalcitrant,”
the evidence established that Mr. Lineberry was simply doing his job and complying with
the medical facility’s policy.

      Lieutenant Taylor did not contact the Lewis County medical facility before
attempting to execute the search warrant. There is nothing in the record explaining the
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officer’s failure to do so. Had the officer done so, he would have learned of the policy
sooner and made other arrangements.

       Instead, the officer transported the Defendant to the medical facility, while
possessing an order from the magistrate threatening anyone who refused to draw the
Defendant’s blood with contempt. Because Tennessee law does not compel a medical
provider, a private citizen, to forcibly draw a suspect’s blood whenever requested by an
officer for the sole purpose of securing evidence and not for the purpose of diagnosis and
treatment, the magistrate’s order was likewise invalid and appalling.4 Once Mr.
Lineberry declined to draw the Defendant’s blood, the officer took the time to have Mr.
Lineberry sign a form that appeared to fault Mr. Lineberry for declining to forcibly draw
the Defendant’s blood even through it was well within Mr. Lineberry’s right to decline to
conduct the blood draw.

        Lieutenant Taylor did not attempt to locate anyone else in Lewis County qualified
to draw blood, even though he acknowledged that an EMT was on duty at all times.
While the Lieutenant Taylor believed that the EMT may have been subject to the medical
facility’s policy to decline to conduct forcible blood draws, the officer never verified this
information, and the State never presented any proof during the suppression hearing to
establish that an EMT was unavailable.

       Once Lieutenant Taylor decided to ignore the requirements of the lawfully
obtained search warrant and transport the Defendant to Perry County for the blood draw,
he failed to obtain a search warrant in Perry County. Lieutenant Taylor testified that he
would have had to return the Defendant to the Lewis County jail, obtain the search
warrant in Perry County, return to the Lewis County jail to retrieve the Defendant, and
then drive to the medical facility in Perry County. However, the State failed to present
any evidence during the suppression hearing to establish that another officer was
unavailable to assist Lieutenant Taylor in either securing a search warrant in Perry
County or remaining with the Defendant at the Perry County medical facility while
Lieutenant Taylor secured a search warrant. To the contrary, a Perry County officer was
present at the medical facility during the blood draw and could have assisted Lieutenant
Taylor in securing a search warrant.

       Finally, according to Special Agent Hopkins’ testimony, a person must reach
complete absorption before alcohol begins to metabolize. She acknowledged that the
level of alcohol in the Defendant’s blood could have been increasing or decreasing at the
        4
          The legal profession holds those in the medical profession to be in the highest regard due to its
respect and admiration for those medical professionals. Treating a nurse like an indentured servant and
requiring the nurse, under the threat of jail, to ignore his or her professional duties and assist an officer in
the investigation of his case on demand is the reason that this court finds the magistrate’s order appalling.
                                                    - 14 -
time of the stop depending upon when the Defendant last consumed alcohol. We note
that prior to the stop, the Defendant was reportedly seen throwing beer cans out of his
vehicle’s window. Thus, there is some evidence suggesting that the Defendant was
consuming alcohol shortly before he was stopped, which would have resulted in his
alcohol level increasing, delayed complete absorption, and reduced the risk that the
alcohol in the Defendant’s blood would greatly dissipate before the officer could obtain a
search warrant in Perry County.

       We conclude that based on the totality of the circumstances, the State failed to
establish exigent circumstances justifying the blood draw without a valid search warrant.
Accordingly, the State is not entitled to relief regarding this issue.

                                C. Good Faith Exception

       The State maintains that the evidence resulting from the blood draw is
nevertheless admissible pursuant to the Exclusionary Reform Act in Tennessee Code
Annotated section 40-6-108 and the good faith exception recognized in State v. Davidson,
509 S.W.3d 156 (Tenn. 2016). Although Davidson was not decided until after the
suppression hearing, section 40-6-108 was enacted in 2011, several years prior to the
Defendant’s blood draw and the suppression hearing. The State, however, failed to raise
the application of 40-6-108 or the good faith exception in general in the trial court.
Regardless, the State is not entitled to relief.

       Section 40-6-108 does not apply to evidence seized in violation of the United
States Constitution or Tennessee Constitution. T.C.A. § 40-6-108(a). In Davidson, the
Tennessee Supreme Court adopted

      a good-faith exception for the admission of evidence when a law
      enforcement officer has reasonably and in good faith conducted a search
      within the scope of a warrant the officer believes to be valid, but is later
      determined to be invalid solely because of a good-faith failure to comply
      with the affidavit requirement of Tennessee Code Annotated section 40-6-
      103 and -104 and Tennessee Rule of Criminal Procedure 41(c)(1).

509 S.W.3d at 185-86. In the present case, we have concluded that the execution of the
search warrant was unconstitutional. Because our holding is based on a violation of the
United States and Tennessee Constitutions, section 40-6-108 and Davidson do not apply.




                                          - 15 -
                                    CONCLUSION

       We affirm the trial court’s suppression of evidence resulting from the Defendant’s
blood draw. We remand the case to the trial court for further proceedings consistent with
this opinion.


                                            ____________________________________
                                            JOHN EVERETT WILLIAMS, JUDGE




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