Opinion issued August 29, 2019




                                         In The

                                 Court of Appeals
                                        For The

                            First District of Texas
                               ————————————
                                NO. 01-18-00146-CR
                              ———————————
                        THE STATE OF TEXAS, Appellant
                                           V.
                     SEAN MICHAEL MCGUIRE, Appellee


                     On Appeal from the 268th District Court
                            Fort Bend County, Texas
                      Trial Court Case No. 10-DCR-055898


                              DISSENTING OPINION

      I respectfully dissent. I would hold that the trial court abused its discretion in

granting Sean McGuire’s motion to suppress the evidence obtained as a result of his

warrantless arrest, effectively declaring his arrest illegal.
      Based solely on review of the cold reporter’s record from an evidentiary

suppression hearing held two years earlier, the trial court, on remand, reached the

opposite conclusion of the original trial judge who had presided over the hearing.

The trial court selectively cited facts from that record, disregarding important

contradictory facts, to draw the incorrect legal conclusions that the officers lacked

probable cause and that the suspicious place exception to the warrant requirement

did not apply. And the majority opinion affirms by incorrectly presuming that the

United States Supreme Court’s holding in Missouri v. McNeely extends beyond

warrantless searches to draw blood into the distinct domain of warrantless arrests.

See 569 U.S. 141, 145 (2013). In so doing, it ignores this Court’s own binding

precedent holding that the need to preserve evidence constitutes an exigent

circumstance under the suspicious place exception to the warrant requirement.

             Suspicious Place Exception to Warrant Requirement

      Warrantless arrests are authorized only in limited circumstances outlined

primarily in Chapter 14 of the Texas Code of Criminal Procedure. Swain v. State,

181 S.W.3d 359, 366 (Tex. Crim. App. 2005). Here, the State relies on the

“suspicious place” exception, codified in article 14.03(a)(1), authorizing the

warrantless arrest of an individual found in a suspicious place under circumstances




                                         2
reasonably showing he committed a felony or a breach of the peace. See TEX. CODE

CRIM. PROC. ANN. art. 14.03(a)(1).1

      The Court of Criminal Appeals has held that “the test under [a]rticle

14.03(a)(1) is a totality of the circumstances test. First, probable cause that the

defendant committed a crime must be found and second, the defendant must be

found in a ‘suspicious place.’” Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim. App.

2003); Lewis v. State, 412 S.W.3d 794, 801 (Tex. App.—Amarillo 2013, no pet.). I

would hold that the State met this test and established that McGuire’s arrest was

justifiable under the suspicious place exception to the warrant requirement.

A.    Probable Cause

      Probable cause for a warrantless arrest exists when the arresting officer

possesses reasonably trustworthy information sufficient to warrant a reasonable

belief that an offense has been or is being committed. See Amador v. State, 275

S.W.3d 872, 878 (Tex. Crim. App. 2009).



1
      McGuire was originally charged with the felony of intoxication manslaughter. See
      TEX. PENAL CODE ANN. § 49.08(b) (stating that offense of intoxication
      manslaughter is second-degree felony). He was later charged with felony murder,
      see id. § 19.02(b)(3), and failure to stop and render aid, see TEX. TRANSP. CODE
      ANN. § 550.021 (stating that failure to stop and render aid is felony offense). In a
      previous opinion, this Court affirmed his conviction for failure to stop and render
      aid, vacated his conviction for felony murder because of the admission of an illegal
      blood draw, and remanded for further proceedings. See McGuire v. State, 493
      S.W.3d 177, 199, 208 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d), cert.
      denied, 137 S. Ct. 2188 (2017).

                                           3
       The record establishes the following:

       At approximately 12:45 a.m. on August 2, 2010, Trooper Tomlin reported to

the scene of a fatality crash, which he was told by dispatch involved a motorcycle

that had been hit and dragged 800 feet, “from Brazos Town Center to the intersection

of 2977.”

       Around the same time, McGuire called his mother and two police

acquaintances, who in turn called law enforcement to report that McGuire had hit

something in the road and was waiting at a nearby Shell station for law enforcement

to arrive.

       At the scene of the accident, Trooper Tomlin saw the complainant’s body on

the side of the road. Tomlin was then informed that the driver of the vehicle that had

hit the complainant’s motorcycle was across the highway at a Shell gas station.

       Trooper Tomlin was the first to arrive at the Shell station, at approximately

12:50. Minutes later, Trooper Wiles, who had heard over the police radio that there

had been a fatal accident and that the suspected driver was at the Shell station, joined

him there, where the two troopers encountered McGuire.

       McGuire stated that he had been driving his truck, that he had hit something,

and that his wife, who was in the truck with him, told him that he had hit a person.




                                           4
      Trooper Wiles observed that McGuire’s truck had “a piece of metal stuck

inside the grille with some motor oil on it” that “appeared to be the rear fender of

the motorcycle,” but he “didn’t seem to know where it came from.”

      Due to “[a] strong order of alcoholic beverage that [Trooper Wiles] smelled

[on McGuire’s] person and breath,” his bloodshot, glassy eyes, and the “slight dazed

look on his face,” Wiles believed McGuire was intoxicated. Wiles asked McGuire if

he was willing to perform a field sobriety test, and McGuire refused.

      Trooper Wiles then drove McGuire to the scene of the accident. Wiles

testified, and video of the crime scene showed, that when McGuire saw the

motorcycle, “he covered his face and started supposedly crying and said that he was

sorry.”

      I would hold that this information was sufficient to warrant a reasonable belief

that McGuire had committed a crime.2 See, e.g., Dyar, 125 S.W.3d at 468 (holding

arresting officer had probable cause to believe appellant had committed DWI; officer

found appellant at hospital after having been informed that driver in one-car accident

was taken to hospital, appellant had slurred speech, red glassy eyes, and strong smell

of alcohol, and appellant admitted to drinking and driving); Lewis, 412 S.W.3d at

801–02 (holding arresting officer had probable cause to believe appellant had

committed DWI based in part on appellant’s flight from scene of accident, officer’s

2
      The majority opinion does not address probable cause.

                                          5
detection of odor of alcohol emanating from appellant, appellant’s highly emotional

state, and appellant’s admission that she “had too much to drink”); see also

Coronado v. State, No. 01-99-00912-CR, 2000 WL 730682, at *2–3 (Tex. App.—

Houston [1st Dist.] June 8, 2000, pet. ref’d) (not designated for publication) (holding

officer had probable cause to arrest appellant after he received information from

other officers that appellant was driver of one of vehicles in fatality accident and

officer noticed appellant had strong odor of alcohol, slurred speech, and glassy eyes).

B.    Suspicious Place

      I would further hold that the State proved that the Shell station where Troopers

Tomlin and Wiles first encountered McGuire was a suspicious place and that the

trial court erred in reaching the opposite conclusion because that conclusion was not

supported by the facts and it failed to consider the totality of the circumstances.

      Relevant to the question whether McGuire was found at a suspicious place,

the trial court found that Troopers Tomlin and Wiles testified that there was nothing

suspicious about the location where they encountered McGuire and that McGuire

was not acting in a suspicious manner. These findings are wholly inadequate to

support the legal conclusion that the Shell station was not a suspicious place under

the circumstances known to the troopers at that time. Cf. Villalobos v. State, No. 14-

16-00593-CR, 2018 WL 2307740, at *6 (Tex. App.—Houston [14th Dist.] May 22,

2018, pet. ref’d) (not designated for publication) (rejecting argument that warrantless


                                           6
arrest was illegal because officer testified that it was not suspicious for defendant to

stay near his damaged vehicle after accident). It appears the trial court took the

troopers’ testimony as a legal conclusion, and in so doing, did not follow the well-

established law that the suspicious-place inquiry requires more than evaluating

whether a particular place, on its own and without context, is suspicious.

      “Few places, if any, are inherently suspicious. The determination of whether

a place is suspicious requires a highly fact-specific analysis.” Lewis, 412 S.W.3d at

802. As the Court of Criminal Appeals has explained, under article 14.03(a)(1),

             Any place may become suspicious when an individual at the
             location and the accompanying circumstances raise a
             reasonable belief that the individual committed a crime and
             exigent circumstances call for immediate action or detention
             by the police.

Swain, 181 S.W.3d at 366 (citations omitted).

      Here, the trial court did not make any fact-specific findings beyond the

officers’ testimony that the Shell station, in and of itself, was not a suspicious place

and that McGuire was not acting suspiciously when they encountered him there. In

concluding that “[t]here is no evidence that the place where [McGuire] was arrested

was a suspicious place pursuant to Texas Code of Criminal Procedure Article

14.03(a)(1),” the trial court made no findings with respect to “the accompanying

circumstances,” which here clearly raised a reasonable belief that McGuire had

committed a crime. Id.


                                           7
      In determining whether to characterize a place as suspicious, the Court of

Criminal Appeals has stated that the “only . . . factor [that] seems to be constant

throughout the case law” is that “[t]he time frame between the crime and the

apprehension of a suspect in a suspicious place is short.” Dyar, 125 S.W.3d at 468.

Here, McGuire was found at the Shell station only minutes after the crash occurred.

But this fact pales in significance in comparison to other circumstances that

surrounded McGuire’s presence at the Shell station, including the facts that he called

police acquaintances to report that he had hit something in the road just across from

the Shell station, where he then waited for law enforcement to arrive; upon his arrival

at the scene of the accident, Trooper Tomlin observed the complainant’s dead body

on the side of the road; at the Shell station, Trooper Wiles observed “a piece of metal

stuck inside the grille [of McGuire’s truck] with some motor oil on it” that “appeared

to be the rear fender of the motorcycle”; and McGuire, who showed signs of

intoxication, stated to the troopers that he believed he had hit something and that his

wife told him it was a person.

      On this record, I would hold that the trial court erred in concluding that the

Shell station was not a suspicious place under article 14.03(a)(1). See, e.g.,

Villalobos, 2018 WL 2307740, at *6 (“[T]he area where appellant was found was a

suspicious place because the police reasonably could have believed, based on the

surrounding circumstances [including facts that appellant was found shortly after


                                          8
accident having fled scene, his vehicle was missing wheel that matched model of

wheel and other debris found at accident site, he displayed signs of intoxication, and

he admitted he had been involved in accident after leaving bar], that appellant drove

while intoxicated and was involved in a recent accident nearby and needed to be

detained because he had fled the scene of that accident.”); Polly v. State, 533 S.W.3d

439, 443 (Tex. App.—San Antonio 2016, no pet.) (holding scene of hit-and-run

accident was suspicious place where one hour after accident appellant returned to

scene and officer could have reasonably believed appellant committed offense of

driving while intoxicated).

      Turning to the focus of the majority opinion—exigent circumstances—I do

not agree that a strict showing of exigency is always necessary, particularly in hit-

and-run cases, where the suspect has shown his willingness to flee with evidence of

not only his intoxication but also of the crash (such as the bumper of the

complainant’s motorcycle embedded in the grille of McGuire’s truck). Cf. Cribley

v. State, No. 04-04-00047-CR, 2005 WL 1812585, at *2 (Tex. App.—San Antonio

Aug. 3, 2005, no pet.) (mem. op., not designated for publication) (holding, without

mention of exigency, that appellant’s home where she went shortly after fleeing

scene of accident was suspicious place).

      The statutory language of article 14.03(a)(1) does not mention exigency. It

states only that a warrant is not necessary to arrest


                                           9
             persons found in suspicious places and under circumstances
             which reasonably show that such persons have been guilty of
             some felony, violation of Title 9, Chapter 42, Penal Code,
             breach of the peace, or offense under Section 49.02, Penal
             Code, or threaten, or are about to commit some offense
             against the laws[.]

See TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1).

      Nevertheless, some courts have implied an exigency requirement from a

sentence in the Court of Criminal Appeals’ opinion in Swain: “Any ‘place’ may

become suspicious when a person at that location and the accompanying

circumstances raise a reasonable belief that the person has committed a crime and

exigent circumstances call for immediate action or detention by police.” See 181

S.W.3d at 366. I do not read this to require exigent circumstances in all cases under

article 14.03(a)(1). While exigency does ordinarily play a prominent role in the

analysis, it is but one of innumerable circumstances that may present for

consideration in assessing the totality of the circumstances.

      Notably, many post-Swain cases have addressed the suspicious place

exception without ever mentioning exigency, including at least two from this Court.

See, e.g., Rodriguez-Rubio v. State, No. 01-17-00463-CR, 2018 WL 6061306, at *4

(Tex. App.—Houston [1st Dist.] Nov. 20, 2018, no pet.) (mem. op., not designated

for publication) (“Although an apartment complex is not an inherently suspicious

place, the fact that the GPS locator in the stolen cell phone showed that the phone

and appellant, who matched the witnesses’ description, were in the same location,

                                          10
rendered this apartment complex a ‘suspicious place.’ The ‘pinging’ of the stolen

cell phone at the apartment complex tied appellant to the crime scene.”); Contreras

v. State, No. 01-08-00424-CR, 2009 WL 2461483, at *3 (Tex. App.—Houston [1st

Dist.] Aug. 13, 2009, pet. ref’d) (mem. op., not designated for publication) (holding

that appellant, who was found at scene of crime searching for something under

bushes and cars, was found in suspicious place where police were aware that robbery

and shooting suspects had lost firearm in course of committing crime).3


3
      See also, e.g., Gonzalez v. State, No. 08-14-00175-CR, 2017 WL 2464690, at *6
      (Tex. App.—El Paso June 7, 2017, no pet.) (not designated for publication) (holding
      that appellant’s location near ditch where his truck had landed tail-up after accident
      was suspicious place where appellant showed signs of intoxication); Griffin v. State,
      No. 03-15-00398-CR, 2017 WL 2229869, at *6 (Tex. App.—Austin May 19, 2017,
      pet. ref’d) (mem. op., not designated for publication) (stating that warrantless arrest
      for assault of public servant was justified under suspicious place exception based
      on: (1) short distance between scene of assault and appellant’s residence; (2) short
      amount of time between report of assault and appellant’s apprehension at his
      residence; (3) appellant’s signs of intoxication, refusal to cooperate, and belligerent
      behavior; (4) complainant’s statements to officers describing assault and identifying
      appellant as assailant; and (5) physical evidence tending to corroborate
      complainant’s account); Patel v. State, No. 08-13-00311-CR, 2015 WL 6437413, at
      *5 (Tex. App.—El Paso Oct. 23, 2015, no pet.) (not designated for publication)
      (holding that, under totality of circumstances, location where appellant, who showed
      signs of intoxication, was found near single-car accident in which his vehicle left
      road, traveled thirty yards down embankment, and landed in ditch was suspicious
      place); Gary v. State, No. 13-12-00266-CR, 2013 WL 485793, at *4 (Tex. App.—
      Corpus Christi–Edinburg Feb. 7, 2013, pet. ref’d) (mem. op., not designated for
      publication) (holding that appellant’s car in parking lot of pub was suspicious place
      where officer observed him repeatedly come and go from his car over short period
      of time because regular patron would have no reason to do so); Owen v. State, No.
      13-10-00417-CR, 2011 WL 5515548, at *5 (Tex. App.—Corpus Christi–Edinburg
      Nov. 10, 2011, pet. ref’d) (mem. op., not designated for publication) (holding that
      truck was suspicious place because it was parked in otherwise-vacant high school
      stadium parking lot in middle of night in January in close proximity to scene of

                                            11
      In this connection, I disagree with the majority’s conclusion that the State

forfeited its argument that the circumstances in this case were exigent. The State

asserted in the trial court and on appeal that McGuire’s warrantless arrest was

justified under article 14.03(a)(1), which, again, makes no mention of an exigency

requirement in providing that a peace officer may make a warrantless arrest of a

person found in a suspicious place. At no stage of this case did McGuire argue that

the State failed to prove exigent circumstances—indeed the phrase does not appear

in his motion to suppress or in the transcript of the hearing on that motion, nor did

he raise the issue on appeal.4 Further, the State acknowledges that exigent

circumstances may figure into the 14.03(a)(1) equation, and correctly notes that

courts “sometimes use the term ‘exigent circumstances’ and sometimes not,” and



      burglary, man meeting appellant’s description had recently committed separate
      burglary, and officer apprehended appellant thirty minutes after being dispatched to
      scene); Perez v. State, No. 10-09-00022-CR, 2010 WL 3342009, at *2–3 (Tex.
      App.—Waco Aug. 25, 2010, no pet.) (mem. op., not designated for publication)
      (holding that residence where appellant, who admitted to police he had been
      drinking and was involved in traffic accident, was found asleep was suspicious
      place); State v. Drewy, No. 03-08-00169-CR, 2008 WL 4682441, at *4 (Tex.
      App.—Austin Oct. 23, 2008, no pet.) (mem. op., not designated for publication)
      (holding that appellant, who showed signs of intoxication and was combative, was
      in suspicious place as he stood near his disabled vehicle); Hollis v. State, 219 S.W.3d
      446, 460 (Tex. App.—Austin 2007, no pet.) (holding that dance hall where appellant
      was found was suspicious place because it emanated strong odor of ether
      characteristic of “meth lab,” was located in secluded area, and had no legitimate
      commercial or residential purposes).
4
      McGuire did not argue that the State was required to establish exigent circumstances
      to justify his warrantless arrest under the suspicious place exception until this Court
      requested supplemental briefing on the subject.

                                            12
that warrantless arrests under article 14.03(a)(1) “on very similar facts to the facts in

this case have been routinely upheld by courts all over Texas.”

      In my opinion, it would be a gross distortion of the Rules of Appellate

Procedure to affirm the trial court’s suppression of evidence obtained from a

warrantless arrest that the record shows to have been justified under article

14.03(a)(1), for the State’s purported failure to preserve argument in the trial court

on, or to adequately address on appeal, a so-called element of the statute that is

absent from its express terms, and that McGuire never brought to the trial court’s

attention. See State v. Allen, 53 S.W.3d 731, 733 (Tex. App.—Houston [1st Dist.]

2001, no pet.) (concluding theories not presented to trial court are not “applicable to

the case” and thus do not fall under traditional rule that reviewing court should affirm

if trial court’s decision is correct on any theory of law applicable to case); cf. Douds

v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015) (concluding, under Texas

Rule of Appellate Procedure 33.1(a), that appellant failed to preserve complaints

because “isolated statements globally asserting that a blood draw was conducted

without a warrant” were not “enough to apprise the trial court that it must consider

whether there were exigent circumstances to permit the warrantless search”).

      Assuming, nevertheless, that there is an exigency requirement built into the

suspicious place exception to justify a warrantless arrest and that the requirement

applies in this case, I would hold, under Court of Criminal Appeals precedent, that


                                           13
the need to preserve evidence of McGuire’s blood alcohol level constituted exigent

circumstances, as did the more general need to preserve evidence of the crash. See

Gallups v. State, 151 S.W.3d 196, 202 (Tex. Crim. App. 2004) (holding appellant’s

warrantless arrest for DWI met exigency requirement of suspicious place exception

because “the circumstances surrounding appellant’s warrantless home arrest raised

a reasonable belief that appellant had committed a breach of the peace and that

exigent circumstances (the need to ascertain appellant’s blood-alcohol level) existed

to justify appellant’s immediate arrest”); see also, e.g., Banda v. State, 317 S.W.3d

903, 912 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that exigency

requirement for warrantless arrest under suspicious place exception was met where

police could reasonably believe it was necessary to take prompt action to ascertain

appellant’s blood-alcohol level); see also State v. Wrenn, No. 05-08-01114-CR,

2009 WL 1942183, at *3 (Tex. App.—Dallas July 8, 2009, no pet.) (mem. op., not

designated for publication) (holding that necessity of preserving evidence of DWI

suspect’s blood alcohol level constitutes exigency (citing Gallups, 151 S.W.3d at

202)).

         In holding that the need to preserve evidence of McGuire’s blood alcohol level

did not constitute exigent circumstances, the majority relies on the United States

Supreme Court’s opinion in McNeely. McNeely held that the natural metabolization

of alcohol in the bloodstream does not present an exigency justifying a warrantless


                                           14
blood draw when there is time—as there was here—to obtain a search warrant. See

569 U.S. at 145, 152. In relying on McNeely, the majority overlooks an important

distinction: McNeely addressed the exigency required for a warrantless blood draw,

not a warrantless arrest. The only authority the majority cites to support its

expansion of McNeely into new territory is the unpublished case State v. Donohoo,

in which the San Antonio Court of Appeals assumed without discussion that

McNeely’s holding regarding warrantless blood draws extends to warrantless arrests.

See No. 04-15-00291-CR, 2016 WL 3442258, at *6 (Tex. App.—San Antonio June

22, 2016, no pet.).

      As noted in the majority opinion, other courts of appeals have reached the

opposite conclusion in published cases, holding, in keeping with Gallups and

subsequent Texas cases, that the exigency requirement for a warrantless arrest under

the suspicious place exception is met by the need to preserve evidence of a suspect’s

blood alcohol level. See Dansby v. State, 530 S.W.3d 213, 222 (Tex. App.—Tyler

2017, pet. ref’d) (holding that “exigent circumstances—the need to ascertain

Appellant’s alcohol concentration—existed to justify Appellant’s immediate arrest”

under article 14.03(a)(1)); Lewis, 412 S.W.3d at 802 (holding that officer’s need “to

take prompt action to ascertain appellant’s blood-alcohol level” satisfied exigency

requirement for warrantless arrest under Article 14.03(a)(1)).




                                         15
      Minimizing the holdings in these cases, the majority points out that they do

not mention McNeely. I reply that there is good reason for the omission—McNeely

is a blood draw case; Dansby, Lewis, and the case before us are all arrest cases. The

distinction is critical. As the Court of Criminal Appeals has explained, “a search

[such as a blood draw] affects a person’s privacy interests, whereas a seizure [such

as an arrest] only affects a person’s possessory interests and is generally less

intrusive than a search.” Sanchez v. State, 365 S.W.3d 681, 686 (Tex. Crim. App.

2012). This distinction is perhaps even more pronounced when the seizure compels

a “physical intrusion beneath [a person]’s skin and into his veins.” See McNeely, 569

U.S. at 148. “Such an invasion of bodily integrity implicates an individual’s ‘most

personal and deep-rooted expectations of privacy.’” Id. (quoting Winston v. Lee, 470

U.S. 753, 760 (1985)).

      Both Lewis and Dansby (and at least one other post-McNeely case)5 implicitly

recognize the crucial distinction between a warrantless blood draw and a warrantless

arrest—and consequently McNeely’s inapplicability to the exigency requirement for

a warrantless arrest—and continue to regard the need to preserve the time-sensitive

evidence of a suspect’s blood alcohol level as a valid exigency justifying a



5
      See also Polly v. State, 533 S.W.3d 439, 443 (Tex. App.—San Antonio 2016, no
      pet.) (upholding warrantless arrest under article 14.03(a)(1) in part because
      circumstances called for immediate action by police to ascertain appellant’s blood
      alcohol level).

                                          16
warrantless arrest. See Gallups, 151 S.W.3d at 202. And these cases are consistent

with the long-standing broader principle that the need to preserve any kind of

evidence of a crime can be an exigency justifying a warrantless arrest. For example,

in Minassian v. State, this Court held that that the possibility of the “immediate

erasure of any evidence of wrongdoing provides the necessary exigency for an

immediate arrest.” See 490 S.W.3d 629, 639 (Tex. App.—Houston [1st Dist.] 2016,

no pet.) (citing Coyne v. State, 485 S.W.2d 917, 919 (Tex. Crim. App. 1972)).

      Here, the need to preserve evidence of McGuire’s intoxication before its

natural dissipation was not the only exigency presented: there was also an urgent

need to preserve other evidence. This includes evidence of the accident—including

the fender of the complainant’s motorcycle lodged in the grille of McGuire’s truck—

the need for which was made immediate by the knowledge that McGuire had already

fled the scene once, when he continued to drive instead of stopping after having

crashed his truck into the complainant’s motorcycle. The possibility that McGuire

might again flee, taking with him evidence of the collision in addition to the blood

evidence of his intoxication, established further exigence. See Swain, 181 S.W.3d at

366–67 (holding that appellant who admitted to beating victim and leaving her at

remote location was found at suspicious place, where “[g]iven appellant’s nervous

behavior and his admission that he had been involved in a crime, it was reasonable

to believe that appellant would not remain at the residential treatment home if the


                                        17
officers left to obtain a warrant”); Minassian, 490 S.W.3d at 639 (holding that

possibility that suspect would escape and destroy evidence contained on laptop

computers constituted exigent circumstances under suspicious place exception); cf.

Villalobos, 2018 WL 2307740, at *6 (holding that appellant’s warrantless arrest was

justified under suspicious place exception where appellant was found near scene of

accident and “needed to be detained because he had fled the scene of that accident”);

Cribley, 2005 WL 1812585, at *2 (holding that warrantless arrest of suspected hit-

and-run driver was justified under suspicious place exception where police found

her at home shortly after she had fled scene). And this concern would have been

heightened by McGuire’s emotional reaction to seeing the destroyed motorcycle.

      In any event, the totality of the circumstances presented in this case establishes

exigence even under McNeely, which noted that the need to preserve evidence of a

suspect’s blood alcohol level is but one factor to consider in assessing the totality of

the circumstances. See 569 U.S. at 165 (“[T]he metabolization of alcohol in the

bloodstream and the ensuing loss of evidence are among the factors that must be

considered in deciding whether a warrant is required.”); id. at 153 (“We do not doubt

that some circumstances will make obtaining a warrant impractical such that the

dissipation of alcohol from the bloodstream will support an exigency justifying a

properly conducted warrantless blood test.”); see also Weems v. State, 493 S.W.3d

574, 580–81 (Tex. Crim. App. 2016) (holding that McNeely does not require courts


                                          18
“to turn a blind eye to alcohol’s evanescence and the body’s natural dissipation of

alcohol in [their] calculus of determining whether exigency existed”; courts still

must consider “alcohol’s natural dissipation over time (and the attendant evidence

destruction) the antagonizing factor central to law enforcement’s decision whether

to seek a warrant or proceed with a warrantless seizure”).

      Indeed, the Court of Criminal Appeals has cautioned against an approach that

would reduce findings of exigency “to an exceedingly and inappropriately small set

of facts” and thus “defeat a claim of exigency on the basis of a single circumstance

in direct opposition to the totality-of-circumstances review McNeely requires.” Cole

v. State, 490 S.W.3d 918, 926 (Tex. Crim. App. 2016) (holding that availability of

other officers on scene to obtain warrant is relevant but not sole consideration in

exigency analysis for warrantless blood draw). In addition to immediacy, the United

States Supreme Court has recognized that a totality of the circumstances analysis of

exigency may include consideration of “the gravity of the underlying offense for

which the arrest is being made.” See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984);

see also State v. Villarreal, 475 S.W.3d 784, 857 (Tex. Crim. App. 2014) (Yeary, J.,

dissenting) (noting, in dissenting to denial of State’s motion for rehearing, that “as

the gravity of the offense increases, so too does the need to preserve, not just some

evidence of intoxication, but the very best evidence that may reasonably be

obtained”). McGuire stands accused of committing the grave offense of intoxication


                                         19
manslaughter. Clearly, the consequences of losing evidence of such a serious crime

make it “all the more imperative that the best evidence of intoxication not be lost in

the time it usually takes to secure a warrant.” Villarreal, 475 S.W.3d at 843.

      Thus, even though I disagree with the majority’s conclusions that McNeely

applies to warrantless arrests and that section 14.03(a)(1) requires an exigency

finding, I would hold that the State’s evidence established exigency beyond the need

to preserve evidence of McGuire’s blood alcohol level, based on the totality of

circumstances, including the undisputed fact that McGuire left the scene of the crash

and the need to preserve evidence of his truck’s collision with the complainant’s

motorcycle. See, e.g., Cole, 490 S.W.3d at 927 (“[L]aw enforcement was confronted

with not only the natural destruction of evidence through natural dissipation of

intoxicating substances, but also with the logistical and practical constraints posed

by a severe accident involving a death and the attendant duties this accident

demanded. We therefore conclude that exigent circumstances justified [appellant]’s

warrantless blood draw.”); see also State v. Keller, No. 05-15-00919-CR, 2016 WL

4261068, at *5 (Tex. App.—Dallas Aug. 11, 2016, no pet.) (mem. op., not

designated for publication) (“Evaluating the totality of the circumstances here, we

conclude the warrantless blood draw was constitutionally permissible under

exigency principles . . . [L]aw enforcement was confronted with not only the natural

destruction of evidence through natural dissipation of intoxicating substances, but


                                         20
also with the logistical and practical constraints posed by a potentially fatal accident

and the necessity of securing the site and protecting the public. We therefore

conclude that the warrantless blood draw did not violate the Fourth Amendment and

the trial court erred in concluding a violation occurred.”).

       On this record, the totality of the circumstances show that McGuire’s

warrantless arrest was justified under the suspicious place exception because the

troopers needed to preserve evidence both of the level of alcohol in McGuire’s

blood, regardless of the separate search warrant required to draw blood, and of the

state of McGuire’s vehicle, with a portion of the complainant’s motorcycle lodged

in it, shortly after the accident.

                                     Conclusion

       I would hold that because the State proved that McGuire’s warrantless arrest

was justified under the Code of Criminal Procedure article 14.03(a)(1), the trial court

abused its discretion in granting the motion to suppress the evidence obtained as a

result of the arrest.

                                               Evelyn V. Keyes
                                               Justice



Panel consists of Justices Keyes, Higley, and Landau.

Keyes, J., dissenting.

Publish. TEX. R. APP. P. 47.2(b).

                                          21
