       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs December 9, 2015

            STATE OF TENNESSEE v. CHRISTOPHER WILSON

         Interlocutory Appeal from the Criminal Court for Shelby County
                      No. 1400109    W. Mark Ward, Judge


               No. W2015-00699-CCA-R9-CD - Filed April 21, 2016
                       _____________________________

The Defendant, Christopher Wilson, filed a Rule 9 interlocutory appeal seeking our
review of the trial court‟s denial of his motion to suppress evidence against him. The
Defendant filed a motion to suppress the results of his blood alcohol test based upon a
violation of Missouri v. McNeely, 133 S. Ct. 1552 (2013). The trial court conducted an
evidentiary hearing and found that a “good faith exception” to the Defendant‟s forced
blood draw existed and denied the Defendant‟s motion. The Defendant filed an
application for an interlocutory appeal, which the trial court granted. On appeal, the
Defendant contends that the trial court erred when it denied the Defendant‟s motion to
suppress based upon a “good faith exception” to the exclusionary rule. After a thorough
review of the record and applicable authorities, we conclude that the trial court erred
when it denied the Defendant‟s motion to suppress. As such, we reverse the trial court's
judgment and remand this case for proceedings consistent with this opinion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Reversed
                                  and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ALAN E.
GLENN, J., joined. THOMAS T. WOODALL, P.J., filed a concurring opinion.

Graham Cox, Collierville, Tennessee, for the appellant, Christopher Wilson.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Michael R. McCusker, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                      OPINION
                                       I. Facts
        This case arises from a traffic stop in Collierville, Tennessee. After observing a
traffic violation, Collierville Police Lieutenant John Banks conducted a traffic stop
resulting in the Defendant‟s arrest for driving while under the influence. A search of the
Defendant‟s vehicle incident to his arrest revealed marijuana and marijuana cigarettes.
The Defendant refused to consent to a breath or blood test and the police officer ordered
blood to be drawn despite the refusal. As a result of this stop, a Shelby County grand
jury indicted the Defendant for possession of marijuana with the intent to sell, possession
of marijuana with the intent to deliver, driving while under the influence of an intoxicant,
driving while blood alcohol concentration was more than .08%, driving while under the
influence of marijuana, driving while under the influence of an intoxicant and marijuana
combined, and reckless driving. The indictments also reflected that the Defendant had
two prior convictions for driving while under the influence on March 11, 2008, and
January 24, 1995.

       The Defendant filed a motion to suppress the results of the blood alcohol
concentration (BAC) test. The Defendant, relying on Missouri v. McNeely, 133 S. Ct.
1552 (2013), asserted that the forced blood draw taken absent a warrant, valid consent, or
exigent circumstances violated his Fourth Amendment right against unreasonable search
and seizure. The State responded that the warrantless blood draw was justified by
exigent circumstances and by the implied consent statute. The State later amended its
response contending that the “Good Faith Exception to the Exclusionary Rule” should
apply in this case.

        At the suppression hearing on the Defendant‟s motion, the parties presented the
following evidence: John Banks, a Collierville Police Department lieutenant, testified
that, on June 17, 2012, at around 6:39 p.m., he observed the Defendant driving a white
Ford pickup traveling westbound on Maynard Way. Lieutenant Banks stated that he
knew the Defendant from a prior DUI arrest and, also, the two men had previously
worked together at an electrical company. Lieutenant Banks recalled that he was directly
behind the Defendant‟s vehicle, which was stopped at a traffic signal. Lieutenant Banks
testified that the Defendant made a wide right turn from the right hand traffic lane on
Maynard Way into the left hand northbound traffic lane of Byhalia Road in violation of
Tennessee Code Annotated section 55-8-140. Lieutenant Banks conducted a traffic stop
of the Defendant based upon this alleged violation.

       Lieutenant Banks testified that he approached the vehicle and noticed a “very
strong” odor of intoxicant on the Defendant‟s breath and coming from inside the vehicle.
Lieutenant Banks said that the Defendant‟s eyes were bloodshot and glassy. He noticed
that the Defendant mumbled when he spoke, unlike his normal speech. Based upon his
observations, Lieutenant Banks believed the Defendant was under the influence of an
intoxicant and further investigation was necessary. Following the standardized field
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sobriety testing, the Defendant was placed under arrest for DUI, and Lieutenant Banks
searched the Defendant‟s vehicle incident to the arrest.

       Lieutenant Banks testified that, during the search of the vehicle, he found a cooler
on the front passenger floor board with five sixteen-ounce cans of Bud-Light beer and
sixteen twelve-ounce bottles of Bud-Light beer. Behind the driver‟s seat, on the
floorboard, was an unopened eighteen-pack of Bud-Light beer. Lieutenant Banks stated
that he did not find any open containers of alcohol while searching the vehicle. While
inside the vehicle, Lieutenant Banks detected an odor of marijuana, and he found in the
center console a clear plastic bag containing “loose, green-leafy material.” The material
tested positive for THC. The weight of the marijuana was 28.7 grams. Along with the
plastic bag of marijuana, Lieutenant Banks found a 1.1 gram unburned marijuana
cigarette and a .2 gram partially burned marijuana cigarette, which both tested positive
for THC.

       Lieutenant Banks testified that, at the time of the arrest, he was concerned with the
dissipation of alcohol and marijuana in the Defendant‟s system. Lieutenant Banks
advised the Defendant of the implied consent law in relation to taking a blood or a breath
test. The Defendant refused to consent to either a blood draw or breath test. The
Defendant signed the implied consent form indicating his refusal at 7:39 p.m. Lieutenant
Banks identified an alcohol toxicology request that he filled out during the Defendant‟s
arrest on June 17, 2012. The form indicated that the Defendant‟s blood was drawn at
7:45 p.m., one hour and six minutes after the initial traffic stop. Lieutenant Banks
explained that it was his “understanding” that the “policy” was to collect a mandatory
blood draw because of the Defendant‟s March 11, 2008 DUI conviction. Lieutenant
Banks said that it was not “common practice” for officers to obtain search warrants in the
case of a mandatory blood draw and that he had never done so personally.

       Lieutenant Banks testified that seeking a search warrant in this case would have
caused an additional delay in obtaining the Defendant‟s blood and, therefore, a less
accurate test result as to the Defendant‟s blood alcohol level. He estimated that the
additional thirty to forty-five minutes would have caused him to “lose” evidence.
Lieutenant Banks said that Collierville does not have a “twenty-four hour Magistrate.”
Officers must seek the “actual Judge” and, because the Defendant‟s traffic stop and arrest
occurred on a Sunday afternoon, Lieutenant Banks would have had to first locate the
judge.

      On cross-examination Lieutenant Banks testified that he drew the Defendant‟s
blood because of his reliance on statutes relating to second offense drivers. He added that
he was also concerned with the dissipation of the alcohol in the blood. He agreed that his
concern over the dissipation of alcohol was not included in any of his reports but stated
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that “it is always a concern on any DUI arrest.” He confirmed that he did not attempt to
get a warrant.

      Following the hearing, the trial court issued an order denying the Defendant‟s
motion to suppress because “the officer was clearly acting under a good faith belief that
he was abiding by the law and not violating any rights of the defendant.” It is from this
judgment that the Defendant appeals.

                                           II. Analysis

       The Defendant asserts that the trial court erred in denying his motion to suppress
because there was no search warrant, exigent circumstances, or consent to the blood
draw. The Defendant further contends that the police officer‟s misunderstanding of the
law did not justify the forced blood draw. The State concedes that the trial court
improperly relied on a “good faith exception” but asks this Court to defer ruling pending
the Tennessee Supreme Court‟s ruling in State v. Corrin Kathleen Reynolds, No. E2013-
02309-CCA-R9-CD, 2014 WL 5840567 (Tenn. Crim. App., at Knoxville, Nov. 14,
2014), perm. app. granted (Tenn. March 16, 2015).1

       Our standard of review for a trial court‟s findings of fact and conclusions of law
on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn.
1996). Under this standard, “a trial court‟s findings of fact in a suppression hearing will
be upheld unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the
prevailing party in the trial court is afforded the „strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.‟” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this Court reviews de novo the trial
court‟s application of the law to the facts, without according any presumption of
correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);

       1
          In Reynolds, the trial court suppressed the results of a blood draw because the State
failed to prove the Defendant “intelligently” gave consent for a blood draw. After reviewing the
evidence, this Court held that “the officer had probable cause „to believe that [Defendant,] the
driver of a motor vehicle involved in an accident resulting in the injury or death of another . . .
committed [DUI]‟ and because Defendant never refused to submit to the blood draw, the results
of the blood test are admissible.” Our Court also noted that, “While this Court is without
authority to adopt the good-faith exception, we would be remiss if we did not take this
opportunity to note that, aside from authority of the implied consent statute justifying the
outcome of this case, we believe that the facts and posture of this case, in particular, seem to fit
squarely within the limited exceptions to the application of the exclusionary rule set forth in both
Davis and Krull.” Id at *16. The Tennessee Supreme Court accepted the application to appeal
and oral argument was heard on September 30, 2015.
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State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as the trier of fact,
is able to assess the credibility of the witnesses, determine the weight and value to be
afforded the evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at
23. In reviewing a trial court‟s ruling on a motion to suppress, an appellate court may
consider the evidence presented both at the suppression hearing and at the subsequent
trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

       Both the United States and Tennessee Constitution protect against unreasonable
searches and seizures. The Fourth Amendment of the U.S. Constitution proclaims that
“the right of the people to be secure . . . against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon probable cause.” The Tennessee
Constitution provides “people shall be secure in their persons, houses, and papers and
possessions, from unreasonable searches and seizures.” Tenn. Const. art. I, § 7.
Generally, to search a person‟s property, a warrant is needed, and “evidence discovered
as a result thereof is subject to suppression unless the State demonstrates that the search
or seizure was conducted pursuant to one of the narrowly defined exceptions to the
warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). A trial
court accordingly presumes that a warrantless search or seizure is unreasonable unless the
State demonstrates that one of the exceptions to the warrant requirement applies to the
search. Id.

      The Defendant‟s blood was taken pursuant to Tennessee Code Annotated section
55-10-406 (5)(B) (2014), it provides in pertinent part that:

       If a law enforcement officer has probable cause to believe that the driver of
       a motor vehicle has committed [vehicular homicide], [aggravated vehicular
       homicide] or [the offense of driving under the influence], and has a prior
       conviction of [vehicular homicide], [aggravated vehicular homicide] or
       [driving under the influence], the officer shall cause the driver to be tested
       for the purpose of determining the alcohol or drug content of the driver‟s
       blood. The test shall be performed in accordance with the procedure set
       forth in this section and shall be performed regardless of whether the driver
       does or does not consent to the test.

        “[T]he physical intrusion occasioned by a blood draw „infringes an expectation of
privacy,” and the chemical analysis of blood is also an invasion of an individual‟s privacy
interests. State v. Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006) (quoting Skinner v.
Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989)). “Such an invasion of bodily
integrity implicates an individual‟s „most personal and deep-rooted expectations of
privacy.” Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (quoting Winston v. Lee,
470 U.S. 753, 760 (1985)). Accordingly, the blood of the accused cannot be drawn or
                                             5
analyzed unless the search is a reasonable one under the Fourth Amendment.
Scarborough, 201 S.W.3d at 616; see Schmerber v. California, 384 U.S. 757, 767 (1966).
A warrantless search is presumptively unreasonable, and “evidence discovered as a result
thereof is subject to suppression unless the State demonstrates that the search or seizure
was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.” Yeargan, 958 S .W.2d at 629. One such exception is a search conducted
under exigent circumstances to prevent the imminent destruction of evidence. Talley,
307 S.W.3d at 729. Another is consent. Id.

        It is uncontested that the Defendant did not give consent for the blood draw and
both parties agree that exigent circumstances did not exist to justify the blood draw. The
trial court also explicitly found that exigent circumstances did not exist. The trial court
then went on to consider federal law regarding a good faith exception to the warrant
requirement.

              In the landmark case of United States v. Leon, 468 U.S. 897, 104 S.
      Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court created
      what is known as the “good faith” exception to the exclusionary rule and
      permitted evidence to be introduced if it was seized in reasonable, good
      faith reliance upon a search warrant subsequently found to be defective. In
      Illinois v. Krull,480 U.S. 340, 107 S. Ct. 1160, 94 L.Ed.2d 364 (1987), the
      United States Supreme Court applied the “good faith” exception to actions
      of the police conducted pursuant to a presumptively valid statute that is
      later declared unconstitutional. Likewise, in Davis v. United States, 131 S.
      Ct. 2419, 180 L.Ed.2d 285 (2011), the United States Supreme Court
      extended the good faith exception to searches conducted in objectively
      reasonable reliance on binding appellate precedent.            Although the
      Tennessee Supreme Court has not yet addressed whether a “good faith”
      exception is applicable in Tennessee and the Tennessee Court of Criminal
      Appeals has in several opinions [but in other contexts] refused to recognize
      such an exception, See W. Mark Ward, TENNESSEE CRIMINAL TRIAL
      PRACTICE § 7:10 (West 2013-2014) (collecting cases), none of the cases
      that have addressed this situation have considered it in light of an officer‟s
      reliance upon a state statute and appellate precedent that appeared to
      dispense with the warrant requirement. Consider State v. Thomas,2013
      WL 4715660 (Tenn. Crim. App. Aug. 30, 2013).

             Furthermore, in a closely related issue, the legislature in 2011
      enacted the “Exclusionary Rule Reform Act” [Tenn. Code Ann. § 40-6-
      108(c)(3)] which allows a good faith exception to searches conducted
      pursuant to search warrants when an officer acts in “reasonable reliance on
                                            6
       a statute that is subsequently ruled unconstitutional; or controlling
       precedent that is overruled after the issuance of the search warrant. . .”
       Thus, the legislature has recently indicated a willingness to soften the
       exclusionary rule in some circumstances and expressed public opinion in
       support of a relaxation of such a rule.

              Accordingly, in this matter of first impression, this Court concludes
       that even if the blood draw violated the Fourth Amendment and Tennessee
       Constitution, Article I, § 7, that the results of the test should not be
       excluded under the good faith exception to the exclusionary rule.
       Excluding the evidence under the present circumstances would have no
       deterrent value to law enforcement officers, whatsoever. Here the officer
       was clearly acting under a good faith belief that he was abiding by the law
       and not violating any rights of the defendant. To suppress the evidence in
       the context of this case serves no significant purpose.

In State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000), the Tennessee Supreme Court
said “we decline to address [the good faith exception‟s] validity under the Tennessee
Constitution until the issue is squarely presented.” Meanwhile, the Tennessee Court of
Criminal Appeals has indicated a reluctance to adopt the good faith exception until the
matter is addressed by the Tennessee Supreme Court. State v. Lonnie Taylor, 1987 WL
25417 (Tenn. Crim. App. 1987). This Court respectfully submits the present ruling
hoping that the issue will be “squarely presented” and finally decided by our appellate
courts.

       We decline to uphold the trial court‟s finding of a good faith exception. The State
notes that our Supreme Court has accepted a case that involves a similar issue; however,
it is not the role of this Court to speculate or guess at what might become the law.
Currently, there is not a recognized “good faith” exception to the warrant requirement in
the state of Tennessee. Accordingly, we reverse the trial court‟s denial of the
Defendant‟s motion to suppress.

        Even should the Supreme Court ultimately adopt a “good faith” exception, our
review of the record did not reveal any evidence that the officer relied on case law for the
proposition that dissipation in the blood is an exigent circumstance. The officer testified
that it was his “understanding” that he was following “policy.” There was no evidence
presented as to whether the policy was based on convenience, financial resources, or the
statute itself. As to an exception based on a statute later found unconstitutional, this
Court has concluded that Tennessee Code Annotated section 55-10-406 does not dispense
with the warrant requirement and is constitutional. See State v. Charles A. Kennedy,

                                             7
M2013-02207-CCA-R9-CD, 2014 WL 4953586, (Tenn. Crim. App., at Nashville, Oct.
13, 2014), no Tenn. R. App. P. 11 application filed.

                                   III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we reverse the
trial court‟s judgment denying the Defendant‟s motion to suppress. We remand this case
for further proceedings consistent with this opinion.




                                              _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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