        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                      Assigned on Briefs December 9, 2015
                Remanded by the Supreme Court November 22, 2016

            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 May 24, 2017
                        _____________________________

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. 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 contended
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 review, we concluded that the trial
court erred when it denied the Defendant’s motion to suppress because, at that time, there
was not a good faith exception to the exclusionary rule. State v. Christopher Wilson,
W2015-00699-CCA-R9-CD, 2016 WL 1627145, at *1 (Tenn. Crim. App., at Jackson,
April 21, 2016). On November 22, 2016, the Tennessee Supreme Court granted
Defendant’s application for permission to appeal and remanded the case to this court for
reconsideration in light of the supreme court’s recent opinion in State v. Reynolds, 504
S.W.3d 283 (Tenn. 2016). Upon reconsideration in light of Reynolds, we conclude that
the officer acted with reasonable good-faith reliance on binding precedent in effect at the
time. Accordingly, we reinstate and affirm the trial court’s denial of the Defendant’s
motion to suppress.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ALAN E.
GLENN, J., joined. THOMAS T. WOODALL, P.J., concurs in results only in a separate
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
prior convictions on March 11, 2008, and January 24, 1995, for driving while under the
influence.

       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 an 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
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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
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 floorboard 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.
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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 DUI 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 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 asserted 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 contended that the police officer’s misunderstanding of the
law did not justify the forced blood draw. The State conceded that the trial court
improperly relied on a “good faith exception” but asked 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. 12,
2014), perm. app. granted (Tenn. March 16, 2015).

       On November 3, 2016, the Tennessee Supreme Court issued its opinion in
Reynolds, holding, in relevant part, that the good faith exception applies as an exception
to the exclusionary rule in cases where binding appellate precedent specifically
authorizes a police practice and the police adhere to this governing law. Reynolds, 504
S.W.3d at 312. Thereafter, the supreme court remanded this case to us for
reconsideration in light of their ruling regarding the good faith exception to the
exclusionary rule.

      The Defendant’s blood was taken pursuant to Tennessee Code Annotated section
55-10-406(5)(B) (2014), which 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
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       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
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.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. Crim. App. 1997). One
such exception is a search conducted under exigent circumstances to prevent the
imminent destruction of evidence. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010).
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. In its order
granting the Defendant’s motion to suppress, the trial court considered federal law
regarding a good faith exception to the warrant requirement and ultimately determined
that “[t]o suppress the evidence in the context of this case serves no significant purpose.”

        The stop at issue in this case occurred on June 17, 2012. At that time, the
prevailing law relevant to this issue was Schmerber v. California. In Schmerber, the
Supreme Court applied the totality of the circumstances test in the context of a drunk-
driving case and upheld a warrantless blood draw based on the exigencies of the
situation. The case presented a defendant who was involved in a car accident and
arrested while at a hospital receiving treatment for injuries sustained in that accident.
Schmerber, 384 U.S. at 758. The Court, recognizing that alcohol dissipates from the
body shortly after drinking stops, reasoned that “[t]he officer might reasonably have
believed that he was confronted with an emergency, in which the delay necessary to
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obtain a warrant, under the circumstances, threatened the destruction of evidence[.]” Id.
at 770 (internal quotation marks and citations omitted). The Court noted that
“[p]articularly in a case such as this, where time had to be taken to bring the accused to a
hospital and to investigate the scene of the accident, there was no time to seek out a
magistrate and secure a warrant.” Id. at 770-71. Thus, the Court concluded that the
warrantless blood draw was justified.

       Many courts, including those in Tennessee, interpreted Schmerber broadly as
establishing that because blood alcohol content begins to diminish shortly after drinking
stops, a compulsory breath or blood test, taken with or without the consent of the donor,
is permissible under the exigent circumstances exception to the warrant requirement.
See, e.g., State v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn. Crim. App. 2001) (“Based
upon the fact that evidence of blood alcohol content begins to diminish shortly after
drinking stops, a compulsory breath or blood test, taken with or without the consent of
the donor, falls within the exigent circumstances exception to the warrant requirement.”);
State v. Michael A. Janosky, No. M1999-02574-CCA-R3-CD, 2000 WL 1449367, at *5
(Tenn. Crim. App. 2000) (relying in part on “the exigent circumstances established by the
nature of the evidence in cases involving intoxicated motorists” to justify a warrantless
blood draw).

       In 2013, the United States Supreme Court clarified that the “natural metabolization
of alcohol in the bloodstream” does not create a per se exigency “that justifies an
exception to the Fourth Amendment’s warrant requirement for nonconsensual blood
testing in all drunk-driving cases.” Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013).
Rather, the Court held, “consistent with general Fourth Amendment principles, that
exigency in this context must be determined case by case based on the totality of the
circumstances.” Id.

       The stop in this case occurred before the Supreme Court’s ruling in McNeely and
while Schmerber was still the prevailing law. We conclude that Lieutenant Banks’
obtaining the Defendant’s blood without the Defendant’s consent was a practice
authorized by binding appellate precedent at the time it occurred. Lieutenant Banks
relied on police policy regarding mandatory blood draws, and that police policy reflected
Tennessee courts’ interpretation of Schmerber, the binding appellate precedent. We
agree with the trial court’s finding that 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.”
Accordingly, we affirm the trial court’s denial of the Defendant’s motion to suppress.

                                     III. Conclusion


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        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment and remand this case for further proceedings consistent with this
opinion.




                                               _________________________________
                                               ROBERT W. WEDEMEYER, JUDGE




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