Filed 6/30/17




                                CERTIFIED FOR PUBLICATION




                    SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                     COUNTY OF SAN DIEGO
                                    APPELLATE DIVISION

THE PEOPLE,                                         Appellate Division No.: CA269335
                                                    Trial Court Case No.: CN358552
                Plaintiff(s) and Appellant(s),      Trial Court Location: North County Division

        v.
                                                    DECISION/STATEMENT OF REASONS
AUBREE PICKARD,                                     (CCP § 77(d)) BY THE COURT

                Defendant(s) and Respondent(s).



        APPEAL from the Order granting defendant’s Penal Code section 1538.5 motion to
suppress the drug screening results entered by the Superior Court, San Diego County, Frank L.
Birchak, Judge. Following argument on June 22, 2017, this matter was taken under submission.
        AFFIRMED.
        PROCEDURAL AND FACTUAL BACKGROUND
        On February 19, 2016, the defendant was arrested for driving under the influence of alcohol.
When the officer gave the Implied Consent Law admonishment, he told defendant that she’d have
to submit to a breath or blood test. He further explained that the breath machine is unable to retain
any kind of a sample for retesting. On the other hand, with the blood test, the nurse would draw
two small vials of blood -- “[o]ne of those vials goes to the crime lab and gets tested for
alcohol….The second vial is held at no cost to you.” (Emphasis added.)1 Consistent with his field
admonishment, the officer testified he told the defendant “that two small vials of blood will be
drawn. One goes to the San Diego Country Crime Lab. It gets tested for alcohol and … that report
gets added to my report at a later date.” (Emphasis added.) The defendant elected to submit to a
blood test. It was stipulated by the parties that the defendant’s blood was analyzed for alcohol on
February 29, 2016, and was later sent to Bio-Tox for a drug analysis. Bio-Tox received the second
vial of defendant’s blood on March 30th, and the Bio-Tox report dated April 1, 2016 reflected the
positive results of the drug screen. On April 25, 2016, the People filed a complaint charging
defendant with driving under the combined influence of alcohol and drugs in violation of Vehicle
Code section 23152, subdivision (f).
         After hearing the evidence during the suppression motion, the trial court found that the
defendant had consented to the blood test after her arrest for driving under the influence. The trial
court denied the motion to suppress the blood alcohol test dated February 29, 2016, but granted the
motion to suppress the drug test results dated April 1, 2017 as beyond the scope of the defendant’s
consent, which was limited to testing the blood sample for alcohol. The People appeal from the
order suppressing the drug test results.
         DISCUSSION
         The law on the scope of a suspect’s consent has been set forth in People v. Crenshaw (1992)
9 Cal.App.4th 1403:

                    “The standard for measuring the scope of a suspect’s consent under
                    the Fourth Amendment is that of ‘objective’ reasonableness – what
                    would the typical reasonable person have understood by the exchange
                    between the officer and the suspect? [Citations.]” [Citation.]
                    Generally, the scope of a warrantless search is denied by its expressed
                    object. [Citation.] A consensual search may not legally exceed the
                    scope of the consent supporting it. [Citation.] Whether the search
                    remained within the boundaries of the consent is a question of fact to
                    be determined from the totality of the circumstances. [Citation.]
                    Unless clearly erroneous, we uphold the trial court’s determination.

(Id. at p. 1408.)

         1
             This conversation was recorded on the officer’s MVARS recording, and a transcript was provided to the
court.

                                                           -2-
       The People contend the defendant never limited the scope of her consent and that the second
test for drugs did not exceed the scope of the consent.

               …[I]t is the government’s burden to prove that a warrantless search
               was within the scope of the consent given. People v. Superior Court
               (Arketa) (1970) 10 Cal.App.3d 122, 127, states: “The authority to
               search pursuant to a consent must be limited to the scope of the
               consent.” …. [¶] Thus, despite initial authorization - whether by
               warrant, probable cause, or consent - police officers may exceed the
               boundaries of the power conferred upon them and create illegality for
               their actions. Limitation may exist due to the specifications of the
               warrant [citation] or by the constitutional mandate [citation], or, in
               the case of consensual search, by the mutual understanding and
               reasonable expectations of the parties.
(People v. Harwood (1977) 74 Cal.App.3d 460, 466-467; original italics.) The People fail to
acknowledge that it was the officer who limited the scope of the search of the blood to the testing of
alcohol. Defendant was offered a breath test, which only tests for alcohol content and does not
preserve a sample for retesting, or a blood test for alcohol. Under these facts and circumstances,
Defendant did not have an affirmative obligation to expressly place limits on the consent when it
was the mutual understanding of the defendant and the officer, and their reasonable expectations
that the blood was to be tested only for alcohol.
       The People cite to People v. Miller (1999) 69 Cal.App.4th 190, but that case is readily
distinguishable. The court in Miller acknowledged that during the course of a consent search, the
police do not have to blind themselves to contraband that is in plain view simply because it is not
within the scope of their search. Here, the drugs in the defendant’s blood were clearly not in plain
sight, and their presence could only be detected by laboratory analysis.
       The People also cite to People v. Thomas (2011) 200 Cal.App.4th 338 as a case most
analogous to the instant case. However, the court in Thomas ruled that the DNA test of the PAS
mouthpiece was not a search because the PAS mouthpiece in question had been discarded by the
defendant was therefore abandoned property. Citing Skinner v. Railway Labor Executives’ Assn.
(1989) 489 U.S. 602, 616-617, 109 S.Ct. 1402, the court in Thomas noted: “When an individual is
compelled to provide a biological sample for analysis, the collection and subsequent analysis of the
sample are treated as separate searches because they intrude on separate privacy issues.” (Thomas,

                                                    -3-
supra, 200 Cal.App.4th at p. 341.) The court in Thomas recognized that when a driver consents to a
blood test under a state’s implied consent law, the further testing of the sample for other substances
or DNA may be beyond the scope of the consent. (Id. at pp. 343-344, citing State v. Binner (1994)
131 Or.App. 677, 682-683, 886 P.2d 1056, 1059 and State v. Gerace (1993) 210 Ga.App. 874, 875-
876, 437 S.E.2d 862, 863.)
       While no California court has specifically addressed the exact issue we have here, the facts
in State v. Binner (1994) 131 Or. App. 667 are most analogous. In that case, the defendant signed a
written consent to have his blood drawn for alcohol analysis. When the result of the blood sample
showed that his blood alcohol content was well below the legal limit, the police sent the blood
sample out for drug testing without informing the defendant or requesting further consent. The
second test indicated a high THC level in the blood. The court, citing Skinner v. Railway Labor
Executives Ass’n., supra, determined the defendant had a privacy interest in the content of his
blood. The court upheld the suppression of the drug test results as beyond the scope of the consent,
noting that his privacy interest in the contents of the blood sample continued despite the fact that
the police were in possession of it. The trial court in this instant matter also recognized Skinner v.
Railway Labor Executives Assn, supra, as the basis for its finding that the testing of the defendant’s
blood for drugs, separate and apart from the testing for alcohol, needed to independently satisfy the
Fourth Amendment.
       The People rightfully argue that suppression is not an automatic consequence of a violation
of the Fourth Amendment. (Herring v. United States (2009) 555 U.S. 135 137, 139, 141.) “[T]he
exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some
circumstances recurring or systematic negligence.” (Id. at p. 144; emphasis added.) The good faith
reliance, which the People urge the court to find as a basis for admitting the drug test results, is
based upon United States v. Leon (1984) 468 U.S. 897 and its progeny. There is nothing in the
record to indicate whether or not the test of defendant’s second blood sample for the detection of
drugs was based upon good faith reliance. The alcohol test was conducted on February 29, 2016,
and presumably because the alcohol content of the defendant’s blood was low, the sample was then
routinely sent out for a drug screening a month later.

                                                   -4-
        Where, as here, defendant’s blood sample was impounded for alcohol testing only based on
limited consent, absent specific evidence of good faith reliance, we find that the secondary testing
for drugs was a procedural recurring or systematic failure by the law enforcement agency’s
personnel to abide by the Fourth Amendment. Contrary to the People’s argument, we do not have
to find the officer personally acted in a “deliberate,” “reckless,” or “grossly negligent” disregard for
the defendant’s Fourth Amendment rights to suppress the evidence. We find that he abided by the
defendant’s constitutional rights and obtained the blood sample by consent. However, it was the
actions of the law enforcement agency’s personnel related to the drug screening test, after the blood
had been impounded for a test of its alcohol content only, that violated the defendant’s
constitutional rights.
        CONCLUSION
        The trial court’s ruling suppressing the drug test results of the defendant’s blood is affirmed.
The case is remanded to the trial court for actions consistent with this Decision, which is limited to
the facts of this case.




Unanimously affirmed.

KERRY WELLS
Presiding Judge, Appellate Division

CHARLES R. GILL
Judge, Appellate Division

GALE E. KANESHIRO
Judge, Appellate Division




                                                  -5-
Trial Court: San Diego County Superior Court

Trial Judge: Hon. Frank L. Birchak

Counsel:

Summer Stephan, District Attorney, Lilia Garcia, Deputy District Attorney, for Plaintiff and

Appellant.

Christopher Zander, for Defendant and Respondent.
