                                                                                    ACCEPTED
                                                                               03-14-00602-CR
                                                                                      4312718
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                         2/27/2015 11:54:07 AM
                                                                              JEFFREY D. KYLE
                                                                                        CLERK
                       No. 03-14-00602-CR

                              In the                          FILED IN
                                                       3rd COURT OF APPEALS
                         Court of Appeals                   AUSTIN, TEXAS
                          Third District               2/27/2015 11:54:07 AM
                          Austin, Texas                    JEFFREY D. KYLE
                                                                Clerk


                       The State of Texas,
                           Appellant

                                v.

                    Anthony James Sanchez,
                           Appellee

           Appeal from the 167th Judicial District Court
                      Travis County, Texas
               Cause Number D-1-DC-13-200502

              BRIEF FOR ANTHONY SANCHEZ


                                     Fernando Cortes
                                     SBN: 04844580
                                      100 N. Santa Rosa, Suite 824
                                     San Antonio, Texas 78207
                                     (210) 381-0000
                                     Fax: (210) 399-9444
                                     Email: fcortes00@gmail.com

                                     Rocío Ramírez
                                     SBN: 24037328
                                     1603 Babcock, Suite 159
                                     San Antonio, Texas 78229
                                     (210) 785-0443
                                     Fax: (210) 785-0453
                                     Email: rocio@rocioramirezlaw.com
Oral argument is requested
                           Identity of Parties and Counsel


Trial Judge:                           P. DavidWahlberg
                                       167th Judicial District Court
                                       P.O. Box 1748
                                       Austin, Texas 78767


Defendant/Appellee:                    Anthony James Sanchez


Counsel for
Defendant/Appellee:
                                       Fernando Cortes
                                       100 N. Santa Rosa, Suite 824
                                       San Antonio, Texas 78207

                                       Rocío Ramírez
                                       1603 Babcock, Suite 159
                                       San Antonio, Texas 78229


Trial Counsel for State:               Aurora Perez
                                       Travis County District Attorney’s Office
                                       P.O. Box 1748
                                       Austin, Texas 78767


Appellate Counsel for State:           Angie Creasy
                                       Travis County District Attorney’s Office
                                       P.O. Box 1748
                                       Austin, Texas 78767




                                          i
Table of Contents

Identity of Parties and Counsel ........................................................................... i
Index of Authorities...............................................................................................iii
Statement of the Case ..........................................................................................v
Statement of Facts ...............................................................................................1
Summary of Appellee’s Argument..................................................................... 3
Standard of Review............................................................................................ 4
Argument............................................................................................................ 4
         Point One: The evidence is inadmissible because the warrantless
         search was unconstitutional under the Fourth Amendment …................. 4
         Point Two: Tex. Transp. Code §§ 724.011 - .012 are not recognized
         exceptions to the Fourth Amendment warrant requirement..................... 7
         Point Three: The Federal exclusionary rule bars admission of the
         evidence ……………………………………………………………………10
         Point Four: The Texas exclusionary rule bars admission of the
         evidence……………………………………………………………………17
Prayer ..................................................................................................................22
Certificate of Compliance and Service................................................................24




                                                              ii
Index of Authorities
Cases

Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982)………………………13,14
Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007)…………..…………..4
Aviles v. State, 443 S.W.3d 291 (Tex. App.
 2014)…………………………………………………………………...7,11, 12, 22
Central Green Co. v. United States, 531 U.S. 425 (2001)…………….………….21
City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447,

148 L. Ed. 2d 333 (2000)..............…………….………………………………..…9

Cupp v. Murphy, 412 U.S. 291 (1973)……………………………………………14

Davis v. United States, 564 U.S.__, 131 S. Ct. 2419, 180 L. Ed. 285 (2011)…….11

Douds v. State, 434 S.W.3d. 842…………………………………………………18

Griffith v. Kentucky, 479 U.S. 314, 328 (1987)…………………………………..10

Howard v. State, 617 S.W.2d 191 (Tex. Crim. App. 1979)………………………18

Humphrey's Executor v. United States, 295 U. S. 602 (1935)……………………21

Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364

 (1987)……………………………………………………………………..18, 19,20

Leal v. State, No. 14-13-00208-CR, 2014 WL 5898299 (Tex. App. Nov. 13,
2014)………… …………………………………………………………………...12

McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153

 (1948)………………………………………………………………………...17, 20

Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013)

 ………………………………………………………..........3, 4,5, 6, 8, 9, 20, 22
                                         iii
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908

    (1966)……………………………………………………………5, 6, 8, 13, 14, 15,16,20

State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (App. Div. Dec. 20, 2013)…11

State v. Anderson, 445 S.W.3d 895 (Tex. App. 2014)………………………….19

State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008)…………….....4
State v. Laird, 38 S.W.3d 707……………………………………………….....13,15
State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150
(Tex. App. Jan. 23, 2014)……………………………………………………7,8,9
State v. Villarreal, No. PD-0306-14, 2014 WL 6734178
    (Tex. Crim. App. Nov. 26, 2014)………………………………………………19
Sutherland v. State, 436 S.W.3d 28 (Tex. App. 2014)………………………….12
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)..........………5

United States v. Robinson, 414 U.S. 218, 94 S. Ct. 494, 38 L. Ed. 2d 427

(1973)……………………………………………………………………………4,5

Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)…..……..5

Weems v. State, 434 S.W.3d 655 (Tex. App. 2014)……………….6,7, 8, 19, 20, 22


Statutes
Tex. Code Crim. Proc. art. 38.23 ................................................................10, 18, 22
Tex. Transp. Code § 724.011 .................................................................................7,
8
Tex. Transp. Code § 724.012..........................................................................7. 8, 17




                                                      iv
                              Statement of the Case

     Officer Moreno ordered a warrantless, blood draw of defendant, Anthony

James Sanchez. The defendant did not consent to this search and no exigent

circumstances were present.     The trial court granted defendant’s motion to

suppress the results of the blood test because it violated defendant’s Fourth

Amendment rights.




                                        v
                               No. 03-14-00602-CR

                                        In the
                                   Court of Appeals
                                    Third District
                                    Austin, Texas


                               The State of Texas,
                                   Appellant

                                          v.

                            Anthony James Sanchez,
                                   Appellee

                   Appeal from the 167th Judicial District Court
                              Travis County, Texas
                       Cause Number D-1-DC-13-200502

                 BRIEF FOR ANTHONY JAMES SANCHEZ



To the Honorable Third Court of Appeals:

      Now comes Anthony James Sanchez and files this brief, and in support

thereof respectfully shows the following:



                                Statement of Facts

      The defendant filed a motion to suppress the blood draw evidence, arguing

that the blood draw was illegally seized without a warrant, consent, probable cause,

or exigent circumstances. CR 58.

                                            1
      After a hearing, the trial court made the following findings of fact and

conclusions of law:

Findings of Fact

      1. The court finds Officer Melvin Moreno’s testimony credible.

      2. On January 26, 2013, Officer Moreno observed a vehicle “riding the white
      line”. Moreno testified the right tires crossed into the next lane; the vehicle
      traveled 10-12 feet (the court takes judicial notice that the probable cause
      affidavit says 8-10 feet) and then returned to the lane of traffic. This
      happened only one time. There was no traffic in the adjoining lane although
      there were cars stopped at an intersection ahead. Moreno initiated stop and
      the vehicle eventually pulled into a parking lot and stopped. Moreno noticed
      an odor of alcohol and slurred speech. He began a DWI investigation but the
      defendant refused to perform field sobriety tests. Moreno noted additional
      signs of intoxication.

      3. Officer Moreno arrested the defendant for driving while intoxicated.

      4. Officer Moreno read the DIC 24 (statutory warnings) to the defendant.

      5. The defendant refused Officer Moreno’s request to voluntarily submit to
      the taking of a blood specimen.

      6. Officer Moreno received reliable information from a credible source that
      the defendant had been previously convicted, on two occasions, of driving
      while intoxicated.

      7. Relying on Tex. Transp. Code §§ 724.011 and 724.012(b), Officer
      Moreno directed a phlebotomist at the Travis County Jail to take a blood
      sample from the defendant.

      8. Officer Moreno did not attempt to obtain a search warrant to draw blood.

      Conclusions of law




                                         2
      9. The propriety of the initial stop was not addressed at the hearing and that
      issue is reserved for future consideration. Officer Moreno had probable
      cause to arrest the defendant.

      10. The blood draw complied with Tex. Transp. Code §§ 724.011 and
      724.012(b).

      11. Officer Moreno acted in good faith when he relied on Tex. Transp. Code
      §§ 724.011 and 724.012(b) to draw blood.

      12. The officer did not obtain a search warrant.

      13. There WERE NOT exigent circumstances in this case.

      14. Because there was no warrant and no exigent circumstances, the blood
      draw in the defendant’s case violated the Fourth Amendment to the U.S.
      Constitution. See Missouri v. McNeely, 133 S. Ct. 1552 (2013).

      On the basis of the above findings and conclusions, the motion to suppress
      the blood draw evidence is GRANTED.


      CR 69-70.

                       Summary of Appellee’s Argument

Point One: The evidence is inadmissible because the warrantless search was

unconstitutional under the Fourth Amendment.

Point Two: Tex. Transp. Code §§ 724.011 - .012 are not recognized exceptions to

the Fourth Amendment warrant requirement.

Points Three and Four: The Federal and the Texas exclusionary rules bar
admission of the evidence.




                                         3
                                 Standard of Review

      The appellate court reviews a ruling on a motion to suppress using a

bifurcated system. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007).

The court should show “almost total deference” to the trial court decisions

regarding historical facts. Id. The appellate court reviews de novo the application

of law to those facts. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.

App. 2008). If the trial court did not enter explicit findings of fact, the appellate

court can infer facts that support the trial court’s ruling, viewing these facts in the

light most favorable to the trial court’s ruling. Id.


                                       Argument

Point One: The evidence is inadmissible because the warrantless search was

unconstitutional under the Fourth Amendment.

      The Fourth Amendment establishes “the right of the people to be secure in

their persons, houses, papers & effects, against unreasonable searches & seizures.”

The warrantless search violates Mr. Sanchez’ Fourth Amendment rights.                A

warrantless search of a person is unreasonable unless it falls within a recognized

exception. United States v. Robinson, 414 U.S. 218, 224 (1973).                This is

particularly true when the search is a compelled physical intrusion of the

individual’s body.     Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). The

Supreme Court has held that “wherever an individual may harbor a reasonable

                                            4
expectation of privacy, he is entitled to be free from unreasonable governmental

intrusion.” Terry v. Ohio, 392 U.S. 1, 9 (1968). A compelled blood draw involving

a physical intrusion of a needle under a person’s skin implicates the “most personal

and deep-rooted expectations of privacy.” McNeely, 133 S. Ct. at 1558 (quoting

Winston v. Lee, 470 U.S. 753, 760 (1985)).


       Exigent circumstances, where the need for the search is so compelling that it

justifies the warrantless search, is a recognized exception. Robinson, 414 U.S. at

224.   However, absent exigent circumstances, a search warrant is ordinarily

required in order to draw blood without the individual’s permission. See

Schmerber v. California, 384 U.S. 757, 770 (1966)( “Search warrants are

ordinarily required for searches of dwellings, and absent an emergency, no less

could be required where intrusions into the human body are concerned.”).


       The Supreme Court has held that even in cases where there is probable cause

that the individual is driving under the influence, a warrant should be obtained

before ordering a compulsory blood draw unless there are special circumstances.

See Schmerber 384 U.S. at 771 (1966)( “That we today hold that the Constitution

does not forbid the States minor intrusions into an individual's body under

stringently limited conditions in no way indicates that it permits more substantial

intrusions, or intrusions under other conditions.”); see also McNeely, 133 S. Ct. at


                                         5
1561 (“ 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.”) In Schmerber the Supreme Court held that a warrantless search was

justified because the defendant had to be transported to the hospital following an

accident and therefore, there was not enough time for the police to obtain a warrant

before the alcohol dissipated from Schmerber’s blood stream. Schmerber, 384 U.S.

at 770-71. The Supreme Court has consistently emphasized that a warrant should

be obtained unless there are special circumstances that make it unreasonable for

the police to obtain a warrant. Id. at 770; McNeely, 133 S. Ct. at 1561. The natural

dissipation of alcohol from a person’s blood stream alone does not make it

unreasonable for the police to obtain a warrant. See McNeely, 133 S. Ct. at 1569

(“[A]lways dispensing with a warrant for a blood test when a driver is arrested for

being under the influence of alcohol is inconsistent with the Fourth Amendment.”).


      In the present case the police did not have a warrant and there were no

special circumstances that prevented the police from obtaining a warrant before

conducting the blood draw. CR70. The search does not fall into a category of

recognized exceptions to the Fourth Amendment warrant requirement. See Weems

v. State, 434 S.W.3d 655, 665 (Tex. App. 2014). Therefore, the warrantless search

violates Mr. Sanchez’ Fourth Amendment rights.

                                         6
Point Two: Tex. Transp. Code §§ 724.011 - .012 are not recognized exceptions to

the Fourth Amendment warrant requirement.

      Reliance on Tex. Transp. Code §724.011 and §724.012 to justify a

warrantless blood draw is impermissible because these statutes are not recognized

exceptions to the Fourth Amendment warrant requirement. See e.g., Weems, 434

S.W.3d at 665 (“[T]he United States Supreme Court has rejected any position that

would treat section 724.012(b)(3)(B) as an exception to the Fourth Amendment”);

State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex. App.

Jan. 23, 2014) (“[T]he constitutionality of the repeat offender provision of the

mandatory blood draw law must be based on the previously recognized exceptions

to the Fourth Amendment's warrant requirement.”) Aviles v. State, 443 S.W.3d

291, 294 (Tex. App. 2014) (“these statutes clearly create categorical or per se rules

the McNeely court held were not permissible exceptions to the Fourth

Amendment's warrant requirement.”).


A per-se exigency rule is unconstitutional.


      Interpreting Tex. Transp. Code §724.011 and §724.012 to allow the police

to conduct a mandatory blood draw without a warrant whenever there is probable

cause necessitates relying on a per-se rule. See Weems, 434 S.W.3d at 665

(“Texas's implied consent and mandatory blood draw statutes clearly create such


                                          7
categories or per se rules that the Supreme Court proscribed in McNeely.”).         A

per-se exigency rule, which permits the police to conduct a warrantless search

whenever the officer has probable cause that the individual is driving under the

influence is unconstitutional. McNeely, 133 S. Ct. at 1554-55. The Supreme Court

has emphasized that the totality of the circumstances must be considered in

determining whether or not exigent circumstances exist to justify a warrantless

search. Schmerber, 384 U.S. at 770-71; McNeely, 133 S. Ct. at 1560.


      Tex. Transp. Code §724.011(a) implies consent to a blood test for anyone

who “operat[es] a motor vehicle in a public place…while intoxicated”.            Tex.

Transp. Code §724.012, mandates that an officer conduct a blood test in certain

situations where the officer has probable cause that the individual is drinking under

the influence. However, the statute does not authorize the police to obtain a blood

sample of a suspected intoxicated driver without a warrant. State v. Villarreal, No.

13-13-00253-CR, 2014 WL 1257150, at *11 (Tex. App. Jan. 23, 2014) (“Although

we agree that the statute required the officer to obtain a breath or blood sample, it

did not require the officer to do so without first obtaining a warrant.”); see also

Weems 434 S.W.3d at 665. Despite the mandatory tone of these statutes, reading

these statutes to authorize the police to conduct a blood test without first obtaining

a warrant would be in violation of the Fourth Amendment. See McNeely, 133 S. Ct.

at 1559 (“[w]e hold that in drunk-driving investigations, the natural dissipation of

                                          8
alcohol in the bloodstream does not constitute an exigency in every case sufficient

to justify conducting a blood test without a warrant.”).


A traditional balancing test does not permit a mandatory blood draw without

a warrant absent exigent circumstances.


         A traditional balancing test weighing the needs of the State with the rights of

the individuals also does not justify a per-se exigency rule. The state has an

interest in preventing individuals from driving while intoxicated.             State v.

Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *4 (Tex. App. Jan. 23,

2014).     Preventing individuals from driving while intoxicated is an important

public interest; however, “the gravity of the threat alone cannot be dispositive of

questions concerning what means law enforcement officers may employ to pursue

a given purpose.” City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000). An

individual has a very high expectation of privacy in his own body. The state’s

interest in preventing driving while intoxicated does not justify a broad rule of

mandatory compelled physically intrusive searches of an individual’s body.

McNeely, 133 S.Ct. at 1565 (“the general importance of the government's interest

in this area does not justify departing from the warrant requirement without

showing exigent circumstances that make securing a warrant impractical in a

particular case”).


                                            9
Point Three: The Texas exclusionary rules bar admission of the evidence.


          The Texas exclusionary rule codified in Tex. Code Crim. Proc. art. 38.23,

states:

          (a) No evidence obtained by an officer or other person in violation of any
          provisions of the Constitution or laws of the State of Texas, or of the
          Constitution or laws of the United States of America, shall be admitted in
          evidence against the accused on the trial of any criminal case.

          In any case where the legal evidence raises an issue hereunder, the jury shall
          be instructed that if it believes, or has a reasonable doubt, that the evidence
          was obtained in violation of the provisions of this Article, then and in such
          event, the jury shall disregard any such evidence so obtained.

          (b) It is an exception to the provisions of Subsection (a) of this Article that
          the evidence was obtained by a law enforcement officer acting in objective
          good faith reliance upon a warrant issued by a neutral magistrate based on
          probable cause.

          The State insists that 38.23 should not exclude the blood draw because Mr.

Sanchez’s arrest was made on January 26, 2013, and the decision in McNeely was

not made until April of that year. The State claims the blood draw was not

conducted (thus the evidence was not obtained) in violation of the Fourth

Amendment because the Supreme Court had not yet decided that warrantless draws

were unconstitutional. The State says that “the defendant cannot backdate a change

in law to exclude evidence”. This is incorrect according to the Supreme Court. In

Griffith v. Kentucky, 479 U.S. 314, 328 (1987) the Supreme Court held “that a new

rule for the conduct of criminal prosecutions is to be applied retroactively to all


                                             10
cases, state or federal, pending on direct review or not yet final, with no exception

for cases in which the new rule constitutes a ‘clear break’ with the past.”

According to U.S. Supreme Court, the new rule should be backdated and applied to

the case at hand.


      Despite this opinion, the Supreme Court has later clarified that “the

retroactive application of a new rule of substantive Fourth Amendment

law raises the question whether a suppression remedy applies; it does not answer

that question.” Davis v. United States, 131 S. Ct. 2419, 2431 (2011). Davis also

held that “when the police conduct a search in objectively reasonable reliance on

binding appellate precedent, the exclusionary rule does not apply” (Id at 2419).

The State seeks to apply this standard to the case at hand, citing a New Jersey case,

State v. Adkins, that uses Davis in order reverse the suppression of a warrantless

blood test. The difference is that New Jersey had clear precedence that allowed for

warrantless blood draws. The standard in Davis should not apply in Texas because

we do not have the same precedent as the New Jersey police had in Adkins. In fact,

the U.S. Supreme Court has expressly made this decision for us by remanding a

drunk driving decision out of the San Antonio Appellate Court back to the lower

courts to reevaluate the suppression of a warrantless blood draw in light of the new

rule in McNeely. (See Aviles v. Texas, 134 S. Ct. 902 (2014) (remanding the

decision to admit into evidence of a mandatory blood draw back to the lower court

                                         11
to be reconsidered in light of McNeely). The State insists that this court should rule

contrary to obvious Supreme Court will. The current court should follow the

example explicitly set by the United States Supreme Court, as they have clearly

expressed through the remanding of a contrary Texas decision, that courts should

now follow the interpretation set forth in McNeely.


      Furthermore, since the McNeely holding, Texas appellate courts have

reversed trial court decisions made before the holding that denied suppression of

these warrantless blood tests. (Aviles v. State, 443 S.W.3d 291, 292 (Tex. App.

2014)(“After reviewing the denial of the motion to suppress in light of McNeely,

we reverse the trial court's judgment and remand the matter to the trial court for a

new trial.”, See Sutherland v. State, 436 S.W.3d 28, 38 (Tex. App. 2014)

(reversing the trial court’s denial of a blood test suppression in a drunk driving

case stating that “[it] remains clear from McNeely that the dissipation of alcohol

alone will not necessarily be exigent circumstances, that some other “special facts”

must lend themselves to the exigency of the situation”, see also Leal v. State, No.

14-13-00208-CR, 2014 WL 5898299, at *5 (Tex. App. Nov. 13, 2014) (reversing a

case that was decided two months before McNeely, and suppressing the

warrantless blood draw stating “the State has not shown or articulated any facts

supporting the existence of an exigency beyond the passage of time and the

resulting dissipation of alcohol in the bloodstream”). Despite this trend of Texas

                                          12
appellate courts applying McNeely to drunk driving convictions that have since

come up on appeal, the State asks us to do the opposite and reverse a trial court

decision that is in line with the Supreme Court authority. Denying the suppression

on appeal would clearly go against this established trend that is in line with the

Supreme Court’s actions.


      To entertain the State’s argument that McNeely is not authoritative to this

decision, the blood draw was still not done in compliance with the law according to

Constitutional precedent. The State insists that Texas case law before McNeely

“clearly held that alcohol dissipation alone constituted exigent circumstances in

DWI cases”. This assertion is untrue. The State references two cases to justify this

assertion, Aliff v. State, 627 S.W.2d 166, and State v. Laird, 38 S.W.3d 707, neither

of which contain facts that apply to the case at hand. Furthermore, U.S. Supreme

Court decisions are binding to Texas court decisions, and before McNeely,

Schmerber v. California was the reigning authority, holding that exigency could

justify a warrantless blood draw only in certain situations. Schmerber expressly

states that this exigency is dependent on all of the circumstances and should not

be used to justify the sweeping use of warrantless blood tests.

      In Aliff, the driver had collided with another car after running a red light

while being pursued by an officer “at speeds in excess of 100 miles per hour”. The

victim was killed and the blood was drawn from the driver while in the hospital.
                                         13
The Aliff decision was not made in consideration of the constitutionality of a

warrantless involuntary blood draw of an arrestee because the driver in Aliff was

not under arrest when the blood was taken. At the time of Aliff, there was a statute

that required that consent for a blood draw of arrested drivers be given only by

those arrested. Aliff deliberately dodges the issue of consent on the grounds that the

driver was not under arrest when the draw was made. (Aliff v. State, 627 S.W.2d

166, 168, 169 (“the statute has enlarged upon what is constitutionally required. The

statute requires that consent be obtained from those individuals under arrest.

However the statute has been construed to apply only to those persons under arrest,

it does not apply to persons not under arrest”) Furthermore, the court in Aliff does

not apply the Supreme Court precedent found in Scherburg because the driver in

Schmerburg was under arrest and the driver in Aliff was not. Since the court in

Aliff uses the fact that the driver was not under arrest in order to distinguish it and

justify its admission of the blood draw, it would be improper to look to that

decision as precedence in our case because the Appellee was under arrest when the

blood was drawn. Instead, the court in Aliff admits the blood draw based on a

decision in which the court admitted fingernail scrapings collected despite the

objections of a murder suspect not yet under arrest. See Cupp v. Murphy, 412 U.S.

291 (1973). In that case, as in Aliff, the evidence was obtained involuntarily

pursuant to homicide investigations. These are much more dire situations than the


                                          14
case at hand, and should not be the guideline for all cases involving involuntary

blood draws because the issue of exigency is determined in part by the seriousness

of the circumstances and the government’s interest in prosecution.

      The State also cites State v. Laird to assert Texas law clearly permitted the

drawing of Sanchez’s blood without consent or a warrant on January of 2013.

Laird is inapplicable to the case at hand because the issue decided by the court was

whether suppression of evidence was proper when the blood was drawn by a

paramedic. Laird dealt with statutory interpretation regarding this issue and merely

mentioned the constitutionality of drawing blood to test for intoxication level. (See

State v. Laird, 38 S.W.3d 707 (Tex.App.--Austin 2000). The State cites a quotation

from Laird that says “[i]t is a well settled fact that” the nature of alcohol

dissipation constitutes exigency for Fourth Amendment purposes. It is curious that

the State does not cite the Laird court’s source for this statement, which is the

Supreme Court case Schmerber v. California.


      Before the McNeely case, The Schmerber case was the reigning Supreme

Court authority on the subject of the constitutionality of warrantless blood draws in

drunk driving cases. In Schmerber, the driver was in a car accident and taken to the

hospital while under arrest. In the hospital, the police had a blood sample drawn

and tested for alcohol despite the driver’s objections and without a search warrant.

The Supreme Court held that this did not violate the Fourth Amendment. However,
                                         15
at the end of the opinion they expressly state that this holding only applies to the

specific facts at hand, and reaffirms the value placed on the privacy of one’s body.

Schmerber v. California, 384 U.S. 757, 772 (1966) (“It bears repeating, however,

that we reach this judgment only on the facts of the present record. The integrity of

an individual's person is a cherished value of our society. That we today hold that

the Constitution does not forbid the States minor intrusions into an individual's

body under stringently limited conditions in no way indicates that it permits more

substantial intrusions, or intrusions under other conditions.”) The Supreme Court

reasoned in Schmerber that the dissipation of alcohol from the blood created

exigency under these circumstances in which “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 771). These factors are

missing in the case at hand and this exigency should not be applied because there

was no emergency creating the exigency required to skip the warrant requirement.


      Of the two cases cited by the State to argue that Texas law considered

alcohol level to be an exigent circumstance that allowed for warrantless blood

draws, one of them does not even base it’s decision off of drunk driving

precedence, and the other only vaguely mentions the issue of constitutionality,

which it bases off of Schmerber. Both cases contained facts completely different

from the case at hand, and in both cases, the defendants were being investigated for

                                         16
homicide which adds to exigency. Appellee did not commit homicide or cause a

car accident. There was no reason why a warrant could not have been obtained for

the Appellee. At the time of the Appellee’s arrest, Schmerber was the reigning

precedent for the constitutionality of warrantless blood draws. Schmerber held that

alcohol dissipation may cause exigency in particular situations such as a state of

emergency. It did not hold that the nature of alcohol dissipation was sufficient to

grant the police authority to compel warrantless blood draws of all those arrested

for driving under the influence. The authoritative case law at the time of

Appellee’s arrest did not allow for his blood to be drawn without a warrant because

the exigency present in Schmerber did not exist in the case at hand.


Point Four: The Federal exclusionary rule bars admission of the evidence.

      The State argues that the good faith exception to the “exclusionary rule”

should apply to this case because the officer relied on the mandatory blood draw

statute in Section 724.012(b)(3)(B). The exclusionary rule operates to exclude

from admission in a trial all evidence determined to be the product of an

unconstitutional search or seizure. Any evidence that is obtained as a result of an

unlawful search is excluded in order to maintain the constitutional safeguard of the

Fourth Amendment against unreasonable search and seizures. See McDonald v.

United States, 335 U.S. 451, 453 (1948) (professing the exclusionary rule as a

safeguard to The Fourth Amendment rights).            There are some recognized

                                         17
exceptions to the exclusionary rules established by the Federal courts. In Illinois v.

Krull, 480 U.S. 340, 350 (1987), the Supreme Court held that evidence should not

be excluded if the officer relies in good faith on a statute and enforces the statute as

written.    In Texas, by contrast, the exclusionary rule is statutory and its sole

exception is explicitly indicated by the statute. Exceptions applied to the federal

exclusionary rule are only applied to the Texas statute “if they are consistent with

the plain language of the statute”. Douds v. State, 434 S.W.3d. 842, 861 (Tex.App.

2014).     Article 38.23 of the Texas Code of Criminal Procedure only provides an

exception for a law enforcement officer who relies in objective good faith upon a

warrant issued by a neutral magistrate based on probable cause. The statute does

not say anything about an officer’s good faith reliance on the statute. The good-

faith exception does not apply to the instant case because there was no warrant

issued. The Court of Criminal Appeals has refused to adopt federal exceptions

inconsistent with the text of the Texas statutory exclusionary rule and has rejected

an effort to broaden the good-faith exception using federal precedent. See Howard

v. State, 617 S.W.2d 191, 193 (Tex. Crim. App. 1979) (holding “evidence seized

incident to an arrest under an unconstitutional law is excludable under Texas

law”); Douds v. State, 434 S.W.3d. 842, 861 (Tex.App. 2014) (concluding that the

express exception stated in the Texas exclusionary rule statute is clear enough to




                                           18
reject any other good faith exceptions to the rule that do not follow the text of the

statute).

The police did not act in good faith reliance on the Texas Transportation Code

when they neglected to obtain a warrant before drawing blood:

       Furthermore, Tex. Transp. Code §724.011 and §725.012 as written does not

authorize the police officer to conduct a warrantless blood draw. See State v.

Villarreal, No. PD-0306-14, 2014 WL 6734178, at *10 (Tex. Crim. App. Nov. 26,

2014) (reasoning that the repeat offender provision of the mandatory blood draw

statute did not provide a way around getting a warrant). Otherwise these statutes

would be in clear violation of the warrant requirement of the Fourth Amendment

and a statute cannot reasonably be relied on if the “legislature wholly abandoned

its responsibility to enact constitutional laws”. Weems, 434 S.W.3d at 666 (citing

Krull, 480 U.S. at 355).

       The State admits in its brief that the Texas Court of Criminal Appeals held

that the mandatory blood draw statute is not an exception to the warrant

requirement. See State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at *10

(Tex. Crim. App. Nov. 26, 2014) (sustaining the argument that the 724.012(b)

exceptions do not allow police to avoid obtaining a warrant without other

circumstances that make it difficult for the officer to obtain one in time); State v.

Anderson, 445 S.W.3d 895, 907 (Tex. App. 2014) (“There is no language in


                                         19
section 724.012(b) that authorizes a police officer to take the specimen without a

warrant. Furthermore, there is no indication in the plain language of the statute that

the circumstances outlined in section 724.012(b) would constitute ‘exigent

circumstances’ or any other recognized exception.”). Since the officer drew the

blood without a warrant, he was not acting pursuant to the cited statute as

interpreted by the court.

      Additionally, an officer does not act in good faith if the provisions of the

statute “are such that a reasonable officer should have known that the statute was

unconstitutional.” Weems, 434 S.W.3d at 666 (citing Krull, 480 U.S. at 355).

Peace officers have more legal training than the average citizen and are familiar

with the requirement that one’s blood cannot be drawn without a warrant or a bona

fide exigency. The Supreme Court has consistently held that obtaining a warrant

before conducting a blood draw should be the ordinary procedure and a warrantless

blood draw should only be conducted in emergency situations. See e.g., McDonald,

335 U.S. at 456; Schmerber, 384 U.S. at 770; McNeely, 133 S.Ct. at 1555.


The police did not act in good faith reliance on binding appellate precedent

when they neglected to obtain a warrant before drawing blood:

      The good faith exception to the exclusionary rule mentioned in Davis applies

when evidence is gathered pursuant to “binding appellate precedent”. The state

again relies on Aliff and Laird to assert that the police relied on binding appellate

                                          20
case law that held that alcohol dissipation alone gave rise to exigent circumstances

in DWI cases. The Supreme Court has long clarified that it is the holding of a case

that is binding, things merely mentioned by the court as dicta may be considered,

but are not binding, “dicta may be followed if sufficiently persuasive but are not

binding”. Central Green Co. v. United States, 531 U.S. 425, 431 (2001) (quoting

Humphrey's Executor v. United States, 295 U. S. 602, 627 (1935)). The cited

cases were not binding in this situation because neither of them dealt with the

constitutionality of warrantless blood draws pursuant to DWI arrests. The dicta

cited by the State in these two cases is derived from Schmerber, in which the U.S.

Supreme Court considers the circumstances as a whole to determine exigency. The

police did not rely on binding appellate precedence in neglecting the warrant

requirement because clear precedence did not exist for the exact situation at hand,

and the cases cited by the state were not binding.

      It is true, as the State says, that “Texas’s police officers, prosecutors, defense

attorneys, and judges have had mandatory blood draw cases for years without

questioning their constitutionality”. The Appellant, however does not question the

constitutionality of requiring mandatory blood draws, instead the Appellant’s case

repeats the binding precedence seen in Schmerber and McNeely that doing so

without a warrant is a violation of the constitution unless the circumstances as a

whole limit the officer’s ability to obtain a warrant in time. Many counties have


                                          21
been obtaining warrants in every DWI arrest as a matter of procedure, even before

the McNeely decision.       The State does not assert that a magistrate was not

available, or that the police could not obtained a warrant in a timely fashion before

drawing blood.

      The warrantless blood draw violated Mr. Sanchez’s Fourth Amendment

rights. See McNeely, 133 S. Ct. at 1554-55.         The blood draw was conducted

without a warrant and does not fit into any of the recognized exceptions. Tex.

Transp. Code §724.011 and §724.012 are not recognized exceptions to the Fourth

Amendment warrant requirement. See Weems, 434 S.W.3d at 665. Therefore, the

blood draw was an unlawful search that violated the Fourth Amendment of the

Constitution. See McNeely, 133 S. Ct. at 1554-55; Weems, 434 S.W.3d at 665;

Aviles, 443 S.W.3d at 294. Any evidence obtained as a result of that search should

be suppressed according to the Texas exclusionary rule. See Tex. Code Crim. Proc.

Ann. art. 38.23 (West).




Prayer

      For the reasons stated above Anthony James Sanchez asks this Court to

sustain the trial court’s order suppressing the results of the blood analysis.




                                           22
     Respectfully submitted,



      /S/ Fernando Cortes
     Fernando Cortes
     SBN: 04844580
     100 N. Santa Rosa, Suite 824
     San Antonio, Texas 78207
     (210) 381-0000
     Fax: (210) 399-9444
     Email: fcortes00@gmail.com




      /S/ Rocio Ramirez
     Rocío Ramírez
     SBN: 24037328
     1603 Babcock, Suite 159
     San Antonio, Texas 78229
     (210) 785-0443
     Fax: (210) 785-0453
     Email: rocio@rocioramirezlaw.com




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                     Certificate of Compliance and Service

      I hereby certify that this brief contains 6,065 words, based upon the

computer program used to generate this brief and excluding words contained in

those parts of the brief that Texas Rule of Appellate Procedure 9.4(i) exempts from

inclusion in the word count, and that this brief is printed in a conventional, 14-

point typeface.

      I further certify that, on the 26th day of February, 2015, a true and correct

copy of this brief was served, by U.S. mail, electronic mail, facsimile, or

electronically through the electronic filing manager, to the Appellant’s attorneys,

Angie Creasy, Assistant District Attorney, P.O. Box 1748, Austin, Texas 78767,

fax: (512) 854-4810, email:Angie.Creasy@traviscountytx.gov.



                                                    /S/ Rocio Ramirez
                                                   Rocío Ramírez




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