                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-16-00226-CR
                             NO. 02-16-00227-CR
                             NO. 02-16-00228-CR


THE STATE OF TEXAS                                                     STATE

                                      V.

TERRI SANDERS                                                      APPELLEE


                                   ----------

       FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
   TRIAL COURT NOS. 2015-0255M-CR, 2015-0256M-CR, 2015-0257M-CR

                                   ----------

                          DISSENTING OPINION

                                   ----------

                          PROCEDURAL HISTORY

      Terri Donnell Sanders was indicted in Montague County, Texas, on two

charges of Intoxication Manslaughter and on one charge of Intoxication Assault.

The trial court granted Sanders’s motion to suppress and filed Findings of Fact

and Conclusions of Law. The State appealed.
      We review a trial court’s ruling on a motion to suppress for an abuse of

discretion.1 We will review the appellate record in the light most favorable to the

trial court’s determination, and the judgment will be reversed only if it is arbitrary,

unreasonable, or outside the zone of reasonable disagreement.2 We will sustain

the trial court’s ruling if it is reasonably supported by the record and is correct on

any theory of law applicable to the case.3 We afford a trial court’s ruling almost

total deference as to historical facts but review the trial court’s application of the

law to the facts de novo.4      In this case, we review de novo the trial court’s

application of the law of search and seizure to the facts.5

      The State, relying on Cole,6 argued the warrantless blood draw was

justified by exigent circumstances, that is, the imminent destruction of evidence.



      1
       State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).
      2
       Montgomery v. State, 810 S.W.2d 372, 391–92 (Tex. Crim. App. 1991)
(op. on reh’g).
      3
       See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
      4
       Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016).
      5
        Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); see State
v. Villarreal, 475 S.W.3d 784, 798 (Tex. Crim. App. 2014) (“[B]ecause the facts
are undisputed and the questions before us are matters of law, we apply a
de novo standard of review.”), cert. denied, 136 S. Ct. 2544 (2016); Kothe v.
State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) (“On appeal, the question of
whether a specific search or seizure is ‘reasonable’ under the Fourth Amendment
is subject to de novo review. Despite its fact-sensitive analysis, ‘reasonableness’
is ultimately a question of substantive Fourth Amendment law.” (footnotes
omitted.)).
      6
       Cole, 490 S.W.3d at 927.

                                          2
It argued the medical intervention at the hospital caused Trooper Brandon Neff to

believe the blood test’s efficacy would be significantly undermined.

      Sanders, relying on Weems,7 responded that law enforcement knew that a

mandatory blood draw would be required before leaving the accident scene for

the hospital and complained that Trooper Neff did nothing to obtain a warrant.

      The majority concludes that because Trooper Rachel Russell told Trooper

Neff at the scene she believed Sanders was intoxicated, because both officers

detected signs of intoxication, and because Sanders said she had consumed

alcohol earlier, Trooper Neff had a duty to obtain a warrant at the scene but failed

to do so. In holding the State did not prove exigent circumstances, the majority

emphasizes the availability of other officers to obtain a warrant, the personal

mistaken belief of the officer that no warrant was required, and the lack of

evidence about the warrant process and access to a magistrate at the crash

scene.     However, the majority does not address the emergency medical

intervention as exigent circumstances. Because I conclude the blood draw was

justified by exigent circumstances, I respectfully dissent.

                                    ANALYSIS

      In order to validate a warrantless search based on exigent circumstances,

the State must establish probable cause and an exigency.8              We should,



      7
         Weems v. State, 493 S.W.3d 574, 582 (Tex. Crim. App. 2016).
      8
       The Fourth Amendment provides: “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
                                        3
therefore, accurately examine the relevant facts as to both probable cause and

exigent circumstances and properly apply the law.

                                 PROBABLE CAUSE

FACTS

      First, as to probable cause, our review should be limited to only those

critical facts relevant to probable cause. And we should ask whether, viewing the

totality of the facts from the standpoint of an objectively reasonable police officer,

Trooper Neff’s knowledge amounted to sufficient probable cause at the time of

the search.

      The record shows that starting at about 12:07 a.m., Trooper Russell, the

lead investigator, arrived at the crash scene on a two-lane road and initially met

with Sanders, who had driven her eastbound vehicle in the westbound lane,

resulting in a head-on collision. Sanders was found sitting in her boyfriend’s

pickup. Minutes later, Trooper Russell told Trooper Neff about signs she had

observed (odor of alcohol, bloodshot eyes, slurred speech, and Sanders’s

statement she had consumed alcohol earlier) and instructed him to “to perform

field sobriety on her and if need be, to get a specimen from her.” The record

shows, however, that Trooper Russell did not convey to Trooper Neff any opinion




cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
This discussion is obviously limited to a blood draw. The Fourth Amendment
permits warrantless breath tests incident to arrests for drunk driving. Birchfield v.
N. Dakota, 136 S. Ct. 2160, 2184 (2016).

                                          4
Sanders was intoxicated. Trooper Russell left the probable cause determination

strictly up to Trooper Neff.

      Trooper Neff met with Sanders and observed similar signs of intoxication,

as well as unsteady balance when she walked. He interviewed her about what

had happened and where she was going, requested she get out of her

boyfriend’s pickup truck and walk to the squad car, qualified her as to her

capacity to be field tested, inquired about her health (she insisted several times

she was fine), and explained in detail all three field sobriety tests. But when

Trooper Neff actually raised his hand to begin the HGN test, Sanders’s boyfriend

interrupted the test and asked that paramedics reexamine her. Sanders decided

to be taken by ambulance to the hospital.           These exchanges occurred

continuously from approximately 12:07 a.m. until about 12:55 a.m.

      Trooper Neff followed the ambulance to the hospital, which was

approximately five minutes away, out of concern Sanders would flee because of

what she had done and so that he could continue the HGN test. He completed

the HGN test in the emergency room.9

      Based upon the signs of intoxication observed at the scene and Sanders’s

“mannerisms” and poor performance on the HGN test at the hospital, Trooper



      The trial court’s findings of fact stated that “[t]he HGN test was never
      9

completed,” which the State and Sanders interpreted as meaning the test was
never completed at the scene. However, Trooper Neff testified about how he
asked Sanders to consent to proceed with the test at the hospital, how he
completed it there, and how it factored into his determination of probable cause.
The parties relied on this testimony on appeal. The majority does not mention it.

                                        5
Neff testified he had enough facts to believe Sanders was intoxicated and did not

have her mental or physical capabilities to operate a vehicle. He read her rights

to her, asked for a blood sample, and she refused.

ANALYSIS OF PROBABLE CAUSE

      Probable cause necessitates a review of all the events which occurred

leading up to the search, that is, the sum total of the layers of information, not

just individual layers of information or selected portions of the evidence. 10 A

proper probable cause analysis involves the following factors:


      10
         Probable cause must exist at the time of the search. Probable cause to
search exists when reasonably trustworthy facts and circumstances within the
officer’s knowledge at the scene and of which he had reasonably trustworthy
information are sufficient in themselves to warrant a man of reasonable prudence
and caution to believe an offense has been or is being committed or the
instrumentality of a crime or evidence of a crime will be found. Illinois v. Gates,
462 U.S. 213, 238–39, 103 S. Ct. 2317, 2332–33 (1983); Brinegar v. United
States, 338 U.S. 160, 175–76, 69 S. Ct. 1302, 1310–11 (1949); Carroll v. United
States, 267 U.S. 132, 162, 45 S. Ct. 280, 288 (1925); Estrada v. State, 154
S.W.3d 604, 609 (Tex. Crim. App. 2005). Probable cause, as the name implies,
deals with probabilities, that is, “factual and practical considerations of everyday
life on which reasonable and prudent men, not legal technicians, act.” Brinegar,
338 U.S. at 175, 69 S. Ct. at 1310. The substance of all probable-cause
definitions is a reasonable ground for belief of guilt. Id., 69 S. Ct. at 1310. The
constitutional validity of an arrest or search turns upon whether, “at the moment”
the arrest or search was made, the officers had probable cause to make it. Beck
v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225 (1964) (citing Henry v. United States,
361 U.S. 98, 102, 80 S. Ct. 168, 171 (1959); Brinegar, 338 U.S. at 175–76, 69
S Ct. at 1310–11); Parker v. State, 206 S.W.3d 593, 596–97 (Tex. Crim. App.
2006). Probable cause focuses on the knowledge of the officer at the scene at
the moment of the arrest or search. Parker, 206 S.W.3d at 596–97. The
standard for probable cause is not capable of precise definition or quantification
into percentages. In determining probable cause, the appellate court will
consider the totality of the circumstances. A “divide-and-conquer” or piecemeal
approach is prohibited. The training, knowledge, and experience of law
enforcement officials is a relevant consideration. United States v. Arvizu, 534
U.S. 266, 273–74, 122 S. Ct. 744, 750–51 (2002); Texas v. Brown, 460 U.S. 730,
                                            6
         • Whether the reasonably trustworthy facts and circumstances within

            the officer’s knowledge at the scene and of which he had reasonably

            trustworthy information are sufficient in themselves to warrant a man

            of reasonable prudence and caution to believe an offense has been

            or is being committed or the instrumentality of a crime or evidence of

            a crime will be found;

         • A review of the totality of all the circumstances (all of the events

            which occurred leading up to the arrest or search; the sum total of

            layers of information, not just individual layers); and


742–43, 103 S. Ct. 1535, 1543–44 (1983); United States v. McSween, 53 F.3d
684, 686 (5th Cir.), cert. denied, 516 U.S. 874 (1995); Wiede v. State, 214
S.W.3d 17, 25 (Tex. Crim. App. 2007). The subjective intent or motivations of
law enforcement officials is not taken into account when considering the totality
of the circumstances. “[P]robable cause is the sum total of layers of information
and the synthesis of what the police have heard, what they know, and what they
observe as trained officers. We weigh not individual layers but the ‘laminated’
total.” Smith v. United States, 358 F.2d 833, 837 (D.C. Cir. 1966), cert. denied,
386 U.S. 1008 (1967); McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App.
1991), abrogated in part on other grounds by Turrubiate v. State, 399 S.W.3d
147 (Tex. Crim. App. 2013) (adhering to the general rule that a landlord cannot
normally give effective consent to allow a search of a tenant’s premises);
Woodward v. State, 668 S.W.2d 337, 345 (Tex. Crim. App. 1982) (op. on reh’g),
cert. denied, 469 U.S. 1181 (1985); see Brinegar, 338 U.S. at 176, 69 S. Ct. at
1311. In determining whether an officer has probable cause to arrest an
individual, the court must examine the “events leading up to the arrest, and then
decide ‘whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer,’” amount to sufficient probable cause.
Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800 (2003) (quoting
Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661–62 (1996));
see Brinegar, 338 U.S. at 175–76, 69 S. Ct. at 1310–11. It is well settled that
probable cause must exist at the moment the arrest or search is made, based on
the arresting officer’s knowledge, considering the totality of the circumstances
facing the arresting officer. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim.
App. 2009).

                                         7
           • Viewed from the standpoint of an objectively reasonable police

             officer at the scene at the moment of the arrest or search

             considering the officer’s training, knowledge, and experience.

      Thus, the circumstances must be viewed from the standpoint of Trooper

Neff, an objectively reasonable police officer whose training, knowledge, and

experience spanned almost eighteen years.11 And the circumstances must be

viewed at the moment of the search at the hospital. The record shows that only

      11
          Trooper Neff knew that Sanders had been involved in a head-on collision
with possible ramifications affecting her eyes, speech, and coordination, as well
as other possible injuries, and that two persons had died in the collision. It is
reasonable to assume this officer realized the importance and potential
ramifications of his investigation and the significance of independent confirmation
of his observations. An experienced officer would be aware that facts which
initially suggest strong probable cause and equally strong evidence of guilt may
subsequently prove substantially less persuasive or even marginally important.
Officers have a variety of legitimate reasons for pursuing an investigation. In any
given case, the facts may be egregious or sensitive, lives lost, the degree of
devastation may be serious, and the facts supporting probable cause arguably
strong, fairly routine, marginal, or unsettled. At the same time, police officers
have no constitutional duty to stop a criminal investigation the moment they have
the minimum evidence to establish probable cause.

       Sanders had the odor of alcohol about her person and she eventually
admitted drinking earlier, but there was no evidence that odor would reflect the
quantity of alcohol consumed, and she never stated how much or when she
consumed the alcohol. Her eyes were bloodshot, her speech slurred, and her
walk unsteady, but the record showed it was midnight, she had driven a long
distance, and she had been involved in a serious head-on collision. At the fatal
crash scene, Sanders was asked how she felt, and she repeatedly assured
officers she was fine. Yet almost immediately thereafter, in the ambulance, the
hospital, or both, it was determined she had broken bones in her ankle and
possibly in her ribs. Thus, several conditions observed and believed to be
indicative of intoxication were immediately dispelled by the injuries she suffered.
An experienced police officer like Trooper Neff would be expected to anticipate
such potential developments. The record shows Trooper Neff tenaciously
pursued his assignment of interviewing and independently testing Sanders in
order to determine if probable cause existed.
                                        8
at the time of the search at the hospital did Trooper Neff determine he had

reasonably trustworthy facts to warrant him to believe Sanders was driving while

intoxicated.

      Based on these facts, the State established probable cause following the

administering of the HGN test at the hospital. Only after probable cause was

established did the officer have a duty to obtain a warrant.

      What is troubling is that the majority reviewed the initial signs of

intoxication observed by the officers and holds Trooper Neff had a duty to obtain

a warrant immediately after arrival at the crash scene. The majority then abruptly

turns its attention to discussing its reasons why the State had failed to establish

an exigency.12 The complete absence of any mention of probable cause is a

serious flaw in the majority’s analysis; it skipped a critical step. What justification

exists for the failure to discuss probable cause, a factor critical to evaluating

Trooper Neff’s conduct at the crash scene, a factor critical to supporting a

warrant, and a factor critical to triggering any duty to obtain a warrant? Even

Sanders did not challenge that the officer found probable cause after completing

the HGN test at the hospital.

      As a general rule, a probable cause review encompasses an examination

by the court of the totality of the circumstances at the time of the search from the



      12
        The majority stated no exigency had been shown because of the
availability of other officers to obtain a warrant, Trooper Neff’s mistaken belief
about the necessity of a warrant, and the lack of evidence as to procedures and
a magistrate.

                                          9
vantage point of the officer. A probable cause review does not anticipate that a

court will retroactively isolate selected facts developed during the preliminary

stages of an investigation, when the officers are still in the midst of conducting a

probable cause investigation and have not made such an assessment.13 If a

court finds no probable cause after this accelerated evaluation, that finding would

result in the exclusion of evidence. If a court finds probable cause, at least

impliedly as in this case, that finding would result, not in the per se exclusion of

evidence, but in prematurely creating a duty of the officer to obtain a warrant,

failing which the evidence would be subject to exclusion (the result reached by

the majority in this case).   14
                                   I believe the majority’s analysis intrudes upon the

law enforcement investigative function by substituting the majority’s judgment for

that of the officers, with the result that it prematurely triggers the officers’ “duty” to

obtain a warrant. The majority’s holding sets a precedent that will encourage

other defendants to claim the officer did not find probable cause early enough in

the investigative stage and which will ultimately require the exclusion of evidence

because the court second-guesses the timing of the probable cause




      13
         Sanders acknowledged at the pretrial hearing and on appeal that the
police investigation into probable cause was ongoing when Sanders was taken to
the hospital.
      14
       The majority never expressly holds probable cause was established
immediately after the officers’ arrival at the crash scene when they contacted
Sanders and observed signs of intoxication. Instead, the majority discusses
segments of the Weems and Cole decisions which did involve determinations of
probable cause.

                                            10
determination.15 In addition, the majority introduces a high degree of uncertainty

into criminal investigations, as officers, concerned that the courts may again

second-guess the timing of their probable cause determinations, may shortcut

investigations to their prejudice.

      An objective review of the facts and a proper application of the law

concerning probable cause show Trooper Neff conducted a legitimate


      15
        There is little difference between this legal two-step, arguing probable
cause should have been found earlier so Sanders can claim that the blood
sample is inadmissible, and a defendant arguing he should have been arrested
before he actually was, so he can claim certain statements were inadmissible.
Police officers have no constitutional duty to stop a criminal investigation the
moment they have the minimum evidence to establish probable cause. “Faulting
the police for failing to apply for a search warrant at the earliest possible time
after obtaining probable cause imposes a duty that is nowhere to be found in the
Constitution.” Kentucky v. King, 563 U.S. 452, 467, 131 S. Ct. 1849, 1861
(2011); Turrubiate, 399 S.W.3d at 152. The police may want to resolve the
matter with a short conversation or seek consent for the search. The police may
wish to obtain more evidence rather than rely upon a marginal case. In Hoffa v.
United States, the appellant argued that his statements were inadmissible
because the government had sufficient ground for taking him into custody and
charging him with endeavors to tamper with a jury. Had the government done
so, however, it could not have continued to question the appellant without
observance of his Sixth Amendment right to counsel. The Supreme Court
disposed of this contention as follows:

      There is no constitutional right to be arrested. The police are not
      required to guess at their peril the precise moment at which they
      have probable cause to arrest a suspect, risking a violation of the
      Fourth Amendment if they act too soon, and a violation of the Sixth
      Amendment if they wait too long. Law enforcement officers are
      under no constitutional duty to call a halt to a criminal investigation
      the moment they have the minimum evidence to establish probable
      cause, a quantum of evidence which may fall far short of the amount
      necessary to support a criminal conviction.

Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417 (1966); see also
United States v. Galberth, 846 F.2d 983, 993 n.18 (5th Cir.), cert. denied, 488
U.S. 865 (1988).
                                      11
investigation of Sanders at the crash scene and at the hospital which ultimately

resulted in the officer’s probable cause determination.           Only after his

investigation was complete did Trooper Neff believe he had sufficient facts to

establish probable cause and a duty to seek a warrant. Trooper Neff followed

standard procedure in observing and verifying.      This court should follow the

traditional practice of applying the law of probable cause and hold that Trooper

Neff properly determined he had probable cause after completion of the sobriety

testing at the hospital and that only then did he have a duty to obtain a warrant,

rather than interfering with the police investigative functions, second-guessing

standard police practices, and adversely affecting future criminal prosecutions.

                         EXIGENT CIRCUMSTANCES

FACTS

      Next, as to exigent circumstances, the record shows the following relevant

facts. A 911 call advised police of a two-car collision on Highway 82. Trooper

Russell, lead investigator, immediately proceeded to the location, arriving about

12:07 a.m., and saw that the first responders, comprised of firemen, emergency

medical personnel, volunteers, and peace officers, were not doing “a whole lot”

other than gathering information and controlling traffic; no one was conducting an

accident investigation, as that was her job.

      Trooper Russell immediately took charge and assigned the peace officers

specific assignments during the investigation: Trooper Russell was in charge of

the entire crime scene and very briefly interviewed Sanders; then Trooper Neff


                                        12
was assigned to deal with Sanders; Deputy Lee Phariss was to paint the crime

scene; Sergeant David Hanks and also other officers were in charge of

controlling traffic east and west; Game Warden Chase McAninch was to fill out a

major crash packet; Sergeant James Taylor, who arrived later, was to take

photos at the crime scene; and Trooper Charles Hardin, from two counties away,

was assigned to contact the families of the decedents.

      The remainder of the responders were not investigators capable of getting

a warrant or blood samples. Within subsequent weeks, Trooper Russell obtained

the names of seven paramedics and fourteen firefighters who attended to various

medical needs or attended to the damaged vehicles; none were peace officers or

DWI investigators.

      Trooper Russell was advised Sanders had declined medical treatment by

paramedics.    Trooper Russell visited briefly with Sanders and delegated to

Trooper Neff full responsibility to interview Sanders and obtain a blood sample if

appropriate, and she proceeded to manage the crash scene investigation, gather

information, and hand out specific assignments to the seven officers present.

According to Trooper Russell, the justice of the peace arrived after Sanders had

been transported by ambulance to the hospital. The judge pronounced the two

occupants of the second vehicle deceased at 12:40 a.m.16 Trooper Russell did

not discuss drawing Sanders’s blood with the judge.


      16
       In an effort to reconcile differing times, Trooper Russell opined Sanders
may have been in the ambulance at the scene and she, therefore, did not realize
Sanders had not left yet.

                                       13
      With respect to a search warrant, Trooper Russell testified she did not

have the time nor the opportunity to obtain one because of her investigative

responsibilities, that she left the decision as to a search warrant up to Trooper

Neff, that the other officers were engaged with their assignments, and that no

other officer went with Trooper Neff to the hospital. Trooper Russell did not

believe Sanders was present when the judge arrived.

      Trooper Neff described in detail his law enforcement background, his

contact with and conversations with Sanders, his observations about the signs of

intoxication observed, his explanations regarding the field sobriety tests, and

Sanders’s decision to go to the hospital when he began the first test. Trooper

Neff believed Clint Mahan, Sanders’s boyfriend, was trying to frustrate testing for

alcohol. Trooper Neff stated the ambulance left the scene before the justice of

the peace arrived.   Trooper Neff followed the ambulance to the hospital and

immediately advised Mahan not to further interfere; Mahan complied. Sanders

was wheeled on a gurney into an examination room in the emergency area, and

Trooper Neff accompanied her.      The room was a scene of crowded activity.

Trooper Neff immediately administered the HGN test, read her the DIC 24 form

reciting her rights and options for several minutes, and asked for her consent for

a blood test.   She refused.    He also filled out and signed the THP 51, the

mandatory blood specimen form authorizing the blood draw.

      From the moment of his entry into the emergency room, Trooper Neff

described it as a “beehive” of activity.     He testified that at this time, medical


                                        14
personnel were running around doing things and that they began to “put up the

pole and [bring in] fluid bags” and lay out needles, wipes, and blood kits on the

counter.   He became concerned about obtaining a blood sample because

Sanders had begun to complain about pain. The officer said that he thought the

medical personnel were about to take immediate action to start administering

substances to help Sanders and that he needed to obtain a blood sample prior to

what they were doing because otherwise the blood test would be a “lower or less

accurate” sample.17   Trooper Neff testified as to his education, training, and

experience as a blood test operator and stated he believed the saline solution in

the IV, the alcohol wipe, and the body’s metabolism would alter Sanders’s blood

chemistry and affect the blood alcohol concentration and thus the outcome of the

blood test. Under all the circumstances, Trooper Neff did not believe he had time

to secure a search warrant at the hospital and believed he was acting under

exigent circumstances. He, therefore, requested a blood draw. According to the

THP 51, entered at trial without objection, blood was drawn at 1:24 a.m.

      Trooper Neff stated he had search warrant forms with him but did not have

time to fill them out prior to medical personnel pushing him “out of the way.”

There was no one else available to assist him. Trooper Neff said he was aware

of rulings in appellate cases requiring a warrant for a blood draw. He also said




       The prosecutor asked, “They’re going to start pumping her full of stuff?”
      17

Trooper Neff agreed by saying, “Yes, sir.”

                                       15
he believed that the law permitted a warrantless blood draw when a person died

in an accident.

      Trooper Neff testified that he did not get a warrant before the blood draw at

the hospital for the following reasons: (1) the dissipation of alcohol in Sanders’s

bloodstream; (2) exigent circumstances, as emergency medical treatment was

about to begin, which would adversely affect the blood draw, leaving him no time

to get a warrant; and (3) the law allowed him to get a warrant or do a warrantless

blood draw when someone had died in the accident. The trial court granted

Sanders’s motion to suppress and entered findings of fact and conclusions of

law.18 The trial court concluded as a matter of law the state did not prove exigent

circumstances.




      18
         In its findings of fact, the court stated in part that at the hospital, warnings
were read to Sanders, who refused consent for a blood sample. Trooper Neff
observed medical personnel setting up needles, tubes, and bags of fluid for
injection into Sanders and believed such would interfere with the accuracy of a
blood test; he also believed the law permitted a blood test without a search
warrant. Under all the circumstances, the officer did not believe he had time to
secure a search warrant before treatment and fluid injection began. The officer,
therefore, requested medical personnel to draw a blood sample. The trial court’s
conclusions of law stated that no attempt was made to contact a magistrate and
that Trooper Neff possessed a search warrant form. Further, the trial court
concluded the “State produced no evidence to show that the destruction of
[Sanders’s] blood alcohol was imminent or that the reliability of later analysis of
the blood drawn would be affected by liquid injections given by hospital
personnel” and more specifically that “the State produced no evidence as to the
basis for the Trooper’s belief that destruction of evidence was imminent; nor is
there evidence as to the nature of the medical treatment at hand and as to why it
might or would result in destruction of evidence.” The court added that it was
“left to surmise that some unspecified prospective treatment would have such
effect.”

                                           16
ANALYSIS OF EXIGENT CIRCUMSTANCES

      To satisfy the exigent-circumstances exception, an exigency that requires

immediate action must exist.       One category of exigent circumstances that

justifies a warrantless intrusion by police officers is preventing the destruction of

evidence or contraband.      A proper exigency analysis involves the following

factors:19


      19
           An exigency potentially provides for a reasonable, yet warrantless search
because “there is compelling need for official action and no time to secure a
warrant.” Missouri v. McNeely, 569 U.S. 141, 149, 133 S. Ct 1552, 1559, 1568
(2013). “[R]easonableness ‘must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight,’” and
allowances must be made based on the fact that “‘police officers are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving.’” Ryburn v. Huff, 565 U.S. 469, 477, 132 S. Ct. 987, 992 (2012)
(quoting Graham v. Connor, 490 U.S. 386, 396–97, 109 S. Ct. 1865, 1872
(1989)). Whether law enforcement faced an emergency that justifies acting
without a warrant calls for a case-by-case determination based on the totality of
circumstances.       McNeely, 569 U.S. at 149–50,133 S. Ct at 1559.              “[A]
warrantless search must be strictly circumscribed by the exigencies which justify
its initiation.” Cole, 490 S.W.3d at 923 (quoting Mincey v. Arizona, 437 U.S. 385,
393, 98 S. Ct. 2408, 2413 (1978)). An exigency analysis requires an objective
evaluation of the facts reasonably available to the officer at the time of the
search. Id. “The relevant inquiry is whether, given the facts . . . known to police
at the time, it would be objectively reasonable for an officer to conclude that
taking the time necessary to obtain a warrant before drawing a blood sample
would significantly undermine the efficacy of a blood alcohol test.” Douds v.
State, 434 S.W.3d 842, 854 (Tex. App.—Houston [14th Dist.] 2014) (op. on reh’g
en banc), rev’d on other grounds, 472 S.W.3d 670 (Tex. Crim. App. 2015)
(holding defendant failed to preserve error), cert. denied, 136 S. Ct. 1461 (2016);
see McNeely, 569 U.S. at 152, 133 S. Ct. at 1561; Schmerber v. California, 384
U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966); Parker, 206 S.W.3d at 600 (“[T]he
determination of whether an officer has probable cause and exigent
circumstances to enter a person’s home without a warrant is a factual one based
on the sum of all the information known to the officer at the time of entry.”);
Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998) (“We apply an
objective standard of reasonableness in determining whether a warrantless
search is justified, taking into account the facts and circumstances known to the
                                          17
         • Objective evaluation of facts available to a reasonable officer at the

            scene, not the 20/20 vision of appellate hindsight;

         • Whether the described exigency (destruction of evidence in this

            case) required prompt and decisive official police action and allowed

            for no time to secure a warrant;

         • Persuasive circumstances of an exigency include natural dissipation

            of alcohol (although not a per se exigency in every case),

            procedures in place for obtaining a warrant, availability of a magistrate

            judge, and practical problems of obtaining a warrant within the time

            frame that still preserves an opportunity to obtain reliable evidence;

         • Whether, under all the facts reasonably available to the officer at the

            time of the search, it was objectively reasonable for an officer to

            conclude that, faced with an emergency, taking the time necessary

            to obtain a warrant before drawing a blood sample would

            significantly undermine the efficacy of a blood alcohol test; and

         • The focus of exigent circumstances analysis in this context is not on

            the delay attendant to an investigation but on the delay necessary to

            obtain a warrant.

police at the time of the search.”). Circumstances that are relevant to an
exigency analysis of a warrantless blood draw include the natural dissipation of
alcohol from the bloodstream over time, the procedures in place for obtaining a
warrant, the availability of a magistrate judge, and the practical problems of
obtaining a warrant within a time frame that still preserves the opportunity to
obtain reliable evidence. McNeely, 569 U.S. at 164, 133 S. Ct. at 1568; Weems,
493 S.W.3d at 580.

                                        18
      The record shows that Sanders’s request to be transported to the hospital

precipitated the emergency medical treatment upon her arrival.         The officer’s

probable cause determination following the HGN test in the emergency room

coincided with the efforts of the medical staff to administer medical treatment to

Sanders. According to Trooper Neff, there was literally no time to do anything as

the staff ushered him out of the emergency room.          Based on his education,

training, and experience, and believing that the various treatments Sanders

would receive would adversely affect and corrupt the blood sample, Trooper Neff

asked a nurse to draw a blood sample. The State established sufficient evidence

to prove an exigency justifying a warrantless blood draw.

      The majority faults Trooper Neff for failing to use available resources to

help him secure a warrant despite having an hour and fifteen minutes to do so,

and the majority ultimately finds the real reason he did not get a warrant was

because he did not believe he needed a warrant in this case. At the outset, I

believe this criticism is moot because Trooper Neff had no duty to obtain a

warrant prior to his determination of probable cause at the hospital.          I will

nevertheless address the court’s criticisms.

      I have serious reservations about the degree of importance which the court

attributes to the “availability of other officers” factor. An analysis of this factor

must first recognize the admonition of the court in Cole that the appellate courts

should not yield to the temptation of “pronounc[ing] what law enforcement ideally




                                         19
should have done in a particular case after all the facts are known . . . [because]

hindsight distorts a proper exigency analysis’s focus . . . .”20

      The majority initially states numerous other officers were available to

obtain a warrant. It describes how, unlike in the Cole case, where numerous

officers were knee deep in investigative work and could not be spared from the

crash scene, in this case Trooper Russell declared numerous officers and

emergency personnel were available, had time on their hands, and were not

doing much of anything.       But the record shows otherwise; it shows that all

officers had ongoing assignments at the crash scene unless reassigned, and it

therefore demonstrates this is not a realistic description of the crash scene.

      The majority seems to confuse the activity of the investigators at the arrival

stage and the execution stage. At the very beginning, the various responders

were awaiting leadership and direction of the investigation. This is commonly

described as the arrival stage in all substantial undertakings. When Trooper

Russell arrived, she took charge as lead investigator, immediately organized the

investigation, advised the investigators of their respective assignments, and

oversaw the entire scene while they undertook their responsibilities.         This is

commonly described as the execution stage of the process.21 Trooper Russell



      20
        Cole, 490 S.W.3d at 925.
      21
         The record contains Trooper Russell’s testimony that numerous
firefighters and emergency medical personnel were drawn to the scene of a two-
vehicle, head-on collision which resulted in the deaths of two persons and
serious injuries to a third. They had limited responsibilities involving fire, safety,
and medical attention and were not involved in personally interviewing and
                                        20
testified as to the specific individual assignments of each of her designated DWI

investigators at the scene and elsewhere. Once the investigation got underway,

any suggestion that there was a crowd of available officers just standing around,

that the scene was a three-ring circus with multiple first responders and

investigators acting without much direction or supervision over the course of an

hour and fifteen minutes, or that plenty of officers were simply biding their time

and could be easily sent to the hospital is contradicted by the record.

       The majority stresses that the Weems decision held the totality of

circumstances militated against finding practical problems prevented the officer

from obtaining a warrant and likens the situation to Sanders.         This majority

misconstrues Weems. The court of criminal appeals specifically emphasized that

“[o]n this particular record,” it was the continued presence of a second named

officer at the hospital with Weems for two hours that militated against such a

finding.22   In other words, Weems did not turn on the general availability of



testing Sanders. Trooper Russell, the lead investigator, identified the seven
officers involved in the investigation and described the respective responsibilities
each was assigned, duties which included such critical tasks as providing
medical attention to victims, crowd control, and traffic control; dealing with the
suspect; investigating; and collecting evidence. Trooper Russell testified she
was busy with her managerial responsibilities and could not take the time to look
into the warrant situation, which she had assigned to Trooper Neff. Thus, the
majority’s statement that help from other officers was in ample supply is quite an
exaggeration. During the time at the hospital, there was evidence that all of the
officers were carrying out assignments important to the investigation at the crash
scene, and there was no evidence that other officers were available when
Sanders refused consent for the blood draw at the hospital.
       22
        Weems was actually taken to the hospital by two officers who waited two
hours for a blood test because the staff was busy. Weems, 493 S.W.3d at 582.
                                       21
officers, on hypothetically available officers, or on an available escorting officer

but rather on the actual presence of a second assisting officer for several hours

at the hospital.23 The court of criminal appeals also emphasized that “[a]nother

officer[’s] presence or the ‘hypothetically available officer’ that, in theory, could

have secured a warrant in the arresting officer’s stead will certainly not render all

warrantless blood draws a Fourth Amendment violation, nor do we suggest it is a

circumstance that the State must disprove in every case to justify a warrantless

search under an exigency theory.”24

      The majority refers to one particular sentence in Cole—“the availability of

other officers is a relevant consideration in an exigency analysis”—to underscore

the importance of the “availability of other officers,” but a statement like this one

cannot be lifted out of the record and examined in a vacuum. 25 Once again, the

theme of the Cole decision focused on the need to encourage deference to law

enforcement decisions in the field and to discourage micromanagement by the

judiciary. In this context, a comment suggesting that a “relevant consideration” is

the availability of officers is not particularly remarkable.




According to the officers involved, this wait was anticipated and occurred when
the officers knew a magistrate was available. Id. Nevertheless, the officers
made no effort to obtain a warrant. Id.
      23
        See id. at 582.
      24
        Id. (emphasis added).
      25
        See Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000).

                                           22
      The Cole case involved a horrific crash scene and numerous officers, all of

whom, according to the lead investigator, were important to the investigation and

dealing with the crisis. At the court of criminal appeals, a dissent filed by Judge

Johnson in which Judge Yeary concurred emphasized that two of the officers

were actually available if called to secure a warrant. Ultimately, the court of

criminal appeals stated that courts should not interfere with “local law-

enforcement personnel management decisions and public policing strategy.” 26

While the court of appeals had adopted a timeline, an hour-by-hour

demonstration of how the officers could have secured a warrant if they had acted

immediately, the court of criminal appeals, in contrast, emphasized that such an

analytical approach impermissibly viewed law enforcement action through the

lens of hindsight and that such temptations should be avoided because the

approach overlooks practical problems and considerations which make obtaining

a warrant impractical. The court further stated that it disagreed that “an exigency

finding cannot be made without the record establishing—and by extension, the

State proving—that there was no other officer available to get a warrant in the

lead investigator’s stead.”27

      The majority in this case relies on a similarly artificial “duty” timeline,

stating Trooper Neff had a duty to try to obtain a warrant upon his arrival at the

scene (about 12:07 a.m.) which continued over what the court described as an

      26
        Cole, 490 S.W.3d at 926.
      27
        Id.

                                        23
excessive period of time (12:07 a.m. to 1:24 a.m.) during which Trooper Neff

made no effort to even try to obtain a warrant. The majority’s treatment of the

artificial timeline is reminiscent of the timeline rejected by the court in Cole, the

timeline which dictated what law enforcement ideally should have done after all

the facts were known with the so-called 20/20 vision of judicial hindsight.

      Thus, the Cole and Weems decisions encouraged courts to afford

substantial deference to law enforcement when considering the officer-availability

factor. These decisions dictated a flexible, practical, reasonable approach—not

a rigid, strict, or literal one—and one in which courts demonstrate substantially

more respect for the judgment of law enforcement in the field. Our focus should

not be on the numbers per se or mathematical precision. The Weems and Cole

decisions promoted reasonable judgment when courts review various periods of

delay, including the hour-and-fifteen-minute time period encountered in this case,

during which the officer is actively investigating probable cause. In this respect

Weems is distinguishable, as the delay in that case was foreseeable and

involved two officers, while the time period in this case was only an hour and

fifteen minutes when measured from the officer’s arrival, and less than that—only

moments—when properly measured from the time the officer found probable

cause until the time of the imminent and unexpected medical emergency

treatment of Sanders.

      The majority next emphasizes that when Trooper Neff was about to leave

the crash scene to follow the ambulance taking Sanders to the hospital, Trooper


                                         24
Russell offered to send Deputy Phariss with him to the hospital but Trooper Neff

declined the offer. The majority concludes this was a sure sign that Trooper Neff

did not seek assistance because he mistakenly believed Texas law did not

require a warrant in this case. The majority also concludes that it is a reasonable

deduction from this evidence that Trooper Neff did not seek a warrant at the

scene because he did not believe a warrant was necessary and, therefore,

arbitrarily chose not to seek a warrant.

      The record shows Trooper Russell assigned Deputy Phariss to assist her

at the crash site, which included helping her paint the scene. Deputy Phariss,

therefore, had a specific assignment and was not simply standing around with

nothing to do. He certainly did not fall within the court’s description of “an officer

who was not preoccupied in investigating an accident [and who] was available to

pursue a warrant.” The offer to send Deputy Phariss to the hospital was made in

the context of pulling Deputy Phariss from his assignment and reassigning him to

oversee Sanders’s boyfriend, who had been interfering with Trooper Neff’s

investigation at the scene. The record shows the offer was extended to assure

an officer’s safety and to maintain order at the hospital, but Trooper Neff

responded he could take care of the situation.        In context, this incident only

reflects that Trooper Neff thought he had the safety and order situation under

control. It should also be observed that this incident occurred when Trooper Neff

was continuing to investigate probable cause and had not yet made this

determination.


                                           25
      While the court focuses on the number of officers purportedly available, it

ignores the element of time.     Trooper Neff testified that at the point where

Sanders completed the HGN test and refused her consent for a blood draw,

Sanders was complaining of pain and nurses were very active in the emergency

room, putting up a pole, bringing fluid bags, and setting needles, wipes, blood

kits, and similar items on the counter. Trooper Neff realized emergency medical

treatment was imminent, which would adversely affect the blood alcohol

concentration and thus the blood sample, and that while he had search warrant

forms in his pocket, there was no time to fill them out before the medical

personnel literally pushed him out of the emergency room. He believed exigent

circumstances permitted him to request that a nurse make a blood draw. He did

not ask a paramedic at the scene to draw blood. He never requested that a

nurse at the hospital draw blood until he concluded the HGN test and made his

judgment call that probable cause existed. The nurse took a blood sample about

1:24 a.m. This activity made it clear the hospital staff was ready to treat Sanders

and there was absolutely “no time” for any officer, including Trooper Neff, to

obtain a warrant for a blood draw. “Warrants inevitably take some time for police

officers or prosecutors to complete and for magistrate judges to review.” 28 Thus,

even if other officers had been at the hospital, their presence would add no

discernible benefit. It is undisputed that no one at the hospital—not Trooper Neff,


      28
     McNeely, 569 U.S. at 155, 133 S. Ct. at 1562 (emphasis added); see
Weems, 493 S.W.3d at 582 (“no time to seek out a magistrate”).

                                        26
not any other officer had one been present, and not even the justice of the

peace—had any time to seek or process a warrant in the face of the necessity for

emergency medical treatment of Sanders after Trooper Neff determined probable

cause at the hospital. Trooper Neff was presented with a true emergency in this

case, the necessity of immediate medical intervention to treat Sanders, which, in

Trooper Neff’s judgment, presented an exigent circumstance justifying the

request for a blood draw; otherwise the testing process would be adversely

affected and corrupted.

      In addition to the medical emergency, the record shows that Trooper Neff

also gave as reasons for not getting a warrant after he found probable cause at

the hospital that he was concerned about dissipation of alcohol in the blood

stream and did not believe a warrant was necessary. In McNeely, the officer

gave as his only reason for a warrantless blood draw that he did not believe a

warrant was necessary.29 The officer stopped McNeely for a traffic violation,

observed signs of intoxication, performed field sobriety tests at the scene during

which he performed poorly, arrested him, took him to the hospital, and

immediately asked the nurse to do a blood draw.30        The record in McNeely

showed that there was no medical emergency of any kind and that the State did

not claim an exigency, whereas in the present case it was undisputed there was




      29
       569 U.S. at 163, 133 S. Ct. at 1567.
      30
       Id. at 145–46, 133 S. Ct. at 1556–57.

                                       27
a medical emergency.31     In both McNeely and Sanders’s cases, the officers

observed intoxication signs at the scene and intended to perform tests to assist

in the probable cause determination. In McNeely, the officer conducted the tests

at the scene without any resistance from McNeely32; in this case, the HGN test

was barely begun at the scene, delayed by Sanders, then completed at the

hospital. McNeely and Sanders performed poorly during testing.33 The officer in

McNeely immediately called for a blood draw, believing no warrant was

necessary.34 The officer in this case pursued testing at the hospital to establish

probable cause; he did not immediately ask for a blood draw at the hospital.

When Trooper Neff faced the emergency medical situation, he emphasized he

believed the draw was justified under the exigency exception.        Under these

circumstances, Trooper Neff believed his only option to preserve the integrity of

the blood draw was to proceed without a warrant.

      The majority states it is a reasonable deduction Trooper Neff’s mistaken

belief was the reason he did not seek a warrant during the entire hour-and-

fifteen-minute period.   There is no evidence in the record to support this

statement. While the court does not mention it, I note Trooper Neff’s testimony

about the reasons for his decision to ask for a blood draw at the hospital, one of


      31
       Id. at 163, 133 S. Ct. at 1567.
      32
       See id. at 145, 133 S. Ct. at 1556–57.
      33
       Id., 133 S. Ct. at 1556–57.
      34
       Id. at 163, 133 S. Ct. at 1567.

                                         28
which was his mistaken belief that he did not need a warrant in a fatality

accident. The record shows Trooper Neff did not attempt to distance himself

from this reason. Instead, he listed it with the other reasons (medical emergency

treatment and dissipation of alcohol) explaining why he asked for a blood draw in

the final moments before hospital personnel administered emergency treatment.

Ironically, this testimony, at least impliedly, along with the balance of Trooper

Neff’s testimony about his efforts to determine probable cause, contradict the

majority’s deduction that Trooper Neff’s mistaken belief was the reason he did

not try to get a warrant at the scene. If we take the opposite tack and assume,

for the sake of argument, that Trooper Neff believed a warrant was necessary,

the lack of time is equally pronounced, as there was still absolutely no time for

Trooper Neff, with or without additional officers, to obtain a warrant before

emergency medical treatment was administered to Sanders.                 Thus, the

undisputed and overwhelming evidence in the record shows that the necessity

for emergency medical care for Sanders presented an insurmountable challenge

and substantially curtailed any opportunity for Trooper Neff to obtain a warrant.

      The majority states the record contained no evidence as to the procedures

for obtaining a warrant and magistrate availability, two of four relevant factors in

an exigency analysis. But the majority does not mention the other two factors

applicable to this case: (1) the practical problems of obtaining a warrant within

the time frame that still preserves an opportunity to obtain reliable evidence, that

is, emergency medical treatment of Sanders afforded Trooper Neff absolutely no


                                        29
time to act, and (2) the natural dissipation of alcohol from the bloodstream over

time. The record shows a justice of the peace was present at the crash scene,

even if unknown to Trooper Neff, and could have been contacted to obtain a

warrant, time permitting. Regardless of the procedures in place or the presence

of the magistrate, the undisputed facts show when Trooper Neff believed he had

probable cause, that is, sufficient facts to request a blood draw at the hospital, he

was also immediately confronted with a medical emergency and in his opinion,

he had absolutely no time to seek a warrant and thus believed the exigent

circumstances justified the warrantless search.

      The record shows Trooper Neff testified that, faced with the necessity of an

unforeseen medical emergency, taking the time—any time—to obtain a warrant

before drawing a blood sample would have significantly undermined the efficacy

of a blood alcohol test.    Thus, a practical problem—the medical emergency

treatment of Sanders—prevented Trooper Neff from “obtaining a warrant within a

time[]frame that still preserve[d] the opportunity to obtain reliable evidence” of

Sanders’s blood alcohol content.35

                                     CONCLUSION

      Under the circumstances of this case, the question is whether probable

cause was established under the totality of the facts at the moment of the search

by the arresting officer as viewed from the standpoint of the officer. An objective

review of the facts shows that probable cause was established by Trooper Neff

      35
        Id. at 164, 133 S. Ct. at 1568.

                                          30
after he had concluded the HGN test and determined he had sufficient facts to

believe Sanders was intoxicated. Trooper Neff had no duty to seek a warrant

prior to this determination at the hospital.      The circumstances justifying the

warrantless blood draw are the dissipation of alcohol and the practical problem

presented by the emergency medical treatment of Sanders, which left no time

within which to act to obtain a warrant.36

      In view of the facts and circumstances known to law enforcement at the

time, it would be objectively reasonable for Trooper Neff to conclude that taking

the time necessary to obtain a warrant before drawing a blood sample would

significantly undermine the efficacy of a blood alcohol test. As the court did not

reach the issue of whether the State failed to prove the medical intervention at

the hospital would destroy or even influence the blood test or that law

enforcement reasonably believed obtaining a warrant would undermine the

efficacy of the blood test, I do not address that issue at this time.

      I respectfully dissent.




                                              /s/ Kerry FitzGerald
                                              KERRY FITZGERALD
                                              JUSTICE

      36
         Circumstances that are relevant to an exigency analysis of a warrantless
blood draw include the natural dissipation of alcohol from the bloodstream over
time, the procedures in place for obtaining a warrant, the availability of a
magistrate judge, and the practical problems of obtaining a warrant within a time
frame that still preserves the opportunity to obtain reliable evidence. Id., 133
S. Ct. at 1568; Weems, 493 S.W.3d at 580.
                                       31
PUBLISH

DELIVERED: December 14, 2017




                               32
