Filed 11/27/18
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


THE PEOPLE,                                   2d Crim. No. B290108
                                           (Super. Ct. No. 2016028518)
     Plaintiff and Appellant,                   (Ventura County)

v.

EDWARD RYAN FISH,

     Defendant and Respondent.



       When blood is drawn from a person arrested for driving
under the influence, the Fourth Amendment requires that it be
drawn in a “reasonable manner.” (Schmerber v. California (1966)
384 U.S. 757, 771-772; see also People v. Mateljan (2005) 129
Cal.App.4th 367, 376.) Here, the question is who has the burden
of proof on the “reasonable manner” issue when a valid search
warrant authorizes the blood draw. This is an issue of first
impression in California. We hold that, where the circumstances
of the blood draw are typical and routine, i.e., not peculiarly
within the knowledge of the People, the burden of proof is on the
defendant. (See post, at p. 10.)
       Defendant is charged with one count of driving while under
the influence of an alcoholic beverage and one count of driving
with a blood-alcohol level of 0.08 percent or more. (Veh. Code,
§ 23152, subds. (a), (b).) After his arrest, his blood was drawn
pursuant to a valid search warrant. The trial court granted
defendant’s Penal Code section 1538.5 (section 1538.5) motion to
suppress the results of the blood test because the People had
failed to carry their burden of proving that the blood had been
drawn in a reasonable manner.
       The People appealed from the interlocutory suppression
order to the Appellate Division of the Ventura County Superior
Court (Appellate Division). (§ 1538.5, subd. (j).) The Appellate
Division reversed. We granted the petition to transfer to this
court.
                Factual and Procedural Background
       Defendant does not dispute that he was lawfully arrested
for driving while under the influence of an alcoholic beverage.
We therefore omit a summary of the facts leading to his arrest.
He filed a written motion to suppress evidence alleging: “The
collection of blood, breath, or urine constitutes a search and
seizure within the meaning of the Fourth Amendment and must
be done pursuant to accepted medical practices. [Citations.]”
       At the section 1538.5 hearing the only witness was the
arresting officer, Michael Ramos. He testified that, after
defendant had refused to submit to a breath or blood test, a blood
draw was performed pursuant to a search warrant. The warrant
was not received in evidence and is not included in the record on
appeal. In its opinion below the Appellate Division “judicially
notice[d] that the form DUI search warrant authorized and used
by the Ventura Superior Court contains an order mirroring [the]
statutory requirement” of Penal Code section 1524, subdivision
(a)(13), which provides that a blood “‘sample will be drawn from




                                2
the person in a reasonable, medically approved manner.’” As to
the circumstances of the blood draw, Officer Ramos testified that
the blood was drawn in his presence at a hospital.
         After the parties had rested, defendant argued that the
People had failed to carry their “burden to prove that the blood
was taken according to acceptable medical practices.” The People
responded that, because the blood draw was pursuant to a
warrant, the burden was on defendant to show that the blood was
not drawn in a reasonable manner.
         The trial court suppressed the blood-test results. It
explained that, although “[t]he defense pled in their moving
papers that acceptable medical practices must be followed[,] . . .
[n]o evidence was adduced as to that fact.” The court denied the
People’s request to reopen for the purpose of recalling Officer
Ramos to establish that the blood had been properly drawn. The
court stated: “[N]one of this is a secret. This is in the moving
papers all the time. So the Court saw this coming a mile away.
It’s a little disappointing the People didn’t. The Court’s not
inclined to allow the People to reopen.”
             Suppression of Evidence Based on The Manner
                  of How a Search Warrant is Executed
         “[A] search conducted under color of a warrant is not
‘reasonable per se,’ but may be unreasonable in the constitutional
sense on a number of grounds.” (People v. Cook (1978) 22 Cal.3d
67, 97.) “Even if the warrant is legally sufficient . . . , the search
is . . . unreasonable when the warrant is executed in an improper
manner.” (Id. at p. 98.) Section 1538.5, subdivision (a)(1)(B)(iv)
provides that a defendant may move to suppress evidence on the
ground that “[t]he method of execution of the warrant violated
federal . . . constitutional standards.” (See In re Lance W. (1985)




                                  3
37 Cal.3d 873, 896 [“a court may exclude . . . evidence [pursuant
to section 1538.5] only if exclusion is . . . mandated by the federal
exclusionary rule applicable to evidence seized in violation of the
Fourth Amendment”].)
                           Burden of Proof
        The issue of which party has the burden of proof is purely a
question of law. We therefore independently review the issue.
(People v. Carter (2005) 36 Cal.4th 1114, 1140.) “[W]hen . . . the
police . . . obtain a warrant, that warrant is presumed valid.
‘Thus if the defendant attempts to quash a search warrant, . . .
the burden rests on him.’ [Citation.] A defendant claiming that
the warrant or supporting affidavit is inaccurate or incomplete
bears the burden of alleging and then proving the errors or
omissions. [Citations.]” (People v. Amador (2000) 24 Cal.4th 387,
393; see also Franks v. Delaware (1978) 438 U.S. 154, 171 [“There
is, of course, a presumption of validity with respect to the
affidavit supporting the search warrant”].) Because the
presumption of validity applies to a warrant and its supporting
affidavit, there is no reason to conclude that the presumption of
validity does not apply to the manner of its execution. This is but
an offshoot of the “preference for warrants” rule. (See United
States v. Ventresca (1965) 380 U.S. 102, 105-106; see also People
v. Smith (1994) 21 Cal.App.4th 942, 948-949.) To rule otherwise,
there would be a presumption of invalidity and the “preference
for warrants” rule would be markedly less preferential.
        The United States Supreme Court has not determined
which party has the burden of proof when the defendant contends
that a valid search warrant was improperly executed. (See 6
LaFave, Search and Seizure (5th ed. 2012) § 11.2(b), p. 72.) But
it has “expressed a strong preference for warrants and declared




                                  4
that ‘in a doubtful or marginal case a search under a warrant
may be sustainable where without one it would fall.’ [Citations.]”
(United States v. Leon (1984) 468 U.S. 897, 914.) Searches
“‘pursuant to a warrant will rarely require any deep inquiry into
reasonableness,’ [citation], for ‘a warrant issued by a magistrate
normally suffices to establish’ that a law enforcement officer has
‘acted in good faith in conducting the search.’ [Citation.]” (Id. at
p. 922.)
                           California Cases
       Pursuant to California case law, the defendant bears the
burden of proof if he claims that a search pursuant to a warrant
went beyond the scope of the warrant. (People v. Reyes (1990)
223 Cal.App.3d 1218, 1224 [“Because the questioned search in
this case occurred during execution of a search warrant,
defendant had the burden of proving the search was beyond the
warrant's scope”].) Defendant is not claiming that the blood draw
was beyond the scope of the warrant. But “[b]ecause the [blood
draw] occurred during execution of a search warrant,” Reyes
supports placing the burden on defendant to prove that the blood
draw was not performed in a reasonable manner. (Ibid.; see also
Levenson, California Criminal Procedure (The Rutter Group
2017) § 6:17, p. 6-19, fn. omitted [“If a warrant was used, the
search or seizure is presumed to be lawful, and the burden of
demonstrating that it was illegally executed remains with the
defendant”]; Skelton v. Superior Court (1969) 1 Cal.3d 144, 154,
fn. 8 [“where the right to conduct a search is obtained ostensibly
for one purpose, it may not be used in reality for another.
However, where the search was conducted pursuant to a warrant
validly issued, the burden should be on the one attacking the
search to show that the motive of the officers was improper and




                                 5
that their conduct was unreasonable”]; People v. Hernandez
(1974) 43 Cal.App.3d 581, 590 [“where a search is made pursuant
to a warrant, the burden of proving the invalidity of the search
rests upon the challenger”]; People v. Schad (1971) 21 Cal.App.3d
201, 207 [“Since the officers had a search warrant, the burden is
not upon the prosecution to show proper justification [for an
alleged noncompliance with knock-notice requirements] but upon
the defendant to show an unlawful entry and search”].)
                            Federal Cases
       Two federal cases are on point. The first is United States v.
Vigo (5th Cir. 1969) 413 F.2d 691 (Vigo). There, the search
warrant required that it be served in the daytime. The defendant
sought to suppress evidence on the ground the warrant was
served prior to daytime. The appellate court placed on the
defendant the burden of proving that it was not served in the
daytime: “The warrant stands cloaked with a presumption of
validity both in the court below and on this appeal. The
[defendant] had the burden of proof in challenging the validity of
its execution or service.” (Id. at p. 693.)
       The second federal case is United States v. Marx (5th Cir.
1981) 635 F.2d 436 (Marx). There, the defendants contended that
the district court had erred in denying their motion to suppress
evidence seized from two suitcases pursuant to a search warrant.
The defendants argued that the service and execution of the
warrant were technically deficient. Citing Vigo, the appellate
court stated: “[Defendants] have the burden of proof in
challenging the validity of the execution or service of the search
warrant. [Citation.] We conclude that they have failed to
discharge this burden, and accordingly the district court correctly
denied [their] motion to suppress.” (Id. at p. 441.)




                                 6
        Vigo and Marx are consistent with a long line of federal
cases concluding that, because a search conducted pursuant to a
warrant is presumed valid, the burden is on the defendant to
prove that the search was unlawful. “The general federal rule on
who bears the burden of proof with respect to an allegedly
illegal search or seizure is based upon the warrant-
no warrant dichotomy: If the search or seizure was effected
pursuant to a warrant, the defendant bears the burden of proving
its illegality; if the police acted without a warrant, the
prosecution bears the burden of establishing legality. [Citation.]
Where the police have acted pursuant to a warrant, the
independent determination of probable cause by a magistrate
gives rise to a presumption that the arrest or search was legal.
But where the police have acted without a warrant, the legality of
their action will not be presumed. The dichotomy may be
explained, in part, by the often-stated preference that searches
and seizures be effected pursuant to warrants.” (United States v.
Longmire (7th Cir. 1985) 761 F.2d 411, 417; see Samuels v.
McCurdy (1925) 267 U.S. 188, 200 [“As a search warrant issued,
the seizure was presumably valid”]; United States v. Esser (10th
Cir. 2006) 451 F.3d 1109, 1112 [“Generally, the defendant has
the burden of showing a constitutional infirmity if a search or
seizure was carried out pursuant to a warrant”]; United States v.
Awadallah (2d Cir. 2003) 349 F.3d 42, 64 [“Ordinarily, a search
or seizure pursuant to a warrant is presumed valid”]; United
States v. Kimbrough (5th Cir. 1995) 69 F.3d 723, 728
[“Kimbrough has failed to meet his burden of proof in challenging
the execution of the search warrants”].)




                                7
                         Sister State Cases
       Because of the preference for warrants, “[w]ith respect to
the issue which is usually central in a motion to suppress hearing
- the reasonableness of the challenged search or seizure - most
states follow the rule utilized in the federal courts: if the search
or seizure was pursuant to a warrant, the defendant has the
burden of proof; but if the police acted without a warrant the
burden of proof is on the prosecution. . . . [I]t is said that
‘[w]ithout such a rule there would be little reason for law
enforcement agencies to bother with the formality of a warrant.’”
(6 LaFave, Search and Seizure, supra, § 11.2(b), pp. 50-52, fns.
omitted; see Smith v. State (Ala.Crim.App. 1991) 588 So.2d 561,
577 [“‘With regard to search warrants, the general rule is that
the defendant has the burden of proof in challenging the validity
of the execution or service of the search warrant’”].)
                     Official Duty Presumption
       In State v. Kuznitz (1969) 105 N.J. Super. 33, 42 [250 A.2d
802, 807], the court stated: “There is a presumption that law
enforcement officers acted legally in executing the court’s [search]
warrant. [Citations.] . . . [¶] The burden of proof is therefore on
defendant to establish that the officers executed the warrant
illegally.”
       There is a similar presumption in California. Evidence
Code section 664 provides: “It is presumed that official duty has
been regularly performed. This presumption does not apply on
an issue as to the lawfulness of an arrest if it is found or
otherwise established that the arrest was made without a
warrant.” The presumption appears to apply “on an issue as to
the lawfulness of” a search made pursuant to a valid warrant.
(Ibid.; see Badillo v. Superior Court (1956) 46 Cal.2d 269, 272




                                 8
[“In the absence of evidence to the contrary, it is presumed that
the officers acted legally”].)
       Defendant’s blood was statutorily required to “be drawn . . .
in a reasonable, medically approved manner.” (Pen. Code,
§ 1524, subd. (a)(13).) According to the Appellate Division, the
warrant included this requirement. Officer Ramos did not
personally draw defendant’s blood, but he was personally present
at the blood draw. We therefore presume that he oversaw the
procedure to assure it was performed in a sanitary manner that
did not involve pain or trauma. (Evid. Code, § 664.)
       Furthermore, the blood was drawn at a hospital. Officer
Ramos had an official duty to assure that it was drawn by a
person who was statutorily authorized to draw blood for the
purpose of determining its alcoholic content. Vehicle Code
section 23158, subdivision (a) provides in relevant part, “[O]nly a
licensed physician and surgeon, registered nurse, licensed
vocational nurse, duly licensed clinical laboratory scientist or
clinical laboratory bioanalyst, a person who has been issued a
‘certified phlebotomy technician’ certificate pursuant to Section
1246 of the Business and Profession Code, unlicensed laboratory
personnel regulated pursuant to Sections 1242, 1242.5, and 1246
of the Business and Professions Code, or certified paramedic
acting at the request of a peace officer may withdraw blood for
the purpose of determining the alcoholic content therein.” We
presume that Officer Ramos performed this duty.
              The Burden of Proof Rests on Defendant
       The official duty presumption and the preference accorded
to search warrants do not automatically result in placing the
burden of proof on defendant. If the relevant facts are peculiarly
within the government’s knowledge or control so that it is in a




                                 9
much better position than the defendant to present evidence
concerning those facts, the burden of proof may rest on the
People. (See Willis, supra, 28 Cal.4th at p. 38; Dixon v. United
States (2006) 548 U.S. 1, 9 [“‘where the facts with regard to an
issue lie peculiarly in the knowledge of a party, that party has
the burden of proving the issue’”]; accord, Smith v. United States
(2013) 568 U.S. 106, 112; cf. People v. Salas (2006) 37 Cal.4th
967, 981 (Salas) [“Under the so-called rule of convenience and
necessity, ‘“the burden of proving an exonerating fact may be
imposed on a defendant if its existence is ‘peculiarly’ within his
personal knowledge and proof of its nonexistence by the
prosecution would be relatively difficult or inconvenient”’”].)
       The circumstances of the blood draw here are typical and
routine. The circumstances are not peculiarly within the
government’s knowledge or control and there is no suggestion
that there was anything unusual about the blood draw. The
blood was not drawn at a police station by a government
employee. It was drawn at a hospital, presumably by a person
legally licensed to draw blood. Defendant was in as good a
position as Officer Ramos to observe the blood draw. If
defendant’s observations had led him to suspect that the blood
draw was not performed in a reasonable manner, he could have
subpoenaed the person who performed the blood draw.
       As the Attorney General notes in his amicus curiae brief,
defendant “could have simply averred that the blood draw
procedures were unsanitary, painful, or unsafe and provided
support from his own recollection.” He also could have
questioned Officer Ramos about the blood draw during cross-
examination. “[T]he testimony of a police officer, when he or she
is a percipient witness to the blood draw in question, may




                                10
properly be considered in evaluating whether that blood draw
was conducted in a constitutionally reasonable manner.” (People
v. Cuevas (2013) 218 Cal.App.4th 1278, 1285.) “[T]he evidence of
the manner of the blood draw [need not] come from the individual
who performed it or from some other expert witness.” (Id. at
p. 1282.)
       Accordingly, “[t]here is no unfairness or hardship in
requiring [defendant] to assume the burden of presenting
evidence of the facts on which he . . . relies.” (Salas, supra, 37
Cal.4th at p. 982.) Defendant failed to carry his burden of
proving that the blood draw was not performed in a reasonable
manner. What he fails to appreciate is that the officer was
ordered by a neutral and detached magistrate to seize this
evidence in a “reasonable medically approved manner.” (Ante, at
p. 3.) This was not a suggestion to the officer. Neither the letter
nor the spirit of the Fourth Amendment were violated in this
case.
                             Disposition
       The order suppressing defendant’s blood test results is
reversed.
       CERTIFIED FOR PUBLICATION.



                                     YEGAN, Acting P. J.

We concur:


             PERREN, J.


             TANGEMAN, J.




                                11
                     Michael S. Lief, Judge

               Superior Court County of Ventura

                ______________________________

     Lessem, Newstat & Tooson and Danielle E. Tamir,
Kenneth N. Hamilton for Defendant and Respondent.

     Gregory D. Totten, District Attorney, Michelle J. Contois,
Deputy District Attorney for Plaintiff and Appellant.

       Xavier Becerra, Attorney General, Edward DuMont,
Solicitor General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General,
Joshua A. Klein, Idan Ivri, Deputy Attorneys General as Amicus
Curiae on behalf of Plaintiff and Appellant.
