Filed 8/15/14 Certified for Publication 9/5/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT

THE PEOPLE,                                                       B253401

         Plaintiff and Respondent,                                (Los Angeles County
                                                                  Super. Ct. No. SA080515)
         v.

ALEXANDER YOUN,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court for the County of Los Angeles.
Katherine Mader, Judge. Affirmed.


         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Victoria Wilson and Jessica C. Owen, Deputy Attorneys General, for Plaintiff
and Respondent.


                                    ___________________________
                                       SUMMARY
       Defendant Alexander Youn appeals from the denial of his motion to suppress
evidence, contending a warrantless draw of his blood violated the Fourth Amendment as
construed in Missouri v. McNeely (2013) ___ U.S. ___ [133 S.Ct. 1552] (McNeely) and
Schmerber v. California (1966) 384 U.S. 757 (Schmerber). We do not reach the question
whether the totality of the circumstances in defendant’s case justified the warrantless
blood draw, because we conclude it was conducted “in objectively reasonable reliance on
binding appellate precedent” within the meaning of Davis v. United States (2011) ___
U.S. ___ [131 S.Ct. 2419, 2423-2424] (Davis), and therefore was not subject to the
exclusionary rule. We affirm the order denying the motion to suppress.
                                         FACTS
       On October 3, 2011, at about 6:30 p.m., defendant was involved in a serious
vehicle collision. When Officer Jason Olson arrived at the scene, emergency personnel
were loading two patients into ambulances. One of them was defendant. The officer at
the scene asked Officer Olson to evaluate defendant for being under the influence.
Officer Olson observed that defendant was strapped to a backboard with full head
restraint; was combative, “actively trying to move his arms, fight with the paramedics”;
had “rapid unintelligible speech”; and was “in and out of [consciousness].” Officer
Olson followed defendant to the hospital, where medical personnel were in the process of
intubating him.
       Defendant was also combative with the hospital staff, so they began to sedate him.
Officer Olson, who was trained (and trained other officers) as a drug recognition expert,
concluded defendant was under the influence of a drug stimulant (not a narcotic or
alcohol). He observed the staff administer three or four doses of very potent sedatives,
and defendant was “still combative with them.” Officer Olson believed “something had
to be going against this highly potent sedative” being administered. Defendant’s agitated
state, rapid speech, and skin warm to the touch (during Officer Olson’s initial contact
with defendant at the scene) were factors contributing to his conclusion.



                                             2
       Officer Olson placed defendant under arrest and asked a nurse to draw blood from
defendant. The blood draw occurred about three hours after the accident, at about
9:30 p.m. Officer Olson found out, “just prior to the blood draw,” that defendant was on
probation for driving under the influence. Officer Olson did not know if defendant had
“a search and seizure condition” on his probation.
       After he ordered the blood draw, Officer Olson learned that hospital staff had done
an earlier blood draw, and the results were positive for amphetamine and cannabis.
Officer Olson saw no objective symptoms consistent with alcohol, but asked the sheriff’s
laboratory to screen for alcohol as well.
       When Officer Olson left the hospital, defendant was still in the emergency room,
awaiting a bed in the intensive care unit. Defendant was released from the hospital a
month later, on November 3, 2011.
       Two years after these events, in October 2013, the trial court held a hearing on
defendant’s motion to suppress evidence. In addition to testifying to the facts just
described, Officer Olson stated that he did not try to get a warrant to draw defendant’s
blood. He had worked on vehicular manslaughter cases in the past and obtained blood
from drivers without a warrant. He confirmed that “it was not standard operating
procedure to obtain a warrant for blood draws” in October 2011.
       Dr. John Treuting, a consulting toxicologist, testified for the defense. The
laboratory report on defendant’s blood draw three hours after the accident showed
67 nanograms of methamphetamine and 23 nanograms of amphetamine (the “primary
active metabolite of methamphetamine use”) in defendant’s blood. Dr. Treuting was
asked to opine on how long the methamphetamine “was detectable in [defendant’s]
system from the time of the driving.” He testified that “you’re looking at 12 to 18 to
20 hours later . . . you would be able to detect it, as far as know that it’s
methamphetamine.”
       The trial court took judicial notice that one of the conditions of defendant’s
sentencing in an earlier case for driving under the influence was that he was not to drive



                                               3
with any measurable amount of alcohol or drugs in his blood and was not to refuse to
take any blood alcohol or drug chemical test when requested by any peace officer.
       The trial court denied the motion to suppress, stating: “I don’t see any evidence
that suppressing the blood result in this case would have a deterrent effect on police
misconduct because there wasn’t any.”
       The court continued: “I think that the police acted completely reasonably from
beginning to end of this investigation. . . . An active investigation of what happened in
this accident is ongoing. [¶] They make observations of the defendant that he is not
acting normally, that he is being combative, that he’s being combative even as they’re
trying to administer a sedative drug, which raises the suspicion of the police officer as to
whether or not he’s under the influence of amphetamine. [¶] . . . Officer Olson finds out
he’s on probation for a DUI. And one of his conditions is that he has no legal right to
refuse any type of chemical test. [¶] I understand that that is not specifically what
McNeely[, supra, 133 S.Ct. 1552] addresses. But it is a factor that I think is reasonable
for a police officer to take into consideration when they have this person who is
tremendously injured, who is being restrained, who is being taken into ICU. [¶] The
officers don’t know what’s going to happen to him next. Is he going to be put in some
sort of a coma? Is it going to be artificially or naturally? If he is going to go into a coma,
how long is it going to take for him to have access to this person again? Because they
obviously don’t have access in ICU.”
       Further, the court said: “They find out that there are amphetamines in this
person’s system as a result of a screening that has already been done. . . . [¶] But the
defendant is sedated. He’s got – he’s in no position to give consent to any type of blood
test. He’s already had one blood draw. It’s not necessarily that intrusive to do another
blood draw, particularly under the circumstances of this type of an accident. [¶] So for
all . . . of these reasons – and I already took judicial notice of [the conditions of
defendant’s probation]. I don’t believe that suppressing this evidence would have any
deterrent effect on police misconduct, which is the point of us all being here on a motion
to suppress the evidence. And so I am denying it.”

                                               4
       Defendant then pled no contest to driving under the influence causing bodily
injury (Veh. Code, § 23153, subd. (a)), a felony, and being under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a)), a misdemeanor. The court
sentenced defendant to a total term of four years, ordered custody and good time/work
time credits and made other orders not at issue in this appeal.
       Defendant filed a timely appeal of the trial court’s order.
                                       DISCUSSION
       Warrantless searches “ ‘are per se unreasonable under the Fourth Amendment --
subject only to a few specifically established and well-delineated exceptions.’
[Citations.]” (Mincey v. Arizona (1978) 437 U.S. 385, 390.) One of these exceptions
applies “‘when the exigencies of the situation make the needs of law enforcement so
compelling that a warrantless search is objectively reasonable under the Fourth
Amendment.’ [Citation.]” (McNeely, supra, 133 S.Ct. at p. 1558.) “To determine
whether a law enforcement officer faced an emergency that justified acting without a
warrant,” courts look to “the totality of circumstances.” (Id. at p. 1559; id. at p. 1559,
fn. 3 [“the general exigency exception, which asks whether an emergency existed that
justified a warrantless search, naturally calls for a case-specific inquiry”].)
       In 2011, when the warrantless blood draw in this case occurred, Schmerber was
the controlling authority from the high court. In Schmerber, the high court applied the
totality of the circumstances approach to find that a warrantless blood test in that case
was permissible. This was because the officer “ ‘might reasonably have believed that he
was confronted with an emergency, in which the delay necessary to obtain a warrant,
under the circumstances, threatened “the destruction of evidence.” ’ ” (McNeely, supra,
133 S.Ct. at pp. 1559-1560, quoting Schmerber, supra, 384 U.S. at p. 770.) Schmerber
observed that evidence could have been lost because “the percentage of alcohol in the
blood begins to diminish shortly after drinking stops,” and “[p]articularly in a case such
as this, where time had to be taken to bring the accused to a hospital and to investigate
the scene of the accident, there was no time to seek out a magistrate and secure a
warrant.” (Schmerber, at pp. 770-771.) “Given these special facts,” Schmerber

                                               5
concluded the warrantless blood draw “was an appropriate incident to [the defendant’s]
arrest.” (Id. at p. 771.)
       After Schmerber, “California cases uniformly interpreted Schmerber to mean that
no exigency beyond the natural evanescence of intoxicants in the bloodstream, present in
every DUI case, was needed to establish an exception to the warrant requirement.”
(People v. Harris (2014) 225 Cal.App.4th Supp. 1, 5, citing cases.) For example:
       In 1972, the California Supreme Court said: “It is clear that the Fourth
Amendment does not bar a compulsory seizure, without a warrant, of a person’s blood for
the purposes of a blood alcohol test to determine intoxication, provided that the taking of
the sample is done in a medically approved manner, is incident to a lawful arrest, and is
based upon the reasonable belief that the person is intoxicated.” (People v. Superior
Court (Hawkins) (1972) 6 Cal.3d 757, 761 (Hawkins), citing Schmerber, supra, 384 U.S.
at pp. 766-772; see Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 758
[same]; see, e.g., People v. Ford (1992) 4 Cal.App.4th 32, 35 [same]; People v. Fiscalini
(1991) 228 Cal.App.3d 1639, 1642 [same]; People v. Ryan (1981) 116 Cal.App.3d 168,
182 [same; the principle is “well established”].) Hawkins further noted: “Schmerber
recognizes that once the suspect is arrested, a seizure incident thereto may be properly
conducted without a warrant, since the rapid dissipation of the alcohol would make the
delay involved in obtaining a search warrant unnecessary and unjustifiable.” (Hawkins,
supra, at p. 765, fn. 7.)
       In 1982, the court of appeal applied the same rule to drugs, holding that a search
warrant was not required for “a nonconsensual withdrawal of a blood sample, in a
medically approved manner, as an incident to an arrest” for driving a vehicle under the
influence of a drug, where it was settled that the arrest was lawful. (People v. Ritchie
(1982) 130 Cal.App.3d 455, 457, 458-459.) In Ritchie, the court rejected the lower
court’s conclusion that “there was no evidence that whatever particular drug substance
was in the defendant’s blood would quickly dissipate and thus the extraction of the blood
was illegal.” (Id. at p. 457.) After citing Schmerber and Hawkins, the Ritchie court said
it could detect “no appreciable difference” between “the ingestion of alcohol and the

                                             6
ingestion of drugs.” (Ritchie, supra, at p. 458.) “While the rate of dissipation may
depend on many factors, one, of course, being the type of drug involved, nevertheless, the
amount of drug in the blood stream does diminish with the passage of time.” (Ibid.,
fn. omitted.) “We can find no basis for a requirement that law enforcement officials
ascertain the nature of the drug ingested in order to determine just how fast it will
dissipate. A contrary rule would necessitate that in cases such as this not only would the
officer have to identify the drug but some expert testimony would have to be presented as
to the rate of dissipation of that particular drug. This appears to be completely
unreasonable and places an unnecessary burden on the prosecution.” (Id. at p. 459.)
       This was the state of the law in California until 2013, when the high court in
McNeely repudiated the longstanding California interpretation of Schmerber. McNeely
held that “in drunk-driving investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case sufficient to justify conducting
a blood test without a warrant.” (McNeely, supra, 133 S.Ct. at p. 1568.) “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.” (Id. at p. 1561.) “[W]hile the natural
dissipation of alcohol in the blood may support a finding of exigency in a specific case,
as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test
of a drunk-driving suspect is reasonable must be determined case by case based on the
totality of the circumstances.” (Id. at p. 1563.)
       Defendant’s case is governed by the rule in McNeely: a warrant for the blood
draw was required if the police could reasonably obtain one “without significantly
undermining the efficacy of the search . . . .” (McNeely, supra, 133 S.Ct. at p. 1561.) On
this point, the trial court observed that the police “have this person who is tremendously
injured, who is being restrained, who is being taken into ICU. [¶] The officers don’t
know what’s going to happen to him next. Is he going to be put in some sort of a coma?
Is it going to be artificially or naturally? If he is going to go into a coma, how long is it
going to take for him to have access to this person again? Because they obviously don’t

                                               7
have access in ICU.” On the other hand, there was evidence that Officer Olson was a
drug recognition expert, that he believed defendant was under the influence of a drug
stimulant (not alcohol), and that methamphetamine would continue to be detectable in his
blood for at least 12 hours.
       We need not resolve the question whether the warrantless blood test was
reasonable under these circumstances, because even if it were not, the results of the test
would not be excluded from evidence. This is because in 2011, the high court held that
“searches conducted in objectively reasonable reliance on binding appellate precedent are
not subject to the exclusionary rule.” (Davis, supra, 131 S.Ct. at pp. 2423-2424.) This is
a species of the “good-faith” exception to the exclusionary rule.
       Davis explained that the “sole purpose” of the exclusionary rule “is to deter future
Fourth Amendment violations” (131 S.Ct. at p. 2426), and “[f]or exclusion to be
appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” (Id. at
p. 2427.) “[W]hen the police act with an objectively ‘reasonable good-faith belief’ that
their conduct is lawful, [citation], or when their conduct involves only simple, ‘isolated’
negligence, [citation], the ‘“deterrence rationale loses much of its force,”’ and exclusion
cannot ‘pay its way.’ [Citation.]” (Id. at pp. 2427-2428.)
       In Davis, the police conducted a search of a vehicle passenger compartment,
incident to the occupant’s recent arrest, that was authorized by the Eleventh Circuit’s
interpretation of New York v. Belton (1981) 453 U.S. 454. But “the search turned out to
be unconstitutional” under Arizona v. Gant (2009) 556 U.S. 332, which was decided two
years after the search occurred. (Davis, supra, 131 S.Ct. at pp. 2428, 2425.) The parties
in Davis agreed that “the officers’ conduct was in strict compliance with then-binding
Circuit law and was not culpable in any way,” and the court held “this acknowledged
absence of police culpability dooms [the defendant’s] claim.” (Id. at p. 2428.) The court
said: “[I]n 27 years of practice under [the] good-faith exception, we have ‘never applied’
the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent
police conduct,” and “ ‘ “[p]enalizing the officer for the [appellate judges’] error” ’ ”



                                              8
could not logically contribute to deterring violations of the Fourth Amendment. (Id. at
p. 2429.)
      The same is true here. Officer Olson acted in “objectively reasonable reliance” on
binding California precedent construing Schmerber, and there was no police culpability.
      To this point, defendant contends only that McNeely did not enunciate a new rule,
but merely reaffirmed Schmerber’s totality of the circumstances test for exigency, and
“[j]ust because California courts have uniformly misinterpreted the Supreme Court’s
decision in Schmerber does not mean that police are or were excused from complying
with its clear mandates.” But that is exactly what Davis tell us: the law enforcement
officer may not be penalized for the appellate judges’ error. Under Davis, the
exclusionary rule “can have no application in this case.” (Davis, supra, 131 S.Ct. at
p. 2429.)
                                     DISPOSITION
      The order is affirmed.




                                                GRIMES, J.


      We concur:


                    RUBIN, Acting P. J.




                    FLIER, J.




                                            9
Filed 9/5/14
                          CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT



THE PEOPLE,                                        B253401

        Plaintiff and Respondent,                  (Los Angeles County
                                                   Super. Ct. No. SA080515)
        v.

ALEXANDER YOUN,                                       ORDER CERTIFYING
                                                   OPINION FOR PUBLICATION
        Defendant and Appellant.
                                                    [NO CHANGE IN JUDGMENT]


THE COURT:
        The opinion in the above-entitled matter filed on August 15, 2014, was not
certified for publication in the Official Reports. For good cause, it now appears that the
opinion should be published in the Official Reports and it is so ordered.
        There is no change in the judgment.




________________________________________________________________________
RUBIN, Acting P. J.              FLIER, J.                   GRIMES, J.
