                 IN THE SUPREME COURT OF TENNESSEE
                            AT KNOXVILLE
                   September 30, 2015 Session Heard at Nashville

       STATE OF TENNESSEE v. CORRIN KATHLEEN REYNOLDS

              Appeal by Permission from the Court of Criminal Appeals
                         Criminal Court for Knox County
                     No. 99372    Steven Wayne Sword, Judge


               No. E2013-02309-SC-R11-CD – Filed November 3, 2016



SHARON G. LEE, J., dissenting.

       I agree with the Court’s conclusion that the warrantless blood draw violated Ms.
Reynolds’ right to be free from unreasonable searches and seizures, as guaranteed by the
Fourth Amendment to the United States Constitution and article I, section 7 of the
Tennessee Constitution. I dissent from the Court’s decision to excuse these constitutional
violations by adopting a good-faith exception to the exclusionary rule. The adoption of
this exception for a constitutional violation erodes our citizens’ rights to be free from
unreasonable searches and seizures as guaranteed by the United States and Tennessee
Constitutions. Therefore, I would hold that the test results of Ms. Reynolds’ warrantless
blood draw must be suppressed. Moreover, given the unusual facts of this case, the
adoption of a good-faith exception for a constitutional violation based on an officer’s
good-faith reliance on binding judicial precedent, as set forth in Davis v. United States,
564 U.S. 229, 241 (2011), is ill-conceived for many reasons.

       First, as the Court discusses, courts adopting a good-faith exception have
concluded that the primary interest served by the exclusionary rule is deterring police
misconduct. See United States v. Leon, 468 U.S. 897, 916 (1984). However, I agree with
the concerns expressed by other courts that adopting a good-faith exception in cases
involving constitutional error undermines the integrity of the judicial process. See, e.g.,
State v. Marsala, 579 A.2d 58, 59 (Conn. 1990); State v. Guzman, 842 P.2d 660, 667
(Idaho 1992); State v. Gutierrez, 863 P.2d 1052, 1068 (N.M. 1993). In discharging our
duty to protect citizens’ constitutional guarantees, we have, in some circumstances,
interpreted our Tennessee Constitution coextensively with the United States Constitution.
Yet, we are free to extend greater protections than those afforded under the United States
Constitution. Under the facts of this case, we should afford our citizens greater protection
against unreasonable searches than is provided by the United States Constitution.
        Second, by its decision, the Court is sanctioning the officer’s invasive act of taking
a sample of Ms. Reynolds’ blood without a warrant and in violation of her constitutional
rights. In doing so, the Court has created a category of cases in which police officers may
violate constitutional rights with no consequences. Justice Sandra Day O’Connor, in her
dissent in Illinois v. Krull, 480 U.S. 340 (1987), where the United States Supreme Court
adopted a good-faith exception for reasonable reliance upon legislative acts later found to
be unconstitutional, wisely observed that the exception allows a “grace period . . . during
which the State is permitted to violate constitutional requirements with impunity.” Id. at
361. Although the Court’s reasoning in Ms. Reynolds’ case is not based on Krull, Justice
O’Connor’s concerns are applicable. The police officer did not obtain a warrant before
the blood draw, and there was no proof of any exigent circumstances. Under the Court’s
decision, the State nonetheless will be allowed to use the results of the warrantless blood
draw as evidence against Ms. Reynolds. Moreover, the State will receive a “grace period”
based on the good-faith exception to use evidence obtained in violation of the United
States and Tennessee Constitutions in all other cases pending at the time the decision was
announced in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

        Third, the Court’s decision treats Ms. Reynolds differently than the defendants in
McNeely and Aviles v. State, 443 S.W.3d 291 (Tex. Ct. App. 2014). In McNeely, a
Missouri police officer stopped Tyler McNeely’s truck for exceeding the speed limit and
repeatedly crossing the center line. McNeely, 133 S. Ct. at 1556. The officer observed
that Mr. McNeely’s breath smelled of alcohol, he had bloodshot eyes and slurred speech,
and he appeared unsteady on his feet when getting out of his truck. He admitted to the
officer he had consumed a “couple of beers.” Mr. McNeely performed poorly on field
sobriety tests and refused a breath test. Id. at 1556–57. The officer arrested him and took
him to the station house where he again refused to take a breath test. Id. at 1557. Mr.
McNeely was taken to a hospital where, over his objection, a blood sample was taken.
The officer made no effort to get a warrant. Mr. McNeely was charged with driving while
intoxicated. The trial court suppressed the results of the blood test based on the officer’s
failure to obtain a warrant and the lack of exigent circumstances. The Missouri Supreme
Court affirmed. The United States Supreme Court held that in drunk driving cases, the
natural dissipation of alcohol in the bloodstream does not constitute a per se exigency to
justify conducting a blood test without a warrant. Id. at 1563. Notably, the United States
Supreme Court did not apply the good-faith exception it created in Davis to excuse this
illegal search. The blood test results were suppressed. Id. at 1568.

       Similarly, in Aviles, 443 S.W.3d at 292, a police officer in Texas twice saw a truck
driven by Antonio Aviles veer across several lane markers. The officer stopped the truck
and saw that Mr. Aviles had bloodshot eyes, slurred speech, and was unsteady on his feet
as he got out of the truck. Mr. Aviles showed signs of intoxication on field sobriety tests.
After arresting Mr. Aviles for driving while intoxicated (“DWI”), the officer discovered
Mr. Aviles had two prior DWI convictions. Mr. Aviles refused to give a breath or blood
                                             -2-
sample for testing. Based on a section of the Texas Transportation Code that makes
testing mandatory for a person with a prior DWI conviction, the officer required Mr.
Aviles to submit to a blood test.1 The trial court denied Mr. Aviles’ motion to suppress
the test results. He pleaded nolo contendere to the DWI charge and appealed. The Texas
Court of Appeals affirmed, and the Texas Court of Criminal Appeals denied Mr. Aviles’
petition for review. The United States Supreme Court granted Mr. Aviles’ petition and
vacated the trial court’s decision in light of McNeely. Id. at 292–93. On remand, the
Texas Court of Appeals found that the blood sample was taken without a warrant, there
were no exigent circumstances, and the statutory mandatory blood draw was not a
permissible exception to the warrant requirement. Id. at 294. The warrantless blood draw
violated Mr. Aviles’ rights under the Fourth Amendment, and the results from the blood
test were suppressed.

        Like the drivers in McNeely and Aviles, Ms. Reynolds was subjected to a
warrantless blood draw. After being seriously injured in a traffic accident, Ms. Reynolds
was taken by air ambulance to the hospital. One other person was injured, and two people
died in the accident. The officer neither witnessed the accident nor saw Ms. Reynolds
driving the vehicle. He was dispatched to the hospital to obtain a blood sample from Ms.
Reynolds and another person injured in the accident. According to the officer, the blood
draw was mandatory. Tennessee Code Annotated section 55-10-406(f)(1) provides that,
when an officer has probable cause to believe the driver of a vehicle involved in an
accident resulting in the injury or death of another has committed a violation of the
driving under the influence statute, then the officer “shall cause the driver to be tested for
the purpose of determining the alcohol or drug content of the driver’s blood.” Ms.
Reynolds did not consent to the test and could not withdraw her implied consent. There
was no proof of any exigent circumstances, and the officer did not obtain a warrant. The
trial court granted Ms. Reynolds’ motion to suppress, and the Court of Criminal Appeals
reversed. While recognizing that the warrantless blood draw violated Ms. Reynolds’ right
to be free from unreasonable searches and seizures, as guaranteed by the Fourth
Amendment to the United States Constitution and article I, section 7 of the Tennessee



       1
           Section 724.012(b)(3)(B) states:

               A peace officer shall require the taking of a specimen of the person’s breath or
       blood . . . [if] at the time of the arrest, the officer possesses or receives reliable
       information from a credible source that the person . . . on two or more occasions, has
       been previously convicted of or placed on community supervision for an offense under
       Section 49.04, 49.05, 49.06 or 49.065 Penal Code, or an offense under the laws of
       another state containing elements substantially similar to the elements of an offense under
       those sections.

Tex. Transp. Code Ann. § 724.012(b)(3)(B).
                                                  -3-
Constitution, the Court’s ruling today allows for the admission of the blood test results
under a good-faith exception that was not applied by the courts in McNeely or Aviles.

       Fourth, assuming I concurred in the adoption of a good-faith exception for a
constitutional violation based on good-faith reliance on binding judicial precedent, I
would not apply it here. The Supreme Court in McNeely did not overrule its previous
decision in Schmerber v. California, 384 U.S. 757 (1966). It merely clarified it. As the
Court recognizes, after Schmerber was decided, there was considerable disagreement
about its meaning and scope. Moreover, the language in Schmerber indicates it was based
on the particular facts presented, and the Supreme Court reached its conclusion “[g]iven
these special facts.” Id. at 771.

        In addition to this uncertainty, this Court never interpreted Schmerber as
establishing a per se rule that the dissipation of alcohol always results in the finding of
exigent circumstances. Although cases decided by the Court of Criminal Appeals cited
language from Schmerber that the percentage of alcohol in the blood begins to diminish
shortly after drinking stops, these cases do not rise to the level of “binding judicial
precedent.” In State v. Humphreys, 70 S.W.3d 752, 762–63 (Tenn. Crim. App. 2001), for
example, the Court of Criminal Appeals upheld the admissibility of blood test results
based on the defendant’s consent to the blood test. An officer observed the defendant
erratically operating a vehicle on a public road. Id. at 756. The officer turned on the blue
lights, followed the vehicle, and observed the vehicle again weave back and forth across
the roadway. When he stopped the vehicle, the officer smelled a strong odor of alcohol
and saw the defendant was slumped forward, his eyes red and watery, his speech slurred,
and he appeared sleepy or sedated. Id. at 757. The defendant did not perform well on
field sobriety tests and was arrested. The defendant consented to a blood test, signed the
implied consent form, and was transported to a hospital where a sample of his blood was
taken. Before trial, the defendant moved to suppress the results of the blood test asserting
his consent was not voluntary. Id. at 758. The trial court found that his consent was
voluntary, and the Court of Criminal Appeals affirmed on that basis. Id. at 759–60. In
dicta, the Court of Criminal Appeals, citing Schmerber, noted that, since “evidence of
blood alcohol content begins to diminish shortly after drinking stops, a compulsory
breath or blood test, taken with or without the consent of the donor, falls within the
exigent circumstances exception to the warrant requirement.” Id. at 760–61.2 Given the
prevailing confusion surrounding Schmerber, the Court of Criminal Appeals’ dicta did


        2
          The opinion cited State v. Janosky, M1999-02574-CCA-R3-CD, 2000 WL 1449367 (Tenn.
Crim. App. Sept. 29, 2000), an unpublished opinion written by the author of Humphreys, which quoted
the same exigent circumstances language. Janosky, however, involved the admissibility of a breath test
taken with the defendant’s consent. Id. at *3. Thus, the issue before the trial court was not the existence of
exigent circumstances, but whether the consent was voluntary.

                                                     -4-
not rise to the level of “binding judicial precedent,” particularly for the purpose of
adopting a good-faith exception under article I, section 7 of the Tennessee Constitution.3

        Finally, I am not alone in my concerns regarding the adoption of a good-faith
exception for violations of Fourth Amendment protections. Some state courts have
declined to adopt the Leon good-faith exception because it erodes the constitutional rights
of its citizens or otherwise conflicts with state statutory or constitutional law.4 At least
two state courts have rejected the Davis good-faith exception. In Brown v. State, 767
S.E.2d 299, 302 (Ga. Ct. App. 2014), the Georgia Court of Appeals did not apply a
good-faith exception, relying on the Georgia Supreme Court’s decision in Gary v. State,
422 S.E.2d 426, 429 (Ga. 1992), which recognized that the court has the power to impose
higher standards on searches and seizures than required by the United States Constitution.
In McClintock v. State, 480 S.W.3d 734, 742 (Tex. Ct. App. 2015), the court declined to

        3
          The Court notes that “[t]he State urges us to adopt the good-faith exception articulated in Davis
and points out, correctly, that courts in several other jurisdictions have adopted [the Davis] good-faith
exception and it has been applied to prevent the exclusion of evidence obtained from warrantless blood
draws conducted prior to McNeely.” (Footnotes omitted). Only five of the thirteen cases cited in footnote
22 actually involved warrantless blood draws. Moreover, in those cases, the courts emphasized that the
binding judicial precedent in those jurisdictions clearly permitted warrantless blood draws under the
exigent circumstances exception. Thus, these cases are distinguishable.
        4
           See Marsala, 579 A.2d at 59 (concluding that the Leon good-faith exception is incompatible
with the Connecticut Constitution); Dorsey v. State, 761 A.2d 807, 820 (Del. 2000) (finding that there can
be no good-faith exception when the probable cause requirement in the Delaware Constitution is not met);
Gary v. State, 422 S.E.2d 426, 429 (Ga. 1992) (holding that based on the unequivocal language of
Georgia’s statutory exclusionary rule, “adopting the Leon good-faith exception would be tantamount to
judicial legislation”); State v. Guzman, 842 P.2d 660, 677 (Idaho 1992) (refusing to “adhere to a policy of
sheepishly following in the footsteps of the [United States] Supreme Court in the area of state
constitutional analysis” and being convinced that Leon is ill-conceived and cannot be reconciled with
article 1, section 17 of the Idaho Constitution); State v. Cline, 617 N.W.2d 277, 290 (Iowa 2000)
(concluding that the adoption of a good-faith exception would only encourage lax practices by
government officials in all three branches of government), abrogated on other grounds by State v. Turner,
630 N.W.2d 601 (Iowa 2001); State v. Canelo, 653 A.2d 1097, 1102 (N.H. 1995) (holding that a
good-faith exception is incompatible with the guarantees of the New Hampshire Constitution); State v.
Novembrino, 519 A.2d 820, 857 (N.J. 1987) (declining to adopt the Leon good-faith exception because it
“would tend to undermine the constitutionally guaranteed standard of probable cause, and in the process
disrupt the highly effective procedures employed by our criminal justice system to accommodate that
constitutional guarantee without impairing law enforcement . . . .”); Gutierrez, 863 P.2d at 1068 (holding
that the exclusionary rule is incompatible with the constitutional protections of the New Mexico
Constitution); State v. Carter, 370 S.E.2d 553, 562 (N.C. 1988) (concluding that the public policy of the
state is to exclude evidence obtained in violation of the North Carolina Constitution); Commonwealth v.
Edmunds, 586 A.2d 887, 903 (Pa. 1991) (declining to apply the Leon good-faith exception because it
undermines state constitutional provisions and rules of criminal procedure); State v. Oakes, 598 A.2d 119,
126–27 (Vt. 1991) (rejecting the Leon good-faith exception for state constitutional violations); State v.
Afana, 233 P.3d 879, 886 (Wash. 2010) (en banc) (finding a good-faith exception incompatible with the
“nearly categorical exclusionary rule” under the Washington Constitution).
                                                   -5-
adopt the Davis good-faith exception because it was inconsistent with the provisions of
the Texas statutory exclusionary rule.

        Drunk driving is a serious problem and threatens the lives of innocent people.
However, to ensure the protection guaranteed to our citizens by article I, section 7 of the
Tennessee Constitution, to maintain a remedy for violations of those protections, and to
promote judicial integrity and fairness, this Court should decline to adopt the Davis
good-faith exception to the exclusionary rule. Although the United States Supreme Court
has adopted a good-faith exception, we have the authority to provide the citizens of our
state with greater protections, and I submit we should do so in this case. As Chief Justice
John Marshall so eloquently stated in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803), “The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an injury. One of the
first duties of government is to afford that protection.”

      For these reasons, I respectfully dissent.




                                                   _______________________________
                                                   SHARON G. LEE, JUSTICE




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