                                                                                PD-0601-14
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 1/21/2015 3:47:03 PM
Janaury 22, 2015                                               Accepted 1/22/2015 2:00:09 PM
                                                                                 ABEL ACOSTA
                       Nos. PD-0601-14 & PD-0622-14                                      CLERK

                   TO THE COURT OF CRIMINAL APPEALS

                         OF THE STATE OF TEXAS


CLAYTON DEAN REEDER AND                                              Appellants
MARCUS BRUCE HOLIDY,

v.

THE STATE OF TEXAS,                                                    Appellee



                          Appeals from Rusk County


                                 * * * * *

                       STATE’S POST-SUBMISSION
                        SUPPLEMENTAL BRIEFS

                                 * * * * *

                              LISA C. McMINN
                          State Prosecuting Attorney
                            Bar I.D. No. 13803300

                          STACEY M. GOLDSTEIN
                      Assistant State Prosecuting Attorney
                             Bar I.D. No. 24031632

                                P.O. Box 13046
                             Austin, Texas 78711
                          information@spa.texas.gov
                          512-463-1660 (Telephone)
                              512-463-5724 (Fax)
      The State submits these post-submission supplemental briefs to further address

some issues raised during oral argument.

Applicability of Heien v. North Carolina

      In Heien, the Court addressed the validity of a traffic stop based on an officer’s

mistaken belief about the elements of an ambiguous brake-light traffic offense. __

U.S. __, 2014 U.S. LEXIS 8306, at *5 (2014). Even though the officer was wrong

about the elements of the offense, his belief that a violation had been committed was

reasonable, and so the stop based on that belief was also reasonable, i.e. supported by

reasonable suspicion. Id. at *21. Because the Fourth Amendment forbids only those

searches and seizures that are unreasonable, there was no constitutional violation. Id.

at *18. The entire rationale of Heien is that a Fourth Amendment violation does not

occur if the seizure is supported by probable cause or reasonable suspicion of a

substantive criminal law violation. It does not say that any reasonable mistake makes

any search or seizure reasonable. In fact, it said that an officer cannot be reasonably

mistaken about the requirements of the Fourth Amendment: “An officer’s mistaken

view that the conduct at issue [(a search or seizure)] did not give rise to such a

violation—no matter how reasonable—could not change that ultimate conclusion.”

Id. at *17.

      The distinction between reliance on a substantive criminal law and reliance on

                                           1
a statute purporting to authorize a search is not new. In Michigan v. DeFillippo, the

Court stated: “We have held that the exclusionary rule required suppression of

evidence obtained in searches carried out pursuant to statutes, not previously declared

unconstitutional, which purported to authorize the searches in question without

probable cause or a warrant.” 443 U.S. 31, 35-51 (1979). In those circumstances, the

search-authorizing statutes did not comport with the Fourth Amendment. Id. In

contrast, the Court observed that substantive criminal law offenses do not directly

authorize a search and seizure; they are relevant only to the facts and circumstances

that constitute probable cause or reasonable suspicion supporting an arrest. Id. Or,

as the Court explained,

       The validity of the arrest does not depend on whether the suspect
       actually committed a crime; the mere fact that the suspect is later
       acquitted of the offense for which he is arrested is irrelevant to the
       validity of the arrest. We have made clear that the kinds and degree
       of proof and the procedural requirements necessary for a conviction
       are not prerequisites to a valid arrest.

Id. at 36.

       The Court went on to hold that the search of DeFillippo made pursuant to his

arrest based on probable cause that he violated a statute (failure to identify), which

was later declared unconstitutional for vagueness, did not violate the Fourth

Amendment. Id.


                                          2
      The Supreme Court has also addressed the distinction between finding no

violation occurred and choosing not to apply the exclusionary remedy. In Illinois v.

Krull, also cited by Heien, 2014 U.S. LEXIS 8306, at *17, a statute that authorized

warrantless inspections of automobile wrecking yards was held unconstitutional

because it gave officers unbridled discretion. Illinois v. Krull, 480 U.S. 340, 1164

(1987). Recognizing that the search of Krull’s business under the statute violated the

Fourth Amendment, the Court held that, because law enforcement relied on the

presumptively valid statute in good faith, the federal exclusionary rule did not require

the remedy of suppression. Id. at 1169-72. In doing so, the Court observed that the

deterrent purpose of the exclusionary rule is not served because a statute, enacted by

legislators, provided the basis for the mistake; there was no improper police conduct.

Id. at 352.   In the Court’s view, “the greatest deterrent to the enactment of

unconstitutional statutes is the power of courts to invalidate such statutes.” Id.

      Transportation Code Section 724.012(b) is a search-authorizing statute.

Therefore, any mistake as to its terms is controlled by Krull. So if, as per Villarreal,

the search pursuant to the statute without a warrant violated the Fourth Amendment,

then there is a Fourth Amendment violation. An officer’s reasonable belief that the

statute allowed the blood draw without a warrant does not make the search

reasonable. The question then becomes whether the remedy of suppression is

                                           3
appropriate. Cf. Davis v. United States, 131 S. Ct. 2419, 2431 (2011) (“the

retroactive application of a new rule of substantive Fourth Amendment law raises the

question whether a suppression remedy applies . . . .”). Given the statute and the

Court’s statement in Beeman v. State,1 that the statute operates independently from

a warrant, it would be appropriate to conclude that the federal good-faith exception

applies.

      Also, if it is ultimately determined that the statute has always had a warrant

requirement, then any officer who executed a search under the statute without a

warrant violated the Fourth Amendment. The application of the exclusionary rule

becomes questionable, however. If an officer executed a search pursuant to the

statute, but under a reasonably mistaken belief that it did not require a warrant, then

the good faith exception should apply. But if the officer should have known that the

statute included a warrant requirement, it cannot be said that he reasonably relied on

the statute at all. Instead, the officer acted outside the scope of the statute, and the

good faith exception would be inapplicable.



      1
        86 S.W.3d 613, 615 (Tex. Crim. App. 2002); see also State v. Johnston,
336 S.W.3d 649, 661 (Tex. Crim. App. 2011) (“In light of Beeman, the court of
appeals was correct to hold that compliance with Section 724.017 would provide
one way to establish reasonableness under the Fourth Amendment.”).


                                           4
Reasonableness Framework

      Further analysis of the application of the reasonableness framework to

warrantless mandatory blood draws under the implied consent law’s repeat offender

provision may also be helpful.

      Whether a warrantless blood-draw conducted pursuant to the repeat-offender

implied consent mandatory blood-draw provision is reasonable presents a

“Goldilocks” predicament. The well-established warrant exceptions are not “just

right” for one reason or another. But shoe-horning facts into an established exception

is unnecessary. Reasonableness—the touchstone of the Fourth Amendment—is the

“just right” theory. See e.g., Schmerber, 384 U.S. at 768; Sitz, 496 U.S. at 450;

Segundo, 270 S.W.3d at 98; McGee, 105 S.W.3d at 616. Consideration of the various

factors borrowed from precedent assessing reasonableness in other contexts

establishes that a Section 724.012(b)(3)(B) blood draw does not violate the Fourth

Amendment.

      Reduced Expectation of Privacy

      The following provide a basis for recognizing a reduced expectation of privacy

in this context:

      •      Use of a vehicle on public roadways. See New York v. Class, 475 U.S.
             106, 113 (1986) (reduced expectation of privacy expected in automobile
             due to pervasive regulation); Skinner v. Ry. Labor Executives’ Ass’n,

                                          5
            489 U.S. 602, 627 (1989) (“the expectations of privacy of covered
            employees are diminished by reason of their participation in an industry
            that is regulated pervasively to ensure safety . . . .”).

      •     Arrest. See Riley v. California, 134 S. Ct. 2473, 2485 (2014) (reduced
            privacy expectations by virtue of arrest); Maryland v. King, 133 S. Ct.
            1958, 1979 (2013) (“A brief intrusion of an arrestee’s person is subject
            to the Fourth Amendment, but a swab of this nature does not increase
            the indignity already attendant to normal incidents of arrest.”).

      •     Citizens are presumed to know the law. Cheek v. United States, 498
            U.S. 192 (1991); see also United States v. Biswell, 406 U.S. 311, 315-16
            (1972) (administrative search of firearms business reasonable because
            owner was aware of statutory authorization and time, place, scope
            limitations).

      •     Repeat offender status. Cf. Griffin v. Wisconsin, 483 U.S. 868, 873-80
            (1987) (regulation authorizing warrantless search of probationer’s home
            based on “reasonable grounds” that there is contraband); United States
            v. Knights, 534 U.S. 112, 119-22 (2001) (search of probationer
            reasonable based on a known and accepted cart blanche probation
            search condition and reasonable suspicion of wrongdoing); Samson v.
            California, 547 U.S. 843, 852-56 (2006) (suspicionless search of
            parolee’s person reasonable based on a known and accepted cart
            blanche parole search condition).

            A person’s non-probationary or parole status is not determinative.
            Convicted persons may be denied constitutional rights on the basis of a
            conviction, even where the sentence has been fully discharged. See,
            e.g., Richardson v. Ramirez, 418 U.S. 24, 52-55 (1974) (exclusion of
            felons from voting); District of Columbia v. Heller, 554 U.S. 570-626-
            27 (2008) (noting exclusion of laws barring felons from possessing
            firearms from its holding); Kansas v. Hendricks, 521 U.S. 346, 369
            (1997) (civil commitment of dangerous sex-offenders).2

      2
         A comprehensive list of collateral consequences that flow from a felony
conviction in Texas can be found on the ABA’s Criminal Justice Section’s
                                        6
       Limited Discretion

       The limited discretion afforded to an officer to draw blood and the limited

circumstances under which he may do so also support the reasonableness of the

statute.

       •     Probable Cause of a Chapter 49, Penal Code, offense is required. Cf.
             King, 133 S. Ct. at 1970 (arrestee in valid police custody for serious
             offense supported by probable cause); Griffin, 483 U.S. at 873-80
             (“reasonable grounds” required for search of probationer’s home);
             Knights, 534 U.S. at 119-22 (reasonable suspicion of wrongdoing
             required for search of probationer’ home); Cupp v. Murphy, 412 U.S.
             291, 296 (1973) (fingernail scraping for readily destructible evidence
             reasonable when conducted pursuant to station-house detention and
             probable cause).

       •     Of those arrested for a Chapter 49 offense, the search authorization
             applies to only those with two prior DWI convictions. Because officers
             will generally not know which suspects qualify for a mandatory draw,
             it is highly unlikely that arrests under Chapter 64 will be made as a
             pretext for enforcing Section 724.012. Thus, in nearly all cases officers
             exercise no discretion in executing a mandatory draw. Cf. King, 133 S.
             Ct. at 1967 (DNA sample from all persons arrested for serious offenses);
             Skinner, 489 U.S. at 629-30 (“triggering event” mandating testing is
             unknown and cannot be predicted).

       The Test is Reasonable and Limited

       The reasonableness of the method is well-established, and the proposed use is

more limited than in other cases upheld by the Supreme Court.



National Inventory of Collateral Consequences of Conviction at
http://www.abacollateralconsequences.org/search/?jurisdiction=45.
                                          7
      •     Blood draws are presumptively reasonable, and the amount of blood
            taken is small. 3 See State v. Johnston, 336 S.W.3d 649, 659 (Tex. Crim.
            App. 2011) (holding that blood draws are reasonable and noting that a
            small sample is taken).

      •     The analysis is limited to the discovery of intoxicants. Compare with
            Riley, 134 S. Ct. at 2489 (data contained on cell phone quantitatively
            and qualitatively different than any other object); King, 133 S. Ct. at
            1967 (DNA for identification and unsolved crime comparison); Segundo
            v. State, 270 S.W.3d 79, 98 (Tex. Crim. App. 2008) (DNA collection to
            assist investigating and prosecuting sex-related offenses and other cases
            in which biological evidence was recovered); McGee v. State, 105
            S.W.3d 609, 617-18 (Tex. Crim. App. 2003) (visual body cavity
            inspection incident to arrest).

      Equally Vital Administrative Purpose

      Blood-draw evidence is equally vital to the enforcement of non-punitive,
      administrative license suspensions and refusals.4 Compare with New York v.
      Burger, 482 U.S. 691, 713-14 (1987) (junkyard regulatory warrantless
      inspection scheme, which may be conducted by police, promotes the same goal
      as criminal laws by deterring auto theft); Mich. Dep’t of State Police v. Sitz,
      496 U.S. 444, 449-50, 453-55 (1990) (upholding checkpoint to discover drunk-
      drivers as reasonable and noting that dispensing with individualized suspicion
      does not always require a non-criminal law-enforcement purpose).

      Exigency

      Finally, though insufficient on its own as a justification, there is always an
      element of exigency with respect to dissipation of intoxicants that should be

      3
        Any fears about how the test is administered is an entirely separate
question and therefore should not factor into the reasonableness of the
authorization of the draw. Johnston, 336 S.W.3d at 663 (noting that use of force is
generally reasonable).
      4
          See TEX. TRANSP. CODE §§ 724.032-042.
                                         8
considered. See Skinner, 489 U.S. at 623 (recognizing, among other things, that
the delay needed to get a warrant may result in the destruction of evidence).




                                   9
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

reverse the judgments of the Court of Appeals. But if the Court affirms, the State

prays that the Court remand the cases so that the courts of appeals can decide if

suppression is warranted.




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                     CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

these documents contain 2,040 words, exclusive of the items excepted by TEX. R.

APP. P. 9.4(i)(1).




                                     /s/ STACEY M. GOLDSTEIN
                                     Assistant State Prosecuting Attorney




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                          CERTIFICATE OF SERVICE

      The undersigned certifies that copies of the State’s Post-Submission

Supplemental Briefs have been served on January 21, 2015, via certified electronic

service provider to:


Hon. Richard Kennedy
Rusk County Courthouse
115 North Main Street
Henderson, Texas 75652
rkennedy@co.rusk.tx.us


Hon. Ebb B. Mobley
422 North Center Street
P.O. Box 2309
Longview, Texas 75606
ebbmob@aol.com




                                      /s/ STACEY M. GOLDSTEIN
                                      Assistant State Prosecuting Attorney




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