                                                                                                      12/01/2017
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                              October 7, 2014 Session
                Remanded by the Supreme Court on November 22, 2016

                    STATE OF TENNESSEE v. MELVIN BROWN

             Interlocutory Appeal from the Criminal Court for Shelby County
                          No. 13-00735 W. Mark Ward, Judge


                                No. W2014-00162-CCA-R9-CD


The Defendant, Melvin Brown, was indicted by the Shelby County Grand Jury for
driving under the influence (“DUI”); DUI with a blood alcohol concentration of .20% or
more; violation of the implied consent law; reckless driving; and driving on a revoked,
suspended, or cancelled license. The trial court granted the Defendant’s motion to
suppress the results of his blood test on the basis that Tennessee Code Annotated section
55-10-406 was unconstitutional1 and that there were no exigent circumstances that
prevented the officers from obtaining a warrant. Thereafter, the State sought and was
granted permission to file an interlocutory appeal, contending that Tennessee Code
Annotated section 55-10-406 was constitutional, that exigent circumstances justified the
warrantless blood draw, and that the warrantless blood draw was permissible pursuant to
the implied consent law. Upon review, we reversed the portion of the trial court’s
judgment declaring Code section 55-10-406(f)(1) unconstitutional but affirmed the trial
court’s suppression of the results of the warrantless blood draw because no exception to
the warrant requirement existed. State v. Melvin Brown, No. W2014-00162-CCA-R9-
CD, 2015 WL 1951870 (Tenn. Crim. App. Apr. 30, 2015), perm. app. granted and
remanded, No. W2014-00162-SC-R11-CD (Tenn. Nov. 22, 2016) (order). On November
22, 2016, the Tennessee Supreme Court granted the State’s application for permission to
appeal and remanded the case to this court for reconsideration in light of the supreme



        1
           The trial court’s order denying the motion to suppress does not explicitly rule on the
constitutionality of Code section 55-10-406. However, in a hearing prior to the drafting of the order by
the State, the trial court expressed its conclusion that the statute was unconstitutional. The court
reasoned:

        [I]mplicit in the ruling [granting the Defendant’s suppression motion] is that [Tennessee
        Code Annotated section 55-10-406(f)(1)] is unconstitutional, but there are some good
        arguments to be made that it might not be, but I decided to err [in] favor of ruling it
        unconstitutional, until we get a ruling to the contrary.
court’s opinion in State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016).2 State v. Melvin
Brown, No. W2014-00162-SC-R11-CD (Tenn. Nov. 22, 2016) (order).                       Upon
reconsideration, we conclude that the good-faith exception to the exclusionary rule
adopted in Reynolds applies to this case and that suppression of the Defendant’s test
results was not required. Therefore, the trial court’s judgment suppressing the test results
of the warrantless blood draw is reversed, and the case is remanded to the trial court for
further proceedings consistent with this opinion.

     Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court
                              Reversed and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and TIMOTHY L. EASTER, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Michael McCusker, Assistant District
Attorney General, for the Appellant, State of Tennessee.

Claiborne H. Ferguson, Memphis, Tennessee (on appeal), and Varonica R. Cooper,
Memphis, Tennessee (at trial), for the Appellee, Melvin Brown.


                                  OPINION ON REMAND

       This case concerns a December 6, 2011 car accident involving injuries to a third
party that occurred in Memphis, Tennessee. The Defendant, who caused the accident,
refused the officer’s request to submit to a blood test to determine his blood alcohol
concentration, and his blood was taken, without a warrant and over his objections,
pursuant to Tennessee Code Annotated section 55-10-406(f)(1) (Supp. 2011).

        The Defendant subsequently filed a motion to suppress the results of his blood
test, contending that no exigent circumstances justified the warrantless search and that
Code section 55-10-406(f) was unconstitutional because it allowed officers to conduct
warrantless searches without a valid exception to the warrant requirement. The State
filed a response, arguing that consent to the search was not required because the
Defendant had given implied consent to the mandatory blood draw, pursuant to the
implied consent law, at the time he received his Tennessee driver’s license. The State
also asserted that because the officers’ investigation of the accident prevented them from

       2
           Because of a clerical error in the court’s CTRACK system that monitors pending matters,
official notice of the remand was not received until September 19, 2017.
                                               -2-
having time to secure a search warrant, exigent circumstances existed, making the search
permissible under Missouri v. McNeely, 569 U.S. 141 (2013).

       At the suppression hearing, Officer Christopher Draper of the Memphis Police
Department (MPD) testified that he responded to the scene of a three-car accident on
December 6, 2011, around 9:00 p.m. The Defendant was suspected of DUI, and Officer
Draper sat with the Defendant for approximately thirty minutes until certified DUI
Officer Casey Kirby arrived on the scene. Officer Draper assisted Officer Kirby with
some of the paperwork for the DUI investigation, including the completion of the
“Standard Field Sobriety Form.” Officer Draper noted in his report that the Defendant
had obvious signs of alcohol impairment, including a strong odor of alcohol, watery eyes,
and slurred speech. He recalled that the accident occurred in a “[v]ery busy intersection”
and required vehicles to be towed.

       On cross-examination, Officer Draper testified that there were two other officers at
the scene investigating the accident while he and Officer Kirby investigated the
Defendant for DUI. Officer Draper agreed that the Defendant had not been injured in the
accident or transported to the hospital and that this DUI stop was “pretty much standard
routine.” He estimated that the Defendant remained at the scene for an hour and a half
before being transported to the police station.

       Officer Casey Kirby, a trained DUI officer with the MPD DUI Unit, testified that
he responded to the scene after officers there requested a DUI officer. Upon his arrival,
Officer Kirby and another officer took the Defendant to a parking lot adjacent to the
accident. He observed that the Defendant had a strong odor of alcohol, bloodshot and
watery eyes, slurred speech, and a slow reaction time. He recalled that the Defendant
was swaying and staggering, but because the Defendant complained of leg pain, Officer
Kirby did not ask the Defendant to perform a walk and turn test or one leg stand test.
Officer Kirby advised the Defendant of the implied consent law and requested that he
submit to a breath test, but the Defendant refused. Because a third party had been injured
in the accident, Officer Kirby determined that the Defendant was subject to a mandatory
blood draw pursuant to Tennessee Code Annotated section 55-10-406(f)(1). He
explained, “Since [the Defendant] was involved in an accident where there w[ere]
injuries to a third party . . . the State law at the time advised me that I’m able to go ahead
and take . . . a mandatory blood draw if he refuses . . . a BAC test.” When Officer Kirby
informed the Defendant that the blood test was mandatory, the Defendant continued to
refuse the test. Thereafter, Officer Kirby transported the Defendant to the police station
where a nurse met them and took a blood sample from the Defendant.

       Officer Kirby testified that at the time of this incident, it was not MPD’s standard
operating procedure to obtain warrants for blood draws and that he understood the law to
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be that warrants were not required for mandatory blood draws. However, he said that he
had recently begun obtaining warrants for all mandatory blood draws and that it generally
took “about two hours to get the warrant in hand” and “another thirty, maybe forty
minutes” for a nurse to come to the station and take a blood sample. On cross-
examination, he agreed that this case was a “pretty routine DUI stop.” He also
acknowledged that he could obtain a warrant at any hour of the day.

       At the conclusion of this hearing, the trial court ruled that it was granting the
motion to suppress because there were no exigent circumstances that prevented the
officers from obtaining a warrant. The trial court also expressed its belief that the
implied consent statute would be declared unconstitutional and that a good faith
exception to the exclusionary rule would not be adopted. On November 4, 2013, the trial
court entered an order granting the Defendant’s motion to suppress, which included the
following findings of fact and conclusions of law:

      [T]he State presented the testimony of Memphis Police Officers
      Christopher Draper and Casey Kirby. Officer Kirby testified that he
      responded to the scene of the motor vehicle accident in his capacity as a
      DUI Detection Officer. At the request of the arresting officer, Officer
      Kirby investigated the Defendant for suspicion of driving under the
      influence. Subsequently, Officer Kirby read the Defendant the Tennessee
      Implied Consent Law at which time the Defendant refused to submit to a
      breath or blood test.

              Thereafter, Officer Kirby testified that he made the decision to draw
      blood pursuant to Tennessee Code Annotated [section] 55-10-406
      (hereinafter referred to as T.C.A.) upon his reasonable, articulable suspicion
      that the Defendant was involved in a motor vehicle accident with injuries to
      a third party while said Defendant was under the influence of alcohol.

             Upon review of the evidence presented by the State, this Court
      concludes that exigent circumstances were not presented that would have
      prevented the officers from getting a warrant for the blood draw from the
      Defendant pursuant to Schmerber v. California, 384 U.S. 757 (1966).
      Instead, the Court finds that the officers proceeded to make a warrantless
      blood draw while acting pursuant to the dictates of T.C.A. § 55-10-406,
      which allows for a mandatory blood draw in cases where there is a motor
      vehicle accident with injuries to a third party.

            WHEREFORE, PREMISES CONSIDERED, this Court finds that
      the officers proceeded without [a] warrant in violation of the Fourth
                                       -4-
       Amendment of the United States Constitution and Article I, § 7 of the
       Tennessee Constitution, and therefore grants the Defendant’s Motion to
       Suppress the blood samples drawn from the Defendant pursuant to Missouri
       v. McNeely, [569 U.S. 141] (2013).

After the State sought and was granted permission to file an interlocutory appeal, this
court reversed the portion of the trial court’s judgment declaring Code section 55-10-
406(f)(1) unconstitutional but affirmed the trial court’s suppression of the results of the
warrantless blood draw after concluding that no exception to the warrant requirement
existed. Melvin Brown, 2015 WL 1951870, at *7. The Tennessee Supreme Court then
entered an order granting the State’s application for permission to appeal and remanding
the case to this court for reconsideration in light of Reynolds. Melvin Brown, No.
W2014-00162-SC-R11-CD (Tenn. Nov. 22, 2016) (order).

       In reconsidering this case, we recognize that the scope of our review is controlled
by the Tennessee Supreme Court’s remand order. Moreover, our previous conclusions in
this case, that Code section 55-10-406(f)(1) is constitutional and that no exception to the
warrant requirement existed at the time of the search, are binding upon this panel of the
court.

                                      ANALYSIS
      On remand, we are tasked with reconsidering the Defendant’s case in light of
Reynolds. As we will explain, because the good-faith exception to the exclusionary rule
adopted in Reynolds applies to this case, the suppression of the Defendant’s test results
was not required.

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect citizens from unreasonable searches and seizures.
U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. Because warrants protect against
unreasonable searches, law enforcement officials must generally obtain a warrant prior to
conducting a search. Kentucky v. King, 563 U.S. 452, 459 (2011); see Birchfield v.
North Dakota, 136 S. Ct. 2160, 2181 (2016) (noting that warrants not only “ensure that a
search is not carried out unless a neutral magistrate makes an independent determination
that there is probable cause to believe that evidence will be found” but also “limit[] the
intrusion on privacy by specifying the scope of the search—that is, the area that can be
searched and the items that can be sought”); State v. Meeks, 262 S.W.3d 710, 722 (Tenn.
2008) (“[A]s a general matter, law enforcement officials cannot conduct a search without
having first obtained a valid warrant.”). Consequently, a warrantless search or seizure is
presumed unreasonable and evidence obtained as a result will be suppressed “unless the
State demonstrates that the search or seizure was conducted pursuant to one of the
narrowly defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d
                                            -5-
626, 629 (Tenn. 1997) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971);
State v. Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996)). The generally recognized
exceptions to the warrant requirement include “search incident to arrest, plain view, stop
and frisk, hot pursuit, search under exigent circumstances, and . . . consent to search.”
State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005).

        The taking of a blood sample is a search. Birchfield, 136 S. Ct. at 2173; McNeely,
569 U.S. at 148; State v. Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006); Schmerber v.
California, 384 U.S. 757, 767-68 (1966). “[T]he physical intrusion occasioned by a
blood draw ‘infringes an expectation of privacy’ and ‘“[t]he ensuing chemical analysis of
the sample . . . is a further invasion of the tested [individual’s] privacy interests.’”
Scarborough, 201 S.W.3d at 616 (quoting Skinner v. Ry. Labor Executives’ Assn., 489
U.S. 602, 616 (1989)); see Birchfield, 136 S. Ct. at 2178 (stating that “a blood test, unlike
a breath test, places in the hands of law enforcement authorities a sample that can be
preserved and from which it is possible to extract information beyond a simple BAC
reading” and that “[e]ven if the law enforcement agency is precluded from testing the
blood for any purpose other than to measure BAC, the potential remains and may result
in anxiety for the person tested”); McNeely, 569 U.S. at 148 (“Such an invasion of bodily
integrity implicates an individual’s most personal and deep-rooted expectations of
privacy.” (internal quotations marks omitted)). An accused’s blood cannot be taken or
analyzed unless the search is reasonable pursuant to the Fourth Amendment. Birchfield,
136 S. Ct. at 2173; see Schmerber, 384 U.S. at 767.

       In Schmerber, 384 U.S. at 770-772, the United States Supreme Court upheld a
warrantless blood draw in a drunk-driving case after concluding that exigent
circumstances existed. In that case, the defendant was injured in a car accident and was
transported to a hospital for treatment, where he was arrested. Id. at 758. The officer,
who had not obtained a warrant, instructed a physician at the hospital to draw the
defendant’s blood, which was tested to determine the defendant’s blood alcohol
concentration. Id. at 758-59. The test results were then used to convict the defendant of
DUI. Id. In upholding the warrantless blood draw in that case, the Court concluded:

              The officer in the present case . . . 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,’ Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 883,
       11 L. Ed. 2d 777. We are told that the percentage of alcohol in the blood
       begins to diminish shortly after drinking stops, as the body functions to
       eliminate it from the system. Particularly 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
                                            -6-
       a warrant. Given these special facts, we conclude that the attempt to secure
       evidence of blood-alcohol content in this case was an appropriate incident
       to petitioner’s arrest.

Id. at 770.

        Thereafter, some states interpreted Schmerber narrowly, concluding that it stood
for the proposition that the totality of the circumstances test should be used when
determining whether exigent circumstances existed. See Reynolds, 504 S.W.3d at 305
(citing State v. Johnson, 744 N.W.2d 340 (Iowa 2008); State v. Rodriguez, 156 P.3d 771
(Utah 2007)). However, our Supreme Court has concluded that, Tennessee, along with
several other states, “interpreted Schmerber broadly as establishing a per se rule equating
alcohol dissipation to exigent circumstances justifying a warrantless blood draw, so long
as the officer had probable cause to believe the motorist was driving while intoxicated.”
Id. (citing State v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn. Crim. App. 2001) (citing
State v. Shriner, 751 N.W.2d 538 (Minn. 2008); State v. Machuca, 227 P.3d 729 (Or.
2010) (en banc); State v. Bohling, 494 N.W.2d 399 (Wis. 1993)).

        The tension regarding Schmerber’s scope continued until 2013, when the United
States Supreme Court decided McNeely, wherein it considered whether the natural
metabolization of the alcohol in the blood created a “per se exigency that justifies an
exception to the Fourth Amendment’s warrant requirement for nonconsensual blood
testing in all drunk-driving cases.” McNeely, 569 U.S. at 145. Ultimately, the McNeely
Court held that the natural dissipation of alcohol in the blood does not create a per se
exigency and clarified that “exigency in this context must be determined case by case
based on the totality of the circumstances.” Id. The Court stressed that “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 152-53 (citing McDonald v. United States, 335 U.S. 451, 456
(1948) (“We cannot . . . excuse the absence of a search warrant without a showing by
those who seek exemption from the constitutional mandate that the exigencies of the
situation made [the search] imperative.”)).

        Subsequently, on November 3, 2016, the Tennessee Supreme Court decided
Reynolds, wherein it considered whether a warrantless blood draw violated a defendant’s
right to be free from unreasonable searches and seizures. Reynolds, 504 S.W.3d at 288.
In that case, the defendant was involved in a single-car accident that killed two of the
three passengers in her vehicle. Id. at 289. A deputy, after speaking with the Defendant
and the surviving passenger, determined that the defendant was driving the car at the time
of the accident. Id. Believing that the defendant had verbally consented to the blood
draw at the hospital, the deputy did not obtain a warrant and did not advise the defendant
                                            -7-
that she could refuse the blood draw or of the legal consequences of refusal before asking
medical personnel to obtain a sample of the defendant’s blood. Id.

       The Reynolds court concluded that the warrantless blood draw violated the
defendant’s right to be free from unreasonable searches and seizures because the record
failed to establish that the defendant had the capacity to revoke her statutory implied
consent. Id. at 309. However, after recognizing that the United States Supreme Court
had adopted good-faith exceptions to the exclusionary rule in several cases, the
Tennessee Supreme Court then considered whether it was appropriate to adopt a good-
faith exception to violations of article I, section 7 of the Tennessee Constitution. Id. at
310-12.

        The Reynolds court specifically noted the holding in Davis v. United States, that
“‘[e]vidence obtained during a search conducted in reasonable reliance on binding
precedent is not subject to the exclusionary rule.’” Id. at 311 (citing Davis v. United
States, 564 U.S. 229, 241 (2011)). The Tennessee Supreme Court then expressly adopted
the good-faith exception articulated in Davis, explaining that this good-faith exception
“applies only when the law enforcement officers’ action is in objectively reasonable good
faith reliance on ‘binding appellate precedent’ that ‘specifically authorizes a particular
police practice.’” Id. at 313 (quoting Davis, 564 U.S. at 241). In particular, the
Tennessee Supreme Court concluded that “[p]rior to McNeely, no warrant was required
for a blood draw in drunk driving cases because Tennessee courts had interpreted
Schmerber as establishing a broad categorical rule that the natural dissipation of alcohol
within the bloodstream presents an exigent circumstance, justifying a warrantless blood
draw in every drunk driving case.” Id. at 314 (citing Humphreys, 70 S.W.3d at 761).
The court then applied this good-faith exception to Reynold’s case, concluding that the
test results were not required to be suppressed because they were obtained in objectively
reasonable good-faith reliance on binding precedent that exigent circumstances justified
the warrantless blood draw. Id. at 314.

      At the time of the warrantless blood draw in this case, the implied consent statute
provided the following:

       If a law enforcement officer has probable cause to believe that the driver of
       a motor vehicle involved in an accident resulting in the injury or death of
       another has committed [the offense of driving under the influence],
       [vehicular homicide] or [aggravated vehicular homicide], the officer shall
       cause the driver to be tested for the purpose of determining the alcohol or
       drug content of the driver’s blood. The test shall be performed in
       accordance with the procedure set forth in this section and shall be

                                            -8-
       performed regardless of whether the driver does or does not consent to the
       test.

T.C.A. § 55-10-406(f)(1) (Supp. 2011) (amended 2012, 2013, 2016, and 2017).

       Here, the Defendant’s warrantless blood draw occurred on December 6, 2011,
which was prior to the United States Supreme Court’s decision in McNeely and during
the period when Schmerber was still binding precedent. After reconsidering this case in
light of Reynolds, we conclude that Officer Kirby’s action in obtaining the Defendant’s
blood without a warrant was in objectively reasonable good faith reliance on Tennessee’s
broad interpretation of Schmerber, which specifically authorized that police practice.
Because the search in this case occurred prior to McNeely and because Officer Kirby
acted in objectively reasonable good faith reliance on binding appellate precedent in
conducting the search, we conclude that the good-faith exception adopted in Reynolds
applies to this case and that the trial court’s suppression of the Defendant’s test results
was not required. Consequently, the judgment of the trial court suppressing the test
results of the warrantless blood draw is reversed, and the case is remanded to the trial
court for further proceedings consistent with this opinion.

                                     CONCLUSION

         Upon reconsideration of this case in light of Reynolds, we reverse the judgment
of the trial court suppressing the test results of the warrantless blood draw and remand the
case to the trial court for further proceedings consistent with this opinion.


                                          ___________________________________
                                          CAMILLE R. McMULLEN, JUDGE




                                            -9-
