                        NUMBER 13-16-00033-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


CHRISTINA L. McQUADE,                                                  Appellant,

                                         v.

THE STATE OF TEXAS,                                                    Appellee.


              On appeal from the County Court at Law No. 2
                     of McLennan County, Texas.


                        MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez
      Appellant Christina L. McQuade appeals the denial of her motion to suppress the

results of a blood draw, which was taken in the McLennan County Jail. After the trial

court denied her motion to suppress, McQuade pleaded guilty to misdemeanor driving

while intoxicated and received community supervision. See TEX. PENAL CODE ANN. §
49.04 (West, Westlaw through 2015 R.S.). By one issue on appeal, McQuade contends

that because her blood was drawn at the McLennan County Jail rather than at the location

specified in the search warrant—a hospital in McLennan County—the blood draw violated

her Fourth Amendment right against unreasonable searches. We affirm.1

                                        I.      BACKGROUND

        Prior to trial, the parties stipulated to the following events. On January 1, 2014,

Trooper Andy Stephens of the Texas Department of Public Safety executed a traffic stop

when he observed McQuade driving above the speed limit. Stephens performed field

sobriety testing, and based on its positive results, he ultimately arrested McQuade on

suspicion of driving while intoxicated.

        McQuade was taken to the McLennan County Jail, where Stephens requested that

she submit a breath specimen for examination. McQuade refused. Stephens then drew

up an affidavit in pursuit of a search warrant. A magistrate judge issued a search warrant

as well as an order of assistance, indicating that McQuade was to be transported to a

hospital in McLennan County for a mandatory blood draw by medical personnel. A

sample of McQuade’s blood was instead drawn by a licensed vocational nurse at the

McLennan County Jail.

        McQuade was subsequently charged by information with the offense of driving

while intoxicated. Before trial, she moved to suppress the blood test results. The trial

court denied her motion and also entered findings of fact and conclusions of law, which


         1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

transfer order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw
through 2015 R.S.). Because this is a transfer case, we apply the precedent of the Waco Court of Appeals
to the extent it differs from our own. See TEX. R. APP. P. 41.3.
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aligned with the parties’ stipulated version of events. McQuade pleaded guilty to driving

while intoxicated, subject to her right to appeal the denial of her motion to suppress, which

we now consider.

                                    II.     DISCUSSION

       On appeal, McQuade argues that the blood draw in question violated her right

against unreasonable search and seizure. The warrant, she noted, provided for her

blood to be drawn at a local hospital. Law enforcement instead arranged for the blood

draw to be performed by a nurse at the McLennan County Jail. McQuade argues that

this deviation from the terms of the search warrant violated her Fourth Amendment rights

and required that the results of the blood draw be suppressed as the product of an illegal

search.

A.     Standard of Review and Applicable Law

       When the trial court makes express findings of historical fact in a suppression

hearing, we afford almost total deference to those findings as long as they are supported

by the record. State v. Granville, 423 S.W.3d 399, 404 (Tex. Crim. App. 2014). We

apply the same standard when reviewing the trial judge’s application of law to questions

of fact when resolution of those questions depends on an assessment of credibility and

demeanor. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We apply

a de novo standard of review to pure questions of law and to mixed questions of law and

fact that do not depend on the evaluation of credibility and demeanor. Id. Whether the

facts of the case, once determined, give rise to a reasonable expectation of privacy is a

question of law to be reviewed de novo. State v. Hardy, 963 S.W.2d 516, 523 (Tex.

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Crim. App. 1997) (en banc).

      The Fourth Amendment provides:

      The right of the people to be secure in their persons, houses, papers, and
      effects, against unreasonable searches and seizures, shall not be violated,
      and no Warrants shall issue, but upon probable cause, supported by Oath
      or affirmation, and particularly describing the place to be searched, and the
      persons or things to be seized.

U.S. CONST. amend. IV.        The overriding purpose of the Fourth Amendment is to

safeguard an individual’s legitimate expectation of privacy from unreasonable

governmental intrusions. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)

(en banc); see Schmerber v. California, 384 U.S. 757, 767 (1966). A “search” occurs

when an expectation of privacy that society is prepared to consider reasonable is intruded

upon. U.S. v. Jacobsen, 466 U.S. 109, 113 (1984). Blood draws “plainly constitute

searches of ‘persons’ . . . within the meaning of” the Fourth Amendment. Schmerber,

384 U.S. at 767.      A blood draw is generally reasonable under relevant Fourth

Amendment standards if:       (1) the police had justification in requiring the suspect to

submit to a blood test, and (2) the police employed reasonable means and reasonable

procedures in taking the suspect’s blood. State v. Johnston, 336 S.W.3d 649, 658 (Tex.

Crim. App. 2011). “[T]he reasonableness of the manner in which a DWI suspect’s blood

is drawn should be assayed on an objective, case-by-case basis in light of the totality of

the circumstances surrounding the draw.” Id. at 661. Each suspect bears the burden

of showing that a venipuncture blood draw is not a reasonable means to obtain a blood

alcohol level assessment as to him or her, individually. Id. at 660.

      If an accused has a legitimate expectation of privacy in the place invaded, she also

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has standing to challenge the admission of evidence obtained by government intrusion

into that place. Villarreal, 935 S.W.2d at 138. The defendant who challenges such a

search has the burden of proving facts demonstrating a legitimate expectation of privacy.

State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013); Villarreal, 935 S.W.2d at

138. To carry this burden, the accused must normally prove that she had a subjective

expectation of privacy in the place invaded and that society was prepared to recognize

her expectation as objectively reasonable. Betts, 397 S.W.3d at 203.

      The Fourth Amendment also prohibits issuance of “general warrants” which allow

officials to burrow through a person’s possessions looking for any evidence of a crime.

U.S. v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995); see U.S. v. Durk, 149 F.3d 464, 466

(6th Cir. 1998). Where an officer blatantly disregards the particular language of a search

warrant and transforms an otherwise valid search into a general one, suppression of all

evidence seized during the search may be required. Kimbrough, 69 F.3d at 728; U.S. v.

Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988); U.S. v. Rettig, 589 F.2d 418, 423 (9th Cir.

1978). “The execution of a search warrant must be one directed in good faith toward the

objects specified in the warrant.” Kimbrough, 69 F.3d at 728; Gurleski v. U.S., 405 F.2d

253, 258 (5th Cir. 1968).

B.    Application

      McQuade asserts that because law enforcement performed the blood draw in a

place other than that which was described in the search warrant, suppression must follow.

McQuade supports this argument with citations to several different branches of Fourth

Amendment jurisprudence.

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      First, McQuade cites multiple cases dealing with the Fourth Amendment’s

particularity requirement—i.e., that the Fourth Amendment prohibits the issuance of

general warrants which allow officials to burrow through a person’s possessions looking

for any evidence of a crime. Kimbrough, 69 F.3d at 727. However, McQuade does not

argue that there was any lack of particularity in the warrant, much less any deficiency

which would render the warrant constitutionally infirm. See, e.g., U.S. v. Bonner, 808

F.2d 864, 866 (1st Cir. 1986) (“The test for determining the adequacy of the description

of the location to be searched is whether the description is sufficient to enable the

executing officer to locate and identify the premises with reasonable effort, and whether

there is any reasonable probability that another premise might be mistakenly searched.”

(internal quotations omitted)). In our assessment, the warrant does not suffer for clear

detail in any way, describing the person to be seized, the single, sanguinary item to be

searched out within her, and the place to conduct this process. See id. Nor did the

execution of the warrant “transform an otherwise valid search into a general one,” such

as by proceeding to McQuade’s home to search for traces of any other crimes she could

have conceivably committed. See Kimbrough, 69 F.3d at 728; Medlin, 842 F.2d at 1199.

      McQuade next challenges the reasonableness of the blood draw. She does not

challenge the first prong of the Fourth Amendment standards for blood draws—whether

“the police had justification”—such as by challenging the issuance of the search warrant

or the probable cause which supported it. See Johnston, 336 S.W.3d at 658. Rather,

McQuade challenges the second prong, which concerns whether the police used

“reasonable means and reasonable procedures” in taking the blood test.           See id.

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Ordinarily this analysis contains two distinct questions:        “first, to resolve the

reasonableness of the means employed, it must be determined whether the test chosen

was reasonable; and second, to resolve the reasonableness of the procedures employed,

it must be determined whether the test was performed in a reasonable manner.” Id.

(internal quotations omitted); see also Winston v. Lee, 470 U.S. 753, 760–62 (1985).

Neither of these questions relate to the problem identified by McQuade.        The “test

chosen” question normally relates to whether “grounds of fear, concern for health, or

religious scruple” reasonably require the police to use some other means of testing. See

Schmerber, 384 U.S. at 771. There is no indication that McQuade gave officers any

personal reason why a blood draw was an inappropriate “test chosen.” See id. As for

“reasonable manner,” this question normally relates to whether the test was conducted

according to “accepted medical practices,” being performed in a reasonably sanitary

environment by reasonably qualified personnel. See Schmerber, 384 U.S. at 771–72;

Johnston, 336 S.W.3d at 658–59. It is undisputed that the search was conducted by

licensed medical personnel in a clean environment, and McQuade points to no other

evidence which suggests that the procedure “invite[d] an unjustified element of personal

risk of infection or pain.” See Johnston, 336 S.W.3d at 663. Based on the totality of the

circumstances, we cannot conclude that McQuade carried her burden to show that her

blood draw was not a reasonable means or procedure for obtaining blood analysis. See

id. at 660–61.

      Finally, McQuade challenges the place in which the search was conducted, on the

ground that it contravened the search warrant’s description of the place to be searched

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for her blood. Where “the scope of the search is contested because of the location where

the items were seized . . . the officers must show that they were properly in the place

where the item was found.” Snider v. State, 681 S.W.2d 60, 62–63 (Tex. Crim. App.

1984) (en banc). McQuade concedes that Stephens, as the arresting officer, certainly

had a right to be in the McLennan County Jail. However, she contends that Stephens

did not have a right to be in the McLennan County Jail to execute the search warrant.

       The overriding function of Fourth Amendment law is to protect reasonable

expectations of privacy. See Schmerber, 384 U.S. at 767; Villarreal, 935 S.W.2d at 138.

McQuade does not dispute that there was probable cause and a warrant which justified

the search of her person, which the warrant described with particularity; she simply

challenges the place in which that search was conducted. In this sense, McQuade

appears to presume that she had an expectation of privacy which attached to the jail or

the hospital in particular, rather than to her person. Her argument is comparable to one

addressed in Green v. State. 275 S.W.2d 110, 111 (Tex. Crim. App. 1955). There, a

search warrant was issued upon probable cause to believe that the defendant possessed

whiskey with intent to sell it in a dry county. Id. at 110. The warrant authorized the

search of a used car lot in Cleburne, Texas, as well as “all automobiles, outhouses,

garages, [curtilages] and [appurtenances] thereto.” Id. Police were unable to open the

locks on one car which was found at the location, and they took it to a local body shop for

assistance opening the trunk. Id. When the trunk was opened, it revealed a satchel

containing thirty-four neat half-pints of whiskey. Id. When the defendant protested that

the search was not accomplished at the place described in the search warrant, the Texas

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Court of Criminal Appeals responded, quite simply, “There can be no merit to appellant’s

claim that the search of the automobile was unauthorized because finally accomplished

at the body shop some distance from the used car lot” described in the warrant. Id. at

111.

         Here, similar to Green, a warrant provided authority to search a specific target

under suspicion that it contained illicit alcohol: in Green, the trunk of the defendant’s car;

here, the veins of the defendant’s body. See id. Similar to Green, McQuade has offered

no cause to believe she had a more reasonable expectation of privacy in the place

described in the warrant—the hospital where the warrant expressly allowed for her to be

searched2—than the place where the search was ultimately conducted—the McLennan

County Jail. 3 See id.; Hardy, 963 S.W.2d at 523. She presented no evidence, for

instance, suggesting that she had a property or possessory interest in either place, that

she had previously taken precautions to guard her privacy in either place, or that she had

made private use of either facility. See Betts, 397 S.W.3d at 203–04; U.S. v. Carhee, 27

F.3d 1493, 1498 (10th Cir. 1994) (rejecting a challenge to the search of a particularly

described briefcase in one place rather than the place named in the search warrant,

reasoning that the search was not conducted in a place such as the defendant’s home,


        2 See Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) (en banc) (upholding blood

draw at hospital conducted under a valid warrant); cf. State v. Hardy, 963 S.W.2d 516, 527 (Tex. Crim. App.
1997) (en banc) (finding no reasonable expectation of privacy in blood-alcohol analysis taken by hospital
personnel solely for medical purposes after a traffic accident).
         3 See Bell v. Wolfish, 441 U.S. 520, 546 (1979) (observing that the “essential goals” of “maintaining
institutional security and preserving internal order” in jail facilities may require limitation of the constitutional
rights of pretrial detainees); U.S. v. Friedman, 300 F.3d 111, 123 (2d Cir. 2002) (finding limited expectations
of privacy in a jail booking area); see also U.S. v. Harrelson, 754 F.2d 1153, 1169 (5th Cir. 1985) (upholding
admission of taped conversations between husband and wife during jail visit because husband and wife
had no reasonable expectation of privacy as they spoke in jail).
                                                         9
where the defendant could claim a greater expectation of privacy than that which attached

to the briefcase itself); Bailey v. State, No. 03-13-00566-CR, 2014 WL 3893069, at *2

(Tex. App.—Austin Aug. 8, 2014, no pet.) (mem. op., not designated for publication)

(finding “nothing unreasonable” where a blood draw was directed to be performed at the

Lampasas County Jail, but was instead performed at a hospital).4

        McQuade appears to concede that the terms of the warrant allowed for her to be

searched, but argues that the warrant made it impermissible for her to be searched in the

jail. We disagree. It would be strange indeed for a search warrant to create new privacy

expectations in a given place, rather than serving a warrant’s ordinary purpose: allowing

the State to infringe upon existing privacy expectations.                 See Beeman v. State, 86

S.W.3d 613, 615–16 (Tex. Crim. App. 2002) (en banc).

        In the absence of any particular privacy interest attached to the place of the search,

there is no merit to McQuade’s contention that searching her veins in one place resulted

in a greater insult to the Fourth Amendment than searching them at another. See Snider,

681 S.W.2d at 62–63; Green, 275 S.W.2d at 111. Based on our de novo review, we

conclude that the execution of the search warrant was “directed in good faith toward the


         4 Given that the warrant authorized law enforcement to search a specifically described person—

McQuade—for the evidence that her veins certainly contained, this case does not fall within the “general
rule that a search warrant does not give police license to seize personal property not described in the
warrant on the ground that such property might contain items that the warrant does describe; it only allows
police to search such property at the place where the warrant is being executed.” See State v. Powell,
306 S.W.3d 761, 766 (Tex. Crim. App. 2010) (some emphasis in original, other emphasis added). Even if
this general rule were applicable, there are exceptions to this rule in cases wherein “it will be quite
reasonable for police to remove a container, such as a computer or a file cabinet containing voluminous
documents, from the scene of the search so that opening it and examining it can be more readily
accomplished elsewhere,” which could also potentially support our conclusion. See id. at 766 & n.10; see
also Bailey v. State, No. 03-13-00566-CR, 2014 WL 3893069, at *2 n.9 (Tex. App.—Austin Aug. 8, 2014,
no pet.) (mem. op., not designated for publication) (relying on Powell and the search-of-container cases
cited therein to approve a blood draw at an alternate location).
                                                   10
objects specified in the warrant” and was not constitutionally deficient because of the

place where it was conducted. See Kimbrough, 69 F.3d at 728; Hardy, 963 S.W.2d at

523. We overrule McQuade’s sole issue on appeal.

                                   III.    CONCLUSION

       We affirm the judgment of the trial court.



                                                            NELDA V. RODRIGUEZ
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
29th day of September, 2016.




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