             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. PD–0306-14



                                   THE STATE OF TEXAS

                                                 v.

                              DAVID VILLARREAL, Appellee



              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE THIRTEENTH COURT OF APPEALS
                              NUECES COUNTY

                K ELLER, P.J., filed a dissenting opinion in which H ERVEY, J., joined.

       The Supreme Court has created a continuum of exceptions to the warrant requirement that

inform the analysis in the present case. (1) Parolees are subject to warrantless, suspicionless,

intrusive searches.1 (2) Probationers are subject to warrantless intrusive searches if there is

reasonable suspicion to believe they have committed an offense.2 (3) People arrested on probable

cause for serious offenses are subject to warrantless searches by the collection of DNA from a buccal



       1
           Samson v. California, 547 U.S. 843 (2006) (search of shirt pocket).
       2
           United States v. Knights, 534 U.S. 112 (2001) (search of apartment).
                                                                   VILLARREAL DISSENT — 2

swab.3 I believe that the search in this case falls between the second and third categories of cases.

I respectfully dissent.

        In King, the Supreme Court relied in part on an arrestee’s reduced expectation of privacy

where the arrestee was “already in valid police custody for a serious offense supported by probable

cause.”4 The search was analyzed by reference to “reasonableness, not individualized suspicion.”5

Reasonableness is determined by weighing “‘the promotion of legitimate governmental interests’

against ‘the degree to which [the search] intrudes upon an individual’s privacy.’”6 The fact that the

buccal swab was minimally intrusive weighed heavily in the Court’s decision.7

        The search in the present case was more intrusive than the search in King, but appellee was

more than simply an “arrestee.” He had at least two prior convictions for DWI, and that is the

precise reason that he was subject to the mandatory-blood-draw statute. The fact of his prior

convictions is what put this case between King and Knights.

        In Knights, the Supreme Court considered the “totality of the circumstances” to decide

whether the warrantless search of a probationer’s apartment violated the Constitution.8 Among other

things, the Court took into account the high recidivism rate of probationers.9 The relevant provision



        3
            Maryland v. King, 133 S.Ct. 1958 (2013).
        4
            Id. at 1970.
        5
            Id.
        6
            Id. (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)) (bracketed material in King).
        7
            Id. at 1969.
        8
            Knights, 534 U.S. at 118.
        9
            Id. at 120.
                                                                    VILLARREAL DISSENT — 3

of the Texas statute requires not just the possibility of recidivism, but recidivism in fact, in that it

requires a person to have been convicted of or placed on probation in two prior DWI cases. And the

offense for which the person is under arrest must be an intoxication offense. In Knights, the Court

said, “[The State’s] interest in apprehending violators of the criminal law, thereby protecting

potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that

it does not on the ordinary citizen.”10

        The question boils down to whether a person with two prior DWI convictions is similar

enough to a probationer that the totality of the circumstances allows a search that would not be

allowed for someone without that criminal record. Before King, that would have been a difficult

position to defend. Now that the Supreme Court has held that the mere fact that a person is arrested

for a serious offense justifies a warrantless, standardized, minimally intrusive search, there appears

to be room for a statute that permits a warrantless, standardized, more intrusive search of a person

arrested for DWI who has two prior convictions for DWI.

        The touchstone of the Fourth Amendment is reasonableness. Under the totality of the

circumstances, what happened in this case does not strike me as unreasonable. Therefore, I

respectfully dissent.

Filed: November 26, 2014
Publish




        10
             Id. at 121.
