In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00307-CR ___________________________
CHAD CHRISTOPHER JACOBSON, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 4 Denton County, Texas Trial Court No. CR-2017-05611-D
Before Sudderth, C.J.; Gabriel and Bassel, JJ. Opinion by Justice Bassel OPINION
I. Introduction
A jury convicted Appellant Chad Christopher Jacobson of driving while
intoxicated. See Tex. Penal Code Ann. § 49.04. The trial court assessed his
punishment at ninety days’ confinement in the Denton County Jail and a $500 fine.
The trial court suspended the sentence and placed Appellant on community
supervision for a period of sixteen months.
In a single issue, Appellant claims that although the State obtained a warrant to
draw his blood based on probable cause that he was driving while intoxicated, a
second warrant should have been obtained that authorized a test to determine the
blood’s alcohol concentration. Without that second warrant, he argues, the test
results should have been suppressed. We reject Appellant’s contention.
Appellant’s contention is premised on his reading of recent precedent from the
court of criminal appeals as holding that a blood draw and a subsequent test of the
drawn blood are separate searches, each requiring their own warrant. Appellant
overreads this precedent. In the precedent, the defendant had an expectation of
privacy in a blood sample that had been drawn for medical purposes, i.e., without a
warrant. Here, Appellant’s blood was drawn pursuant to a warrant based on probable
cause to believe that he was guilty of the offense of driving while intoxicated; at that
point, he had no reasonable expectation of privacy that required a second warrant to
test the sample to determine its blood–alcohol content.
2 II. Factual Background
The facts relevant to this appeal are uncontested; thus, we will forgo a detailed
recitation of the background of the offense. Appellant committed traffic-law
infractions and was stopped by police. He evidenced signs of intoxication. The
arresting officers obtained a warrant authorizing a blood draw and transported
Appellant to a hospital where his blood was drawn. Testing of the blood revealed
that Appellant had a blood–alcohol concentration of 0.124.
At trial, Appellant objected on various grounds to the introduction of the
blood kit containing the blood sample taken and of the blood-test results. Specific to
his issue on appeal, Appellant objected that “the search warrant only allow[ed] the
officer to obtain the specimen. The subsequent search, the analysis, was not by
consent, and it was not by legal authority via a search warrant.” The trial court
overruled the objection.
III. Standard of Review
When reviewing an objection that seeks to suppress evidence, we give almost
complete deference to the trial court’s determination of historical facts. State v.
Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). This aspect of the standard
does not impact our review because the facts are undisputed. Our task is to
determine “whether [our] particular [undisputed] historical facts give rise to a
reasonable expectation of privacy.” Id. We make that determination by applying a
de novo standard of review. Id.
3 IV. Analysis
In his sole issue, Appellant argues that the trial court abused its discretion by
denying his motion to suppress because the State failed to obtain a search warrant
authorizing the testing and analysis of the blood sample taken from Appellant.
A. Appellant relies on the court of criminal appeals’ opinion in State v. Martinez to argue that the State had to obtain a second warrant authorizing the testing of his blood to determine its blood–alcohol concentration.
Appellant’s argument—that his Fourth Amendment right against unreasonable
searches and seizures1 was violated—turns on his reading of the court of criminal
appeals’ opinion in Martinez. Appellant argues for an interpretation of the rule
announced in Martinez that fails to confront the critical differences between the facts
surrounding the blood draw in Martinez and those of his own blood draw. As we will
explain in detail, Appellant’s blindly pounding on the square peg of Martinez cannot
drive it into the round hole of his facts.
In Martinez, the defendant was charged with intoxication manslaughter. Id. at
281. He had been transported to a hospital after an auto accident. Id. at 282. After
his blood was drawn for medical purposes, he fled the hospital. Id. Law enforcement
obtained a grand jury subpoena and took possession of the blood sample. Id. Law
enforcement then submitted the sample for testing without having obtained a warrant
Under the Fourth Amendment, “[t]he right of the people to be secure in their 1
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV.
4 to permit that testing. Id. The trial court found that the test results were inadmissible.
Id. at 283. The court of criminal appeals agreed. Id. at 281.
Martinez concluded that the State should have obtained a warrant before testing
the sample. Id. The court of criminal appeals looked to its prior precedent and that
of the United States Supreme Court to conclude that the defendant had an
expectation of privacy in the sample. Id. at 283–91. First, the court noted that it had
previously held that a person’s expectation of privacy had three different stages in the
process of drawing and testing blood: “(1) the physical intrusion into his body to
draw blood, (2) the exercise of control over and the testing of the blood sample, and
(3) obtaining the results of the test.” Id. at 284 (quoting State v. Hardy, 963 S.W.2d
516, 526 (Tex. Crim. App. 1997)). After analyzing various authorities, the court
reached the conclusion that under the facts before it, the defendant had an
expectation of privacy in the second stage of the process that required the State to
obtain a warrant when it sought to test blood extracted for medical reasons. Id. at
291.
The court summarized its reasoning in a paragraph that demonstrated that it
was dealing with a situation in which the blood was drawn for medical purposes—
unlike the situation in this appeal in which the blood was drawn pursuant to a warrant:
Based on the foregoing, we believe the [State v.] Comeaux[, 818 S.W.2d 46 (Tex. Crim. App. 1991) (plurality op.)] plurality reached the correct result twenty-eight years ago when it considered the question we are faced with today. There are private facts contained in a sample of a person’s blood beyond simple confirmation of a suspicion that a person is intoxicated.
5 These private facts are those that a person does not voluntarily share with the world by the mere drawing of blood and may be subject to Fourth Amendment protection. We hold that there is an expectation of privacy in blood that is drawn for medical purposes. The expectation is not as great as an individual has in the sanctity of his own body against the initial draw of blood. Missouri v. McNeely, 569 U.S. 141, 148, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013) (compelled physical intrusion beneath the skin and into the veins to obtain a sample of blood for use as evidence in a criminal investigation “implicates an individual’s ‘most personal and deep-rooted expectations of privacy[]’”[] (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 84 L.Ed.2d 662 (1985))[)]; Hardy, 963 S.W.2d at 526. But it is greater than an individual has in the results of tests that have already been performed on the blood. Individuals in the latter case have, as we held in Hardy and Huse, no expectation of privacy. Hardy, 963 S.W.2d at 527; [State v.] Huse, 491 S.W.3d [833,] 842 [(Tex. Crim. App. 2016)].
Id. (emphasis added).
Appellant extracts what he describes as a “bright-line rule” from Martinez that
mandates that blood testing—no matter how the sample was obtained—must be
authorized by a separate warrant:
The recently decided Martinez opinion is significant because it establishes a bright-line rule. Regardless of how the government obtains a blood sample—whether it is pursuant to a warrant or from a third-party that took the sample solely for medical purposes, any subsequent analysis of that sample by the government is a “search” under the Fourth Amendment that must be justified by a search warrant or a valid warrant exception.
But Appellant makes no effort to explain why a defendant would have an expectation
of privacy in a sample drawn for the specific purpose of obtaining evidence in a DWI
prosecution. Indeed, as we discuss below, our sister courts hold that Martinez does
not mandate a second warrant to test a sample initially obtained by means of a
6 warrant. And, as we also discuss below, the holdings of our sister courts are not
unique; they reach the same result as that reached by appellate courts across the
country—that is, that there is no reasonable expectation of privacy in a blood sample
drawn pursuant to a search warrant in a DWI case that prompts the need for a second
warrant in order for law enforcement to determine the drawn blood’s alcohol
concentration.
B. Our sister courts have held that a second warrant is not required to test a blood sample obtained by a warrant.
Within the past several months, the Dallas Court of Appeals, the Corpus
Christi–Edinburg Court of Appeals, and the San Antonio Court of Appeals have held
that Martinez does not mandate a second warrant to test a sample obtained initially by
means of a warrant and thus does not create the bright-line rule that Appellant sees in
Martinez. See State v. Staton, No. 05-19-00661-CR, 2020 WL 1503125, at *2–3 (Tex.
App.—Dallas Mar. 30, 2020, no pet. h.); Hyland v. State, 595 S.W.3d 256, 257 (Tex.
App.—Corpus Christi–Edinburg 2019, no pet.) (op. on remand); Crider v. State, No.
04-18-00856-CR, 2019 WL 4178633, at *2 (Tex. App.—San Antonio Sept. 4, 2019,
pet. granted) (mem. op., not designated for publication). The opinions begin, as we
have, by detailing that the blood draw in Martinez was not made pursuant to a warrant.
The opinions then point to the fact that because the blood draw in each of their cases
occurred pursuant to a warrant, Martinez has no application to their facts. See Staton,
7 2020 WL 1503125, at *2–3; Hyland, 595 S.W.3d at 257; Crider, 2019 WL 4178633, at
*2.
Crider noted Martinez’s holding—that the drawing and the testing of blood are
two separate searches—but rejected that holding as a rationale to require a second
warrant to test a sample drawn originally pursuant to a warrant based on probable
cause to believe that a defendant was driving while intoxicated. 2019 WL 4178633, at
*2. There was simply no expectation of privacy left in the sample drawn pursuant to
the warrant that prompted the need for a second warrant because
[j]ust as a person who has given a blood sample for private testing reasonably can assume that sample will not be turned over to the State for another purpose, we reasonably can assume that where the police seek and obtain a blood draw warrant in search of evidence of intoxication, the blood drawn pursuant to that warrant will be tested and analyzed for that purpose. Id.
Looking to its own opinion in Martinez,2 which was affirmed by the court of
criminal appeals, and to the precedents cited by the court of criminal appeals in its
opinion in Martinez, the Corpus Christi–Edinburg court in Hyland relied on the
disparate facts of those cases in contrast to its facts and rejected the need for a second
warrant. 595 S.W.3d at 257. Hyland disposed of its appellant’s claim concisely:
“Hyland does not direct this Court to any authority or support, nor do we find any,
2 State v. Martinez, 534 S.W.3d 97 (Tex. App.—Corpus Christi–Edinburg 2017), aff’d, 570 S.W.3d 278 (Tex. Crim. App. 2019).
8 that states that the State cannot re-analyze evidence lawfully in its possession pursuant
to a valid search warrant.” Id.
Staton relied on both Crider and Hyland. 2020 WL 1503125, at *2–3. Staton
agreed with Crider that Martinez could not be read to require specific authorization for
testing when collection of the sample was done pursuant to a warrant based on
probable cause. Id. at *2. Looking to the principles of common sense that Crider
relied on, the Dallas court noted that “common sense dictates that blood drawn for a
specific purpose will be analyzed for that purpose and no other.” Id. at *2 (quoting
Crider, 2019 WL 4178633, at *2). The Dallas court held that Martinez had no
application because it dealt with a different question—whether “an individual has an
expectation of privacy in blood previously drawn for purposes other than police
testing .” Id. at *3 (emphasis added).
C. A litany of cases from other jurisdictions holds that a second warrant is not required under the circumstances presented here.
We will not examine in detail each of the cases, but the following is a catalog of
opinions from other jurisdictions holding that a defendant does not have an
expectation of privacy in the testing of a blood sample taken pursuant to a warrant
when the testing involves only the determination of the sample’s blood–alcohol
concentration. See United States v. Snyder, 852 F.2d 471, 473–74 (9th Cir. 1988); State v.
Hauge, 79 P.3d 131, 144 (Haw. 2003); State v. Frescoln, 911 N.W.2d 450, 456 (Iowa Ct.
App. 2017); State v. Fawcett, 877 N.W.2d 555, 561 (Minn. Ct. App.), aff’d, 884 N.W.2d
9 380 (Minn. 2016); State v. Swartz, 517 S.W.3d 40, 48–50 (Mo. Ct. App. 2017); People v.
King, 663 N.Y.S.2d 610, 614 (N.Y. App. Div. 1997); State v. Price, 270 P.3d 527, 529
(Utah 2012); State v. Martines, 355 P.3d 1111, 1116 (Wash. 2015); State v. Sanders, Nos.
93-2284-CR, 93-2286-CR, 1994 WL 481723, at *5 (Wis. Ct. App. Sept. 8, 1994) (not
designated for publication).
We will not do our own summary of the cited cases because the Iowa Court of
Appeals did an admirable job of summarizing many of them:
Furthermore, though the issue has not been decided in Iowa, we note that other courts have held that a defendant loses a privacy expectation in blood after its lawful removal from the body, and therefore, any testing of that blood does not violate the constitutional protections from unreasonable searches and seizures. See . . . Snyder, 852 F.2d [at] 473–74 . . . (holding that “so long as blood is extracted incident to a valid arrest based on probable cause to believe that the suspect was driving under the influence of alcohol, the subsequent performance of a blood[– ]alcohol test has no independent significance for [F]ourth [A]mendment purposes, regardless of how promptly the test is conducted”); . . . Fawcett, 877 N.W.2d [at] 561 . . . (“Once a blood sample has been lawfully removed from a person’s body, a person loses an expectation of privacy in the blood sample, and a subsequent chemical analysis of the blood sample is, therefore, not a distinct Fourth Amendment event.”); . . . King, . . . 663 N.Y.S.2d [at] 614 . . . (“It is also clear that once a person’s blood sample has been obtained lawfully, he can no longer assert either privacy claims or unreasonable search[-]and[-]seizure arguments with respect to the use of that sample. Privacy concerns are no longer relevant once the sample has already lawfully been removed from the body, and the scientific analysis of a sample does not involve any further search and seizure of a defendant’s person.”); see also Andrei Nedelcu, Blood and Privacy: Towards A “Testing-As-Search” Paradigm Under the Fourth Amendment, 39 Seattle U. L. Rev. 195, 201 (Fall 2015) (“[N]ational search[-]and[- ]seizure jurisprudence is largely in agreement: No express judicial authorization is needed to analyze a suspect’s blood (or any other biological sample) once it has already been lawfully procured.”).
10 Frescoln, 911 N.W.2d at 456.
If flesh needs to be put on the bones of the rationales of the opinions cited by
Frescoln, it comes from a recent opinion of the Wisconsin Supreme Court. See State v.
Randall, 930 N.W.2d 223 (Wis. 2019). Randall dealt with the question of whether a
warrant was needed for testing when a defendant had consented to a blood draw and
then had withdrawn that consent before the sample was tested. Id. at 225. Randall
rejected the illogic of an argument that a party had “a privacy interest in the
instrumentalities and evidence of crime for which the police were authorized to
search.” Id. at 237. The court noted the impact that such a position would have on
searches incident to arrest where the State seized a bag of white powder or a pistol.
Id. To accept the argument that a second warrant was needed, the State could not test
the bag of powder or fingerprint the gun that law enforcement properly seized and
would create the quandary that “having discovered the very thing for which it was
authorized to search, the State could do nothing with it unless it thereafter obtained a
warrant for its examination and use.” Id. Randall rejected the claim that the Fourth
Amendment places law enforcement in such a quandary and the thought that a party
charged with driving while intoxicated has a reasonable expectation of privacy that
protects the defendant from a search for evidence of a crime in a blood sample that
was properly obtained by law enforcement:
Upon her arrest, Ms. Randall’s reduced expectation of privacy meant that she could not keep the presence and concentration of alcohol in her blood [a] secret from the police. So the only relevant question is
11 whether the method by which the State obtained the non-private evidence satisfied the Fourth Amendment’s requirements. Ms. Randall’s consent to the blood draw satisfied those requirements, and that left the State free to test the blood sample for the non-private information.
Id. at 237–38. We agree with Randall that the Fourth Amendment does not require
the State to obtain a second warrant to test a blood sample that was seized based on
probable cause that a person was driving while intoxicated.
D. Martinez has no application to our facts.
All of the foregoing is the preface to our explanation regarding why the bright-
line rule, which Appellant sees in Martinez as mandating a second warrant, does not
exist. Martinez does state that multiple searches occur in the sequence of drawing and
testing blood and that in the context of its facts, an expectation of privacy was
incident to the draw and the test. But what it does not address is when a prior step in
the process removes the expectation of privacy in a subsequent step. The expectation
of privacy in the blood sample was not removed before the testing in Martinez because
no legal authority was obtained to draw the blood. The appellant in Martinez retained
the expectation that blood drawn for a medical purpose would not be turned over to
law enforcement without law enforcement’s protecting his Fourth Amendment rights
and providing a justification for why that blood should be searched to obtain evidence
to prosecute him. That step has already occurred in this case. The State has provided
the justification and has been given the means of obtaining the blood to use as
evidence against Appellant. He never explains how under the circumstances here, he
12 retained an expectation of privacy that his blood would not be tested so that it could
be used for exactly the purpose for which it was seized.3
E. We reject Appellant’s contention that the warrant authorizing the drawing of his blood was an improper general warrant.
On a final note, we address one argument that we see as not covered by our
discussion to this point. Appellant argues that the warrant in this case violates the
rule against general search warrants. “The United States and Texas Constitutions [do]
‘prohibit general warrants which fail to particularly describe the property to be seized
and allow general, exploratory rummaging in a person’s belongings.’” In re Cook,
No. 14-19-00664-CR, 2020 WL 897120, at *5 (Tex. App.—Houston [14th Dist.]
Feb. 25, 2020, orig. proceeding) (quoting Walthall v. State, 594 S.W.2d 74, 78 (Tex.
Crim. App. [Panel Op.] 1980)). Appellant views the warrant in this case as violating
that rule because “[t]he search warrant signed by the magistrate in this case simply
call[ed] for a medical professional to withdraw samples of blood from Appellant’s
body and [to] deliver those samples to law enforcement.”
The warrant in this case hardly sanctions a general rummaging through
Appellant’s property. As Appellant acknowledges, the warrant authorized the taking
of a sample of Appellant’s blood and the delivery of the sample to the officer who
had transported Appellant to the hospital. His argument that the warrant was too
3 Our holding does not address whether Appellant might have an expectation of privacy that his blood would not be tested for a substance unrelated to the purpose for which it was seized, and we express no opinion on that issue.
13 general is merely a shade and phase of Appellant’s two-warrant argument that we have
rejected. See Crider, 2019 WL 4178633, at *2 (“Here, in contrast, police obtained
Crider’s blood sample pursuant to a valid search warrant. Although the warrant does
not expressly authorize testing and analysis of the blood sample, Martinez does not
require that it do so.”); see also Staton, 2020 WL 1503125, at *2 (“Although the warrant
does not expressly authorize testing and analysis of the blood sample, Martinez does
not require that it do so.”).
F. Disposition
We have conducted a de novo review of the legal issue raised by Appellant and
conclude that it is without merit. Appellant, however, couches his issue on appeal as
a claim that the trial court abused its discretion; based on the above analysis, we also
hold that the trial court did not abuse its discretion by overruling Appellant’s
objections to the admission of the test results showing his blood–alcohol
concentration. Accordingly, we overrule Appellant’s sole issue.
V. Conclusion
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel Justice
Publish
Delivered: April 23, 2020