Crider, Robert Lee Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 2020
• Docket: PD-1070-19
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-1070-19

ROBERT LEE CRIDER, JR., Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS KERR COUNTY

YEARY, J., delivered the opinion of the Court in which KELLER, P.J., and KEASLER, HERVEY, RICHARDSON, NEWELL, KEEL, and SLAUGHTER, JJ., joined. NEWELL, J., filed a concurring opinion in which HERVEY, RICHARDSON, and SLAUGHTER, JJ., joined. WALKER, J., filed a dissenting opinion. OPINION

A sample of Appellant’s blood was lawfully extracted pursuant to a search warrant

which alleged probable cause to believe he had been driving while intoxicated. The

warrant, however, did not also expressly authorize the chemical testing of the extracted

blood to determine his blood-alcohol concentration. This petition for discretionary review

calls upon us now to examine whether introduction of evidence of the result of the chemical

testing at Appellant’s trial, in the absence of any explicit authorization for such testing in CRIDER ― 2

the search warrant (or in a separate search warrant), violated his Fourth Amendment rights.

We hold that it did not, and we therefore affirm the judgment of the court of appeals.

I. Background

Following a citizen’s 9-1-1 report describing Appellant’s erratic driving as well as

the location where he eventually parked, a Kerrville police officer found Appellant sitting

alone in his vehicle exactly where he had been reported to be. The officer noticed that

Appellant exhibited a strong odor of alcohol, glassy and bloodshot eyes, an unsteady gait,

and slow, slurry speech. When Appellant would not submit to field sobriety testing because

of claims of recent injuries, the officer conducted a horizontal gaze nystagmus test to look

for signs of intoxication. Appellant exhibited all six signs of intoxication that are revealed

through that test. The officer then arrested Appellant and sought a search warrant for

extraction of his blood, which was granted. But the search warrant did not explicitly

authorize the chemical testing of Appellant’s blood. Chemical testing of the blood sample

was nevertheless conducted, and it revealed an alcohol-concentration level of .19.

Appellant did not contest the validity of the search warrant insofar as it authorized

the extraction of his blood. See Crider v. State, No. 04-18-00856-CR, 2019 WL 4178633,

at *1 (Tex. App.―San Antonio Sept. 4, 2019) (mem. op., not designate for publication)

(“Crider does not challenge the existence of probable cause to support the blood draw

warrant.”). He did challenge, in a motion to suppress evidence, however, the introduction

of evidence of the results of chemical testing for his blood-alcohol concentration. The trial

court denied his motion to suppress, and on appeal Appellant argued that the introduction

of his blood-alcohol concentration test result was error under this Court’s recent opinion in

State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019). CRIDER ― 3

In Martinez, this Court recently reiterated what it had held in previous opinions: that

the chemical testing of blood constitutes a separate and discrete invasion of privacy for

Fourth Amendment purposes from the physical extraction of that blood. Id. at 290; see also

State v. Huse, 491 S.W.3d 833, 840 (Tex. Crim. App. 2016) (“[W]hen the State itself

extracts blood from a DWI suspect, and when it is the State that conducts the subsequent

blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment

purposes.”); State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997) (“Where the

drawing of blood is instigated by the government, a subsequent analysis of the blood by

government agents also constitutes an invasion of a societally recognized expectation of

privacy.”) (citing Skinner v. Ry. Labor Exec.’s Ass’n., 489 U.S. 602, 616 (1989)).

Appellant argued that this necessarily means that he may insist that, before that

chemical testing may occur, the State must obtain a warrant expressly authorizing that test,

or else identify an exception to the Fourth Amendment’s ordinary preferences for search

warrants. Crider, 2019 WL 4178633, at *2. While acknowledging our holding that blood

testing involves a discrete invasion of privacy under the Fourth Amendment, the San

Antonio court of appeals held that this did not require a separate and express authorization

of chemical testing in a search warrant that already authorizes extraction of blood for that

purpose. See id. (“[W]e 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 the

warrant will be tested and analyzed for that purpose.”).

Other courts of appeals in Texas have reached similar conclusions. See Hyland v.

State, 595 S.W.3d 256, 261 (Tex. App.―Corpus Christi‒Edinburg 2019, no. pet.) (op. on

remand) (“[U]nlike in Martinez, the search here was not warrantless.”); State v. Staton, ___ CRIDER ― 4

S.W.3d ___, 2020 WL 1503125, at *3 (Tex. App.―Dallas Mar. 3, 2020, no pet. h.)

(“[C]ommon sense dictates that blood drawn for a specific purpose will be analyzed for

that purpose and no other.”) (quoting Martinez, 570 S.W.3d at 290); Jacobson v. State, ___

S.W.3d ___, 2020 WL 1949622, at *5 (Tex. App.―Fort Worth Apr. 23, 2020) (“[T]he

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.”). And we do too.

II. Analysis

“[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” Riley v.

California, 573 U.S. 373, 381‒82 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398,

403 (2006)). A neutral magistrate who has approved a search warrant for the extraction of

a blood sample, based upon a showing of probable cause to believe that a suspect has

committed the offense of driving while intoxicated, has necessarily also made a finding of

probable cause that justifies chemical testing of that same blood. Indeed, that is the purpose

of the blood extraction. This means that the constitutional objective of the warrant

requirement has been met: the interposition of a neutral magistrate’s judgment between the

police and the citizen to justify an intrusion by the State upon the citizen’s legitimate

expectation of privacy. See State v. Villarreal, 475 S.W.3d 784, 795‒96 (Tex. Crim. App.

2014) (op. on orig. subm.) (citing Johnson v. United States, 333 U.S. 10, 13‒14 (1948), for

the proposition that the purpose of the Fourth Amendment’s warrant requirement is to

provide a neutral arbiter between the police and citizens to determine whether probable

cause exists to justify a police intrusion). Whether we say the warrant that justifies CRIDER ― 5

extraction of the blood also, by necessary implication, justifies chemical testing, 1 or we

simply acknowledge that a magistrate’s finding of probable cause to extract the blood for

chemical testing necessarily constitutes a finding of probable cause also to conduct the

chemical test for intoxicants, is of no moment. However we choose to characterize it, the

chemical testing of the blood, based upon a warrant that justifies the extraction of blood

for that very purpose, is a reasonable search for Fourth Amendment purposes.

As all the courts of appeals to have addressed the question so far have discerned,

the facts of Martinez are distinguishable. See Crider, 2019 WL 4178633, at *6; Hyland,

595 S.W.3d at 260‒61; Staton, 2020 WL 1503125, at *2‒3; Jacobson, 2020 WL 1949622,

at *5. There, it was not the State that extracted the blood in the first instance. Instead, the

State obtained the already-extracted blood sample from a treating hospital and, without a

magistrate’s finding of probable cause, had that blood sample tested for intoxicants.

Martinez, 570 S.W.3d at 281. Having previously acknowledged that a chemical test

conducted at the behest of the State constitutes a discrete and separate invasion of a

legitimate expectation of privacy, we held that the warrantless test was unconstitutional.

Id. at 292.

1 See Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim. App. 1976) (“[I]n interpreting affidavits and search warrants, magistrates and courts must do so in a common sense and realistic fashion and avoid hypertechnical analysis.”) (emphasis added); Long v. State, 132 S.W.3d 443, 448 (Tex. Crim. App. 2004) (“[W]hen courts examine the description of the place to be searched to determine the warrant’s scope, they follow a common sense and practical approach, not a ‘Procrustean’ or overly technical one.”); see also State v. Martines, 355 P.3d 1111, 1115 (Wa. 2015) (“A warrant authorizing a blood draw necessarily authorizes blood testing, consistent with and confined to the finding of probable cause.”); State v. Frescoln, 911 N.W.2d 450, 456 (Iowa Ct. App. 2017) (“Although the warrant does not explicitly state that the blood sample would be subject to chemical testing, the stated reason for obtaining the blood sample was its relevance to an [Operating While Intoxicated] investigation. The best practice is to state the purpose for requesting the sample in the warrant. However, a commonsense reading of the warrant implies the blood sample would be subjected to chemical testing.”). CRIDER ― 6

Here, the State obtained the blood sample by way of a magistrate’s determination

that probable cause existed to justify its seizure―for the explicit purpose of determining

its evidentiary value to prove the offense of driving while intoxicated. That magistrate’s

determination was sufficient in this case to justify the chemical testing of the blood. And

this is so, we hold, even if the warrant itself did not expressly authorize the chemical testing

on its face.

This holding is not tantamount, as Appellant fears, to an unconstitutional

endorsement of “general” search warrants. The Fourth Amendment prohibits the

enforcement of warrants that are so lacking in specificity that the police may seemingly

engage in “general, exploratory rummaging in a person’s belongings.” Walthall v. State,

594 S.W.2d 74, 78 (Tex. Crim. App. 1980) (citing Andresen v. Maryland, 427 U.S. 463,

480 (1976), quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). But no

indiscriminate “rummaging” through the content of Appellant’s blood was authorized here;

nor does the record suggest that any occurred. On the basis of the warrant issued in this

case, the State was not authorized to analyze Appellant’s blood for, say, genetic

information, 2 or for any other biological information not supported by the same probable

cause that justified the extraction of his blood sample in the first place.

In his motion to suppress, Appellant sought only to exclude the evidence of his

blood-alcohol concentration. Extraction of his blood for the purpose of testing his blood

for this specific information was justified by the strong odor of alcohol the officer noticed

2 See Birchfield v. North Dakota, 136 S. Ct. 2160, 2178 (2016) (“[A] blood 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.”). CRIDER ― 7

when he first confronted Appellant and found him to exhibit characteristics of

intoxication―a fact confirmed by the neutral magistrate in the warrant. The State does not

contend that it should have been able to analyze the blood for any other purpose on

authority of the warrant in this case. On the facts of this case, Appellant’s concern about

the lack of specificity in the warrant is unfounded.

We affirm the judgment of the court of appeals.

DELIVERED: September 16, 2020 PUBLISHED