State v. Dowdy

332 S.W.3d 868, 2011 Mo. App. LEXIS 47, 2011 WL 167548

• Court: Missouri Court of Appeals
• Decided: January 19, 2011
• Docket: SD 30381
• Status: Published

Opinions

DANIEL E. SCOTT, Chief Judge.

Neil Dowdy (“Defendant”) was charged with second-degree murder, armed criminal action, and unlawful use of a weapon for possessing a firearm while intoxicated. Defendant moved to suppress the results of a warrantless breath test of his blood alcohol content on the grounds that the search and seizure violated his federal and state constitutional rights.¹ Following a hearing, the trial court granted Defendant’s motion and suppressed the evidence because:

Absent case authority from the U.S. Supreme Court or an appeals court in Missouri approving the taking of a blood sample in a non-DWI case as constitutional either as incident to an arrest or under the exigent circumstances exception to the warrant requirement, the court declines to approve the practice.²

The State appeals. We defer to the trial court’s factual findings and credibility determinations and consider all evidence and reasonable inferences in the light most favorable to its ruling. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). Whether the Fourth Amendment was violated, however, is a legal issue that we determine de novo. Id.

Facts and Background

A residential altercation culminated in Defendant fatally shooting his wife’s son at approximately 11:30 p.m. Officers were dispatched, with Captain Gideon arriving “[s]omewhere in the midnight hour. Give or take a few minutes.” Defendant was already under arrest and in the back of a patrol car. Captain Gideon gave orders to perform a gunshot residue analysis, transport Defendant to the jail, and obtain a breath test of his blood alcohol level because Defendant displayed signs of intoxication at the crime scene.

It took about 45 minutes to transport Defendant, who was bleeding from the face and mouth, to the jail. After he arrived at 1:18 a.m., he was booked and advised that his blood alcohol level was needed to ensure that medical treatment was not necessary. Defendant later indicated that he was told (not asked) to blow into a breathalyzer, which he did at 1:53 a.m. He was not read Miranda warnings³ before the test or given an option about submitting to it, and officers never sought a search warrant.⁴

Case Law

Various Missouri cases, only one of which was cited to the trial court and then only in passing, indicate that it was error to suppress this evidence.

“[U]pon his arrest and as an incident to his arrest without a warrant, [a] person is subject to having a sample of his blood taken without his consent or a warrant, and said blood sample is admissible in evidence.” State v. Setter, 721 S.W.2d 11, 16 (Mo.App.1986)(citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)).

“Schmerber supports the general principle that the warrantless extraction of a blood sample without consent but incident to a lawful arrest is not an unconstitutional search and seizure and that the results of a blood test performed thereon are admissible in evidence.” State v. Ikerman, 698 S.W.2d 902, 904-05 (Mo.App.1985).

To like effect are these cases:

• State v. Trice, 747 S.W.2d 243, 246 (Mo.App.1988) — “Further, even had Trice been under arrest at the time the sample was taken and refused to submit to a test, he would have been subject to having a sample of his blood taken without his consent or a warrant,” citing Setter.

• State v. LeRette, 858 S.W.2d 816, 818-19 (Mo.App.1993) — applied exigent circumstances exception to reverse trial court suppression of blood alcohol testing obtained without defendant’s consent, citing Schmerber.

• Murphy v. Director of Revenue, 170 S.W.3d 507, 514 (Mo.App.2005) — “In LeRette we recognized that the warrantless draw of blood, without consent, does not violate the Fourth Amendment’s prohibition of unreasonable seizure when exigent circumstances exist. 858 S.W.2d at 819. Exigent circumstances arise from the need to move quickly because ‘the percentage of alcohol in the bloodstream diminishes with time and ... the delay caused by having to obtain a warrant might result in the destruction of evidence.’ Id.”

• Blydenburg v. David, 413 S.W.2d 284, 288 (Mo. banc 1967) — breath tests are reasonable and, unlike blood tests approved in Schmerber, do not require even minor intrusions into one’s body.

Conclusion

Schmerber, in our supreme court’s words, “has established controlling constitutional standards for determining the admissibility of the results of a similar sobriety test as evidence in a criminal case.” Blydenburg, 413 S.W.2d at 287. The principles expressed in that case and others we have cited persuade us to reverse the suppression order and remand for further proceedings consistent with this opinion.

RAHMEYER, P.J., dissents in separate opinion. BATES, J., concurs.

1 . Our state constitutional protections against unreasonable search and seizure are coextensive with the Fourth Amendment, so the same analysis covers both claims. See State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009).

2 .This case actually involves a breath test, not (as the trial court indicated) a blood sample, but that does not materially affect our analysis.

3 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4 . At the suppression hearing, Captain Gideon was asked whether a warrant would have taken too much time. He replied that he would have sought a warrant had Defendant refused breath testing.