NO. COA13-1059
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Chatham County Nos. 10CRS052754-55 RONALD MICHAEL McCRARY, Defendant.
Appeal by defendant from judgment entered on or about 21
March 2013 by Judge W. Osmond Smith in Chatham County Superior
Court. Heard in the Court of Appeals 20 February 2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Catherine F. Jordan, for the State.
Wait Law, P.L.L.C., by John L. Wait for defendant- appellant.
STROUD, Judge.
Ronald Michael McCrary (“defendant”) appeals from a
judgment entered upon jury verdicts finding him guilty of
driving while impaired (“DWI”) and communicating threats.
Defendant argues that the trial court erred by (1) denying his
motion to suppress the evidence that resulted from a warrantless
blood test; and (2) denying his motion to dismiss. We affirm the
trial court’s order denying defendant’s motion to dismiss, but, -2- as to defendant’s motion to suppress, we remand for additional
findings of fact.
I. Background
We will summarize the relevant facts based upon the trial
court’s findings of fact, which are not challenged by defendant.
At 6:34 p.m. on 28 December 2010, Deputy Justin Fyle of the
Chatham County Sheriff’s Office responded to a report of
suspicious activity at the home of Marshall Lindsey. Upon his
arrival at 7:01 p.m., Deputy Fyle observed a red Isuzu Trooper
parked in a driveway near Lindsey’s garage.
Deputy Fyle approached the vehicle and discovered defendant
seated in the driver’s seat. The vehicle’s engine was not
operating, and defendant appeared to be asleep. Deputy Fyle
attempted to get defendant’s attention, but defendant did not
respond. Shortly thereafter, defendant began looking at his
cell phone, which was upside down, but he continued to ignore
Deputy Fyle.
Deputy Fyle then opened the vehicle’s door to investigate
further. When he opened the door, Deputy Fyle detected a strong
odor of alcohol and noticed that defendant’s eyes were red and
glassy. There was a nearly empty vodka bottle in the vehicle.
Deputy Fyle administered an Alcosensor test, and the results -3- were “so high that Deputy Fyle determined that there may be a
need for medical attention for the defendant.”
Deputy Fyle also spoke to Lindsey, who stated that he had
witnessed defendant make multiple attempts to turn into his
driveway from the road. When defendant finally was able to
enter the driveway, he ran over one of Lindsey’s potted plants
and a landscape light. Deputy Fyle observed tracks in the snow
at the end of Lindsey’s driveway that were consistent with
Lindsey’s statement.
Deputy Fyle returned to defendant and attempted to
administer several field sobriety tests, but defendant was
unable to stand up to perform them. Deputy Fyle arrested
defendant for DWI at 7:34 p.m. Upon his arrest, defendant began
complaining of chest pains and requested to be taken to the
hospital. Deputy Fyle contacted emergency medical services
(EMS) personnel, who arrived at 7:39 p.m. While EMS personnel
examined defendant, Deputy Fyle determined that he would bring
defendant to the Sheriff’s Office for processing after he was
released by EMS personnel. However, Deputy Fyle also decided
that if defendant needed to be taken to the hospital, he would
obtain a blood sample without a warrant. -4- While the EMS personnel tried to evaluate defendant’s
medical condition, defendant was “continually yelling and
uncooperative” and would not permit them to properly examine
him. Instead, defendant requested transport to the hospital.
At the direction of his sergeant, Deputy Fyle directed EMS
personnel to comply with defendant’s request. Deputy Barry
Ryser, a police officer assisting Deputy Fyle, accompanied
defendant inside the EMS vehicle, and Deputy Fyle followed them
in his patrol car.
Defendant arrived at the hospital emergency room at 8:39
p.m. Deputy Fyle removed defendant’s handcuffs so that he could
be examined, but defendant refused to cooperate with the medical
staff and did not consent to any medical treatment. He was
“extremely belligerent, yelling at officers and medical
personnel” and he insulted the officers as well as others. “The
defendant’s continued uncooperative conduct . . . led Deputy
Fyle to conclude that the defendant was intentionally delaying
the investigation.” Prior to defendant’s discharge from medical
care, Deputy Fyle asked defendant to submit to a blood test and
informed defendant of his rights regarding a blood test at 8:51
p.m. Defendant refused to consent to a blood test, and his
“belligerent conduct accelerated.” “He issued vile insults and -5- threats to Deputy Fyle and others, including threatening to spit
on Deputy Fyle and others.” After emergency room personnel
concluded their examination of defendant, he was discharged at
9:13 p.m. Therefore, Deputy Fyle decided to have defendant’s
blood drawn without a warrant.
Deputy Fyle requested that hospital personnel assist him
with obtaining defendant’s blood sample. Deputy Fyle required
the assistance of the other officers and used restraints to
protect both the officers and hospital staff from defendant
while his blood was drawn at 9:16 p.m., almost 3 hours after
Lindsey’s call. Deputy Fyle and defendant subsequently left the
hospital at 9:29 p.m. and arrived at the magistrate’s office for
further processing at 9:43 p.m.
Defendant was charged with DWI, possession of an open
container, assault on a government official, communicating
threats, resisting a public officer, and injury to personal
property. After a bench trial in Chatham County District Court,
defendant was found not guilty of possession of an open
container and injury to personal property and guilty of all
other charges. Defendant appealed to the Chatham County
Superior Court for a trial de novo. -6- On 12 September 2012, defendant filed a motion to dismiss
the charges against him, contending that the warrantless blood
draw was flagrantly unconstitutional. At a hearing in which the
trial court treated defendant’s motion as both a motion to
dismiss and a motion to suppress, Deputy Fyle testified that he
called Magistrate Tyson at 7:15 p.m., before he arrested
defendant, to seek his opinion about the situation. Deputy Fyle
also testified that he called the magistrate after defendant’s
blood draw. Deputy Fyle further testified that he waited at the
magistrate’s office less than thirty minutes before meeting with
the magistrate. Deputy Fyle finally testified that, at the
time, he determined that it would be unreasonable to seek a
warrant before conducting a blood draw given the circumstances.
The trial court denied defendant’s motion to dismiss. Beginning
18 March 2013, defendant was tried by a jury in superior court.
On 21 March 2013, the jury returned verdicts finding
defendant guilty of DWI and communicating threats and not guilty
of all other charges. For the DWI offense, the trial court
sentenced defendant to an active term of six months. For the
communicating threats offense, the trial court sentenced
defendant to an active term of 120 days. The sentences were to -7- be served consecutively in the North Carolina Division of Adult
Correction. Defendant gave notice of appeal in open court.
II. Exigent Circumstances for a Warrantless Blood Test
Defendant argues that the trial court erred by denying his
motion to suppress the evidence that resulted from the
warrantless blood test because, under Missouri v. McNeely,
Deputy Fyle “had ample time and ability to secure a search
warrant” while defendant was in custody. See ___ U.S. ___, 185
L.Ed. 2d 696, 702 (2013). We remand for additional findings of
fact on this issue.
In ruling upon a motion to suppress evidence, “the [trial
court] must set forth in the record [its] findings of fact and
conclusions of law.” N.C. Gen. Stat. § 15A–977(f) (2013). “[T]he
general rule is that [the trial court] should make findings of
fact to show the bases of [its] ruling.” State v. Phillips, 300
N.C. 678, 685, 268 S.E.2d 452, 457 (1980); see also State v.
Salinas, 366 N.C. 119, 123, 729 S.E.2d 63, 66 (2012). “The
standard of review in evaluating the denial of a motion to
suppress is whether competent evidence supports the trial
court’s findings of fact and whether the findings of fact
support the conclusions of law.” State v. Biber, 365 N.C. 162, -8- 167-68, 712 S.E.2d 874, 878 (2011). Conclusions of law are
reviewed de novo. Id. at 168, 712 S.E.2d at 878.
Findings and conclusions are required in order that there may be a meaningful appellate review of the decision on a motion to suppress. . . . [W]hen the trial court fails to make findings of fact sufficient to allow the reviewing court to apply the correct legal standard, it is necessary to remand the case to the trial court. Remand is necessary because it is the trial court that is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred.
Salinas, 366 N.C. at 124, 729 S.E.2d at 66-67 (citations and
quotation marks omitted). Deputy Fyle performed a warrantless
blood draw on defendant under the provisions of North Carolina
General Statutes, section 20–139.1(d1), which provides that
[i]f a person refuses to submit to any test or tests pursuant to this section, any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine.
N.C. Gen. Stat. § 20-139.1(d1) (2009). This statutory procedure
is also subject to limitations on searches imposed by the state -9- and federal constitutions. “Our courts have held that the taking
of blood from a person constitutes a search under both” the
United States and North Carolina Constitutions. State v.
Barkley, 144 N.C. App. 514, 518, 551 S.E.2d 131, 134 (2001).
Accordingly, “a search warrant must be issued before a blood
sample can be obtained, unless probable cause and exigent
circumstances exist that would justify a warrantless search.”
State v. Carter, 322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988).
The issue in cases of this sort normally depends upon the
findings and conclusions as to the existence of “exigent
circumstances” as our case law has defined that term,
considering the “totality of the circumstances” in each case.
State v. Dahlquist, ___ N.C. App. ___, ___, 752 S.E.2d 665, 667
(2013), appeal dismissed and disc. rev. denied, ___ N.C. ___,
755 S.E.2d 614 (2014).
In State v. Fletcher, this Court held that the trial court
properly found that exigent circumstances existed for the
arresting officer to obtain a blood sample from the defendant
without a warrant, where the evidence showed that the defendant
had “failed multiple field sobriety tests” and was unsuccessful
in “producing a valid breath sample using the Intoximeter at the
police station.” 202 N.C. App. 107, 111, 688 S.E.2d 94, 97 -10- (2010). The officer testified about “the distance between the
police station and the magistrate’s office, her belief that the
magistrate’s office would be busy late on a Saturday night, and
her previous experience with both the magistrate’s office and
hospital on weekend nights[,]” all of which supported a
“probability of significant delay” to obtain a warrant. Id. at
111, 688 S.E.2d at 97. This Court held in Fletcher that these
circumstances supported a finding of exigent circumstances and
affirmed the trial court’s denial of the defendant’s motion to
suppress. Id. at 113, 688 S.E.2d at 98.
More recently, the United States Supreme Court has
addressed the issue of obtaining warrantless blood tests from
defendants suspected of impaired driving. In Missouri v.
McNeely, the United States Supreme Court held that “the natural
metabolization of alcohol in the bloodstream” does not create a
“a per se exigency that justifies an exception to the Fourth
Amendment’s warrant requirement for nonconsensual blood testing
in all drunk-driving cases.” ___ U.S. at ___, 185 L.Ed. 2d at
702. In McNeely, the Supreme Court noted, however, that “some
circumstances will make obtaining a warrant impractical such
that the dissipation of alcohol from the bloodstream will
support an exigency justifying a properly conducted warrantless -11- blood test.” Id. at ___, 185 L.Ed. 2d at 707. Such circumstances
“may arise in the regular course of law enforcement due to
delays from the warrant application process.” Id. at ___, 185
L.Ed. 2d at 709. The Supreme Court noted that
while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber [v. California, 384 U.S. 757, 16 L.Ed. 2d 908 (1966)], it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
Id. at ___, 185 L.Ed. 2d at 709. Thus, the circumstances that
may make obtaining a warrant impractical may in some cases
support the trial court’s finding of an exigent situation in
which a warrantless blood draw is proper. Id. at ___, 185 L.Ed.
2d at 709. “Therefore, after the Supreme Court’s decision in
McNeely, the question for this Court remains whether,
considering the totality of the circumstances, the facts of this
case gave rise to an exigency sufficient to justify a
warrantless search.” Dahlquist, ___ N.C. App. at ___, 752 S.E.2d
at 667.
Defendant does not challenge the trial court’s findings of
fact but argues only that his case is similar to the situation
presented in Missouri v. McNeely, which was decided by the -12- United States Supreme Court just over a month after the trial
court ruled upon his motion to suppress. Defendant focuses on
the lack of findings of fact as to the time that it would have
taken Deputy Fyle to obtain a search warrant for the blood test.
Defendant argues that “Officer Fyle’s testimony is strikingly
similar to the testimony found insufficient in McNeely.” The
Supreme Court noted that
[i]n his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was “sure” a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant.
___ U.S. at ___, 185 L.Ed. 2d at 714 (citations omitted).
But the factual circumstances presented by this case and
McNeely are quite different. McNeely involved a DWI stop
described as “unquestionably a routine DWI case” involving a
cooperative defendant with no need for medical treatment and no
need for “police to attend to a car accident.” Id. at ___, 185 -13- L.Ed. 2d at 714. As the unchallenged findings of fact in this
case as noted above demonstrate, this case was not “a routine
DWI case.” From the moment that Deputy Fyle placed defendant
into custody, at 7:34 p.m., defendant claimed to have chest pain
and to require medical assistance, which he then refused and
actively fought. He became increasingly belligerent and
threatened Deputy Fyle and others.1 Ultimately Deputy Fyle
determined that defendant was intentionally delaying his
investigation. Also unlike the officer in McNeely, Deputy Fyle
testified at the suppression hearing as to the time it would
have taken to obtain a warrant, as follows:
Considering that this is Chatham County and we don’t have as many magistrates as other places on duty and all the time, a lot of times when you need a search warrant and somebody is placed in custody during nighttime hours, we have to actually call out the magistrate and at times wait for them to arrive and sometimes wait for other people to process prisoners before we can see them. So I was not aware of there being a magistrate in Siler City, which is where we were, because, like I said, during nighttime hours, they are not there. And I was unaware if in Pittsboro there was a magistrate on duty at the time. I felt that it was unreasonable for me to load him up, go back to Pittsboro, possibly wait for the magistrate to get there, draw up the search warrant, get the magistrate to sign it, load
1 Defendant did not challenge on appeal his conviction of communicating threats. -14- him back up, go back to Siler City, and then do the blood draw when we were losing evidence.
Defendant asks us to second-guess the officer’s determinations
about how long it might have taken to obtain a warrant and
whether it would have been reasonable for him to take the
increasingly belligerent defendant, “load him up, go back to
Pittsboro, possibly wait for the magistrate to get there, draw
up the search warrant, get the magistrate to sign it, load him
back up, go back to Siler City, and then do the blood draw when
[he was] losing evidence.” Defendant claims that the
dispositive question, under McNeely and Schmerber, is “Did
Officer Fyle have the time and ability to seek out a warrant?”
Defendant argues that he did, and that the trial court failed to
address the availability of a magistrate or “whether Officer
Fyle should have sought a warrant since Officer Ryser was
accompanying [defendant] in the EMS vehicle.” Yet all of these
questions are squarely within the authority of the trial court
to make the factual findings as to these issues and to make the
appropriate legal conclusions upon those facts. It is the trial
court that “is entrusted with the duty to hear testimony, weigh
and resolve any conflicts in the evidence, find the facts, and,
then based upon those findings, render a legal decision, in the -15- first instance, as to whether or not a constitutional violation
of some kind has occurred.” State v. Cooke, 306 N.C. 132, 134,
291 S.E.2d 618, 620 (1982).
We find this case to be more similar to State v. Granger
than to McNeely. See ___ N.C. App. ___, 761 S.E.2d 923 (2014).
In Granger, this Court found that the trial court properly
concluded that the totality of the circumstances showed exigent
circumstances that justified the warrantless blood draw. Id. at
___, 761 S.E.2d at 928. There, the defendant was injured in a
wreck and required medical care. Id. at ___, 761 S.E.2d at 924.
The officer was investigating the case alone and would have had
to wait for another officer to come to the hospital so that he
could travel to the magistrate to obtain a warrant. Id. at ___,
761 S.E.2d at 928. The trial court also noted the officer’s
“knowledge of the approximate probable wait time” and travel
time to the magistrate. Id. at ___, 761 S.E.2d at 928. In
addition, the officer was concerned that medications could have
been administered to the defendant as part of his treatment that
could contaminate the blood sample. Id. at ___, 761 S.E.2d at
928.
Although the situation here is different from Granger in
that the defendant here only feigned a need for medical care and -16- in fact needed none, they are otherwise similar. Obtaining a
warrant may have required an officer to either leave the
defendant, which in this case may not have been a reasonable
option even with more than one officer present, considering
defendant’s threats to Deputy Fyle and others, or take the
defendant with him to Pittsboro and then back to Siler City. The
evidence and uncontested findings of fact show that several
officers were needed to control the defendant and ensure the
safety of the hospital personnel.2 In Conclusion of Law No. 6,
the trial court concluded that
[b]ased upon the time elapsed to that point and the additional time and uncertainties in how much additional time would be needed to obtain a search warrant or other court order for defendant’s blood and all other attendant circumstances, the same gave rise to the existence of exigent circumstances and supported the officer’s reasonable belief that the additional delay necessary
2 The dissent would find that even taking into account defendant’s belligerent behavior, the presence of so many officers would lead to the conclusion that there was no plausible justification for an exception to the warrant requirement under the totality of the circumstances. See McNeely, ___ U.S. at ___, 185 L.Ed. 2d at 708. We believe that this sort of determination is a factual determination that can be made only by the trial court that heard the evidence and observed all of the witnesses. An appellate court, far removed from the real physical dangers presented by a combative, highly intoxicated defendant, is in a poor position to make a finding of fact about how many officers are reasonably needed to protect themselves and others in that moment. That is the job of the trial judge. -17- to obtain a search warrant or court order under the circumstances would result in the dissipation of the percentage of alcohol in the defendant’s blood.
Defendant is correct that the trial court did not make any
specific findings addressing the availability of a magistrate at
the time of the incident and the probable delay in seeking a
warrant, although Deputy Fyle did testify about this matter, but
it seems from the above conclusion of law that the trial court
considered the time factor in mentioning the “additional time
and uncertainties in how much additional time would be needed to
obtain a search warrant.” Without findings of fact on these
details, however, we cannot properly review this conclusion. We
must therefore remand this matter to the trial court for
additional findings of fact as to the availability of a
magistrate and the “additional time and uncertainties” in
obtaining a warrant, as well as the “other attendant
circumstances” that may support the conclusion of law that
exigent circumstances existed.
III. Motion to Dismiss
Defendant’s motion before the trial court was styled as a
motion to dismiss pursuant to N.C. Gen. Stat. § 15A-954(a)(4),
which requires dismissal of criminal charges if “defendant’s
constitutional rights have been flagrantly violated and there is -18- such irreparable prejudice to the defendant’s preparation of his
case that there is no remedy but to dismiss the prosecution.”
N.C. Gen. Stat. § 15A-954(a)(4) (2013). However, at the hearing
on defendant’s motion, both parties agreed to treat the motion
as both a motion to dismiss and a motion to suppress. Both of
these motions were subsequently denied by the trial court. On
appeal, defendant requests that this Court reverse the trial
court’s order as to both motions.
In State v. Wilson, the trial court found that a
warrantless blood draw had violated the defendant’s
constitutional rights and dismissed the charges against him. ___
N.C. App. ___, ___, 736 S.E.2d 614, 616 (2013). On appeal, this
Court held that dismissal was an inappropriate remedy:
In his motion to dismiss, defendant argued the officer’s conduct flagrantly violated his constitutional rights “and there is such irreparable prejudice to the defendant’s preparation of his case that there is no remedy but to dismiss the prosecution.” While defendant’s motion addresses the alleged flagrant violation of his constitutional rights, his motion in no way details how there was irreparable damage to the preparation of his case as a result. Indeed, the trial court made no such finding or conclusion, and defendant has made no such argument on appeal. Thus, we fail to see how the alleged constitutional violation at issue here irreparably prejudiced the preparation of defendant’s case, and section -19- four of the dismissal statute likewise does not apply to the present case.
Id. at ____, 736 S.E.2d at 617-18. Instead, “the appropriate
argument by defendant was for suppression of the evidence, and
the only appropriate action by the trial court under the
circumstances of the present case was to consider suppression of
the evidence as the proper remedy if a constitutional violation
was found.” Id. at ___, 736 S.E.2d at 618.
Likewise, in the instant case, while defendant’s motion to
dismiss asserts that the warrantless blood draw was a flagrant
violation of his constitutional rights, “his motion in no way
details how there was irreparable damage to the preparation of
his case as a result” and “defendant has made no such argument
on appeal.” See id. Thus, pursuant to Wilson, “the only
appropriate action by the trial court under the circumstances of
the present case was to consider suppression of the evidence as
the proper remedy if a constitutional violation was found.” See
id. Accordingly, we affirm the trial court’s order denying
defendant’s motion to dismiss.
IV. Conclusion
We affirm the trial court’s order denying defendant’s
motion to dismiss. However, we remand to the trial court to make
additional findings of fact addressing the availability of a -20- magistrate and the “additional time and uncertainties” in
circumstances” that bear upon the conclusion of law that exigent
circumstances existed that justified the warrantless blood draw.
AFFIRMED, in part, and REMANDED.
Judge DAVIS concurs.
Judge CALABRIA dissents in a separate opinion. NO. COA13-1059
v. Chatham County Nos. 10 CRS 52754-55 RONALD MICHAEL McCRARY
CALABRIA, Judge, dissenting.
Because I believe that, based upon the testimony presented
below, remanding this case for further findings would be futile,
I must respectfully dissent from the majority’s opinion. I
would reverse the trial court’s denial of defendant’s motion to
suppress and remand for a new trial.
As an initial matter, I agree with the majority that
defendant’s self-styled “Motion to Dismiss” based upon the
warrantless blood draw is most properly treated as a motion to
suppress. See State v. Wilson, ___ N.C. App. ___, ___, 736
S.E.2d 614, 618 (2013). “The standard of review in evaluating
the denial of a motion to suppress is whether competent evidence
supports the trial court’s findings of fact and whether the
findings of fact support the conclusions of law.” State v.
Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011). -2- Conclusions of law are reviewed de novo. Id. at 168, 712 S.E.2d
at 878. For a properly filed motion to suppress, “the burden is
upon the [S]tate to demonstrate the admissibility of the
challenged evidence[.]” State v. Cheek, 307 N.C. 552, 557, 299
S.E.2d 633, 636 (1983).
“Our courts have held that the taking of blood from a
person constitutes a search under both” the United States and
North Carolina Constitutions. State v. Barkley, 144 N.C. App.
514, 518, 551 S.E.2d 131, 134 (2001). This is because the
drawing of blood “involve[s] a compelled physical intrusion
beneath [a suspect]’s skin and into his veins to obtain a sample
of his blood for use as evidence in a criminal investigation.
Such an invasion of bodily integrity implicates an individual’s
‘most personal and deep-rooted expectations of privacy.’”
Missouri v. McNeely, 569 U.S. ___, ___, 185 L. Ed. 2d 696, 704
(2013) (quoting Winston v. Lee, 470 U.S. 753, 760, 84 L. Ed. 2d
662, 668 (1985)). Accordingly, our Supreme Court has
specifically held that “a search warrant must be issued before a
blood sample can be obtained, unless probable cause and exigent
circumstances exist that would justify a warrantless search.”
State v. Carter, 322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988)
(emphasis added). -3- The United States Supreme Court recently held that “the
natural metabolization of alcohol in the bloodstream” does not
create “a per se exigency that justifies an exception to the
Fourth Amendment's warrant requirement for nonconsensual blood
testing in all drunk-driving cases[.]” McNeely, 569 U.S. at
___, 185 L. Ed. 2d at 702. “Therefore, after the Supreme
Court’s decision in McNeely, the question for this Court remains
whether, considering the totality of the circumstances, the
facts of this case gave rise to an exigency sufficient to
justify a warrantless search.” State v. Dahlquist, ___ N.C. App.
___, ___, 752 S.E.2d 665, 667 (2013), appeal dismissed and disc.
rev. denied, ___ N.C. ___, 755 S.E.2d 614 (2014).
In McNeely, a Missouri law enforcement officer initiated a
traffic stop of the defendant for speeding and crossing the
centerline. 569 U.S. at ___, 185 L. Ed. 2d at 702. The defendant
displayed obvious signs of impairment and failed various field-
sobriety tests. Id. As a result, the officer arrested the
defendant and began to transport him to the station house. Id.
While in transit, the defendant informed the officer he would
not submit to a breath test. Id. Consequently, the officer took
the defendant directly to a nearby hospital for a blood test.
Id. The officer never attempted to obtain a warrant, but sought -4- defendant’s consent for the blood test, which defendant refused.
Id. at ___, 185 L. Ed. 2d at 702-03. The United States Supreme
Court concluded that the results of this blood test were
required to be suppressed pursuant to the Fourth Amendment
because “in drunk-driving investigations, the natural
dissipation of alcohol in the bloodstream does not constitute an
exigency in every case sufficient to justify conducting a blood
test without a warrant.” Id. at ___, 185 L. Ed. 2d at 715. In
support of this conclusion, the Court provided the following
example:
Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.
Id. at ___, 185 L. Ed. 2d at 708.
In the instant case, the trial court’s unchallenged
findings demonstrate that Deputy Fyle’s actions fall squarely
within the ambit of the example articulated by McNeely. The
trial court found that Deputy Fyle had determined that he would
seek to obtain a blood sample from defendant at 7:39 p.m.
However, Deputy Fyle made no attempt to secure a warrant for -5- this blood draw. Instead, Deputy Fyle followed defendant to the
hospital, despite the fact that Deputy Ryser was already
traveling with the handcuffed defendant in the ambulance. There
is nothing in the court’s order or in the transcript which
provides any explanation for the reason Deputy Fyle followed
defendant rather than using the time to seek a warrant.
Pursuant to McNeely, “[i]n such a circumstance, there [is] no
plausible justification for an exception to the warrant
requirement.” Id.; cf. State v. Granger, ___ N.C. App. ___,
___, 761 S.E.2d 923, 928 (2014) (upholding a warrantless blood
draw in part because “unlike the example in McNeely, [569] U.S.
at ___, 185 L. Ed. 2d at 708, Officer Lippert was investigating
the matter by himself and would have had to call and wait for
another officer to arrive before he could travel to the
magistrate to obtain a search warrant.”).
Nonetheless, the majority contends that Deputy Fyle’s
actions were appropriate under this Court’s decision in Granger.
In that case, a law enforcement officer responded to the report
of an accident in which the defendant had rear-ended another
vehicle. Granger, ___ N.C. App. at ___, 761 S.E.2d at 924.
When the officer arrived at the scene, he observed that the
defendant was in pain and emanated a moderate odor of alcohol. -6- Id. The defendant was transported to the hospital before the
officer could perform any sobriety tests. Id. Upon arrival,
the defendant admitted to the officer that he had consumed
alcohol and displayed clear signs of impairment. Id. The
officer administered two portable breath tests, and both tests
indicated the presence of alcohol on defendant’s breath. Id.
As a result, the officer obtained a warrantless blood sample
from the defendant. Id. at ___, 761 S.E.2d at 925. This Court
held that, under the totality of the circumstances, there was a
sufficient exigency to support a warrantless blood draw. Id. at
___, 761 S.E.2d at 928. Specifically, the Court noted that (1)
the officer was concerned about the dissipation of alcohol from
the defendant’s blood, because over an hour had elapsed since
the accident occurred before the officer established sufficient
probable cause to seek the blood draw; (2) the officer estimated
that the time it would take to travel to the magistrate’s
office, obtain a warrant, and return to the hospital would be at
least forty minutes; (3) the officer was investigating the
matter alone, which would have required him to wait for another
officer to arrive before he could travel to the magistrate’s
office to obtain a warrant; and (4) the officer was concerned
that if he left the defendant unattended or waited any longer -7- for a blood draw, the hospital might have administered pain
medication to the defendant that could contaminate his blood
sample. Id.
Granger is distinguishable from the instant case. First
and foremost, unlike the officer in Granger, Deputy Fyle was
not the sole officer who accompanied defendant to the hospital.
Instead, Deputy Ryser accompanied defendant in the ambulance,
while Deputy Fyle followed behind the ambulance in his patrol
car, despite the fact that he had already determined that he
would seek to draw defendant’s blood. Moreover, unlike the
officer in Granger, Deputy Fyle had already completed his
investigation and placed defendant under arrest on suspicion of
DWI prior to defendant’s transportation to and arrival at the
hospital. The circumstances which this Court found justified
the warrantless blood draw in Granger are simply not present in
this case.
The majority contends that the appropriate disposition for
this case is to remand for additional findings of fact regarding
the availability of a magistrate and the additional time and
uncertainties in obtaining a warrant. However, the trial
court’s conclusion of law reflects that the court considered -8- these factors and applied the appropriate totality of the
circumstances test required by McNeely:
Based upon the time elapsed to that point and the additional time and uncertainties in how much additional time would be needed to obtain a search warrant or other court order for the defendant's blood and all other attendant circumstances, the same gave rise to the existence of exigent circumstances and supported the officer's reasonable belief that the additional delay necessary to obtain a search warrant or court order under the circumstances would result in the dissipation of the percentage of alcohol in the defendant's blood.
While the majority is correct that the trial court could have
made more explicit findings from Deputy Fyle’s testimony
regarding the availability of a magistrate and the ease of
obtaining a warrant, there is a fundamental flaw in the premise
that these additional findings could support the trial court’s
denial of the motion to suppress. The trial court’s findings
clearly indicate that Deputy Fyle determined he would obtain a
sample of defendant’s blood at approximately 7:39 p.m.
Accordingly, any determination of exigent circumstances must be
based upon whether, under the facts that existed at that time,
Deputy Fyle could have reasonably taken the appropriate steps to
secure a warrant while defendant was transported to the hospital
by Deputy Ryser. -9- However, there is no evidence on this question in the
record, because Deputy Fyle’s testimony unequivocally indicates
that he only considered whether exigent circumstances existed
after defendant was discharged from the hospital and refused to
consent to the blood draw. At that time, approximately ninety
minutes had already elapsed since Deputy Fyle had arrested
defendant on suspicion of DWI and determined that he would seek
to obtain a sample of defendant’s blood. Despite the fact that
Deputy Ryser was with defendant, who was restrained in handcuffs
in the back of the ambulance, and the additional fact that at
least two other deputies were dispatched to the hospital to
assist with defendant when he arrived, there is nothing in the
record to suggest that Deputy Fyle ever attempted, or even
considered attempting, taking steps to obtain a warrant in the
time between defendant’s arrest and his discharge from the
hospital.
The majority speculates that it may still have not been
reasonable for Deputy Fyle to seek a warrant while Deputy Ryser
transported him to the hospital because “several officers were
needed to control defendant and ensure the safety of the
hospital personnel.” This speculation into Deputy Fyle’s
motives at the time he followed defendant to the hospital is not -10- supported by any evidence that was presented during the hearing.
Deputy Fyle restrained defendant in handcuffs without any
physical altercation, deemed it unnecessary to travel together
in the ambulance with Deputy Ryser and defendant, and never
indicated at any point during his testimony that he went
directly to the hospital due to safety concerns. Moreover, it
was not until Deputy Fyle ordered the warrantless “invasion of
[defendant’s] bodily integrity,” McNeely, 569 U.S. at ___, 185
L. Ed. 2d at 704, that defendant resisted sufficiently to
require several officers to help control him.3
Ultimately, I conclude that the trial court’s findings
demonstrate that Deputy Fyle never considered whether a warrant
was necessary during the ninety minutes after placing defendant
in custody and determining that he would seek to draw
defendant’s blood. Therefore, “there [was] no plausible
justification for an exception to the warrant requirement” under
the totality of the circumstances. McNeely, 569 U.S. at ___, 185
L. Ed. 2d at 708. Deputy Fyle simply ignored our Supreme
Court’s long-established directive that “a search warrant must
be issued before a blood sample can be obtained[.]” Carter, 322
N.C. at 714, 370 S.E.2d at 556. He then sought to impermissibly
3 Defendant’s conviction for communicating threats was based upon his belligerent behavior during the blood draw. -11- benefit from his failure to seek a warrant by asserting that an
exigency existed at the moment the blood draw was to occur. At
this point, it was far too late for Deputy Fyle to consider, for
the first time, whether a warrant could reasonably be obtained.
Since neither the trial court’s findings of fact nor any
other evidence presented at the hearing support its conclusion
of law that, based upon the totality of the circumstances,
exigent circumstances existed to support defendant’s warrantless
blood draw, the trial court erred by denying defendant’s motion
to suppress the results of the blood test. The trial court’s
order should be reversed and remanded for the entry of an order
suppressing this evidence. I respectfully dissent.