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Stewart v. State

Court of Criminal Appeals of Oklahoma

May 16, 2019






          ROWLAND, JUDGE

         ¶1 Appellant Dakota William Stewart appeals his Judgment and Sentence from the District Court of Carter County, Case No. CF-2016-330, for two counts of First Degree Manslaughter (Counts 1 & 2) in violation of 21 O.S.2011, § 711, and one count of Unlawful Possession of a Controlled Dangerous Substance (Methamphetamine) (Count 3) in violation of 63 O.S.Supp.2012, § 2-402. The Honorable Dennis R. Morris, District Judge, presided over Stewart's jury trial and sentenced him, in accordance with the jury's verdict, to twenty-five years imprisonment on each of Counts 1 and 2 and ten years imprisonment on Count 3 with the sentences to be served consecutively. Stewart appeals contesting only the warrantless compulsory seizure of his blood and subsequent admission of his blood test results that revealed the presence of drugs. We find relief is not required and affirm the Judgment and Sentence of the district court.


         ¶2 The facts of this case are not in dispute. Stewart lost control of his Chevy Avalanche while driving northbound on U.S. Highway 77 in Carter County on May 28, 2015. His car came to rest in the opposite lane of traffic where a van driven by Gerald Letkiewicz struck him broadside. Both Letkiewicz and Stewart's front seat passenger, Justin Skinner, died at the crash site. Though Stewart and his three other passengers sustained injuries, they survived. Stewart's injuries were critical and he was flown to an Oklahoma City trauma center for emergency medical treatment where he remained in a coma for several weeks. Shortly after Stewart's arrival at the hospital, and about three hours after the fatal crash, a registered nurse, acting at the direction of a state trooper without a search warrant or Stewart's consent, drew a sample of his blood. Subsequent testing revealed the presence of methamphetamine and marijuana in Stewart's system. Meanwhile, troopers found methamphetamine, scales, smoking pipes, and pills while looking for identification inside Stewart's car at the crash site.


         ¶3 Stewart argues the warrantless, nonconsensual seizure of his blood and subsequent admission of its chemical analysis at trial violated his state and federal constitutional guarantees against unreasonable searches and seizures. U.S. Amend IV; Okla.Const. Art. 2, § 30. The district court denied his motion to suppress, ruling Title 47 O.S.2011, § 10-104 (B) permitted the seizure of his blood without any search warrant or showing of probable cause and exigent circumstances. Because that statute and its authorization for the warrantless seizure of a suspect's blood in serious vehicle accidents was explicitly upheld by this Court in Cripps v. State, 2016 OK CR 14, 387 P.3d 906, cert. denied, ___U.S.___, 137 S.Ct. 2186, 198 L.Ed.2d 254 (2017), he urges the overruling of that case.


         ¶4 In Schmerber v. California, 384 U.S. 757, 758-60, 86 S.Ct. 1826, 1829, 16 L.Ed.2d 908 (1966), a defendant convicted of driving under the influence of alcohol challenged the warrantless seizure and testing of his blood that was performed at the direction of police while he was being treated at a hospital for injuries suffered in a vehicle crash. The arresting officer smelled the odor of alcohol and observed other signs of intoxication on the defendant at the crash scene, and again at the hospital within two hours of the crash. Schmerber, 384 U.S. at 768-69, 86 S.Ct. at 1835. The Supreme Court upheld the warrantless seizure of the blood sample based in part upon the body's natural dissipation of alcohol. Id., 384 U.S. at 770-71, 86 S.Ct. at 1835-36. The Supreme Court stated:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence,' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.


         ¶5 In Missouri v. McNeely, 569 U.S. 141, 145, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013), the Supreme Court made clear that the body's natural dissipation of alcohol does not itself create a per se rule of exigency which permits a warrantless search and seizure of a suspect's blood in every drunk-driving case. Rather, just as in all other Fourth Amendment contexts, "[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." McNeely, 569 U.S. at 156, 133 S.Ct. at 1563. This pronouncement means that in addition to having probable cause to support the search, police must also obtain a warrant unless there is some exigent circumstance where "the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Id., 569 U.S. at 148-49, 133 S.Ct. at 1558 (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011)).


         ¶6 Title 47, Section 10-104(B) of the Oklahoma Statutes reads:

Any driver of any vehicle involved in an accident who could be cited for any traffic offense where said accident resulted in the immediate death or great bodily injury, as defined in subsection B of Section 646 of Title 21 of the Oklahoma Statutes, of any person shall submit to drug and alcohol testing as soon as practicable after such accident occurs. The traffic offense violation shall constitute probable cause for purposes of Section 752 of this title and the procedures found in Section 752 of this title shall be followed to determine the presence of alcohol or controlled dangerous substances within the driver's blood system.

         ¶7 This statute "creates a per se rule requiring nonconsensual blood testing of a driver involved in an accident who could be cited for a traffic offense, where the accident involves either a fatality or great bodily injury of any person, including the driver." Cripps, 2016 OK CR 14, ¶ 8, 387 P.3d at 909 (emphasis in original).

         ¶8 The Cripps Court held that because 47 O.S.2011, § 10-104 (B) applied only when there was an accident involving death or great bodily injury, its per se rule survived McNeely. Cripps, 2016 OK CR 14, ¶ 8, 387 P.3d at 909. We now find that this analysis and construction of Section 10-104(B) cannot withstand scrutiny under the Fourth Amendment and we overrule Cripps as well as Bemo v. State, 2013 OK CR 4, 298 P.3d 1190, Sanders v. State, 2002 OK CR 42, 60 P.3d 1048, and Guest v. State, 2002 OK CR 5, 42 P.3d 289, insofar as these cases are inconsistent with this opinion.


         ¶9 In Cripps, we found Section 10-104(B) beyond the reach of McNeely because its per se rule was different from the Missouri rule struck down in McNeely. We explained:

The exigent circumstance justifying the per se rule in § 10--104(B) is the existence of great bodily injury or a fatality to persons including the driver. Put another way, § 10--104(B) does not depend solely on the dissipation of alcohol in the bloodstream over time as an exigent circumstance.... The majority in McNeely rejected the claim that states needed a per se rule based on the dissipation of alcohol in the blood in order to promote enforcement of laws against drunk driving. The per se rule found unconstitutional in McNeely is simply a different rule from the per se rule in § 10--104(B), and the difference is material.

Cripps, 2016 OK CR 14, ¶ 8, 387 P.3d at 909. Undoubtedly driving under the influence is a significant public safety problem and the enactment of statutes like Section 10-104(B) seek to assist law enforcement in uncovering evidence for prosecution of those who drive under the influence resulting in tragic consequences. The blanket rule in Section 10-104(B), however, like the dissipation of alcohol in the bloodstream in McNeely, substitutes one per se rule of exigency for another. This distinction is simply at odds with the central point of McNeely that no such blanket rule will satisfy the Fourth Amendment requirement of individualized consideration of the existence of probable cause and exigent circumstances to justify the taking of a blood sample from a driver without a warrant.


         ¶10 Indeed, Section 10-104(B) goes even further than the per se rule rejected in the McNeely case. It provides not only a per se rule of exigency in such cases, but also a per se finding of probable cause, completely eliminating any role of the magistrate in ruling upon probable cause or exigency either before or after the seizure of a suspect's blood. This departs from a foundational Fourth Amendment principle which requires probable cause be determined by a neutral and detached magistrate on a case-by-case basis.

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Johnson v. United States, 333 U.S. 10, 13--14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). While Section 10-104(B) does not delegate the finding of probable cause to law enforcement officers, its inherent pronouncement of probable cause in an entire category of cases has impermissibly dispensed with the necessity of an individualized assessment of probable cause by a magistrate on a case-by-case basis.

         ¶11 In Shadwick v. City of Tampa, 407 U.S. 345, 352, 92 S.Ct. 2119, 2123-24, 32 L.Ed.2d 783 (1972), the Supreme Court upheld the review and issuance of search warrants by a municipal court clerk employed by the judicial branch, but voiced doubt about the constitutionality of such review being performed by non-judicial branch personnel. "Many persons may not qualify as the kind of 'public civil officers' we have come to associate with the term 'magistrate.' Had the Tampa clerk been entirely divorced from a judicial position, this case would have presented different considerations." Id., 407 U.S. at 352, 92 S.Ct. at 2124. See also, United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 317, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972)("The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates.")

         ¶12 An analogous attempt to legislate a Fourth Amendment standard was at issue in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), wherein the Supreme Court considered New York's "stop and frisk" statute, which allowed police to detain any person whom they reasonably suspected of committing certain crimes. Declining the parties' invitation to rule on whether the challenged statute was facially constitutional, the Court instead focused solely on whether the facts known to the officer at the time of a given stop constituted reasonable suspicion to detain.

The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case....No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the ...

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