Exigent Circumstances

So many factors

Weems v. State, No. PD-0077-15 (Tex. Crim. App. May 25, 2016).

Cole v. State, No. PD-0635-14 (Tex. Crim. App. May 25, 2016).

The court has started to give us all an idea where Texas stands in the wake of Missouri v. McNeely, 133 S. Ct. 1552 (2013) (warrantless blood draw violates Fourth Amendment because dissipation of intoxicant does not alone establish exigent circumstances) and State v. Villareal, 475 S.W.3d 784 (Tex. Crim. App. 2015), reh’g denied 475 S.W.3d 817 (Tex. Crim. App. 2015) (per curiam) (Transportation Code provision allowing for blood draw does create a Fourth Amendment exception in light of McNeely, affirming the troubling notion that messing with Texas is sometimes allowed).

McNeely only said the natural dissipation of alcohol alone could not satisfy the exigent circumstances analysis, but could be a factor in the overarching totality of the circumstances analysis pursuant to which the State must prove a warrantless search was reasonable. The McNeely court suggested several factors to guide the exigent circumstances analysis, including “the procedures in place for obtaining a warrant,” “the availability of a magistrate judge,” and “the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence.”

The facts:

  • Weems flipped his car in suburban west San Antonio, fled the scene of the one-car accident, and hid.  Officers found him with injuries requiring hospital treatment some forty minutes later, and one officer accompanied him on the two-minute trip to the hospital. The officer requested the hospital to draw blood, and expressed no surprise that it took two hours for it to happen.
  • Cole ran a red light at a busy intersection going 110mph in Longview, stayed on scene receiving treatment for admitted and apparent meth intoxication, was officially arrested an hour and eight minutes later, and had his blood drawn forty-two minutes after that. Because the crash scene was spread some 250 feet across one of Longview’s major intersections, police required fourteen officers on scene, more than half the minimum number required to police the city over two shifts. And, only one officer was qualified to investigate the accident scene, which took him three hours.

The holdings:

  • Weems: Even though Weems ran and hid, because officers appeared content to accept that the blood draw process could take hours at the hospital, the court found no exigent circumstances.
  • Cole: circumstances were exigent because of the number of officers required on scene, the fact that the main investigating officer had to finish the crash investigation, and due to the relatively short time needed to get a blood draw done once at the hospital.

Practical Implications:

The CCA was very clear in both cases to say the state is not required to prove there was no available officer to seek a warrant, but concluded it was a relevant factor. Bring this up, though. In Cole, court discusses the number of officers required over two shifts, the import of which is not immediately apparent, but a quick look at the LPD website indicates they use overlapping shifts. Might examination into that practice have changed the outcome? Also, seek to establish how many SFST-certified officers were working at the time. More than one? Maybe one of them could’ve cut and pasted that warrant.

In Cole, the court mentioned the record being silent on the elimination rate for methamphetamine. If it’ll help your case, get an expert on the phone after you Google it. But Google it first – NHTSA has fact sheets on all the major drugs that frequently come up in the first few results for searches like “meth half life” or “thc half life.” According to NHTSA, meth’s half life is ten to eleven hours, so this being in the record may have helped Cole’s case. Moreover, was the officer a DRE (Drug Recognition Expert)? Should’ve known the half-life didn’t require alacrity.

The Dallas Court of Appeals recently considered an unknown intoxicant case and suggested law enforcement’s lack of knowledge of the intoxicant (and therefore its half-life) would weigh in favor of exigency. Carefully figure out what the officer knew about the suspected (or admitted) intoxicant, and if she knew nothing, get her to admit she could’ve pulled out her phone and googled the half-life.

Along those lines, the time to peak concentration of meth in the body may have been worth considering: for meth, it is just north of two and a half hours. (again, see the NHTSA fact sheet) At least figure out this timeline for the substance involved in your case – an expert may be able to help make your suppression argument!

And, maybe the night of the week matters: Weems got to the hospital in the wee hours of Sunday morning, when things were busy. The court suggested this made the wait foreseeable for the officer, and militated for him honoring the general warrant requirement.

Author: txcriminalappeals

Appellate lawyer in Rockwall and Dallas Counties focusing on criminal cases and now accepting civil appeals.