in the Supreme Court on 20 March 2017.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
785 S.E.2d 168 (2016), affirming an order entered on 23 March
2015 by Judge R. Gregory Horne in Superior Court, Buncombe
County. On 18 August 2016, the Supreme Court allowed
defendant's conditional petition for discretionary review
as to additional issues.
H. Stein, Attorney General, by Derrick C. Mertz, Special
Deputy Attorney General, for the State-appellant/appellee.
Gerding, Appellate Defender, by Constance E. Widenhouse and
Andrew DeSimone, Assistant Appellate Defenders, for
issue before us in this case is whether N.C. G.S. §
20-16.2(b), which authorizes law enforcement to obtain a
blood sample from an unconscious defendant who is suspected
of driving while impaired without first obtaining a search
warrant, was unconstitutionally applied to defendant. The
trial court suppressed the results of defendant's blood
test on Fourth Amendment grounds, and the Court of Appeals
affirmed that decision. We now affirm the opinion of the
Court of Appeals as modified herein.
October 2014, defendant was indicted for felony habitual
driving while impaired and driving while his license was
revoked. These charges were based on events that occurred on
17 February 2014. On 26 January 2015, defendant filed a
pretrial motion to suppress all evidence gathered after his
arrest. The motion was heard on 2 and 3 February 2015.
on the evidence presented at the suppression hearing, the
trial court found the following facts. On 17 February 2014,
Officer Tammy Bryson responded to a dispatch indicating that
a white male wearing his sweater backwards and carrying a
liquor bottle had stopped his SUV in the travel portion of a
public road, gotten out of the vehicle, and stumbled across
the multilane highway. Officer Bryson found Joseph Romano
(defendant), who matched the description of the driver,
sitting behind a restaurant "approximately 400 feet from
the abandoned SUV." Officer Bryson observed that
defendant was making incoherent statements, that his speech
was slurred, that he was unable to stand due to his obvious
intoxication, and that he smelled strongly of alcohol and
vomit. Officer Bryson determined that defendant's
faculties were appreciably impaired. Defendant was arrested
for driving while impaired (DWI), and, due to his extreme
level of intoxication, defendant was transported to a
hospital for medical treatment. Officer Bryson requested the
assistance of Sergeant Ann Fowler, a Drug Recognition Expert.
was belligerent and combative throughout his encounters with
law enforcement and medical personnel. At the hospital,
medical staff and law enforcement attempted to restrain
defendant. Medical personnel determined it was necessary to
medicate defendant to calm him down. Sergeant Fowler told the
treating nurse "that she would likely need a blood draw
for law enforcement purposes." Before defendant was
medicated, Sergeant Fowler did not "advise[ ] [him] of
his chemical analysis rights, " "request[ ] that he
submit[ ] to a blood draw, " or obtain a warrant for a
blood search. After defendant was medically subdued, the
treating nurse drew blood for medical treatment purposes;
however, the nurse drew more blood than was needed for
treatment purposes and offered the additional blood for law
enforcement use. Before accepting the blood sample, Sergeant
Fowler attempted to get defendant's consent to the blood
draw or receipt of the evidence, but she was unable to wake
him. The trial court found as fact that "[d]ue to his
medically induced state, the Defendant was rendered unable to
meaningfully receive and consider his blood test rights,
unable to give or withhold his informed consent, and/or
unable to exercise his right to refuse the warrantless
this entire series of events, multiple officers were present
to assist with the investigation, "such that an officer
could have left to drive the relatively short distance (only
a few miles) to the Buncombe County Magistrate's Office
to obtain a search warrant." Sergeant Fowler was
familiar with the blood search warrant procedure, and search
warrants for a blood draw are fill-in-the-blank forms that
are not time-consuming; moreover, magistrates were on duty
and available during the relevant time period. Sergeant
Fowler did not attempt to obtain a warrant for
defendant's blood nor did she believe any exigency
existed. Instead, she "expressly relied upon the
statutory authorization set forth in [subsection] 20-16.2(b),
" which allows the taking and testing of blood from a
person who has committed a DWI if the person is
"unconscious or otherwise in a condition that makes the
person incapable of refusal." After taking possession of
defendant's blood, Sergeant Fowler "drove to the
Buncombe County Magistrate's Office and swore out
warrants for the present charges, " and then returned to
the hospital and served the warrants on defendant. The trial
court found that "nothing prevent[ed] her from obtaining
a search warrant [for defendant's blood] at the same time
she [obtained the other warrants] and then subsequently
seizing the blood."
trial court quoted Missouri v. McNeely, 569 U.S.,
133 S.Ct. 1552 (2013), which states that "a warrantless
search of the person is reasonable only if it falls within a
recognized exception, " such as "when the
exigencies of the situation make the needs of law enforcement
so compelling that a warrantless search is objectively
reasonable under the Fourth Amendment." Id. at
__, 133 S.Ct. at 1558 (citations omitted). A court
"looks to the totality of circumstances" to
determine whether exigent circumstances justified law
enforcement in acting without a warrant. Id. at __,
133 S.Ct. at 1559 (citations omitted).
trial court concluded as a matter of law that the seizure of
defendant's blood "was a search subject to Fourth
Amendment protection, " and, under "a totality of
the circumstances test, no exigency existed justifying a
warrantless search." The court concluded that N.C. G.S.
§ 20-16.2(b) "creates a per se exigency exception
to the warrant requirement, " and as applied here
violates the holding in McNeely. Therefore,
"any subsequent testing performed by law enforcement on
the seized blood must be suppressed."
conclusion of the hearing on 3 February 2015, the court ruled
orally on defendant's motions to suppress. The court then
filed written orders on 23 March 2015. The State timely
appealed the trial court's order suppressing the blood
Court of Appeals affirmed the trial court's order
suppressing the test results of the blood that Sergeant
Fowler obtained from defendant at the hospital. State v.
Romano, __ N.C.App. __, __, 785 S.E.2d 168, 175 (2016).
The court quoted McNeely's holding that "
'the natural metabolization of alcohol in the
bloodstream' does not present a 'per se
exigency that justifies an exception to the Fourth
Amendment's warrant requirement for nonconsensual blood
testing in all drunk-driving cases.' " Id.
at __, 785 S.E.2d at 173 (quoting McNeely, 569 U.S.
at __, 133 S.Ct. at 1556). The Court of Appeals determined
that N.C. G.S. § 20-16.2(b) could not justify a
warrantless blood draw from an unconscious DWI defendant
because McNeely "sharply prohibits per
se warrant exceptions for blood draw searches."
Id. at __, 785 S.E.2d at 174.
N.C. G.S. § 20-16.2(b) to the instant case, the Court of
Appeals opined that "the record suggests, but does not
affirmatively show, that [Sergeant] Fowler had
'reasonable grounds' to believe Defendant . . . was
intoxicated while he drove his SUV, " as opposed to his
becoming intoxicated while drinking rum after leaving his
vehicle. Id. at __, 785 S.E.2d at 174. The court
added: "More importantly, Fowler testified that she did
not attempt to obtain a search warrant at any time, even
though the magistrate's office was 'a couple of
miles' away from the hospital." Id. at __,
785 S.E.2d at 174. The court concluded that
[t]he State's post hoc actions do not overcome
the presumption that the warrantless search is unreasonable,
and it offends the Fourth Amendment, the State Constitution,
and McNeely. As the party seeking the warrant
exception, the State did not carry its burden in proving
"the exigencies of the situation made that [warrantless]
course imperative." Coolidge [v. New
Hampshire], 403 U.S. [443, ] 455, 91 S.[ ]Ct. 2022[,
2032 (1971)]. Under the totality of the circumstances,
considering the alleged exigencies of the situation, the
warrantless blood draw was not objectively reasonable.
See McNeely, __ U.S. at __, 133 S.[ ]Ct. at 1558.
Romano, __ N.C. App at __, 785 S.E.2d at 174 (second
alteration in original).
Court of Appeals also concluded that neither the independent
source doctrine nor the good faith exception to the warrant
requirement applied in this case. Id. at __, 785
S.E.2d at 174-75. The court first recognized that the State
raised these arguments for the first time on appeal. Then,
the court noted that under a previous Court of Appeals
decision, "[t]he independent source doctrine permits the
introduction of evidence initially discovered [during], or as
a consequence of, an unlawful search, but later obtained
independently from lawful activities untainted by the initial
illegality." Id. at __, 785 S.E.2d at 174
(quoting State v. Robinson, 148 N.C.App. 422, 429,
560 S.E.2d 154, 159 (2002)). The court determined that
"[t]he sequence of events in this case does not follow
this framework, " in that the attending nurse knew that
defendant was going to be arrested for DWI and that officers
wanted his blood drawn. Id. at __, 785 S.E.2d at
174. As such, the court concluded that "the nurse cannot
be an independent lawful source." Id. at __,
785 S.E.2d at 174. Additionally, the Court of Appeals
concluded that "[t]he good faith exception, " which
"allows police officers to objectively and reasonably
rely on a magistrate's warrant that is later found to be
invalid, " id. at __, 785 S.E.2d at 174
(citation omitted), was not applicable in this situation
because "the officers never attempted to obtain a search
warrant prior to the blood draw, " id. at __,
785 S.E.2d at 175. Thus, the officers could not
"objectively and reasonably rely on the good faith
exception." Id. at __, 785 S.E.2d at 175.
parties sought review of the Court of Appeals' decision.
This Court allowed both petitions for discretionary review on
18 August 2016.
the parties filed their petitions for discretionary review
but before they filed their briefs with this Court, the
Supreme Court of the United States decided Birchfield v.
North Dakota, 579 U.S.__, 136 S.Ct. 2160 (2016). After
we granted review, in their briefs and oral arguments to this
Court, both parties acknowledged that the Birchfield
decision challenges the constitutionality of N.C. G.S. §
20-16.2(b). Both in its brief and oral argument before this
Court, the State recognized that Birchfield suggests
that N.C. G.S. § 20-16.2(b) is unconstitutional. The
State noted the differences between Birchfield and
this case, but during oral argument stated that it could not
read Birchfield to suggest anything other than that
subsection 20-16.2(b) was unconstitutional. Defendant argued
that subsection 20-16.2(b) was unconstitutional as applied to
him because it created a per se exception to the warrant
requirement in violation of McNeely and now also
Birchfield. Defendant asserted that under
McNeely and Birchfield both exigency and
valid consent must be determined by a totality of the
circumstances. Defendant argued that N.C. G.S. §
20-16.2(b) could only be constitutional if it could be read
as allowing a blood draw from unconscious persons so long as
the officer also complied with the Fourth Amendment.
State also argued that the Court of Appeals' analyses of
probable cause, state action, the independent source
doctrine, and the good faith exception were incorrect and
asked this Court to reverse or modify the Court of
Appeals' opinion on those issues. Defendant argued that
the State was procedurally barred from raising a state
action, good faith, or independent source claim because these
claims were not presented to the trial court.
address the application of the Supreme Court's decisions
in Birchfield v. North Dakota and Missouri v.
McNeely to the situation at bar, specifically, the
warrantless blood draw from defendant for purposes of
determining blood alcohol content. We hold that, in light of
Birchfield and McNeely, N.C. G.S. §
20-16.2(b) is unconstitutional as applied to defendant
because it permitted a warrantless search that violates the
Fourth Amendment. We also hold that the State's state
action, good faith, and independent source claims are not
properly before us.
courts review a trial court's denial of a motion to
suppress to determine whether the trial court's findings
of fact are supported by competent evidence, in which event
they are conclusively binding on appeal, and whether the
findings of fact support the trial court's conclusions of
law. State v. Brooks, 337 N.C. 132, 140-41, 446
S.E.2d 579, 585 (1994) (citations omitted). Conclusions of
law "are fully reviewable on appeal." Id.
at 141, 446 S.E.2d at 585 (quoting State v. Mahaley,
332 N.C. 583, 592-93, 423 S.E.2d 58, 64 (1992), cert.
denied, 513 U.S. 1089, 115 S.Ct. 749 (1995)). Whether a
statute is constitutional is a question of law that this
Court reviews de novo. We review the decision of the Court of
Appeals for any errors of law. Id. at 149, 446
S.E.2d at 590 (citations omitted).
Fourth Amendment to the United States Constitution and
Article I of the North Carolina Constitution protect the
rights of people to be secure from unreasonable searches and
seizures. U.S. Const. amend. IV; N.C. Const. art. I, §
20. Our courts have held that drawing blood from a person
constitutes a search under both the Federal and North
Carolina Constitutions. Schmerber v. California, 384
U.S. 757, 86 S.Ct. 1826 (1966); State v. Carter, 322
N.C. 709, 370 S.E.2d 553 (1988). A warrantless search of a
person is per se unreasonable unless it falls within a
recognized exception to the warrant requirement.
McNeely, 569 U.S. at __, 133 S.Ct. at 1558; see
also Coolidge v. New Hampshire, 403 U.S. 443');">403 U.S. 443, 454-55, 91
S.Ct. 2022, 2032 (1971).
case Sergeant Fowler took possession of defendant's blood
from the treating nurse while defendant was unconscious
without first obtaining a warrant in reliance on N.C. G.S.
§ 20-16.2(b). Subsection 20-16.2(b) states:
(b) Unconscious Person May Be Tested. - If a
law enforcement officer has reasonable grounds to believe
that a person has committed an implied-consent offense, and
the person is unconscious or otherwise in a condition that
makes the person incapable of refusal, the law enforcement
officer may direct the taking of a blood sample or may direct
the administration of any other chemical analysis that may be
effectively performed. In this instance the notification of
rights set out in subsection (a) and the request required by
subsection (c) are not necessary.
N.C. G.S. § 20-16.2(b) (2016). Thus, we must determine
whether this warrantless search violated the Fourth
Amendment. This Court has never before addressed the
constitutionality of N.C. G.S. § 20-16.2(b). This issue
was raised, but not thoroughly discussed, in the Court of
Appeals opinion in State v. Hollingsworth, 77
N.C.App. 36, 334 S.E.2d 463 (1985). In that case the Court of
Appeals considered the application of the warrantless search
exception permitted by N.C. G.S. § 20-16.2(b) but
ultimately relied on Cupp v. Murphy, 412 U.S. 291,
93 S.Ct. 2000 (1973), and Schmerber, 384 U.S. 757,
86 S.Ct. 1826, to affirm the constitutionality of the
officer's search and seizure in that case.
Hollingsworth a blood sample was taken from the
defendant while he was unconscious at the hospital. The State
argued that the defendant "gave implied consent to the
blood test by operation of the 'implied consent'
statute, " N.C. G.S. § 20-16.2. 77 N.C.App. at 40,
334 S.E.2d at 466 (internal citation omitted). The Court of
Appeals observed that "[ N.C. ]G.S. § 20-16.2
operates to imply consent by an unconscious driver to a blood
alcohol test." Id. at 41, 334 S.E.2d at 467.
The Court of Appeals, however, did not analyze whether the
blood draw from the unconscious defendant was constitutional
based upon an implied-consent rationale. Id. at
41-42, 334 S.E.2d at 467. Instead, the court held that the
officer's actions did not violate the Fourth Amendment
because a blood draw is only slightly intrusive, and probable
cause and exigent circumstances existed, which permitted the
officers to draw the defendant's blood without a
warrant. Id. at 44-45, 334 S.E.2d at
468-69. As to the exigency of destructibility of the
evidence, the Court of Appeals relied on Schmerber
in determining that "the body's breakdown of alcohol
in the blood creates the reasonable risk that the evidence of
intoxication will quickly be destroyed." Id. at
44, 334 S.E.2d at 468 (citing Schmerber, 384 U.S.
757, 86 S.Ct. 1826).
Schmerber v. California the Supreme Court of the
United States upheld a warrantless blood test of an
individual arrested for driving under the influence of
alcohol because the officer "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.' " 384 U.S. at 770, 86 S.Ct. at 1835
(quoting Preston v. United States, 376 U.S. 364,
367, 84 S.Ct. 881, 883 (1964)). After the Schmerber
decision, courts split over "whether the natural
dissipation of alcohol in the bloodstream establishes a
per se exigency" that justifies a warrantless,
nonconsensual blood test in drunk-driving investigations.
See McNeely, 569 U.S. at __, 133 S.Ct. at 1558 &
n.2. The Supreme Court settled this issue in Missouri v.
McNeely, holding that "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 __, 133 S.Ct. at
1568, and that "[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, "
id. at __, 133 S.Ct. at 1563. Subsection
20-16.2(b), therefore, cannot be constitutionally upheld
based on a per se exigency rationale. Here the trial court
aptly noted that this case does not involve a situation of
exigency did not relieve Sergeant Fowler of the requirement
to obtain a warrant for a blood draw, the State argued that
N.C. G.S. § 20-16.2 authorized Sergeant Fowler's
actions because a DWI is an implied-consent offense.
"[A] search conducted pursuant to a valid consent is
constitutionally permissible." Schneckloth v.
Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045
(1973). Thus, the State argued that by driving on the road,
defendant consented to having his blood drawn for a blood
test and never withdrew this statutorily implied consent
before the blood draw. We must therefore determine whether
the warrantless seizure of defendant's blood pursuant to
N.C. G.S. § 20-16.2(b) was constitutional as applied to
defendant based on the rationale that the seizure satisfied
the consent exception to the warrant requirement.
Carolina's Uniform Driver's License Act states that
"[a]ny person who drives a vehicle on a highway or
public vehicular area thereby gives consent to a chemical
analysis if charged with an implied-consent
offense." N.C. G.S. § 20-16.2(a) (2016).
Impaired driving is an implied-consent offense. Id.
§ 20-16.2(a1) (2016). When a law enforcement officer
"has reasonable grounds to believe that the person
charged has committed the implied-consent offense, " the
officer "may obtain a chemical analysis of the
person." Id. § 20-16.2(a).
the administration of any chemical analysis, the person
charged must be informed orally and in writing of the
(1) You have been charged with an implied-consent offense.
Under the implied-consent law, you can refuse any test, but
your drivers license will be revoked for one year and could
be revoked for a longer period of time under certain
circumstances, and an officer can compel you to be tested
under other laws.
(3) The test results, or the fact of your refusal, will be
admissible in ...