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State v. Romano

Supreme Court of North Carolina

June 9, 2017

STATE OF NORTH CAROLINA
v.
JOSEPH MARIO ROMANO

          Heard in the Supreme Court on 20 March 2017.

         On 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.

          Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy Attorney General, for the State-appellant/appellee.

          Glenn Gerding, Appellate Defender, by Constance E. Widenhouse and Andrew DeSimone, Assistant Appellate Defenders, for defendant-appellant/appellee.

          BEASLEY, Justice.

         The 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.

         On 6 October 2014, defendant was indicted for felony habitual driving while impaired and driving while his license was revoked.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.

         Based 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.

         Defendant 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 test."

         During 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."

         The 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).

         The 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."

         At the 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.[1] The State timely appealed the trial court's order suppressing the blood test results.

         The 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.

         Applying 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).

         The 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.

         Both parties sought review of the Court of Appeals' decision. This Court allowed both petitions for discretionary review on 18 August 2016.

         After 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.

         The 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.

         We now 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.[2] We also hold that the State's state action, good faith, and independent source claims are not properly before us.

         Appellate 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).

         The 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).

         In this 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.[3]

         In 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.[4] 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).[5]

         In 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.[6] 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.

         Though 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.

         North 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."[7] 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).

         Before the administration of any chemical analysis, the person charged must be informed orally and in writing of the following:

(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.
(2) [Repealed.]
(3) The test results, or the fact of your refusal, will be admissible in ...

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