Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Howard County, Missouri The
Honorable David C. Mobley, Judge
Before: Cynthia L. Martin, Presiding Judge, Gary D. Witt,
Judge and Zel M. Fischer, Special Judge
D. WITT, JUDGE
Jerry J. Swartz ("Swartz") appeals his convictions
after a jury trial of one count of Driving While Intoxicated,
section 577.010, and one count of Failure to Drive on the
Right Half of the Roadway, section 304.015. Swartz was
sentenced to six months in the county jail on the charge of
Driving While Intoxicated, but the court suspended the
execution of that sentence and placed him on two years of
probation. On the charge of Failure to Drive on the Right
Half of the Roadway he was given a fine of $50. Swartz raises
six points on appeal challenging his convictions. We affirm
in part and reverse in part.
March 21, 2014 around 11:50 p.m., Sergeant Nicholas Berry
("Sergeant Berry") of the Missouri State Highway
Patrol was on patrol on Highway M in Moberly, Missouri. Just
before midnight, Sergeant Berry viewed Swartz driving in the
middle of the roadway on an extension of Highway M known as
Urbandale. The stretch of Urbandale where this occurred is a
two-lane blacktop road with one lane going each direction.
Urbandale is wide enough for two cars to safely pass but most
of the road does not have a painted center line. However, at
the time Sergeant Berry first observed Swartz, it was near a
rail road crossing and there is a center line painted on the
street on each side of the crossing for a limited distance.
Sergeant Berry testified that the vehicle was equal parts on
each side of the center of the roadway.
Berry followed Swartz's vehicle and observed him fail to
make a complete stop at a stop sign. Swartz then made a right
turn and crossed the center line on Williams Street, another
two-way blacktop road with a single lane going in each
direction. Again, Swartz proceeded to drive down the middle
of the road. A video showing Swartz's operation of the
vehicle was played for the jury.
Berry activated his emergency lights and stopped Swartz's
vehicle. He approached the vehicle and observed that
Swartz's eyes were glassy and bloodshot. He also noticed
the odor of intoxicants coming from the vehicle. Swartz's
speech was a bit mumbled and he spoke with a lisp. Sergeant
Berry observed that Swartz had a difficult time grasping,
separating, and moving through documents. At this time,
Sergeant Berry flashed a signal to his patrol car camera
indicating that he believed he had an intoxicated driver.
Berry had Swartz exit his vehicle and sit in his patrol car.
While Swartz was sitting in the patrol car, Sergeant Berry
asked him whether he had been drinking that night, and Swartz
denied that he had consumed any alcohol. The odor of alcohol
persisted while Swartz was in the patrol car. Sergeant Berry
testified that he did not have Swartz do a walk-and-turn or
one-leg stand test because Swartz claimed he had a torn
Achilles tendon. Sergeant Berry did conduct a Horizontal Gaze
Nystagmus Test ("HGN") but he admitted at trial
that he performed the test incorrectly. Sergeant Berry asked
Swartz to submit to a preliminary breath test, but Swartz
refused and told Sergeant Berry to just bring him into the
station to perform the test on the "real machine."
Berry arrested Swartz for driving while intoxicated and
obtained a search warrant for Swartz's blood. Swartz was
taken to Moberly Regional Medical Center to get his blood
drawn. At the hospital, Swartz was intimidating, threatening,
and belittling to some of the hospital staff. Swartz told the
medical staff that he had donated blood that day and wanted
them to check with a physician to see if the blood draw was
medically safe. The doctor on duty indicated that it would
not be an issue. Phlebotomist Erin Haden ("Haden")
drew Swartz's blood twice. The first draw occurred at
1:36 a.m. and the blood was drawn into a gray top tube, which
was inverted and labelled with Swartz's name, date of
birth, date of blood draw, time, incident number, and was
initialed by Sergeant Berry and Haden. During this draw,
Haden testified that Swartz pretended to faint as he closed
his eyes and slumped back in his chair immediately after the
needle was entered in his arm before any blood was drawn.
Haden, who had met Swartz before, testified Swartz's
speech was a little slurred, he shuffled his feet when he
walked, and his eyes were bloodshot. She testified that she
believed he was intoxicated. The same procedure was used for
a second blood draw at 2:06 a.m. Both tubes were placed into
an evidence box marked with the incident number and sealed
with tape and given to Sergeant Berry.
Berry placed the evidence box into his patrol car and two
days later, on March 24, transported the samples to Troop
headquarters where he placed the samples into a locked
evidence refrigerator at 9:41 a.m. Sergeant Berry completed a
chain of custody form on the blood box kit and testified that
he followed all the steps he was trained to perform regarding
marking and securing the evidence. On the same day, at 11:00
a.m., Sergeant Gail Frank Riley ("Sergeant Riley"),
the evidence officer, took the samples into his custody and
signed for them. The next entry on the chain of custody log
indicates the lab received the samples on March 26, 2014 at
Craig Bishop ("Bishop") from the Missouri State
Highway Patrol tested the blood samples. He testified that
when he received the samples they were in a sealed evidence
box and the samples were labelled with Swartz's name. The
result of the first blood draw showed a blood alcohol level
of 0.107 percent and second draw showed a blood alcohol level
of 0.096 percent.
jury found Swartz guilty of one count of Driving While
Intoxicated, section 570.010, and one count of Failure to
Drive on the Right Half of the Roadway, section 304.015. Jury
sentencing was waived and prior to the sentencing hearing
Swartz filed a motion to stay alleging that the appointed
special prosecutor did not have prosecutorial powers. The
stay was denied, and Swartz filed a writ arguing the same,
which was also denied. The court sentenced Swartz to six
months in the county jail but suspended execution of that
sentence and placed him on two years' probation. Swartz
now appeals, raising six points of error. Additional facts
will be included as necessary in the analysis section that
Point One on appeal, Swartz argues that the trial court erred
in denying his motion to suppress the blood test results
because the testing of the samples constituted an unlawful
search pursuant to the Fourth Amendment of the United States
Constitution in that the search warrant only authorized the
seizure of the blood samples and not the actual testing of
In reviewing the trial court's denial of a motion to
suppress, we consider the evidence presented at both the
suppression hearing and at trial to determine whether
sufficient evidence exists in the record to support the trial
court's ruling. State v. Brand, 309 S.W.3d 887,
892 (Mo. App. W.D. 2010) (citing State v. Pike, 162
S.W.3d 464, 472 (Mo. banc 2005)). "[W]e review the facts
and inferences therefrom in the light most favorable to the
trial court's ruling, and disregard all contrary
inferences." State v. Chambers, 234 S.W.3d 501,
512 (Mo. App. E.D. 2007). Our review is limited to a
determination of whether there was sufficient evidence to
support the trial court's findings. Id. "We
will not disturb the trial court's decision to admit or
exclude evidence unless there has been an abuse of
discretion." Id. We defer to the trial
court's superior opportunity to judge the credibility of
the witnesses at the suppression motion hearing. Id.
State v. Nelson, 334 S.W.3d 189, 193 (Mo. App. W.D.
2011). "Whether the Fourth Amendment has been violated,
however, is an issue of law that we review de
novo." Brand, 309 S.W. 3d at 892.
Fourth Amendment protects citizens against unreasonable
searches and seizures. U.S. Const. amend IV; Mo. Const. art.
I, § 15. It has been long settled that the drawing of
blood for evidentiary purposes constitutes a search and
implicates the Fourth Amendment. See Missouri v.
McNeely, 133 S.Ct. 1552, 1558 (2013). Under ordinary
circumstances, an officer must obtain a search warrant prior
to a blood draw when the person does not consent.
Id.; see also Schmerber v. California, 384
U.S. 757, 769-70 (1966).
Point One, Swartz does not challenge the legality of the
search warrant actually obtained by Sergeant Berry prior to
the drawing of his blood. Rather, Swartz argues that the
subsequent testing of the blood for its blood alcohol content
following the blood draw is an additional intrusion upon his
Fourth Amendment rights that required specific findings and
judicial authorization in the form of a search warrant
explicitly authorizing such testing. Swartz argues the search
warrant that authorized his blood draw was deficient in this
respect, in that it was silent as to the issue of the testing
of the blood samples after they were drawn.
support of this argument, Swartz relies on two cases. The
first case, Skinner v. Railway Labor Executives'
Association, was decided by the United States Supreme
Court in 1989 and considered the "special needs"
exception to the search warrant requirement for obtaining
blood samples. 489 U.S. 602 (1989). The case opined that the
first intrusion in a blood test is the actual physical
intrusion of the body to obtain the sample and the second
invasion of the individual's privacy interest is the
chemical analysis of the sample. Id. at 616. Since
the actual issue in that case pertained to an
exception to the warrant requirement,
Skinner's holding has no direct bearing on the
issue herein, which is whether the search warrant that was
issued here was sufficient to authorize both the draw and
subsequent analysis of Swartz's blood.
second case relied upon by Swartz is State v.
Martines, 331 P.3d 105 (Wash. Ct. App. 2014). In
Martines, the Washington Court of Appeals held,
relying primarily on Skinner, that the drawing of
blood and the testing of blood constitute two separate
searches, each of which require particular authorization.
Id. at 530. That court held that a search warrant
which only authorized the blood draw and did not also
specifically authorize the testing of the blood sample,
constituted a Fourth Amendment violation. Id. The
Martines case upon which Swartz relies, however, was
overturned by the Washington Supreme Court. See State v.
Martines, 355 P.3d 1111 (Wash. 2015). The Washington
Supreme Court held that the search warrant in that case
authorized the extraction of a blood sample to obtain
evidence regarding a driving under the influence
investigation, which necessarily included the testing of the
sample. Id. at 1115-16. The Washington Supreme Court
[t]he purpose of the warrant was to draw a sample of blood
from Martines to obtain evidence of DUI. It is not sensible
to read the warrant in a way that stops short of obtaining
that evidence. A warrant authorizing a blood draw necessarily
authorizes blood testing, consistent with and confined to the
finding of probable cause. The only way for the State to
obtain evidence of DUI from a blood sample is to test the
blood sample for intoxicants.
Id. at 1115. Tellingly, Swartz is unable to identify
any case law that remains good authority for the proposition
that Skinner requires a search warrant to include a
detailed authorization for what kind of testing to which the
blood may be subjected in order to satisfy the Fourth
search warrant at issue in this case authorized the search
and seizure of Swartz's body to obtain a blood sample to
provide evidence for the belief, supported by Sergeant
Berry's affidavit establishing probable cause, that the
search would locate "evidence of the crime of driving
while intoxicated." Neither Skinner nor
Martines supports Swartz's present argument that
the search warrant obtained by Sergeant Berry was
insufficient to authorize both the draw of Swartz's blood
and the subsequent testing of that blood for its blood
also claims that because the search warrant did not
specifically detail for what purposes the blood draw could be
used, it allows for "rummaging" and
"wide-ranging searches" forbidden by the Missouri
and United States Constitutions. While it is true the search
warrant does not specify the exact testing mechanisms to be
used to secure the evidence sought by the State, it does
specify that the crime for which the evidence is being seized
is driving while intoxicated and the testing was confined to
locating evidence consistent with that finding of probable
cause. We find that the search warrant issued
here was sufficient to authorize both the blood draw and the
testing of the blood to secure evidence regarding the crime
for which there was probable cause to search.
One is denied.
Point Two on appeal, Swartz argues that the trial court erred
in denying his Motion to Suppress Evidence because the
evidence seized was the result of an unlawful search and
seizure as Swartz was stopped, detained, and charged for
failing to drive on the right half of the roadway of
sufficient width, but the roadway was not of sufficient
width, thirty feet, to be charged under that statute and no
other probable cause existed for the stop. The standard of
review for this point is the same as Point One and will not
be repeated here.
Fourth Amendment to the United States Constitution protects
citizens from "unreasonable searches and seizures."
State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005).
The Missouri Constitution offers the same level of protection
as the United States Constitution, and the same analysis used
in cases interpreting the United States Constitution apply in
Missouri. Id. (citing State v. Damask, 936
S.W.2d 565, 570 (Mo. banc 1996)).
stopping of a motor vehicle by law enforcement is a seizure
under the Fourth Amendment. Id. Although warrantless
seizures are generally unreasonable and, therefore,
unconstitutional, an exception has been crafted to what is
termed "Terry stops" whereby an officer
may conduct a brief "investigative stop" where he
"has a 'reasonable suspicion' based on
'specific and articulable facts' that illegal
activity has occurred or is occurring." Id.
(citing Terry v. Ohio, 392 U.S. 1 (1968)). Whether
an officer has reasonable suspicion is determined on an
objective basis and the question to be answered is whether
"the facts available to the officer at the moment of the
seizure or search 'warrant a man of reasonable caution in
the belief that the action taken was appropriate?'"
Id. (quoting Terry, 392 U.S. at
21–22). Reasonable suspicion is a less stringent
standard than probable cause and "[t]he quantity and
quality of the information must be considered in the
'totality of the circumstances' to determine whether
reasonable suspicion exists." Id. at 473
(quoting Alabama v. White, 496 U.S. 325, 330
"reasonable suspicion" standard also applies to
traffic stops and may be based on an officer's
observation of a traffic violation. Id. (citing
State v. Barks, 128 S.W.3d 513, 516 (Mo. banc
2004)). "A traffic violation, however, is not required
to create reasonable suspicion to justify a stop;
justification may be based on erratic or unusual
operation." Id. (citing State v. Deck,
994 S.W.2d 527, 535 (Mo. banc 1999)).
Berry testified at trial that he initiated a stop of Swartz
for three primary reasons. First, Sergeant Berry initially
observed Swartz when he saw him driving in the middle of a
two-way road. He testified that the road was wide enough for
two cars to pass safely going opposite directions and,
although the road does not have a center line in certain
sections, where Sergeant Berry first saw Swartz driving in
the middle of the road was a section which did have a center
line. Second, Sergeant Berry testified that he followed
Swartz and observed Swartz fail to make a ...