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State v. Swartz

Court of Appeals of Missouri, Western District, Special Division

February 14, 2017

JERRY J. SWARTZ, Appellant.

         Appeal 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

          GARY D. WITT, JUDGE

         Appellant Jerry J. Swartz ("Swartz") appeals his convictions after a jury trial of one count of Driving While Intoxicated, section 577.010,[1] 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.

         Factual Background[2]

         On 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.

         Sergeant 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.

         Sergeant 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.

         Sergeant 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."

         Sergeant 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.

         Sergeant 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 1:19 p.m.

         Criminalist 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.

         The 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 follows.


         Point One

         In 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 the samples.

In reviewing the trial court's denial of a motion to suppress, we consider the evidence presented at both the suppression hearing[3] 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.

         The 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).

         In 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.

         In 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.

         The 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 reasoned that

[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 Amendment.

         The 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 alcohol content.[4]

         Swartz 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.[5] 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.

         Point One is denied.

         Point Two

         In 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.

         The 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)).

         The 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 (1990)).

         Terry's "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)).

         Sergeant 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 ...

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