State of Tennessee v. Corrin Kathleen Reynolds - Dissenting

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 30, 2015 Session Heard at Nashville

STATE OF TENNESSEE v. CORRIN KATHLEEN REYNOLDS

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Knox County

No. 99372 Steven Wayne Sword, Judge

No. E2013-02309-SC-R11-CD – Filed November 3, 2016

SHARON G. LEE, J., dissenting.

I agree with the Court’s conclusion that the warrantless blood draw violated Ms.

Reynolds’ right to be free from unreasonable searches and seizures, as guaranteed by the

Fourth Amendment to the United States Constitution and article I, section 7 of the

Tennessee Constitution. I dissent from the Court’s decision to excuse these constitutional

violations by adopting a good-faith exception to the exclusionary rule. The adoption of

this exception for a constitutional violation erodes our citizens’ rights to be free from

unreasonable searches and seizures as guaranteed by the United States and Tennessee

Constitutions. Therefore, I would hold that the test results of Ms. Reynolds’ warrantless

blood draw must be suppressed. Moreover, given the unusual facts of this case, the

adoption of a good-faith exception for a constitutional violation based on an officer’s

good-faith reliance on binding judicial precedent, as set forth in Davis v. United States,

564 U.S. 229, 241 (2011), is ill-conceived for many reasons.

First, as the Court discusses, courts adopting a good-faith exception have

concluded that the primary interest served by the exclusionary rule is deterring police

misconduct. See United States v. Leon, 468 U.S. 897, 916 (1984). However, I agree with

the concerns expressed by other courts that adopting a good-faith exception in cases

involving constitutional error undermines the integrity of the judicial process. See, e.g.,

State v. Marsala, 579 A.2d 58, 59 (Conn. 1990); State v. Guzman, 842 P.2d 660, 667

(Idaho 1992); State v. Gutierrez, 863 P.2d 1052, 1068 (N.M. 1993). In discharging our

duty to protect citizens’ constitutional guarantees, we have, in some circumstances,

interpreted our Tennessee Constitution coextensively with the United States Constitution.

Yet, we are free to extend greater protections than those afforded under the United States

Constitution. Under the facts of this case, we should afford our citizens greater protection

against unreasonable searches than is provided by the United States Constitution.

Second, by its decision, the Court is sanctioning the officer’s invasive act of taking

a sample of Ms. Reynolds’ blood without a warrant and in violation of her constitutional

rights. In doing so, the Court has created a category of cases in which police officers may

violate constitutional rights with no consequences. Justice Sandra Day O’Connor, in her

dissent in Illinois v. Krull, 480 U.S. 340 (1987), where the United States Supreme Court

adopted a good-faith exception for reasonable reliance upon legislative acts later found to

be unconstitutional, wisely observed that the exception allows a “grace period . . . during

which the State is permitted to violate constitutional requirements with impunity.” Id. at

361. Although the Court’s reasoning in Ms. Reynolds’ case is not based on Krull, Justice

O’Connor’s concerns are applicable. The police officer did not obtain a warrant before

the blood draw, and there was no proof of any exigent circumstances. Under the Court’s

decision, the State nonetheless will be allowed to use the results of the warrantless blood

draw as evidence against Ms. Reynolds. Moreover, the State will receive a “grace period”

based on the good-faith exception to use evidence obtained in violation of the United

States and Tennessee Constitutions in all other cases pending at the time the decision was

announced in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

Third, the Court’s decision treats Ms. Reynolds differently than the defendants in

McNeely and Aviles v. State, 443 S.W.3d 291 (Tex. Ct. App. 2014). In McNeely, a

Missouri police officer stopped Tyler McNeely’s truck for exceeding the speed limit and

repeatedly crossing the center line. McNeely, 133 S. Ct. at 1556. The officer observed

that Mr. McNeely’s breath smelled of alcohol, he had bloodshot eyes and slurred speech,

and he appeared unsteady on his feet when getting out of his truck. He admitted to the

officer he had consumed a “couple of beers.” Mr. McNeely performed poorly on field

sobriety tests and refused a breath test. Id. at 1556–57. The officer arrested him and took

him to the station house where he again refused to take a breath test. Id. at 1557. Mr.

McNeely was taken to a hospital where, over his objection, a blood sample was taken.

The officer made no effort to get a warrant. Mr. McNeely was charged with driving while

intoxicated. The trial court suppressed the results of the blood test based on the officer’s

failure to obtain a warrant and the lack of exigent circumstances. The Missouri Supreme

Court affirmed. The United States Supreme Court held that in drunk driving cases, the

natural dissipation of alcohol in the bloodstream does not constitute a per se exigency to

justify conducting a blood test without a warrant. Id. at 1563. Notably, the United States

Supreme Court did not apply the good-faith exception it created in Davis to excuse this

illegal search. The blood test results were suppressed. Id. at 1568.

Similarly, in Aviles, 443 S.W.3d at 292, a police officer in Texas twice saw a truck

driven by Antonio Aviles veer across several lane markers. The officer stopped the truck

and saw that Mr. Aviles had bloodshot eyes, slurred speech, and was unsteady on his feet

as he got out of the truck. Mr. Aviles showed signs of intoxication on field sobriety tests.

After arresting Mr. Aviles for driving while intoxicated (“DWI”), the officer discovered

Mr. Aviles had two prior DWI convictions. Mr. Aviles refused to give a breath or blood

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sample for testing. Based on a section of the Texas Transportation Code that makes

testing mandatory for a person with a prior DWI conviction, the officer required Mr.

Aviles to submit to a blood test.1 The trial court denied Mr. Aviles’ motion to suppress

the test results. He pleaded nolo contendere to the DWI charge and appealed. The Texas

Court of Appeals affirmed, and the Texas Court of Criminal Appeals denied Mr. Aviles’

petition for review. The United States Supreme Court granted Mr. Aviles’ petition and

vacated the trial court’s decision in light of McNeely. Id. at 292–93. On remand, the

Texas Court of Appeals found that the blood sample was taken without a warrant, there

were no exigent circumstances, and the statutory mandatory blood draw was not a

permissible exception to the warrant requirement. Id. at 294. The warrantless blood draw

violated Mr. Aviles’ rights under the Fourth Amendment, and the results from the blood

test were suppressed.

Like the drivers in McNeely and Aviles, Ms. Reynolds was subjected to a

warrantless blood draw. After being seriously injured in a traffic accident, Ms. Reynolds

was taken by air ambulance to the hospital. One other person was injured, and two people

died in the accident. The officer neither witnessed the accident nor saw Ms. Reynolds

driving the vehicle. He was dispatched to the hospital to obtain a blood sample from Ms.

Reynolds and another person injured in the accident. According to the officer, the blood

draw was mandatory. Tennessee Code Annotated section 55-10-406(f)(1) provides that,

when an officer has probable cause to believe the driver of a vehicle involved in an

accident resulting in the injury or death of another has committed a violation of the

driving under the influence statute, then the officer “shall cause the driver to be tested for

the purpose of determining the alcohol or drug content of the driver’s blood.” Ms.

Reynolds did not consent to the test and could not withdraw her implied consent. There

was no proof of any exigent circumstances, and the officer did not obtain a warrant. The

trial court granted Ms. Reynolds’ motion to suppress, and the Court of Criminal Appeals

reversed. While recognizing that the warrantless blood draw violated Ms. Reynolds’ right

to be free from unreasonable searches and seizures, as guaranteed by the Fourth

Amendment to the United States Constitution and article I, section 7 of the Tennessee

1

Section 724.012(b)(3)(B) states:

A peace officer shall require the taking of a specimen of the person’s breath or

blood . . . [if] at the time of the arrest, the officer possesses or receives reliable

information from a credible source that the person . . . on two or more occasions, has

been previously convicted of or placed on community supervision for an offense under

Section 49.04, 49.05, 49.06 or 49.065 Penal Code, or an offense under the laws of

another state containing elements substantially similar to the elements of an offense under

those sections.

Tex. Transp. Code Ann. § 724.012(b)(3)(B).

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Constitution, the Court’s ruling today allows for the admission of the blood test results

under a good-faith exception that was not applied by the courts in McNeely or Aviles.

Fourth, assuming I concurred in the adoption of a good-faith exception for a

constitutional violation based on good-faith reliance on binding judicial precedent, I

would not apply it here. The Supreme Court in McNeely did not overrule its previous

decision in Schmerber v. California, 384 U.S. 757 (1966). It merely clarified it. As the

Court recognizes, after Schmerber was decided, there was considerable disagreement

about its meaning and scope. Moreover, the language in Schmerber indicates it was based

on the particular facts presented, and the Supreme Court reached its conclusion “[g]iven

these special facts.” Id. at 771.

In addition to this uncertainty, this Court never interpreted Schmerber as

establishing a per se rule that the dissipation of alcohol always results in the finding of

exigent circumstances. Although cases decided by the Court of Criminal Appeals cited

language from Schmerber that the percentage of alcohol in the blood begins to diminish

shortly after drinking stops, these cases do not rise to the level of “binding judicial

precedent.” In State v. Humphreys, 70 S.W.3d 752, 762–63 (Tenn. Crim. App. 2001), for

example, the Court of Criminal Appeals upheld the admissibility of blood test results

based on the defendant’s consent to the blood test. An officer observed the defendant

erratically operating a vehicle on a public road. Id. at 756. The officer turned on the blue

lights, followed the vehicle, and observed the vehicle again weave back and forth across

the roadway. When he stopped the vehicle, the officer smelled a strong odor of alcohol

and saw the defendant was slumped forward, his eyes red and watery, his speech slurred,

and he appeared sleepy or sedated. Id. at 757. The defendant did not perform well on

field sobriety tests and was arrested. The defendant consented to a blood test, signed the

implied consent form, and was transported to a hospital where a sample of his blood was

taken. Before trial, the defendant moved to suppress the results of the blood test asserting

his consent was not voluntary. Id. at 758. The trial court found that his consent was

voluntary, and the Court of Criminal Appeals affirmed on that basis. Id. at 759–60. In

dicta, the Court of Criminal Appeals, citing Schmerber, noted that, since “evidence of

blood alcohol content begins to diminish shortly after drinking stops, a compulsory

breath or blood test, taken with or without the consent of the donor, falls within the

exigent circumstances exception to the warrant requirement.” Id. at 760–61.2 Given the

prevailing confusion surrounding Schmerber, the Court of Criminal Appeals’ dicta did

2

The opinion cited State v. Janosky, M1999-02574-CCA-R3-CD, 2000 WL 1449367 (Tenn.

Crim. App. Sept. 29, 2000), an unpublished opinion written by the author of Humphreys, which quoted

the same exigent circumstances language. Janosky, however, involved the admissibility of a breath test

taken with the defendant’s consent. Id. at *3. Thus, the issue before the trial court was not the existence of

exigent circumstances, but whether the consent was voluntary.

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not rise to the level of “binding judicial precedent,” particularly for the purpose of

adopting a good-faith exception under article I, section 7 of the Tennessee Constitution.3

Finally, I am not alone in my concerns regarding the adoption of a good-faith

exception for violations of Fourth Amendment protections. Some state courts have

declined to adopt the Leon good-faith exception because it erodes the constitutional rights

of its citizens or otherwise conflicts with state statutory or constitutional law.4 At least

two state courts have rejected the Davis good-faith exception. In Brown v. State, 767

S.E.2d 299, 302 (Ga. Ct. App. 2014), the Georgia Court of Appeals did not apply a

good-faith exception, relying on the Georgia Supreme Court’s decision in Gary v. State,

422 S.E.2d 426, 429 (Ga. 1992), which recognized that the court has the power to impose

higher standards on searches and seizures than required by the United States Constitution.

In McClintock v. State, 480 S.W.3d 734, 742 (Tex. Ct. App. 2015), the court declined to

3

The Court notes that “[t]he State urges us to adopt the good-faith exception articulated in Davis

and points out, correctly, that courts in several other jurisdictions have adopted [the Davis] good-faith

exception and it has been applied to prevent the exclusion of evidence obtained from warrantless blood

draws conducted prior to McNeely.” (Footnotes omitted). Only five of the thirteen cases cited in footnote

22 actually involved warrantless blood draws. Moreover, in those cases, the courts emphasized that the

binding judicial precedent in those jurisdictions clearly permitted warrantless blood draws under the

exigent circumstances exception. Thus, these cases are distinguishable.

4

See Marsala, 579 A.2d at 59 (concluding that the Leon good-faith exception is incompatible

with the Connecticut Constitution); Dorsey v. State, 761 A.2d 807, 820 (Del. 2000) (finding that there can

be no good-faith exception when the probable cause requirement in the Delaware Constitution is not met);

Gary v. State, 422 S.E.2d 426, 429 (Ga. 1992) (holding that based on the unequivocal language of

Georgia’s statutory exclusionary rule, “adopting the Leon good-faith exception would be tantamount to

judicial legislation”); State v. Guzman, 842 P.2d 660, 677 (Idaho 1992) (refusing to “adhere to a policy of

sheepishly following in the footsteps of the [United States] Supreme Court in the area of state

constitutional analysis” and being convinced that Leon is ill-conceived and cannot be reconciled with

article 1, section 17 of the Idaho Constitution); State v. Cline, 617 N.W.2d 277, 290 (Iowa 2000)

(concluding that the adoption of a good-faith exception would only encourage lax practices by

government officials in all three branches of government), abrogated on other grounds by State v. Turner,

630 N.W.2d 601 (Iowa 2001); State v. Canelo, 653 A.2d 1097, 1102 (N.H. 1995) (holding that a

good-faith exception is incompatible with the guarantees of the New Hampshire Constitution); State v.

Novembrino, 519 A.2d 820, 857 (N.J. 1987) (declining to adopt the Leon good-faith exception because it

“would tend to undermine the constitutionally guaranteed standard of probable cause, and in the process

disrupt the highly effective procedures employed by our criminal justice system to accommodate that

constitutional guarantee without impairing law enforcement . . . .”); Gutierrez, 863 P.2d at 1068 (holding

that the exclusionary rule is incompatible with the constitutional protections of the New Mexico

Constitution); State v. Carter, 370 S.E.2d 553, 562 (N.C. 1988) (concluding that the public policy of the

state is to exclude evidence obtained in violation of the North Carolina Constitution); Commonwealth v.

Edmunds, 586 A.2d 887, 903 (Pa. 1991) (declining to apply the Leon good-faith exception because it

undermines state constitutional provisions and rules of criminal procedure); State v. Oakes, 598 A.2d 119,

126–27 (Vt. 1991) (rejecting the Leon good-faith exception for state constitutional violations); State v.

Afana, 233 P.3d 879, 886 (Wash. 2010) (en banc) (finding a good-faith exception incompatible with the

“nearly categorical exclusionary rule” under the Washington Constitution).

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adopt the Davis good-faith exception because it was inconsistent with the provisions of

the Texas statutory exclusionary rule.

Drunk driving is a serious problem and threatens the lives of innocent people.

However, to ensure the protection guaranteed to our citizens by article I, section 7 of the

Tennessee Constitution, to maintain a remedy for violations of those protections, and to

promote judicial integrity and fairness, this Court should decline to adopt the Davis

good-faith exception to the exclusionary rule. Although the United States Supreme Court

has adopted a good-faith exception, we have the authority to provide the citizens of our

state with greater protections, and I submit we should do so in this case. As Chief Justice

John Marshall so eloquently stated in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803), “The very essence of civil liberty certainly consists in the right of every

individual to claim the protection of the laws, whenever he receives an injury. One of the

first duties of government is to afford that protection.”

For these reasons, I respectfully dissent.

_______________________________

SHARON G. LEE, JUSTICE

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