Wednesday, October 10, 2012

Laptop as “Reliable Source”

After Antonio Aviles was charged with felony driving while intoxicated in violation of Texas law, he filed a motion to suppress certain evidence.  Aviles v. State, __ S.W.3d __, 2012 WL 4373509 (Texas Court of Appeals 2012).  After the trial judge denied the motion, Aviles “entered a plea of nolo contendere and was sentenced to two years confinement in the Texas Department of Criminal Justice—Institutional Division.” Aviles v. State, supra. He then appealed, claiming the trial judge erred in denying his motion to suppress “because he was arrested without a warrant, and his blood sample was obtained without consent and without a warrant.” Aviles v. State, supra.

According to evidence presented at the hearing on the motion to suppress, this is how the case arose:

Officer Joe Rios testified that on June 2, 2011, he was patrolling the streets of San Antonio as part of the DWI (`Driving While Intoxicated’) enforcement program. Rios was driving northbound on Zarzamora at approximately 2:20 a.m. when he saw a Mazda pickup veering across lane markers. As Rios approached the vehicle, it crossed the lane markers again and veered into his lane. Based on this erratic driving, Rios suspected the driver was intoxicated and initiated a traffic stop to check on the driver's condition.

Rios testified that after he pulled the vehicle over, he noticed the driver, later identified as Aviles, had bloodshot eyes and slurred speech. Aviles was unsteady on his feet when Rios asked him to exit the vehicle. Then, when Rios asked Aviles to perform three standardized field sobriety tests -- the horizontal gaze nystagmus (`HGN’), the walk-and-turn, and the one-leg-stand -- Rios testified Aviles exhibited signs of intoxication on each test. Based on Aviles's erratic driving, physical appearance, and performance on the field sobriety tests, Officer Rios placed Aviles under arrest for DWI.

Aviles v. State, supra.

After he arrested Aviles, Rios checked Aviles’

criminal history on his mobile laptop and discovered Aviles had two prior DWI convictions. [At the suppression hearing,] Rios testified that believed the database he accessed via his mobile laptop was reliable.

Aviles v. State, supra.

Rios then

requested a specimen of Aviles's breath or blood and read him the DWI statutory warning in Spanish.  When Aviles refused to produce either specimen, Officer Rios required a blood draw from Aviles based upon § 724.012 of the Texas Transportation Code.

Aviles v. State, supra. (The opinion says he read the warning in Spanish because “Aviles is a Spanish speaker.”  Aviles v. State, supra.)

Section 724.012 of the Texas Transportation Code says that

[a] peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances . . . [for example, 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[DWI] . . . of the  Penal Code.

Aviles v. State, supra.

Getting back to this case, Rios then

took Aviles to the nurse's infirmary for the blood draw, and filled out a THP–51 statutory authorization form, a mandatory blood draw checklist, and a chain of custody form.

Officer Rios took Aviles to nurse Elizabeth Arguello who drew Aviles's blood. Officer Rios testified he saw the nurse draw Aviles's blood into a vial, put the vial in an envelope, and put it in a locked container inside a refrigerator.

Aviles v. State, supra.

At the suppression hearing, Rios also testified that

his patrol car did not have onboard video, and that Aviles did not resist or attempt to flee once he initiated the traffic stop. Officer Rios also testified he was certified to administer field sobriety tests, and he took a refresher course on the subject within the last twelve to eighteen months.

Aviles v. State, supra.

As noted above, Aviles’ first argument on appeal was that he was arrested without a warrant in violation of the 4th Amendment.  Aviles v. State, supra.  The opinion notes that

officers may stop and briefly detain persons suspected of criminal activity on less information than is required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968). To initiate an investigative stop, the officer must possess a reasonable suspicion based on specific, articulable facts that, in light of the officer's experience and general knowledge, would lead the officer to reasonably conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. U.S. v. Sokolow, 490 U.S. 1 (1989).  Whether the officer's suspicion was reasonable is evaluated based on the totality of the circumstances. 

At the suppression hearing, Rios testified Aviles's conduct attracted his attention `at 2:20 AM at night’ because he was `veering across lane markers’ and `veered into his lane.’ We hold this erratic driving gave Rios reasonable suspicion to initiate a traffic stop to check on the driver's condition. . . . Aviles's driving also constituted a traffic violation, which authorized Officer Rios to make the traffic stop. See Texas Transportation Code § 545.060(b)  (requiring drivers to remain in single lane unless movement outside of lane can be made safely).

Aviles v. State, supra.

The Court of Appeals then addressed the issue of whether Rios then developed probable cause to arrest Aviles:

Whether probable cause exists to justify a warrantless arrest must be considered under the totality of the circumstances surrounding the arrest. . . . We find the facts described above gave Officer Rios probable cause to arrest Aviles for driving while intoxicated, based on his erratic driving, slurred speech, bloodshot eyes, and performance during the field-sobriety tests. . . . Therefore, we overrule Aviles's point of error regarding an improper warrantless arrest.

Aviles v. State, supra.

It then addressed Aviles’ argument that his blood sample should have been suppressed because it was taken without his consent (consent is an exception to the requirement that police have a warrant to search for and seize evidence) or a search warrant.  Aviles v. State, supra.  The court began its analysis of this argument by explaining that

[t]he withdrawal of a blood specimen from a person is considered a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757 (1966). The 4th Amendment . . . assure[s] the right to be free from unreasonable searches. . . .  A search or seizure conducted without a warrant is per se unreasonable absent a recognized exception to the warrant requirement. Katz v. U.S, 389 U.S.347 (1967).

Aviles v. State, supra.

In arguing that the trial judge erred in not suppressing his blood sample, Aviles cited

case law for the proposition that absent consent, taking a blood sample from a defendant in custody requires a validly-obtained warrant. See Davis v. State, 831 S.W.2d 426 (Texas Court of Appeals 1992); McBride v. State, 840 S.W.2d 111 (Texas Court of Appeals 1992). . . .

Davis and McBride do not apply to this case because they dealt with murder and sexual assault, respectively, whereas Aviles's case deals with an offense while operating a vehicle in a public place, and is governed by Chapter 724 of the Texas Transportation Code. The Texas Transportation Code expands the State's ability to search and seize without a warrant, providing implied consent to obtain blood samples from persons suspected of driving while intoxicated, in certain circumstances, even without a search warrant.

As the Texas Court of Criminal Appeals held in Beeman v. State,

`[t]he implied consent law [codified in Texas Transportation Code § 724.011] expands on the State's search capabilities by providing a framework for drawing DWI suspects' blood in the absence of a search warrant. It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.’

86 S.W.3d 613, 616 (Texas Court of Appeals 2002).

Aviles v. State, supra.

The Court of Appeals also noted that the Texas Transportation Code provides that a

person who has been arrested for the offense of operating a motor vehicle while intoxicated and in a public place is deemed to have consented to the taking of one or more specimens of blood or breath to analyze the alcohol concentration amount or presence of a controlled substance. Texas Transportation Code § 724.011. The person retains the right, subject to automatic suspension of his license, to refuse to give a specimen. Texas Transportation Code § 724.013.

However, if the suspect refuses to provide a specimen voluntarily and the arresting officer has credible information that the suspect has been previously convicted twice of DWI, then the officer `shall require the taking of a specimen of the person's breath or blood. . . .’ Texas Transportation Code § 724.012(b)(3)(B).

Aviles v. State, supra (my emphasis).

It then applied these principles to Aviles’ argument:

Rios requested a specimen of Aviles's breath and read him the statutory warning allowing Aviles to refuse the breath and blood draws. When Aviles refused, Officer Rios required a mandatory blood draw from Aviles based on § 724.012(b)(3)(B). There is evidence that Rios possessed credible information from a reliable source -- his mobile laptop -- that Aviles had two prior DWI convictions.

This situation, as outlined in §724.012, is one of the `circumstances’ the Court of Criminal Appeals has held where blood may be drawn without a search warrant. See Beeman, supra. Thus, the warrantless seizure of Aviles's blood was conducted according to the prescriptions of the Transportation Code, and without violating Aviles’s 4th Amendment rights.

Aviles v. State, supra.

The court therefore affirmed Aviles DWI convictions.  Aviles v. State, supra.

I found the court’s holding interesting because, as the article you can access here explains, the requirement that an officer have credible information from a reliable source has, as far as I know,  been applied (only) to human informants.  So now, it seems a laptop can qualify, as well.


Anonymous said...

I" found the court’s holding interesting because, as the article you can access here explains, the requirement that an officer have credible information from a reliable source has, as far as I know, been applied (only) to human informants."

Not true. This case has to do with NCIC (National Crime Information Center) / TCIC (the Texas version of the NCIC system) crime information systems. The fact that the cop accessed this via a laptop is irrelevant. It is not the laptop that was found to be credible, but the information provided to the officer from the NCIC/TCIC system via the laptop.

This case involved a challenge to Texas' new mandatory blood draw policies. Living in texas, I have noticed this program is pretty much statewide in areas that have nearby hospitals. It is mandatory. U don't blow, they will take your blood.

The laptop had nothing to do with this case.

FYI - The US Supreme Court is now taking up the issue of the constitutionality of these warrentless blood draws. See

Susan Brenner said...

Thanks for clarifying that.