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State v. McGuire

Court of Appeals of Texas, First District

August 29, 2019

THE STATE OF TEXAS, Appellant
v.
SEAN MICHAEL MCGUIRE, Appellee

          On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 10-DCR-055898

          Panel consists of Justices Keyes, Higley, and Landau.

          OPINION

          Sarah Beth Landau Justice.

         Sean Michael McGuire is charged with felony murder for the death of a motorcyclist McGuire struck while allegedly intoxicated. McGuire moved to suppress evidence obtained after his arrest, arguing that his warrantless arrest was unlawful. The State argued that Article 14.03(a)(1) of the Code of Criminal Procedure authorized McGuire's warrantless arrest because McGuire was found in a suspicious place. Tex. Code Crim. Proc. art. 14.03(a)(1). The trial court granted McGuire's motion to suppress, and the State appealed. See Tex. Code Crim. Proc. art. 44.01(a)(5) (permitting State an interlocutory appeal of an order granting a criminal defendant's motion to suppress evidence).

         Because the Court of Criminal Appeals has interpreted Article 14.03(a)(1) to require the State to show exigent circumstances[1] to arrest without a warrant under Article 14.03(a)(1) and the State did not, we affirm. Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005); Gallups v. State, 151 S.W.3d 196, 202 (Tex. Crim. App. 2004); Minassian v. State, 490 S.W.3d 629, 637 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (describing Swain as holding that "warrantless arrest under [Article] 14.03(a)(1) requires showing of exigent circumstances"); cf. Bell v. State, No. 02-17-00299-CR, 2019 WL 3024481, at *2-3 (Tex. App.-Fort Worth July 11, 2019) (mem. op., not designated for publication) (noting Swain exigency requirement and numerous intermediate appellate court opinions applying Swain to require proof of exigency when State relies on Article 14.03(a)(1)'s suspicious-place exception).

         Background

         Late one evening, Sean Michael McGuire was driving home when his truck struck a motorcycle driven by David Stidman. McGuire made a U-turn and pulled into the parking area of a nearby Shell gas station. McGuire called his mother and two people he knew in law enforcement. After calling them, McGuire waited at the gas station.

         Meanwhile, the police were investigating the discovery of a motorcycle and dead motorist. During their investigation, the police were told that McGuire was waiting at the Shell gas station. They went to the gas station. At least one officer who spoke with McGuire suspected he had been driving while intoxicated.

         The police drove McGuire to the location of Stidman's body. There, McGuire was arrested. He was taken to a local hospital where a warrantless, nonconsensual blood draw was performed to determine his blood-alcohol content.

         McGuire was charged with felony murder on the basis that he was driving while intoxicated, he had two prior out-of-state DWIs, and those DWIs elevated this offense to a first-degree felony. See Tex. Penal Code §§ 19.02(b)(3) (felony murder), 49.09(b)(2) (enhancing DWI to felony).

         McGuire moved to suppress evidence on the argument that his warrantless arrest and warrantless search were unlawful. Among his arguments, he contended that the warrantless blood draw was an unlawful search in violation of the Fourth Amendment. His motion to suppress was denied. He was convicted of murder and appealed. This Court reversed his conviction, holding that the warrantless, nonconsensual blood draw violated McGuire's Fourth Amendment right to be free from unreasonable searches as recognized in Missouri v. McNeely, 569 U.S. 141 (2013). See McGuire v. State, 493 S.W.3d 177, 199 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd); see also id. at 202 (stating, "All remaining issues raised in McGuire's appeal of the murder conviction are moot."). The case was remanded and set for retrial in 2018.

         In advance of retrial, McGuire filed another motion to suppress evidence.[2] He argued that his warrantless arrest was unlawful and did not fit within any of the Chapter 14 exceptions to the warrant requirement. See Tex. Code Crim. Proc. art. 14.01-.06. In the State's written response and at the suppression hearing, the State argued that the arrest fell within the suspicious-place warrant exception under Article 14.03(a)(1), but the State did not note the exigency requirement, point to any evidence that might satisfy the exigency requirement, or argue that a per se exigency exists.

         The trial court-with a different trial judge than the one who presided over the first trial-did not receive any new evidence at the 2018 suppression hearing. Instead, the court reviewed the 2012 suppression-hearing transcript, the 2016 trial testimony, and the parties' pleadings. After considering these materials and the parties' motion and response, the trial court granted McGuire's motion to suppress, and the State appealed.

         Standard of Review

         Appellate courts review a trial court's ruling on a motion to suppress using a bifurcated standard of review. State v. Martinez, 570 S.W.3d 278, 281 (Tex. 2019). Under the bifurcated standard, the trial court is given almost complete deference in its determination of historical facts, especially if based on an assessment of demeanor and credibility, and the same deference is afforded the trial court for its rulings on application of law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of demeanor and credibility. Id. However, for mixed questions of law and fact that do not fall within that category, the reviewing court may conduct a de novo review. Id. Our review of questions of law is de novo. Id.

         We will sustain the trial court's ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003). This is so even if the trial judge gives the wrong reason for its decision. Id.; State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000); State v. Brabson, 899 S.W.2d 741, 745-46 (Tex. App.-Dallas 1995), aff'd, 976 S.W.2d 182 (Tex. Crim. App. 1998) (stating that, in context of reviewing trial court order granting motion to suppress "we cannot limit our review of the [trial] court's ruling to the ground upon which it relied. We must review the record to determine if there is any valid basis upon which to affirm the county criminal court's ruling").

         Article 14.03(a)(1) and the Necessary Showing of Exigency

         Warrantless arrests in Texas are authorized only in limited circumstances. Swain, 181 S.W.3d at 366. Once a defendant has established that an arrest has occurred and that no warrant was obtained, the burden shifts to the State to show that the arrest was within an exception to the warrant requirement. Covarrubia v. State, 902 S.W.2d 549, 553 (Tex. App.-Houston [1st Dist] 1995, pet. ref d); Holland v. State, 788 S.W.2d 112, 113 (Tex. App.-Dallas 1990, pet. ref d). Most of the exceptions to the warrant requirement are found in Chapter 14 of the Code of Criminal Procedure. See Swain, 181 S.W.3d at 366; Tex. Code Crim. Proc. art. 14.01-.06 (delineating those circumstances in which warrantless arrests are permissible). The validity of a warrantless arrest can only be decided by the specific factual situation in each individual case. Holland, 788 S.W.2d at 113.

         The exception relied on by the State in this appeal is found in Article 14.03(a)(1), which provides:

Any peace officer may arrest, without warrant . . . persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony . . . breach of the peace, or [various other listed offenses] . . . or are about to commit some offense against the laws[.]

Tex. Code Crim. Proc. art. 14.03(a)(1).

         The Court of Criminal Appeals has held that, when relying on Article 14.03(a)(1), the State must establish that (1) probable cause existed, (2) the person was found in a suspicious place, and (3) "exigent circumstances call for immediate action or detention by police." Swain, 181 S. W3d at 366 (concluding that exigent circumstances were established on evidence that person arrested had just admitted to leaving injured woman in secluded area after beating her during robbery, police perceived urgent need to find woman before she died from her injuries, and held additional concern that person who had admitted his involvement might flee); Gallups, 151 S.W.3d at 202; cf Dyar v State, 125 S.W.3d 460, 470-71 & n13 (Cochran, J, concurring) (stating that "if there are no exigent circumstances that call for immediate action or detention by the police, article 14.03(a)(1) cannot be used to justify a warrantless arrest") (citing Gerald S. Reamey, Arrests in Texas's "Suspicious Places": A Rule in Search of Reason, 31 Tex. Tech L. Rev. 931, 967- 77, 980 (2000)).

         At least five intermediate courts-including this one-have noted the State's burden to establish exigent circumstances when relying on Article 14.03(a)(1). See, e.g., Minassian v. State, 490 S.W.3d 629, 637 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (describing Swain as holding that "warrantless arrest under Section 14.03(a)(1) requires showing of exigent circumstances" and concluding that risk of destruction of computer-data evidence on laptops established exigency); Polly v. State, 533 S.W.3d 439, 443 & n.4 (Tex. App.-San Antonio 2016, no pet.) (relying on Swain for proposition that exigency must be established for warrantless arrest under Article 14.03(a)(1)); see also Cook v. State, 509 S.W.3d 591, 603-04 (Tex. App.-Fort Worth 2016, no pet.); LeCourias v. State, 341 S.W.3d 483, 489 (Tex. App.-Houston [14th Dist.] 2011, no pet.); State v. Morales, No. 08-09-00137-CR, 2010 WL 819126, at *2 (Tex. App.-El Paso Mar. 10, 2010, no pet.) (mem. op., not designated for publication).

         There are several pre-2013 appellate court cases in which Texas intermediate appellate courts have held that the natural dissipation of alcohol in a suspect's blood provides an exigency under Article 14.03(a)(1) in that dissipation destroys evidence of a DWI offense. See, e.g., Gallups, 151 S.W.3d at 202 (stating that "need to ascertain appellant's blood-alcohol level" was exigent circumstance); Winter v. State, 902 S.W.2d 571, 575-76 (Tex. App.-Houston [1st Dist.] 1995, no pet.); Morales, 2010 WL 819126, at *2; State v. Wrenn, No. 05-08-01114-CR, 2009 WL 1942183, at *3 (Tex. App.-Dallas July 8, 2009, no pet.) (mem. op., not designated for publication).

         In 2013, the United States Supreme Court ruled that the dissipation of alcohol does not provide a per se exigency to relieve the State of the requirement of a search warrant when conducting an unconsented-to blood draw of a DWI suspect. McNeely, 569 U.S. at 155. Since McNeely, at least one intermediate appellate court has held that the dissipation of alcohol does not, without more, meet Article 14.03(a)(1)'s exigency requirement either. State v. Donohoo, No. 04-15-00291-CR, 2016 WL 3442258, at *6 (Tex. App.-San Antonio June 22, 2016, no pet.) (mem. op., not designated for publication) (stating that "McNeely forecloses the State's position" that "exigent circumstances called for Donohoo's immediate arrest" on its singular argument that it needed to obtain his blood-alcohol level before the natural dissipation of alcohol); see also Bell, 2019 WL 3024481, at *2 n.2 (citing McNeely in discussion of exigency justifying arrest); but see Dansby v. State, 530 S.W.3d 213, 222 (Tex. App.-Tyler 2017, pet. ref'd) (relying on Gallups, and without citation to McNeely or discussion of any case-specific facts influencing ability to timely obtain warrant, holding that "exigent circumstances-the need to ascertain Appellant's alcohol concentration-existed to justify Appellant's immediate arrest" under Article 14.03(a)(1)); Lewis v. State, 412 S.W.3d 794, 802 (Tex. App.-Amarillo 2013, no pet.) (without citing McNeely or discussing any case-specific facts influencing ability to timely obtain warrant, holding that officer "needed to take prompt action to ascertain appellant's blood-alcohol level" and exigency existed to support warrantless arrest under Article 14.03(a)(1)).

         Here, the State does not argue that the dissipation of alcohol provided the necessary exigency, either per se or based on the particular facts of McGuire's arrest. In fact, the State's position is that no exigency requirement exists at all. At oral argument, the State explained that it reads Minassian to say that no exigency is required under Article 14.03(a)(1). But the State misreads the case's holding. This Court stated, in Minassian, that proof of exigency circumstances is not required "to pass constitutional muster" in the context of a warrantless felony arrest made in a public place but that more had to be considered to review the lawfulness of the arrest at issue because Article 14.03(a)(1) additionally "requires exigent circumstances to make a warrantless arrest premised on suspicious activity in a suspicious place." 490 S.W.3d at 639 (citing Swain, 181 S.W.3d at 366). Proof of exigent circumstances is required when the State relies on Article 14.03(a)(1) to justify a warrantless arrest. Id.

         The State had the burden at the 2018 suppression hearing to establish exigent circumstances to permit the warrantless arrest of McGuire, but it did not.

         The State Made No Showing of Exigency; Therefore, the Trial Court Did Not Err in Granting Motion to Suppress

         In its appellate brief, the State presents three arguments why the trial court erred in granting McGuire's suppression motion; however, the State fails to point to any evidence of exigent circumstances. This is consistent with the State's presentation of the issues to the trial court. Neither the State's response to McGuire's motion to suppress nor its arguments at the suppression hearing addressed exigency.

         This failure of evidence provided a basis for the trial court to grant McGuire's motion to suppress. On appeal of the grant of a motion to suppress, "[w]e must review the record to determine if there is any valid basis upon which to affirm the [trial] court's ruling." Brabson, 899 S.W.2d at 745-46. Because the State did not meet its evidentiary burden to bring McGuire's arrest within the sole warrant exception on which it relied, we must affirm the trial court's order granting the motion to suppress. The dissent's approach fails to hold the State to its evidentiary burden or follow this well-established standard of review.

         Even if the State had sought to meet its burden to establish an exigency, there is no basis on which the trial court could have found a per se or case-specific exigency on this record. The State could not rely on McGuire's alleged intoxication to argue a per se exigency because, after McNeely, there is no per se exigency for dissipation of alcohol in a suspect's blood. 569 U.S. at 164; see Donohoo, 2016 WL 3442258, at *6 (relying on McNeely to reject State's argument for warrantless arrest under Article 14.03(a)(1) based on dissipation of suspect's blood-alcohol level, given that officers had testified they never sought warrant); see also Bell, 2019 WL 3024481, at *2 n.2 (in connection with holding that, under Swain, exigent circumstances must be shown, noting that the United States Supreme Court held, in McNeely, that "the natural metabolization of alcohol in the bloodstream does not present a per se exigency but must be determined on a case-by-case basis on the totality of the circumstances.").

         Neither do the case-specific facts establish an exigency to successfully challenge the suppression order. McGuire called his mother from the Shell gas station before he interacted with any police officers, and she drove to the gas station to wait with him. She was available to drive him, should he have been allowed to leave, which meant there was no danger of subsequent driving while intoxicated. Cf. York v. State, 342 S.W.3d 528, 536-37 (Tex. Crim. App. 2011) (evidence of defendant's running vehicle warranted reasonable belief that, if defendant were intoxicated, he would eventually endanger himself and others when he drove vehicle home). Moreover, McGuire waited at the gas station for law enforcement to arrive and agreed to ride with the officers to the location where Stidman's body was located. There was no evidence that, after the police engaged McGuire, they held any concern that McGuire would attempt to flee. Cf. Villalobos v. State, No. 14-16-00593-CR, 2018 WL 2307740, at *6 (Tex. App.-Houston [14th Dist.] May 22, 2018, pet. ref'd) (mem. op., not designated for publication) (concluding that Article 14.03(a)(1) requirements were met on evidence driver "needed to be detained because he had fled scene of accident").

         Without any evidence or argument that an exigency existed, we must conclude that the State failed to meet its burden to establish that McGuire's warrantless arrest was authorized under Article 14.03(a)(1), on which the State relied. See Brabson, 899 S.W.2d at 745-46; cf. Buchanan v. State, 175 S.W.3d 868, 876 (Tex. App.- Texarkana 2005) (concluding that State failed to establish exigent circumstances to support warrantless arrest under Article 14.03(a)(1) because there was no evidence suspect was going to escape or that urgency existed, and stating, "We cannot interpret Article 14.03(a)(1) to be so encompassing that it swallows the general rule that a valid arrest should be based on an arrest warrant."), rev'd on waiver grounds, 207 S.W.3d 772 (Tex. Crim. App. 2006).

         Accordingly, we conclude that the trial court did not err in granting McGuire's motion to suppress. See Laney, 117 S.W.3d at 857 (stating that ruling on motion to suppress must be upheld if legally correct even if trial court did not present same basis in its ruling). In light of our holding, we do not reach any other issues raised in the State's brief.

         Response to Dissent

         The dissent addresses three issues that require a response: whether Article 14.03 requires a showing of exigency, whose burden it is to make that showing, and whether certain facts or circumstances ...


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