BRENDON D. WOODS
Public Defender
1401 Lakeside Drive, Suite 400
Oakland, California 94612-4305
(510) 272-6600
Charles M. Denton
Assistant Public Defender
California State Bar No. 107720
Attorney For Defendant
Esteban Miguel Blanca-Martinez
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
APPELLATE DEPARTMENT
THE PEOPLE OF THE STATEOF CALIFORNIA,
Plaintiff & Respondent,
v.
ESTEBAN MIGUEL BLANCA-MARTINEZ,
Defendant & Appellant.
______/ / Appellate No. 5932
Alameda County Superior Court, Fremont Hall of Justice Docket No. 16-CR-009288
APPELLANT=S OPENING BRIEF
STATEMENT OF THE CASE:
By a complaint filed on October 5, 2016, appellant Esteban Miguel Blanca-Martinez is charged with driving under the influence in violation of Vehicle Code 23152(a) and driving while having a 0.08% or higher blood alcohol in violation of Vehicle Code 23152(b). (Clerk’s Transcript on Appeal [hereafter C.T.] 1.)
On January 5, 2017, following his plea of not guilty, Mr. Blanca-Martinez set a motion to suppress evidence pursuant to Penal Code section 1538.5 to be heard on March 1, 2017. (C.T.7–9.) On January 11, 2017,he filed a written motion in which he sought suppression of, inter alia, the results of a blood test. One of the grounds for the motion was that he did not consent to the blood draw that produced those results. (C.T. 10-19.) The prosecution filed no written response to the motion.
On March 15, 2017 the motion was heard in Department 607. Defendant appeared with a certified Spanish interpreter. (Reporter’s Transcript of the Motion to Suppress [hereafter R.T.] 1.) The parties stipulated that the search was without a warrant. (C.T. 28; R.T. 2.) After an evidentiary hearing before Judge Scott Jackson, the motion was denied. (C.T.27–28; R.T. 41.)
This timely interlocutory appeal followed. (Penal Code § 1538.5(j).)
STATEMENT OF FACTS:
On the evening of August 29, 2016, (R.T.4:20–22), California Highway Patrol (CHP) Officer Andrew Haskins was working an overtime shift as Caltrans workers made repairs to the 680 freeway in Pleasanton (R.T. 5:19-20, 27). Two of the freeway’s three southbound lanes were closed to accommodate these repairs, and the closures were flagged by a combination of cones, signs and arrow boards, (R.T. 6.) Haskins was parked within the coned off area just south of the Stoneridge overpass, (R.T. 6:1–2, 7:28). He was uniformed and driving a marked patrol car whose yellow directional lights were activated. (R.T. 4:26–27, 5:10–11, 8:1.)He was working alone. (R.T. 5:15–17.)
At approximately 11:41p.m., a “dump-truck-type vehicle” drove into the cordoned-off area headed toward the Caltrans workers. (R.T. 8:7–8.) It was followed by a silver SUV that followed the truck “at a safe distance.” (R.T. 9:12–13, 8:10–12.) Haskins observed that both vehicles “were traveling pretty slow[ly].” (R.T. 9:13–14.) He estimated their speed at twenty or twenty-five miles per hour. (R.T. 9:22.) Almost immediately, appellant, the driver of the silver SUV “realized he was in a construction zone,” “turned on his indicator,” and “wait[ed] for a time to safely merge into the next lane that was not in a construction zone.” (R.T. 32:19–22; see Defense Exhibit A-1.) Haskins estimated that the car came to within “a hundred to a hundred and fifty yards” of the workers. (R.T. 9:17–18.)
Haskins activated his red and blue lights and his siren (R.T. 8:14) and decided to stop appellant’s car. (R.T. 9:27.) Appellant responded and promptly pulled over and parked on the shoulder of the freeway. (R.T. 10:5–6.) When Haskins contacted him, appellant explained that he had been “confused about the closure” and had just been following the dump truck. (R.T. 10:22–24.)[1]
Haskins ordered appellant out of his car so that he could “check his sobriety like we do pretty much every stop at night.” (R.T. 11:10–12.) Although he had not observed any symptoms of intoxication (R.T. 12:7–9), he testified that “at night we check everybody.” (R.T. 11:18.)
As they stood beside his patrol car, Haskins noticed that appellant’s eyes displayed a “lack of smooth pursuit.” (R.T. 12:20–21.) He decided to radio a request for another officer to conduct a DUI evaluation. (R.T. 12:26–28.)
Officer Michael Teague, of the DublinCHP Officeresponded to Haskins’s radio call. (R.T. 18:24–25, 21:8–9.)[2] He was also in uniform and driving a marked vehicle. (R.T. 20:15–16, 20:19–20.) After a brief conversation with Haskins (R.T. 21:16–17), he escorted appellant to his patrol car and informed him that he was going to conduct a DUI investigation. (R.T. 22:16–18.) Appellant explained for the second time “the story of the event that led to his stop.” (R.T. 22:20–21.) Teague noticed that appellant had an accent (R.T. 30:8–11), and surmised that English was not his primary language. (R.T. 30:12–14.) But he did not request a Spanish-speaking officer and continued to converse with appellant in English.(R.T. 23:7–8.)
Teague testified that appellant displayed symptoms of intoxication including slurred speech. (R.T. 23:1, 22:22–27.) He decided to put him through three field sobriety tests. (R.T. 24:12–25:14.) Appellant showed “signs of impairment” during these tests.[3](R.T. 24-25.) However, Teague acknowledged that he also “seemed confused like he wasn’t quite sure what he should say.” (R.T. 25:21–22.)
After these tests, Teague informed appellant [in English] that he wanted him to blow into the Preliminary Alcohol Screening (PAS) device. (R.T. 26:4–5.) He admonished him that he was “not required by law to submit” to this test (R.T. 26:7, 26:16–18), but that if was “arrested for DUI he would have to submit to a chemical test, whether it be a blood or breath test.” (R.T. 26:11–13.) Appellant provided two PAS samples that registered blood alcohol levels of .093 and .094. (R.T. 27:7–8, 21–24.) Those results sealed his fate. (R.T. 27:25-28.) Immediately thereafter, he was handcuffed and arrested for driving under the influence of alcohol. (R.T. 27:26–28.)
While still handcuffed and seat-belted into the backseat of the patrol car (R.T. 28:8–11), Teague “informed [appellant] that due to the fact that he was placed under arrest for driving under the influence of alcohol, he’s required to submit to a chemical test, whether it be a blood or breath sample and it was up to him to pick one.” (R.T. 28:15-19.) The admonition was apparently delivered in English. If appellant was asked to give consent or told that he had the right to refuse the test, the record does not reflect it.
Given only the choice between a blood or breath test, appellant elected to take a blood test. (R.T. 28:28.) His blood was eventually drawn by “Miss Perez” at the Santa Rita jail. (R.T. 29:3-7.) Teague witnessed the draw and took custody of the blood samples. (R.T. 29:24-28.)
At the close of testimony, defense counsel provided the court with a copy of People v. Mason (2016) 8 Cal.App.5th Supp. 11, an appellate department decision that found consent to a blood draw obtained under almost identical circumstances was invalid under the Fourth Amendment. He argued that telling appellant that “he was required to submit to either a blood test or breath test” without also advising him that he had a right to refuse both tests produced a “submission” to authority rather than “actual” consent. (R.T. 34-36.)
The only justification the prosecution offered for the blood draw was that “the Burchfield[4] case. . . said. . . that advising an individual of the consequences of a refusal is improper. It essentially negates any sort of consent because it’s coercive. The officer admonished the defendant in a way that’s consistent with Burchfield, in a way that’s consistent with CHP policy which reflects Burchfield. And so I would submit that the admonishment was proper for the blood draw. . . .” (R.T. 39.) There was no mention of the implied consent law or the advance written consent that many Californians give when they apply for a driver’s license.
The trial court denied the motion with the comment that the “case that you [defense counsel] provided me. . . says, citing Harris: An officer’s failure to have strictly provided the full and accurate statutory consequences of a refusal or his or her violation of defendant’s statutory rights under the implied-consent law does not, in and of itself, amount to a constitutional violation.” (R.T. 40.)
ARGUMENT:
I.
INTRODUCTION
A.
The Fourth Amendment protects us all byensuring “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” (U.S Const., 4th Amend.) The courts have uniformly held that “[t]he extraction of blood or other materials from a person’s body for purposes of chemical testing is a search and seizure within this guarantee.” (People v. Mason, supra, 8 Cal.App.5th Supp. 11, citing People v. Robinson (2010) 47 Cal.4th 1104, 1119; Schmerber v. California (1966) 384 U.S. 757, 770.)
When searches and seizures are conducted “without prior approval by judge or magistrate,” they are “per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions.” (Thompson v. Louisiana (1984) 469 U.S. 17, 19–20.)
At a hearing regarding a motion to suppress evidence, the prosecution bears the burden of proving which exception to the warrant requirement, if any, justifies the search or seizure. (People v. Williams (1999) 20 Cal.4th 119, 127.)
On appeal, the reviewing court “views the record in the light most favorable to the ruling and defers to the trial court's factual findings, express or implied, when supported by substantial evidence. But in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, the appellate court exercises its independent judgment.” (People v. Mason, supra, 8 Cal.App.5th Supp. at pp. 18-19; citing People v. Superior Court [Chapman] (2012) 204 Cal.App.4th 1004, 1011, People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364–365.)
The scope of review is limited to “the arguments raised before the trial court.” (People v. Hawkins (2012) 211 Cal.App.4th 194, 203.) This rule of forfeiture “ensures that the opposing party is given an opportunity to address the objection” (People v. French (2008) 43 Cal.4th 36, 46.) Therefore “[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th 428, 435.See also People v. Lilienthal (1978) 22 Cal.3d 891, 896 [“it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention.”]; People v. Tully (2012) 54 Cal.4th 952, 979–80 [“Constitutional claims raised for the first time on appeal are not subject to forfeiture only when ‘the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to the court, had the additional legal consequence of violating the Constitution’”].)
B.
As the United States Supreme Court has recently explained, warrantless blood draws cannot be justified as searches incident to arrest. (Birchfield v. North Dakota (2016) 136 S.Ct. 2160, 195 L.Ed.2d 560.) The high court has likewise ruled thatthe “natural dissipation of alcohol from the bloodstream,” standing alone, is not a sufficient “exigent circumstance” to justify such an intrusion. (Missouri v. McNeely (2013) 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696.)
This leaves consent as the only remaining justification for a warrantless blood draw.
By now, all 50 “states have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” (Birchfield v. North Dakota, supra, 136 S. Ct. 2160, 2169, 195 L. Ed. 2d 560; quoting Missouri v. McNeely, supra, 569 U.S. ––––, ––––, 133 S.Ct. 1552, 1566, 185 L.Ed.2d 696; italics added.) But, at least in states like California[5]in which the “law imposes criminal penalties on the refusal to submit” to a blood test, this “implied” consent does not satisfy the Fourth Amendment. (Id. at p. 2165, 195 L. Ed. 2d 560; see also People v. Mason, supra, 8 Cal.App.5th Supp. at pp. 27-28; People v. Arredondo [Review Granted;[6]formerly 245 Cal.App.4th 186].)
In these situations, there must be actual consent. As a general rule, the “existence of consent to a search is not lightly to be inferred and the government always bears the burden of proof to establish the existence of effective consent.” (U.S. v. Reid (9th Cir. 2000) 226 F.3d 1020, 1025.) Thus, when “the prosecution relies on [actual] consent to justify a warrantless search or seizure,” it must prove that “the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority.” (People v. Mason, supra, 8 Cal.App.5th Supp. At p. 20; quoting People v. Zamudio(2008) 43 Cal.4th 327, 341; see also Bumper v. North Carolina (1967) 391 U.S. 543, 548-549; People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033-1034 [The prosecution bears the burden of establishing that a defendant's consent was "freely and voluntarily given."]; People v. Challoner (1982) 136 Cal.App.3d 779, 781 ["The People must show that consent was 'uncontaminated by any duress or coercion, actual or implied'"].)
The distinction is often described as the difference between consent and assent. Consent, “in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another.” Assent, on the other hand, “means mere passivity or submission, which does not include consent." (People v. Fields (1979) 95 Cal.App.3d 972, 997; citing People v. Perez (1973) 9 Cal.3d 651, 658659; People v. Dong Pok Yip (1912) 164 Cal. 143, 147.)
To determine whether consent is free and voluntary, the court must consider the totality of the circumstances. (People v. Ratliff (1986) 41 Cal.3d 675, 686.)Over the years, courts have found the following considerations particularly relevant to the calculus:
Were the officers’armed (People v. McKelvy, supra, 23 Cal.App.3d at p. 1034);
Did they outnumber the defendant[s] (Ibid. See also People v. Gurtenstein (1977) 69 Cal.App.3d. 441);
Was defendant handcuffed and/or arrested (Castenada v. Superior Court (1963) 59 Cal.2d 439, 443; People v. Shelton (1964) 60 Cal.2d 740, 745; People v. Wilson (1956) 145 Cal.App.3d. 1, 7; People v. James (1977) 19 Cal.3d 99, 107-110);
Did he know or understand that he had the right to refuse to give consent (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227-228);
Did the officers claim the right to search if consent was refused (Bumper v. North Carolina, supra, 391 U.S. 543; People v. Baker (1986) 187 Cal.App.3d 562, 570-571.)
C.
The facts in this case are essentially undisputed. Appellant was handcuffed, under arrest and outnumbered by armed officers by at least two to one. Although English is not his primary language, he was informed in English only that “due to the fact that he was placed under arrest for driving under the influence of alcohol, he’s required to submit to a chemical test.”(R.T. 28:15-19.) The critical issue for this court’s independent review is whether his submission to a blood draw in response Officer Teague’s assertion that he was “required to submit to a chemical test”was “acquiescence to a claim of authority” rather than free and voluntary consent. (Bumper v. North Carolina, supra, 391 U.S. 543; People v. McKelvy, supra, 23 Cal.App.3d at pp. 1033-1034; People v. Mason, supra, 8 Cal.App.5th Supp. at pp. 20-22.)
We believe that it was for the reasons that follow.
II.
APPELLANT DID NOT ACTUALLY CONSENT TO A
BLOOD TEST. HE ACQUIESCED TO A CLAIM OF AUTHORITY
A.
The prosecutor argued that appellant freely and voluntarily consented to the blood draw after Officer Teague told him twice [in English] that he was “required to submit to a chemical test, whether it be a blood or breath sample and it was up to him to pick one.” (R.T. 28:15-19; 26:11–13.)Citing Birchfield v. North Dakota, supra, 136 S.Ct. 2160, 195 L.Ed.2d 560, she claimed thatthe coercive nature of this admonition was cured by Teague’s failure to advise appellant – as required by Vehicle Code section 23612[7] -- of the right to refuse and the consequences of a refusal. (R.T. 39.)
There are two flaws in this argument. The first is that Birchfielddid not address the question of actual consent. (See 136 S.Ct. at p. 2186, 195 L.Ed.2d 560.) It held only that an implied consent law that “imposes criminal penalties for refusal” cannot – at least for Fourth Amendment purposes -- substitute for actual consent. (Id. at p. 2165, 195 L. Ed. 2d 560.)[8]
The second problem is that the courts have refused to find free and voluntary consent in significantly less coercive circumstances.
For example, in Bumper v. North Carolina, supra, 391 U.S. 543, four officers appeared at defendant's house. They told his grandmother they had a search warrant and requested permission to enter. Although they actually had no warrant, she let them in. Items allegedly used in a rape were found inside the house.
Finding this consent involuntary, the United States Supreme Court suppressed these items. The Court held that "When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion - albeit colorably lawful coercion. Where there is coercion, there cannot be consent.” (Id. at p. 550.)
In Amos v. United States (1921) 255 U.S. 313, internal revenue collectors, in search of illicit whisky, presented themselves at defendant's door and told his wife that they had come to search the premises. According to the United States Supreme Court, her acquiescence to their entry was not free and voluntary “for it is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected.” (Id. at p. 317.)
The Supreme Court reached the same result in Johnson v. United States (1948) 333 U.S. 10, 1213. There, narcotics agentsmelling opium outside a hotel room. They knocked and a voice inside asked who was there. “’Lieutenant Belland,’ was the reply.” (Id. at p. 12.) There was a slight delay, some “shuffling or noise” in the room and then the defendant opened the door. (Ibid.) The officer said, “I want to talk to you a little bit.” (Ibid.) Defendant then “stepped back acquiescently and admitted us.” (Ibid.) The Supreme Court ruled that “Entry to defendant's living quarters. . . was demanded under color of office. It was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” (Ibid.)
Police were enforcing a curfew in People v. McKelvy, supra, 23 Cal.App.3d1027when they spotted defendant walking across the front lawn of a residence. They shined a spotlight on him, and he placed a small object in his pocket. One officer, armed with a shotgun, approached him. Three other armed officers "moved 'into position' to cover the police unit and each other.” (Id. at p. 1032). Defendant was asked to hand over the object he'd placed in his pocket. He did so.
This consent was involuntary. "No matter how politely the officer may have phrased his request," the court ruled, "defendant's compliance was under compulsion of a direct command by the officer." (Id. at pp. 1033-1034). His consent was "no more than mere acquiescence to a claim of lawful authority." (Ibid.)
The consent in People v. Challoner, supra, 136 Cal.App.3d 779 was obtained in less stressful circumstances. After defendant was arrested outside, one of the officers went to the front door of his home and announced that he "had made some narcotics arrests outside. . . and wanted to enter the house to search the house for other suspects and for narcotics" (Id. at p. 781). His gun, still drawn, was pointed toward the ground. Another officer was some distance behind him. Defendant's common law wife, Vivian Eiseman, stood about 15 feet inside the door. She consented to the entry and search of the house. This search uncovered cocaine and marijuana.