NO.

THE STATE OF TEXAS			§            IN THE _____________ COURT
												§

V.						§	OF
						§

JOHN DOE					§	___________ COUNTY, TEXAS

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT: 
	Defendant, JOHN DOE, submits the following in support of the Defendant’s Motion to Suppress Evidence, which was respectfully submitted to this Court on January 22, 2004.
Procedural History
	Defendant allegedly committed the offense which is subject of Cause Number __________ on June 22, 2003.  Defendant was indicted on Cause Number ______________on September 17, 2003, for the offense of Felony Driving While Intoxicated-third or more.  A hearing on evidentiary pretrial matters was held April 9, 2004.
Statement of Facts
	On or about June 22, 2003, Officer Winters of the Lubbock Police Department was dispatched to the scene of a fender-bender in the left-hand turn lane at 900 34th Street in Lubbock.  Officer Winters was conducting a routine investigation of the accident when a Ford Ranger, driven by Defendant, pulled up to the scene of the accident and stopped in the striped-median.  Officer Winters asked the parties involved in the accident if they knew the driver of the Ford Ranger, to which the parties said no.

	Officer Winters then approached Defendant, who sitting in the Ford Ranger.  When Defendant rolled down the car window, Officer Winters smelled an odor of alcohol coming from the vehicle.  As Officer Winters spoke with Defendant, he noticed that Defendant’s speech was slurred.  Officer Winters then asked Defendant to exit the Ford Ranger and accompany him to his patrol car, where Officer Winters placed Defendant in the backseat.  While walking to the patrol car, the officer noticed Defendant had difficulty walking and standing.  
	Because Officer Winters still had to conduct the traffic accident investigation, he radioed for backup so that another officer could tend to the Defendant.  Officer Childers responded to the call for backup, and when he arrived Defendant was still seated in the backseat of Officer Winters’s patrol car.  Officer Winters informed Officer Childers of the situation and Officer Childers decided to conduct field sobriety tests on the Defendant to determine if he was intoxicated.  Officer Childers attempted to administer the Horizontal Gaze Nystagmus test, but Officer Childers decided that it was not safe to perform the test because Defendant was swaying side-to-side too much, and at that point Defendant was placed under arrest for driving while intoxicated.
	Officer Childers then transported Defendant to the Lubbock holding facility and the District Attorney’s DWI Room.  In the DWI Room,  Defendant complained of chest pain and Officer Childers requested that Defendant give a breath sample, to which Defendant at best replied, “You want”.  However, because Defendant complained of chest pains a breath sample was not taken because EMS arrived and took Defendant to University Medical Center Hospital. 
	Officer Childers followed EMS to University Medical Center, and made contact with Defendant at the hospital.  Then while Defendant was laying in the hospital, and as medical staff were performing tests on Defendant concerning his chest pain, Officer Childers requested consent to take a blood sample, and a blood sample was taken from Defendant.      

Argument
I.  	The blood sample seized by Officer Childers should be suppressed as a product of an illegal search because the sample was taken without Defendant’s unequivocal, voluntary consent.

	Taking of a blood specimen is considered a search and seizure within the meaning of the Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution.  Ramos v. State, 124 S.W.3d 326, 331 (Tex.App.–Fort Worth 2003, pet. ref’d).  When a search without a warrant is made, the State bears the burden to show that the search falls under one of the narrow exceptions to the warrant requirement in order for the search to be constitutionally permissible.  Id.  
	Consent to the search is an exception to the requirement for a warrant.  Id. at 332.  The State has the burden of showing that consent was freely and voluntarily given.  Howe v. State, 874 S.W.2d 895, 901 (Tex.App.–Austin 1994, no pet.).  The burden of proving that the consent was freely and voluntarily given cannot be discharged by showing no more than an acquiescence.  See Id.  Moreover, the consent must be positive and unequivocal.  Id.   The state must prove by the clear and convincing evidence that consent is free and voluntary.  Ramos, 124 S.W.3d at 332.  Voluntariness of consent cannot be shown where a person is unconscious or incapacitated.  Id.   

	In Ramos, the court held that the appellant voluntarily consented to provided the police with a specimen of her blood.  Id. at 333.  The appellant crashed her car into a tree and the injuries she suffered as a result required that she be treated at a near-by hospital.  Id. at 329.  An officer made contact with the appellant at the hospital, and at the suppression hearing the officer testified that the appellant was upset but that she was alert, oriented, and responded to questions.  Id.  The officer further testified that she asked the appellant what had caused the accident and that the appellant had replied that she “got too drunk”.  Id. at 330.  Then the officer asked the appellant if she would be willing to give a sample of her blood, to which the appellant responded, “Yes.”  Id.  
	In reaching its holding, the court noted that at the time consent was given, the appellant was not under arrest or in custody.  Id. at 333.  Further, the appellant was not in a coercive environment since she was at the hospital, no physical violence was used to obtain consent, the officer did not threaten to obtain, or claim to have a search warrant, and only one officer was as the hospital.  Id.  The court also noted that the evidence showed that the appellant was alert and oriented at the scene of the accident and upon her arrival at the hospital.  Id.
	Here, unlike Ramos, the State cannot meet its burden because Defendant’s consent was not freely or voluntarily given since Defendant had limited knowledge of the English language, and thus could not knowingly consent to giving the blood specimen.  Officer Winters testified that at the scene, Defendant had a hard time understanding the officer’s questions and that Defendant was hard to understand.  (R.R. at 17.).  Furthermore, Officer Childers admitted to using Spanish words when asking Defendant to consent to taking a breath sample.  (R.R. at 30.).  Officer Childers also testified that in response to a request for a breath sample, Defendant replied, “You want.” (R.R. at 31.). Such a statement from a person who has limited understanding of English is not clear and convincing evidence that would allow the State to meet its burden in showing that Defendant consented to giving a specimen. 

	Also, unlike Ramos where the appellant was alert and oriented, here Defendant was experiencing chest pain and at the time Officer Childers requested consent to give a blood specimen, hospital personnel were “performing the tests [and] setting him up for the test for his chest.”  (R.R. at 28.).  Although Officer Childers testified that Defendant appeared to know exactly what was going on when he consented, it is certainly reasonable to believe that a person who does not speak English fluently, and who is undergoing emergency medical examinations for chest pain, would likely believe that a request for a blood sample is somehow related to the tests being conducted for his chest pain.  
	Also, in contrast to Ramos where the officer asked for consent to take a blood specimen immediately after the appellant said she got too drunk, here there was no such context to Officer Childers’s request for consent.  Instead, he asked for consent to take a specimen while tests were being performed on Defendant for his chest pain and it is reasonable to expect that Defendant not understand for what purpose a blood specimen was being requested. 
	Because the State cannot meet its burden to show by clear and convincing evidence that Defendant voluntarily consented to provide Officer Childers with a blood sample, the evidence should be suppressed as the product of an illegal search under the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution.

II.	The blood sample seized should be suppressed as the product of an illegal detention and arrest because Officer Winters did not have reasonable suspicion to detain Defendant since Defendant was legally parked.

	A "stop" and "frisk" by law enforcement personnel amounts to a sufficient intrusion on an individual's privacy to implicate the Fourth Amendment's protections.  Carmouche v. State, 10 S.W.3d  323, 328 (Tex.Crim.App. 2000).  An officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possibly-criminal behavior where the officer can point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant an intrusion.  Id.   

	A person in a car is just as subject to a brief detention as is a pedestrian, and the same standards will apply whether the person detained is a pedestrian or is the occupant of an automobile.  Bobo v. State, 843 S.W.2d 572, 574 (Tex.Crim.App. 1992); Carmouche, 10 S.W.3d at 328.   The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.  Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).
	Here, based upon the totality of the circumstances, Officer Winters did not have reasonable suspicion to detain Defendant when Defendant’s was car parked on the striped median.  First, Officer Winters initially believed that Defendant was at the scene to pickup one of the parties involved in the accident.  (R.R. at 12.).  Secondly, Officer Winters testified that Defendant was legally parked and that is was possible that Defendant intended to park there while waiting for the officer to conclude the investigation of the accident so that he could turn left, and that such action on the part of Defendant would have be legal.  (R.R. at 16, 17.).  Clearly, based upon the totality of the circumstances, Officer Winters did not have specific articulable facts which would lead him to conclude that Defendant has been or will be engaged in illegal activity.

	Officer Winters did not have reasonable suspicion based upon specific articulable facts in light of the totality of the circumstances that would justify detaining Defendant.  As a result, Defendant’s detention and arrest were illegal and thus, the blood sample that was obtained by Officer Childers should be suppressed. 

Respectfully submitted,
							
CERTIFICATE OF SERVICE
	
	This is to certify that on April _____, 2004 a copy of Defendant’s Motion and Brief in Support of Defendant’s Motion to Suppress Evidence was delivered to the Criminal District Attorney of _________ County, Texas.

___________________________________________
Chuck Lanehart