### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs December 1, 2015

STATE OF TENNESSEE v. HELKIE NATHAN CARTER

Appeal from the Criminal Court for Davidson County No. 2013

- C

- 2372 Mark J. Fishburn, Judge

No. M2015

- 00280

- CCA

- R9

- CD

– Filed May 20, 2016



### _____________________________ Helkie Nathan Carter (“the Defendant”) was indicted for the following counts: (1) driving under the influence (“DUI”)

— third offense; (2) driving with a blood alcohol concentration (“BAC”) of .08 or more (“DUI per se”)

— third offense; (3) violation of the habitual motor vehicle offender statute; and (4) driving on a revoked license. The Defendant ‟s motion to suppress evidence obtain ed during a mandatory blood draw was granted by the trial court. The State sought and was granted permission to appeal, arguing that the Defendant gave both actual and implied consent to the blood draw and that, if the good

- faith exception is adopted in Tennessee, it should apply to this case. Up on review, we conclude that the Defendant‟s actual consent was not freely and voluntarily given ; Tennessee‟s implied consent law does not, by itself, operate as an exception to the warrant requirement ; and no exception to the warrant requirement justified the blood draw . We decline to a dopt a good

- faith exception. The judgment of the trial court suppressing the results of the warrantless blood draw is affirmed.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

R OBERT L. H OLLOWAY , J R ., J., delivered the o pinion of the Court, in which N ORMA M C G EE O GLE and R OBERT H. M ONTGOMERY , J R ., JJ.

, joined.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel ; Glenn Funk , District Atto rney General; and Matthew Gilbert , Assistant Dist ri ct Attorney General, for the a ppell ant , State of Tennessee.

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant District Public Defender (on appeal); Jared Mollenkof, Assistant District Public Defender (at hearing), Nashville, Tennessee, for the appellee

, Helkie Nathan Carter.- 2

- OPINION

I. Factual and Procedural Background
On February 1, 2013, the Defendant was arrested for DUI, and his blood was drawn for analysis. The Defendant filed a “Motion and Memorandum of Law to Suppress the Test Results Gained from the Illegal Blood Draw Performed on Helkie Carter” (“the Motion to Suppress”), claiming that his consent was not voluntarily given and the blood draw violated his Fourth Amendment right against unreasonable searches and seizures. The State filed several responses to the Motion to Suppress arguing that the Defendant had g iven actual and implied consent to the blood draw and that, even if
consent were not given, the good faith exception would apply to this case.

At the hearing on the Motion to Suppress, Officer Jonathan Jones testified that he observed a driver, later iden tified as the Defendant, make a “rolling stop” at a stop sign around 10:00 p.m. on the date of the offense. Officer Jones activated his blue lights and pursued the vehicle. Because the Defendant did not appear to have noticed the patrol car‟s blue lights , Officer Jones activated his siren in order to get the Defendant‟s attention, but the Defendant did not immediately pull over. Two other patrol cars joined in the pursuit before the Defendant stopped his vehicle. In total, Officer Jones pursued the Defe ndant‟s vehicle for ten to twelve blocks, or about a quarter of a mile, and the pursuit lasted approximately one minute. Officer Jones thought that the Defendant may not have pulled over immediately either because he was intoxicated or because he was tryi ng to hide a weapon in his vehicle. Officer Jones believed that all three patrol cars were positioned behind the Defendant‟s when he stopped.
Officer Jones and the two other officers at the scene initiated a “high

- risk takedown” by exiting their patrol cars with their guns drawn and ordering the Defendant to exit his vehicle. Officer Jones observed the Defendant rapidly “sling” his car door and then “kind of use the car door to climb out of the vehicle.” Officer Jones then handcuffed the Defendant whil e the other two officers “held cover.” Officer Jones stated that the Defendant smelled of alcohol, his eyes were “red, watery, bloodshot,” his speech was “slightly slurred,” and he was unsteady on his feet. Also, Officer Jones thought the Defendant had b een at a party or a club because his clothes were in disarray and he was wearing a necklace which displayed a picture of the Defendant wearing the same clothes he had on during the traffic stop. Officer Jones administered a horizontal gaze nystagmus
test and, based on the Defendant‟s performance, determined that a DUI officer should be called to the scene. At some point during this interaction, the handcuffs were removed. Officer Jones also searched the Defendant‟s driving record and found that he was a habitual motor vehicle offender. Officer Jones also noted that the Defendant ultimately stopped his car in front of his own house.

Officer Jonathan Frost testified that he assisted Officer Jones in the Defendant‟s DUI stop. Officer Frost noted that, onc e the Defendant stopped, all three officers on the- 3

-

scene had their guns aimed at the Defendant. The Defendant crawled out of the car, using the door to support himself, and the officers saw that the Defendant did not have anything in his hands. Officer F rost did not interact directly with the Defendant, but he recalled that the Defendant‟s speech was slurred and that the Defendant said he had just come from a club. Officer Frost stated that the Defendant seemed confused.

Sergeant Justin Pachciarz testifi ed that he was the DUI officer called to the scene. Sergeant Pachciarz detected the odor from an alcoholic beverage on the Defendant‟s breath. When asked if he had been drinking, the Defendant responded that he either had two Bud Light beers or two sips of beer; Sergeant Pachciarz could not recall the exact amount without looking at his report. Sergeant Pachciarz administered the horizontal gaze nystagmus, the nine

- step walk

- and

- turn, and the one

- leg stand tests. The Defendant exhibited six out of eight indicators of intoxication during the field sobriety test, and Sergeant Pachciarz had to stop the one

- leg stand half

- way through the test because the Defendant could not finish the task. Based on the totality of the circumstances, Sergeant Pachciarz plac ed the Defendant under arrest for driving under the influence. Once the Defendant was inside Sergeant Pachciarz‟s patrol car, the sergeant recited the Miranda warnings and read the implied consent form to the Defendant. Sergeant Pachciarz also informed t he Defendant that, because he had a prior DUI conviction, the blood draw was mandatory. Sergeant Pachciarz also admitted that he told the Defendant that, if he refused to give a blood sample, officers would have to hold him down in order to complete the b lood draw. The Defendant consented to the blood draw at 10:39 p.m., and he signed the implied consent form once he had been transported to the hospital. The Defendant‟s blood was drawn at 11:11 p.m., and results from the test revealed that the Defendant‟ s blood alcohol content (“BAC”) was .24. Sergeant Pachciarz recalled that the Defendant was cooperative the entire time.
Sergeant Pachciarz stated that he did not try to obtain a search warrant because he did not believe he needed one. In the following e xchange, he also explained that he did not believe he could obtain a search warrant because the Defendant was arrested prior to the release of Missouri v. McNeely , __ U.S. __, 133 S.Ct. 1552 (2013):
Q: Were you aware that [obtaining a warrant] was somethi ng you could do at the time?

A: No.
Q: And had you received any sort of training through the police department or any notification that you could now go to night commissioners rather than simply judges for search warrants?

A: Well, that changed when this law changed, but this time I don‟t believe the law had changed, we could.- 4

-

Sergeant Harold Burke testified that, as a DUI sergeant, his role was to review paperwork, maintain training for the police department, teach new recruits about procedures, and ensur e that officers are kept up to date on changes to the DUI laws. According to Sergeant Burke, once the police had probable cause to arrest a person, they would then read the implied consent form verbatim, which stated that a blood test was mandatory if the defendant had a prior DUI conviction. If a defendant agreed to submit to the blood test, they were transported to the hospital. If a defendant with a prior DUI conviction refused, police would remind the defendant what the law was. If a defendant refus ed a second time, a DUI supervisor would have been called to the scene, and the supervisor would explain that “it wasn‟t a decision that they could refuse and explain once again that if they did refuse that they‟re going to lose their driver‟s license[.]” Sergeant Burke also stated that he would inform defendants that “„the State mandates that we draw your blood and in order to draw

— we don‟t have a choice, we have to draw your blood. If that means that we have to physically restrain you to draw your blood , that‟s what we‟ll have to do[.]‟” However, Sergeant Burke explained that he would only warn a defendant about physical restraint after he had consulted with the field captain and obtained the field captain‟s advice on how to proceed. Sergeant Burke rei terated that comments about holding the defendant down only c a me after the defendant ha d been read the implied consent law and ha d refused to give consent.
To Sergeant Burke‟s knowledge, officers did not obtain search warrants for a blood draw prior to t he decision being issued in McNeely . After McNeely was issued, officers stopped taking warrantless mandatory blood samples when the defendant refused. Instead, officers either sought a search warrant for the blood or the defendant was simply charged with violation of the implied consent law. Sergeant Burke noted that, prior to McNeely , Davidson County officers thought that the natural dissipation of the BAC over time constituted an exigent circumstance. Additionally, Sergeant Burke believed that, at the time of the Defendant‟s arrest, Davidson County night commissioners could not sign search warrants and that any search warrant sought would have to be signed by a judge. However, an order from Davidson County General Sessions Judge Mondelli, which is inc luded in this record on appeal, states that, effective September 10, 2012, over four months before the Defendant‟s arrest, Davidson County night court commissioners could sign search warrants.
The Defendant testified that he stopped his car in front of his house and that one police car pulled in front of his car while two others stopped behind his car. The officers exited their patrol cars, drew their guns on the Defendant, and ordered him to exit his vehicle. The Defendant exited his car and held his han ds in the air. About fifteen to twenty minutes later, the Defendant was placed into the back of Sergeant Pachciarz‟s patrol car. At that point, Sergeant Pachciarz informed the Defendant that, because he had a prior DUI conviction, it was mandatory for th e Defendant to submit to a blood test and that officers would hold him down in order to get the blood sample. The Defendant consented to the blood draw. The Defendant said he did not think that he had the right to- 5

-

refuse the blood test and explained that he did not say anything when he was asked to sign the implied consent form because he did not want to argue with Sergeant Pachciarz.
In a memorandum opinion, the trial court relied on State v. James Dean Wells , No. M2013

- 01145

- CCA

- R9

- CD, 2014 WL 4977356 ( Tenn. Crim. App. Oct. 6, 2014), to conclude that Tennessee Code Annotated section 55

- 1

- 406(f)(2) does not create a per se exception to the warrant requirement and that officers are required to seek a warrant for mandatory blood draws absent an exception to the Fourth Amendment, such as voluntary consent or exigent circumstances. Further, the trial court found that the Defendant‟s consent was not voluntarily given, stating:

. . . The Defendant‟s freewill was overborne and, therefore, the consent given was i nvalid. The Defendant was boxed in by three patrol vehicles after a relatively short pursuit for rolling through a stop sign. Although the Defendant did not immediately respond to the officers‟ emergency equipment, it cannot reasonably be said that he wa s attempting to elude the police since his speed never exceeded [twenty] miles per hour .[ 1 ] As he pulled in front of his home, one officer abruptly pulled in front of the Defendant‟s vehicle so that the Defendant‟s vehicle was completely boxed in.

The of

ficers then exited their vehicles and approached the Defendant‟s vehicle with their guns drawn and fixed on the Defendant. The whole time they were commanding him to get on the ground face down. For reasons that are totally unclear to the court, a fourth officer arrived on the scene to assist with the apprehension of [the Defendant]. Once seized in this extraordinary and unnecessary show of police authority, the officers quickly concluded that the [D]efendant was under the influence of an intoxicant and placed him under arrest. In an apparent effort to underscore the implied consent advisory, the officers informed the Defendant in no uncertain terms that they were going to take a blood sample from him with or without his consent and that they would force fully hold down the Defendant to take the sample.
The Defendant was then taken to the hospital to have the blood draw taken. It was at this point that he signed the consent form and a draw of the Defendant‟s blood was taken. The Defendant testified that he did not believe he had a choice other than to give the blood draw. By his understanding of the situation he could either submit to the blood test and cooperate or refuse and then be pinned down or forcefully constrained

1 The trial court appears to reach a conclusion that the Defendant‟s speed never exceed ed twenty miles per hour based on Officer Jones‟s testimony that the Defendant travelled a quarter of a mile in the span of one minute.- 6

-

while they injected a needle in to his vein. The Defendant, having been subjected to an inexplicable display of raw force and fire power, understandably wanted to avoid any possible confrontation and, therefore, acquiesced to the officers‟ blood draw demand.

Based on the totality of th e circumstances, the Defendant‟s will was overborne by the investigating officers. The Defendant was met with a high degree of hostility even though he was generally cooperative. As such, the Defendant‟s consent to search was not freely and voluntarily
g iven when he was confronted by the implied consent advisory at the hospital.

Additionally, the trial court took judicial notice of the fact that the hospital where the Defendant‟s blood was drawn was a ten

- minute drive from the Davidson County Criminal Justice Center. The trial court held that the evidence collected during the blo od draw must be suppressed and dismissed the DUI per se charge. The State sought and was granted permission from the trial court for a Rule 9 interlocutory appeal to this court. This court granted the State‟s application for interlocutory appeal.

II. Ana lysis
On appeal, the State argues that the evidence should not have been suppressed because the Defendant gave actual consent to his blood being drawn and such consent was freely and voluntarily given. Additionally, the State contends that the Defendant gave his implied consent to a blood draw by operating a vehicle on the roads in Tennessee and that he did not expressly revoke that consent. Moreover, the State claims that, if the good

- faith exception to the warrant requirement is adopted in Tennessee, i t should apply to this case because the officers reasonably believed, based on existing statutory and case law, that they did not need to obtain a warrant in order to draw the Defendant‟s blood. The Defendant argues that the trial court correctly found th at the Defendant did not give actual consent to the blood draw. Regarding the implied consent statute, the Defendant contends that “the „consent‟ involved in „implied consent‟ is not constitutionally

- valid consent to search, but rather a consent to certai n consequences should permission to search be withheld.” Finally, the Defendant notes that Tennessee has not adopted a good

- faith exception to the warrant requirement and asserts that, even if the good

- faith exception is adopted in Tennessee, it does not apply to this case because the Defendant‟s consent was not constitutionally valid.

A. Standard of Review
A trial court‟s factual findings on a motion to suppress are binding on appeal unless the evidence preponderates against them. State v. Binnette , 33 S.W.3d 215, 217 (Tenn. 2000); State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the- 7

-

evidence are matters entrusted to the trial judge as the trier of fact.” Odom , 928 S.W.2d at 23. The prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable and legitimate inferences drawn therefrom. Id. However, we review the trial court‟s application of the law to the facts de novo with no presumption of
correctness. State v. Williamson , 368 S.W.3d 468, 473 (Tenn. 2012).

B. Consent
Both the United States and Tennessee Constitutions guarantee the right to be free from unreasonable searches and seizures. U.S. Const . Amend. IV; Tenn. Const. Art. I, § 7. A blood draw conducted by law enforcement for use as evidence in a criminal investigation constitutes a search subject to constitutional protection. McNeely , 133 S.Ct. at 1558; Schmerber v. California , 384 U.S. 757, 769

- 70 (1966 ). “[A] warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defin ed exceptions to the warrant requirement.” State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge v. New Hampshire , 403 U.S. 443, 454

- 55 (1971)). Consent is one of the recognized exceptions to the warrant requirement. Schneckloth v. Bustamo nte , 412 U.S. 218, 219 (1973).

i. Actual Consent
In order to be valid, actual consent must be “„unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.‟” State v. Ingram , 331 S.W.3d 746, 760 (Tenn. 2011) (quoting State v. Be rrios , 235 S.W.3d 99, 109 (Tenn. 2007)). “Whether an individual voluntarily consents to a search is a question of fact to be determined from the totality of the circumstances.” Berrios , 235 S.W.3d at 109. “The pertinent question is

. . . whether the [in dividual‟s] act of consent is the product of an essentially free and unconstrained choice. If the [individual‟s] will was overborne and his or her capacity for self

- determination critically impaired, due process is offended.” State v. Cox , 171 S.W.3d 174 , 185 (Tenn. 2005) (citing Schneckloth , 412 U.S. at 225

- 26). Factors to be considered when evaluating the voluntariness of consent include the time and place of the encounter; whether the encounter was in a public or secluded place; the number of officers present; the degree of hostility; whether weapons were displayed; whether consent was requested; and whether the consenter initiated contact with the police. Id. The State bears the burden of proving that the consent was freely and voluntarily given. S tate v. Blackwood , 713 S.W.2d 677, 680 (Tenn. Crim. App. 1986).

In this case, the trial court found that the Defendant‟s freewill was overborne, rendering his consent invalid. The evidence showed that the Defendant was pulled over by three police officer s and that officers ordered the Defendant out of his car at gun point and placed him in handcuffs. When Sergeant Pachciarz a rrived on the scene, he conducted a field sobriety test and then placed the Defendant under arrest. At that point,- 8

-

Sergeant Pachci arz read the implied consent form to the Defendant and informed the Defendant, in no uncertain terms, that officers would hold the Defendant down and take a sample of his blood by force if the Defendant refused to consent to the blood draw. The Defendant testified that he felt he had no other choice than to give his consent. As such, the evidence does not preponderate against the trial court‟s finding that the Defendant did not freely and voluntarily give his actual consent.
ii. Implied Consent

Tennesse e Code Annotated section 55

- 10

- 406 states in pertinent part:

(a)(1) Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person‟s blood, a test o r tests for the purpose of determining the drug content of the person‟s blood, or both tests. However, no such test or tests may be administered pursuant to this section, unless conducted at the direction of a law enforcement officer having reasonable
gro unds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants as prohibited by § 55

- 10

- 401 , or was violating § 39

- 13

- 106

, § 39

- 13

- 213(a)(2) or § 39

- 13

- 218

. Tenn. Code Ann. § 55

- 10

- 406(a)(1) (2012). Pursuant to the statute, the police may only test a defendant‟s blood when they have “reasonable grounds to believe” that the person was driving while under the influence or had committed vehicular assa ult, vehicular homicide, or aggravated vehicular assault. Id. “Reasonable grounds” has been interpreted to mean probable cause. State v. Bowery , 189 S.W.3d 240, 248 (Tenn. Crim. App. 2004).
The statute also requires that, prior to requesting a blood s ample, officers must advise the defendant that refusal to submit to the test will result in the suspension of the defendant‟s driver‟s license as well as other possible consequences. Tenn. Code Ann. § 55

- 10

- 406(a)(3) (2012). If the defendant refuses to g ive consent, he will be charged with violation of the implied consent law. Tenn. Code Ann. § 55

- 10

- 406(a)(4)(A) (2012). However, in certain circumstances, a blood draw is mandatory. Tennessee Code Annotated section 55

- 10

- 406(f)(2) 2 states:

If a law enfo rcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39

- 13

- 213(a)(2)

, § 39

- 13

- 218 or § 55

- 10

- 401 and has been previously convicted of § 39

- 13

- 213(a)(2)

, § 39

- 13

- 218 or § 55

- 10

- 401 the officer shall cause the driver to

2 Tennessee Code Annotated section 55

- 10

- 406(f)(2) has since been recodified as Tennessee Code Annotated section 55

- 10

- 406(d)(5)(B).- 9

-

be tested for the purpose of determining the alcohol or drug content of the driver‟s blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does o r does not consent to the test.
The United States Supreme Court has cautioned against per se exceptions to the Fourth Amendment warrant requirement. In Missouri v. McNeely , __ U.S. __, 133 S.Ct. 1552 (2013), the Supreme Court clarified that the nat ural dissipation of alcohol in the blood does not create a per se exigent circumstance that would allow the police to take a blood sample without a warrant. McNeely , 133 S.Ct. at 1561. Instead, the Fourth Amendment requires officers to obtain a search wa rrant when, based on the totality of the circumstance s , obtaining a warrant will not “significantly undermin[e] the efficacy of the search.” Id. at 1561, 1563. After McNeely was released, the Supreme Court vacated the Texas Court of Appeals‟ decision in Aviles v. Texas , 385 S.W.3d 110 (Tex. App. 2012)

, and remanded the case for further consideration of Texas‟s mandatory blood draw statute in light of McNeely

. Aviles v. Texas , 134 S.Ct. 902 , 902 (2014) . On remand, the Texas Court of Appeals concluded that Texas‟s implied consent and mandatory blood draw statutes created a “categorical or per se” exception to the warrant requirement in violation of McNeely

. Aviles v. Texas , 443 S.W.3d 291, 294 (Tex. Ap p. 2014). Because the implied consent and mandatory blood draw statutes were not permissible exceptions to the warrant requirement, the court held that the warrantless blood draw violated the Fourth Amendment. Id.
Similarly, when examining Tennessee‟s im plied consent statute this court has previously stated, “[A] conclusion that the legislature intended to create an exception to the state and federal constitutional warrant requirements would require us to declare [the implied consent] statute unconstituti onal.” State v. Charles A. Kennedy , No. M2013

- 02207

- CCA

- R9

- CD, 2014 WL 4953586, at *12 (Tenn. Crim. App. Oct. 3, 2014); see also Aviles , 443 S.W.3d at 294. Moreover, this court presumes that the General Assembly was aware that it could not circumvent Fou rth Amendment protections by way of legislative enactment. Charles A. Kennedy , 2014 WL 4953586, at *12. The statute is silent about whether a warrant is required for a mandatory blood draw pursuant to section 55

- 10

- 406(f), but this court has concluded th at the statute was not intended “to operate as a blanket exception to the warrant requirement.” Id. ; see also James Dean Wells , 2014 WL 4977356, at *13. Instead, “[t]he „consent‟ inherent in the implied consent law is generally consent to either submit t o testing or to accept the consequences of a refusal of testing, including a loss of license.” James Dean Wells , 2014 WL 4977356, at *13 (emphasis added). In other words, the implied consent statute serves as a tool the State may use to persuade a defend ant to submit to a blood test, but it does not, alone, create consent for the purposes of the Fourth Amendment. As this court has stated:

While the State may attempt to persuade the accused to submit to a search by providing consequences for a failure to submit to a test ordered- 10

-

upon probable cause, we hold that the privilege of driving does not alone create consent for a forcible blood draw. Given the gravity of the intrusion into privacy inherent in a forcible blood draw, we conclude that such a search is not reasonable unless performed pursuant to a warrant or an exception to the warrant requirement. The implied consent law does not, in itself, create such an exception

.
Id. (emphasis added). But see State v. Corrin Kathleen Reynolds , No. E2013

- 02309

- C CA

- R9

- CD, 2014 WL 5840567

, at *10 (Tenn. Crim. App. Nov. 12, 2014) (“[A]nyone who exercises the privilege of operating a motor vehicle „is deemed to have given consent to a test or test for the purpose of determine the alcoholic content of that person‟s blood. ‟”)

, perm. app. granted (Tenn. Mar. 16, 2015); State v. Darryl Al a n Walker , No. E2013

- 01914

- CCA

- R3

- CD, 2014 WL 3888250, at *6 (Tenn. Crim. App. Aug. 8, 2014) (“[C]onsent occurs at the point that a driver undertakes the privi lege of operating a motor vehicle in the State of Tennessee, not at the point the implied consent for m is read[.]”); State v. Humphreys , 70 S.W.3d 752, 761 (Tenn. Crim. App. 2001), perm. app. denied (Tenn. Dec. 31, 2001) (“[A]nyone who exercises the privil ege of operating a motor vehicle in this state has consented in advance to submit to a breath alcohol test.”). Therefore, in order for a mandatory blood draw to comply with the Fourth Amendment, “it must be supported by a warrant issued by an independent magistrate finding probable cause or by exigent circumstances, voluntary [actual] consent, or some other exception to the warrant requirement.” James Dean Wells , 2014 WL 4977356, at *13. The implied consent law does not, alone, create an exception to the warrant requirement. Id.

In this case, Sergeant Pachciarz did not attempt to obtain a warrant before the Defendant‟s blood was drawn. Therefore, an exception to the warrant requirement must exist for the blood evidence to be admitted. We have already d etermined that the Defendant did not freely and voluntarily consent to the blood draw. Additionally, we do not believe the totality of the circumstances show s that exigent circumstances created an exception to the warrant requirement in this case. The De fendant was pulled over around 10:00 p.m., and his blood was drawn at 11:11 p.m. The Davidson County Criminal Justice Center was a ten

- minute drive from the hospital where the blood draw was taken. Further, an order from Davidson County General Sessions Court, which is included in the record on appeal, shows that Davidson County night court commissioners were granted the authority to sign search warrants on September 10, 2012, almost five months before the Defendant‟s blood was drawn. Based on the eviden ce in the record, there were no exigent circumstances that would allow a warrantless blood draw, and we are unable to find any other exception to the warrant requirement. Accordingly, we conclude that the trial court properly granted the Defendant‟s Motio n to Suppress.

B. Good Faith Exception

As a separate issue, the State argues that, if the good faith exception is adopted in Tennessee, it would apply to this case. We note that the Tennessee Supreme Court is- 11

-

presently considering this issue in State v. Corrin Kathleen Reynolds

. See Order, State v. Corrin Kathleen Reynolds , No. E2013

- 02309

- SC

- R11

- CD (Tenn. Mar 16, 2015). However, as of this writing, the supreme court has heard arguments for Corrin Kathleen Reynolds , but no opinion has been filed. Curr ently, Tennessee has not adopted a “good faith exception.” State v. Carter , 16 S.W.3d 762, 770 n.8 (Tenn. 2000); see also State v. Jerry Brandon Phifer , No. M2013

- 01401

- CCA

- R3

- CD, 2014 WL 4698499, at *16 (Tenn. Crim. App. Sept. 23, 2014). “We have previo usly stated that „neither the trial court nor this court has the authority to create a good faith exception to the Tennessee exclusionary rule since an inferior court may not modify, revise, modernize, or overrule a rule created by the Supreme Court.‟” Je rry Brandon Phifer , 2014 WL 4698499, at *16 (quoting State v. Lonnie Taylor , No. 86

- 144

- III, 1987 WL 25417, at *7 (Tenn. Crim. App. Dec. 4, 1987)). Our supreme court has yet to recognize a good faith exception to the exclusionary rule, and it is not our role to do so in this case.

III. Conclusion

For the aforementioned reasons, t he judgment of the trial court suppressing the result s of the warrantless blood draw is affirmed.

_________________________________ ROBERT L. HOLLOWAY, JR.

, JUDGE