Opinion issued August 29, 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00146
- CR

——————————— THE STATE OF TEXAS , Appella nt

V. SEAN MICHAEL MCGUIRE , Appell e e
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Ca se No. 10
- DCR
- 055898

DISSENTING OPINION I respectfully dissent. I would hold that the trial court abused its discretion in granting Sean McGuire ’s motion to suppress the evidence obtained as a result of his warrantless arrest , effectively declaring his arrest illegal

.2

Based solely o n review of the cold reporter’s record from an evidentiary suppression hearing held two years earlier , the trial cour t , on remand, reached the opposite conclusion of the original trial judge who had presi ded over t he hearing

. The trial court selectively cited facts from th at record , disregarding important contradictory facts , to draw the incorrect legal conclusions that the officers lacked probable cause and that the suspicious place exception to the warrant requirement did not apply. And the majority opinion affirms by incorrectly presuming that the
U nited S tates Supreme Court’s holding in Missouri v. McNeely extends bey ond warrantless searches to draw blood into the distinct domain of warrantless arrests.
See 569 U.S. 141, 145 (2013). In so doing, it ignores this Court’s own binding precedent holding that the need to preserve evidence constitutes an exigent circumstance under the suspicious place exception to the warrant requirement.

Suspicious Place Exception to Warrant Requirement Warrantless arrests are authorized only in limited circumstances outlined primarily in Chapter 14 of the Texas Code of Criminal Procedure. Swain v. State , 181 S.W.3d 359, 366 (Tex. Crim. App. 2005). Here, t he State relies on the “suspicious place” exception, codified in article 14.03(a)(1), authoriz ing the warrantless arrest of an individual found in a suspicious place under circum stances3

reasonably showing he committed a felony or a breach of the peace

. See T EX
. C ODE C RIM
. P ROC
. A NN
. art

. 14.03(a)(1)

. 1 The Court of Criminal Appeals has held that “ t he test under [a]rticle 14.03(a)(1) is a totality of the circumstances test. First, probable cause that the defendant committed a crime must be found and second, the defendant must be found in a ‘suspicious place.’” Dyar v. State , 125 S.W.3d 460, 468 (Tex. Crim. App. 2003) ; Lewis v. State , 412 S.W.3d 794, 80 1 (Tex. App.

— Amarillo 2013, no pet.)

. I would hold that t he State met this test and established that McGuire’s arrest was justifiable under the s uspicious p lace e xception to the w arrant r equirement

. A. Probable Cause Probable cause for a warrantless arrest exists when the arresting officer possesses reasonably trustworthy information sufficient to warrant a reasonable belief that an offense has been or is being committed. See Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

1 McGuire was originally charged with the felony of intoxication manslaughter. See T EX
. P ENAL C ODE A NN
. § 49.08 (b) (stating that offense of intoxication manslaughter is second

- degree felony) . He was later charged with felony murder, s ee id. § 19.02 (b)(3) , an d failure to stop and render aid, see T EX
. T RANSP
. C ODE A NN
. § 550.021 (stating that failure to stop and render aid is felony offense )

. In a previous opinion, this Court affirmed his conviction for failure to stop and render aid, vacated his conviction for felony murder because of the admission of an illegal blood draw, and remanded for further proceedings. See McGuire v. State , 493 S.W.3d 177, 199 , 208 (Tex. App.

— Houston [1st Dist.] 2016, pet. ref’d), cert. denied , 137 S. Ct. 2188 (2017)

.4

The record establishes the following : At approximately 12:45 a.m. on August 2, 2010, Trooper Tomlin reported to the scene of a fatality crash , which he was told by dispatch involved a motorcycle that had been hit and dragged 800 feet , “ from Brazos Town Center to the intersection of 2977. ”
A round the same time , McGuire called his mother and two police acquaintances, who in turn called law enforcement to report that McGuire had hit something in the road and was waiting at a nearby Shell station for la w enforcement to arrive.
A t the scene of the accident, Trooper Tomlin saw the complainant’s body on the side of the road

. Tomlin was then informed that the driver of the vehicle that had hit the complainant’s motorcycle w as across the highway at a Shell ga s station

. Trooper Tomlin was the first to arrive at the Shell station , at approximately 12:50

. Minutes later, Trooper Wiles , who had heard over the police radio that there had been a fatal accident and that the suspected driver was at the Shell station , joined him there, where the two troopers encountered McGuire

. McGuire stated that he had been driving his truck, that he had hit something, and that his wife , who was in the truck with him, told him that he had hit a person.5

Trooper Wiles observed that M cGuire’s truck had “a piece of metal stuck inside the grille with some motor oil on it” that “appeared to be the rear fender of the motorcycle,” but he “didn’t seem to know where it came from.”
D ue to “[a] strong order of alcoholic beverage that [Trooper W iles] smelled [on McGuire’s] person and breath , ” his bloodshot , glassy eyes, and the “ slight dazed look on his face , ” Wiles believed McGuire was intoxicated

. Wiles asked McGuire if he was willing to perform a field sobriety test , and McGuire refused. Trooper Wiles then drove McGuire to the scene of the accident. Wiles testified, and video of the crime scene showed, that when McGuire saw the motorcycle, “he covered his face and started supposedly crying and said that he was sorry.” I would hold that this information was sufficient to warrant a reasonable belief that McGuire had committed a crime. 2 See, e.g. , Dyar , 125 S.W.3d at 468 ( holding arresting officer had pro bable cause to believe appellant had committed DWI ; officer f ound appellant at hospital after having been informed that driver in one

- car accident was taken to hospital, appellant had slurred speech, red glassy eyes, and strong smell of alcohol , and appell ant admitted to drinking and driving ); Lewis , 412 S.W.3d at 80 1

– 0 2 (holding arresting officer had probable cause to believe appellant had committed DWI based in part on appellant’s flight from scene of accident , officer’s

2 The majority opinion does not address probable cause.6

detection of odor of alcohol emanating from appellant , appellant’s highly emotional
state , and appellant’s admission that she “had too much to drink”) ; see also Coronado v. State , No. 01

- 99

- 00912

- CR, 2000 WL 730682, at *2

– 3 (Tex. App.

— Houston [1st Dist.] June 8, 2000, pet. ref ’d) (not designated for publication) (holding

o fficer had probable cause to arrest appellant after he received information from other officers that appellant was driver of one of vehicles in fatality accident and officer noticed appellant had strong odor o f alcohol, slurred speech, and glassy eyes)

. B. Suspicious Place I would further hold that t he State proved that the Shell station w h ere Troopers Tomlin and Wiles first encountered McGuire was a s uspicious p lace and that the trial court erred in reaching the opposite conclusion because that conclusion was not supported by the facts and it fail ed to consider the totality of the circumstances. Relevant to the question whether McGuire was found at a suspicious plac e, the trial court found that Troopers Tomlin and Wiles testified that there was nothing suspicious about the location where they encountered McGuire and that McGuire was not acting in a suspicious manner. These findings are wholly inadequate to support th e legal conclusion that the Shell station was not a suspicious place under the circumstances known to the troopers at that time

. 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) ( not designated for publication) (rejecting argument that warrantless7

arrest was illegal because officer testified that it was not suspicious for defendant to stay near his damaged vehicle after accident ). It appears the trial court took the troopers’ testi mony as a legal conclusion, and in so doing, did not follow the well

established law that the suspicious

- place inquiry requires more than evaluating whether a particular place, on its own and without context, is suspicious

.

“ Few places, if any, are inhere ntly suspicious. The determination of whether a place is suspicious requires a highly fact

- specific analysis. ” Lewis , 412 S.W.3d at 8 0 2

. As the Court of Criminal Appeals has explai ned, under article 14.03(a)(1),

Any place may become suspicious when an ind ividual at the location and the accompanying circumstances raise a reasonable belief that the individual committed a crime and exigent circumstances call for immediate action or detention by the police. Swain , 181 S.W.3d at 366 (citations omitted)

. Here, the trial court did not make any fact

- specific findings beyond the officers’ testimony that the Shell station, in and of itself, was not a suspicious place and that McGuire was not acting suspiciously when they encountered him t here. In concluding that “ [ t] here is no evidence that the place where [McGuire] was arrested was a suspicious place pursuant to Texas Code of Criminal Procedure Article 14.03(a)(1) , ” the trial court made no findings with respect to “ the accompanying circumstances ,” which here clearl y raise d a reasonable belief that McGuire had committed a crime

. Id.8

In determining whether to characteriz e a place as suspicious, t he Court of Criminal Appeals has stated that the “only . . . factor [that] seems to be constant throughout the case law” is that “[t]he time frame between the crime and the apprehension of a suspect in a suspicious place is short.” Dyar , 125 S.W.3d at 468. Here, McGuire was found at the Shell station only minutes after the crash occurred. But this fact pales in significance in comparison to other circumstances that surrounded McGuire’s presence at the Shell station, including the facts that he called police acquaintances to report that he had hit something in the road just across from the Shell station , where he then waited for law enforcement to arrive; upon his arrival
at the scene of the accident , Trooper Tomlin observed the complainant’s dead body on the side of the road; at the Shell station, Trooper Wiles observ ed “a piece of metal stuck inside the grille [of McGuire’s tru ck] with some motor oil on it” that “appeared to be the rear fender of the motorcycle” ; and McGuire , who showed signs of intoxication, state d to the troopers that he believed he had hit something and that his wife told him it was a person. On this record, I would hold that the trial court erred in concluding that the Shell station was not a suspicious place under article 14.03(a)(1)

. See, e.g. , Villalobos , 2018 WL 2307740, at *6 (“[T]he area where appellant was found was a suspicious place b ecause the police reasonably could have believed, based on the surrounding circumstances [including facts that appellant was found shortly after9

accident having fled scene, his vehicle was missing wheel that matched model of wheel and other debris found at accident site, he displayed signs of intoxication , and he admitted he had been involved in accident after leaving bar] , that appellant drove while intoxicated and was involved in a recent accident nearby and needed to be detained because he had fled the s cene of that accident.”) ; Polly v. State , 533 S.W.3d 439 , 443 (Tex. App.

— San Antonio 2016, no pet.) (holding scene of hit

- and

- run accident was suspicious place where one hour after accident appellant returned to scene and officer could have reasonably beli eve d appellant committed offense of driving while intoxicated). Turning to the focus of the majority opinion

— exigent circumstances

— I do not agree that a strict showing of exigency is always necessary , particularly in hit

and

- run cases, where the suspect has shown his willingness to flee with evidence of not only his intoxication but also of the crash (such as the bumper of the complainant’s motorcycle embedded in the grille of McGuire’s truck). Cf. Cri bley
v. State , No. 04

- 04

- 00047

- CR, 2005 WL 1812585, at *2 (Tex. App.

— San Antonio Aug. 3, 2005, no pet.) (mem. op., not designated for publication) ( holding, without mention of exigency , that appellant’s home where she went shortly after fleeing scene of accident was suspicious place)

. The statutory language of a rticle 14.03(a)(1) does not mention exigen cy. It states only that a warrant is not necessary to arrest10 persons found in suspicious places and under circumstances which reasonably show that such p ersons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws [.] See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 14.03(a)(1). Nevertheless, some courts have implied an exigency requirement from a sentence in the Court of Criminal Appeals’ opinion in Swain : “ Any ‘ place ’ may become suspicious when a person at that location and the accompanying circumstances raise a re asonable belief that the person has committed a crime and exigent circumstances call for immediate action or detention by police. ” See 181 S.W.3d at 36 6 . I do not read this to require exigent circumstances in all cases under article 14.03(a)(1). While e xig ency does ordinarily play a prominent role in the analysis, it is but one of innumerable circumstances that may present for consideration in assessing the totality of the circumstances. Notably , many post

- Swain cases have address ed the suspicious place exception without ever mentioning exigenc y , including at least two from this Court

. See, e.g. , Rodriguez

- Rubio v. State , No. 01

- 17

- 00463

- CR, 2018 WL 6061306, at *4 (Tex. App.

— Houston [1st Dist.] Nov. 20, 2018 , no pet. ) (mem. op., not designated for publication) (“ Although an apartment complex is not an inherently suspicious place, the fact that the GPS locator in the stolen cell phone showed that the phone and appellant, who matched the witnesses’ description, were in the same location ,11

rendered this apartment complex a ‘ suspicious place. ’ The ‘ pinging ’ of the stolen cell phone at the apartment complex tied appellant to the crime scene.”); Contreras v. State , No. 01

- 08

- 00424

- CR, 2009 WL 2461483, at *3 (Tex. App.

— Houston [1st Dist.] Aug. 13, 2009, pet. ref’d) (mem. op., not designated for publication) ( holding that appellant , who was found at scene of crime searching for something under bushes and cars , was found in suspicious place where police were aware that robbery and shooting suspec ts had lost firearm in course of committing crime)

. 3

3 See also, e.g. , Gonzalez v. State , No. 08

- 14

- 00175

- CR, 2017 WL 2464690, at *6 (Tex. App.

— El Paso June 7, 2017, no pet.) (not designated for publication) ( holding that appellant’s location near ditch where his truck had landed tail

- up after accident was suspicious place where appellant showed signs of intoxication); Griffin v. State , No. 03

- 15

- 00398

- CR, 2017 WL 2229869, at *6 (Tex. App.

— Austin May 19, 2017, pet. ref’d) (mem. op., not designated for publication) ( stating that warrantless arrest for assault of public servant was justified under suspicious place exception based on: (1) short distance between scene of assault and appellant’s residence; (2) short amount of ti me between report of assault and appellant’s apprehension at his residence; (3) appellant’s signs of intoxication, refusal to cooperate, and belligerent behavior; (4) complainant ’s statements to officers describing assault and identifying appellant as assa ilant; and (5) physical evidence tending to corroborate complainant ’s account); Patel v. State , No. 08

- 13

- 00311

- CR, 2015 WL 6437413, at *5 (Tex. App.

— El Paso Oct. 23, 2015, no pet.) (not designated for publication) (holding that, under totality of circumst ances, location where appellant, who showed signs of intoxication, was found near single

- car accident in which his vehicle left road, traveled thirty yards down embankment, and landed in ditch was suspicious place) ; Gary v. State , No. 13

- 12

- 00266

- CR, 2013 WL 485793, at *4 (Tex. App.

— Corpus Christi

– Edinburg Feb. 7, 2013, pet. ref’d) (mem. op., not designated for publication) ( holding that appellant’s car in parking lot of pub was suspicious place where officer observed him repeatedly come and go from his car over short period of time because regular patron would have no reason to do so ); Owen v. State , No. 13

- 10

- 00417

- CR, 2011 WL 5515548, at *5 (Tex. App.

— Corpus Christi

– Edinburg Nov. 10, 2011, pet. ref’d) (mem. op., not designated for publication) ( holding that truck was suspicious place because it was parked in otherwise

- vacant high school stadium parking lot in middle of night in January in close proximity to scene of12

In this connection, I disagree with the majority’s conclusion that the State forfeited its argument that the circumstances in this case were exigent . The State asserted in the trial court and on appeal that McGuire’s warrantless arrest was justified under article 14.03(a)(1) , which , again, makes no mention of an exigency requirement in providing that a peace officer may make a warrantless arrest of a person found in a suspicious place. At no stage of this case did McGuire argue that the State failed to prove exigent circumstances

— indeed the phrase does not appear in his motion to suppress or in the transcript of the hearing on that motion, nor did he r aise the issue on appeal. 4 Further, t he State acknowledges that exigent circumstances may figure into the 14.03(a)(1) equation , and correctly not es that
courts “sometimes use the term ‘exigent circumstances’ and sometimes not,” and

burglary , man meeting appellant’s description had recently committed separate bur glary , and officer apprehended appellant thirty minutes after being dispatched to scene); Perez v. State , No. 10

- 09

- 00022

- CR, 2010 WL 3342009, at *2

– 3 (Tex. App.

— Waco Aug. 25, 2010, no pet.) (mem. op., not designated for publication) (holding that residenc e where appellant, who admitted to police he had been drinking and was involved in traffic accident, was found asleep was suspicious place); State v. Drewy , No. 03

- 08

- 00169

- CR, 2008 WL 4682441, at *4 (Tex. App.

— Austin Oct. 23, 2008, no pet.) (mem. op., not designated for publication) ( holding that appellant, who showed signs of intoxication and was combative, was in suspicious place as he stood near his disabled vehicle) ; Hollis v. State , 219 S.W.3d 446, 460 (Tex. App.

— Austin 2007, no pet. ) (holding that da nce hall where appellant was found was suspicious place because it emanated strong odor of ether characteristic of “meth lab,” was located in secluded area, and had no legitimate commercial or residential purposes )

. 4 McGuire did not argue that the State was required to establish exigent circumstances to justify his warrantless arrest under the suspicious place exception until this Court request ed supplemental briefing on the subject.13

that warrantless arrests under article 14.03(a)(1) “on very similar facts to the facts in this case have been routinely upheld by courts all over Texas.” In my opinion, it would be a gross distortion of the Rules of Appellate Procedure to affirm the trial court’s suppression of evidence obtained from a warrantless arrest that the record shows to have been justified under article 14.03(a)(1) , for the State’s purported failure to preserve argument in the trial court on, or to adequately address on appeal, a so - called element of the statute that is absen t from its express terms , and that McGuire never brought to the trial court’s attention. See State v. Allen , 53 S.W.3d 731, 733 (Tex. App.

— Houston [1st Dist.] 2001, no pet.) (concluding theories not presented to trial court are not “applicable to the case” and thus do not fall under traditional rule that reviewing court should affirm if trial court ’s decision is correct on any theory of law applicable to case) ; cf. Douds
v. State , 472 S.W.3d 670, 674 (Tex. Crim. App. 2015) (concluding , under Texas Rule of Appellate Procedure 33.1(a) , that appellant failed to preserve complaints because “isolated statements globally asserting that a blood draw was conducted witho ut a warrant” were not “enough to apprise the trial court that it must consider whether there were exigent circumstances to permit the warrantless search” ).
A ssuming , nevertheless, that there is an exigency requirement built into the suspicious place exce ption to justify a warrantless arrest and that the requirement applies in this case , I would hold , under Court of Criminal Appeals precedent, that14

t he need to preserve evidence of McGuire’s blood alcohol level constituted exigent circumstances , as did the more general need to preserve evidence of the crash

. See Gallups v. State , 151 S.W.3d 196, 20 2 (Tex. Crim. App. 2004) (hold ing appellant’s warrantless arrest for DWI met exigency requirement of suspicious place exception because “the circumstances surround ing appellant’s warrantless home arrest raised a reasonable belief that appellant had committed a breach of the peace and that exigent circumstances (the need to ascertain appellant’s blood

- alcohol level) existed to justify appellant’s immediate arrest”) ; see also , e.g. , Banda v. State , 317 S.W.3d 903, 912 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) ( holding that exigency requirement for warrantless arrest under suspicious place exception was met where police could reasonably believe it was necessary to take prompt action to ascertain appellant’s blood

- alcohol level ); see also State v. Wrenn , No. 05

- 08

- 01114

- CR, 20 09 WL 1942183, at *3 (Tex. App.

— Dallas July 8, 2009 , no pet. ) (mem. op. , not designated for publication) ( holding that necessity of preserving evidence of DWI suspect’s blood alcohol level constitutes exigency (citing Gallups , 151 S.W.3d at 202 ))

. In holdi ng that the need to preserve evidence of McGuire’s blood alcohol level did not constitute exigent circumstances, t he majority relies on the U nited States Supreme Court’s opinion in McNeely

. McNeely held that the natural metabolization of alcohol in the bloodstream does not present an exigency justifying a warrantless15

blood draw when there is time

— as there was here

— to obtain a search warrant

. See 569 U.S. at 145, 152. In relying on McNeely , the majority overlooks a n important distinction: McNeely addressed the exigency required for a warrantless blood draw , not a warrantless arrest
. The only authority the majority cites to support its
expan sion of McNeely into new territory is the unpublished cas e State v. Don o hoo , in which the San Antonio Court of Appeals assume d without discussion that McNeely ’s holding regarding warrantless blood draws extends to warrantless arrests

. See No. 04

- 15

- 00291

- CR, 2016 WL 3442258, at *6 (Tex. App.

— San Antonio June 22, 2016, no pet.)

. As noted in the majority opinion , o ther courts of appeals have reached the opposite conclusion in published cases , holding , in keeping with Gallups and subsequent Texas cases, that the exigency requirement for a warrantless arrest under the suspicious plac e exception is met by the need to preserve evidence of a suspect’s blood alcohol level

. See Dansby v. State , 530 S.W.3d 213, 222 (Tex. App.

— Tyler 2017, pet. ref’d) (holding that “exigent circumstances

— the need to ascertain Appellant ’ s alcohol concentration

— existed to justify Appellant’s immediate arrest” under a rticle 14.03(a)(1)); Lewis , 412 S.W.3d at 802 (holding that officer ’s need “ to take prompt action to ascertain appellant’s blood

- alcohol level” satisfied exigency requirement for warrantless arrest u nder Article 14.03(a)(1)).16

M inimizing the holdings in these cases , the majority points out that they do
not mention McNeely

. I reply that t here is good reason for th e omission

— McNeely is a blood draw case ; Dansby , Lewis , and the case before us are all arrest cases. The distinction is critical. As the Court of Criminal Appeals has explained, “ a search [ such as a blood draw ] affects a person’s privacy interests, whereas a seizure [ such
as an arrest ] only affects a person’s possessory interests and is generally less intrusive than a search.” Sanchez v. State , 365 S.W.3d 681, 686 (Tex. Crim. App. 2012). This distinction is perhaps even more pronounced when the seizure compels a “physical intrusion beneath [a person]’s skin an d into his veins.” See McNeely , 569 U.S. at 148. “S uch an invasion of bodily integrity implicates an individual’s ‘most personal and deep

- rooted expectations of privacy.’” Id. (quoting Winston v. Lee , 470 U.S. 753, 760 (1985))

. Both Lewis and Dansby (and at least one other post

- McNeely case) 5 implicitly recogni z e th e crucial distinction be tween a warrantless blood draw and a warrantless
arrest

— and consequently McNeely ’s inapplicab ility to the exigen cy require ment for a warrantless arrest

— and continue to regard the need to preserve the time

- sensitive evidence of a suspect’s blood alcohol level as a valid exigency justifying a

5 See also Polly v. State , 533 S.W.3d 439 , 443 (Tex. App.

— San Antonio 2016, no pet.) (upholding warrantless arrest under article 14.03(a)(1) in part because circumstances called for immediate action by police to ascertain appellant ’s blood alcohol level).17

warrantless arrest

. See Gallups , 151 S.W.3d at 202

. And t he se cases are consistent with the long

- standing broader principle that the need to preserve any kind of evidence of a crime can be an exigency justifying a warrantless arrest. For example, i n Minassian v. State , this Court held that that the possibility of the “immediate erasure of any evidence of wrongdoing provides the nec essary exigency for an immediate arrest.” See 490 S.W.3d 629, 639 (Tex. App.

— Houston [1st Dist.] 2016, no pet.) (citing Coyne v. State , 485 S.W.2d 917, 919 (Tex. Crim. App. 1972))

. Here , the need to preserve evidence of McGuire’s intoxication before its natural dissipation was not the only exigency presented: t he re was also an urgent need to preserve other evidence . This includes evidence of the accident

— including the fender of the complainant’s motorcycle lodged in the grille of McGuire’s truc k

— the need for which was made immediate by the knowledge that McGuire had already fled the scene once, when he continued to drive instead of stopping after having crashed his truck into the complainant’s motorcycle . The possibility that McGuire might again flee , taking with him evidence of the collision in addition to the blood evidence of his intoxication , established further exigence. See Swain , 181 S.W.3d at 36 6

– 6 7 ( holding that appellant who admitted to beating victim and leaving her at remote location was found at suspicious place , where “ [g] iven appellant’s nervous behavior and his admission that he had been involved in a crime, it was reasonable to believe that appellant would not remain at the residential treatment home if the18

officers left to obtain a warrant ”); Minassian , 490 S.W.3d at 639 (holding that possibility that suspect would escape and destroy evidence contained on laptop computers constituted exigent circumstances under suspicious place exception); c f

. Villalobos , 2018 WL 2307740, at *6 (holding that appellant’s warrantless arrest was justified under suspicious place exception where appellant was found near scene of accid ent and “ needed to be detained because he had fled the scene of that accident”) ; Cribley , 2005 WL 1812585, at *2 ( holding that warrantless arrest of suspected hit

and

- run driver was justified under suspicious place exception where police found her at home shortly after she had fled scene). And this concern would have been heightened by McGuire ’s emotional reaction to seeing the destroyed motorcycle. In any event , the totality of the circumstances presented in this case establishes exigence even under McNeely , which noted that the need to preserve evidence of a suspect’s blood alcohol level is but one factor to consider in assessing the totality of the circumstances. See 569 U.S. at 165 (“[T]he metabolization of alcohol in the bloodstream an d the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.”); id. at 15 3 (“We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol f

rom the bloodstream will support an exigency justifying a properly conducted warrantless blood test.”) ; see a l s o Weems v. State , 493 S.W.3d 574, 580

– 8 1 (Tex. Crim. App. 2016) (holding that McNeely does not require courts19

“to turn a blind eye to alcohol’s e van e scence and the body’s natural dissipation of alcohol in [their] calculus of determining whether exigency existed” ; courts still
must consider “alcohol’s natural dissipation over time (and the attendant evidence destruction) the antagonizing factor central to law enforcement’s decision whether to seek a warrant or proceed with a warrantless seizure”)

. Indeed, the Court of Criminal Appeals has cautioned against an approach that would reduce findings of exigency “to an exceedingly and inappropr iately small set of facts” and thus “defeat a claim of exigency on the basis of a single circumstance in direct opposition to the totality

- of

- circumstances review McNeely requires.” Cole
v. State , 490 S.W.3d 918, 926 (Tex. Crim. App. 2016) (holding that av ailability of other officers on scene to obtain warrant is relevant but not sole consideration in exigency analysis for warrantless blood draw). In addition to immediacy, t he U nited States Supreme Court h as recognized that a totality of the circumstances a nalysis of exigency may include consideration of “the gravity of the underlying offense for which the arrest is being made .” See Welsh v. Wisconsin , 466 U.S. 740, 7 53 (1984) ; see also S tate v. Villarreal , 475 S.W.3d 784, 8 57 (Tex. Crim. App. 2014) (Yeary, J., dissenting) ( noting, in dissenting to denial of State’s motion for rehearing, that “a s the gravity of the offense increases, so too does the need to preserve, not just some evidence of intoxication, but the very best evidence that may reasonably be obt ained ”). McGuire stands accused of committing the grave offense of intoxication20

manslaughter . Clearly, the consequences of losing evidence of such a serious crime make it “all the more imperative that the best evidence of intoxication not be lost in the time it usually takes to secure a warrant .” Villarreal , 475 S.W.3d at 843. Th us , even though I disagree with the majority’s conclusion s that McNeely applies to warrantless arrests and that section 14.03(a)(1) requires an exigency finding , I would hold that the State’s evidence established exigency beyond the need to preserve evidence of McGuire’s blood alcohol level, based on the totality of circumstances, including the undisputed fact that McGuire left the scene of the crash and the need to preserve eviden ce of his truck’s collision with the complainant’s motorcycle. See, e.g. , Cole , 490 S.W.3d at 927 ( “ [L] aw enforcement was confronted with not only the natural destruction of evidence through natural dissipation of intoxicating substances, but also with the logistical and practical constraints posed by a severe accident involving a death and the attendant duties this accident demanded. We therefore conclude that exigent circumstances justified [appellant] ’s warrantless blood draw. ”); see also State v. Keller , No. 05

- 15

- 00919

- CR, 2016 WL 4261068, at *5 (Tex. App.

— Dallas Aug. 11, 2016, no pet.) (mem. op., not designated for publication) (“Evaluating the totality of the circumstances here, we conclude the warrantless blood draw was constitutionally permissible u nder exigency principles . . . [L]aw enforcement was confronted with not only the natural destruction of evidence through natural dissipation of intoxicating substances, but21

also with the logistical and practical constraints posed by a potentially fatal ac cident and the necessity of securing the site and protecting the public. We therefore conclude that the warrantless blood draw did not violate the Fourth Amendment and the trial court erred in concluding a violation occurred.”)

. On this record, t he totality of the circumstances show that McGuire’s warrantless arrest was justified under the suspicious place exception because the troopers needed to preserve evidence both of the level of alcohol in McGuire’s bloo d , regardless of the separate search w arrant require d to draw blood, and of the state of McGuire’s vehicle, with a portion of the complainant’s motorcycle lodged in it, shortly after the accident

. Conclusion I would hold that because t he State proved that McGuire’s warrantless arrest was justi fied under the Code of Criminal Procedure article 14.03(a)(1) , the trial court abused its discretion in granting the motion to suppress the evidence obtained as a result of the arrest. Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Higley , and Landau

. Keyes, J., dissenting

. P ublish. T EX
. R. A PP
. P. 47.2(b).