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, Appellant

V.

SEAN MICHAEL MCGUIRE, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case 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 on review of the cold reporter’s record from an evidentiary 

suppression hearing held two years earlier, the trial court, on remand, reached the 

opposite conclusion of the original trial judge who had presided over the hearing. 

The trial court selectively cited facts from that 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 

United States Supreme Court’s holding in Missouri v. McNeely extends beyond 

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, the State relies on the 

“suspicious place” exception, codified in article 14.03(a)(1), authorizing the 

warrantless arrest of an individual found in a suspicious place under circumstances 
3

reasonably showing he committed a felony or a breach of the peace. See TEX. CODE 

CRIM. PROC. ANN. art. 14.03(a)(1).

1

The Court of Criminal Appeals has held that “the 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, 801 (Tex. App.—Amarillo 2013, no pet.). I 

would hold that the State met this test and established that McGuire’s arrest was 

justifiable under the suspicious place exception to the warrant requirement. 

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 

TEX. PENAL CODE ANN. § 49.08(b) (stating that offense of intoxication 

manslaughter is second-degree felony). He was later charged with felony murder, 

see id. § 19.02(b)(3), and failure to stop and render aid, see TEX. TRANSP. CODE 

ANN. § 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.”

Around 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 law enforcement 

to arrive.

At 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 was across the highway at a Shell gas 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 McGuire’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.”

Due to “[a] strong order of alcoholic beverage that [Trooper Wiles] 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 probable cause to believe appellant had committed DWI; officer 

found 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 appellant admitted to drinking and driving); Lewis, 412 S.W.3d at

801–02 (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 

officer 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 of alcohol, slurred speech, and glassy eyes). 

B. Suspicious Place

I would further hold that the State proved that the Shell station where Troopers 

Tomlin and Wiles first encountered McGuire was a suspicious place and that the 

trial court erred in reaching the opposite conclusion because that conclusion was not 

supported by the facts and it failed to consider the totality of the circumstances. 

Relevant to the question whether McGuire was found at a suspicious place, 

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 the 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 warrantless 
7

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’ testimony as a legal conclusion, and in so doing, did not follow the wellestablished 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 inherently suspicious. The determination of whether 

a place is suspicious requires a highly fact-specific analysis.” Lewis, 412 S.W.3d at

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

Any place may become suspicious when an individual 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 there. 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 clearly raised a reasonable belief that McGuire had

committed a crime. Id.
8

In determining whether to characterize a place as suspicious, the 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 observed “a piece of metal 

stuck inside the grille [of McGuire’s truck] with some motor oil on it” that “appeared 

to be the rear fender of the motorcycle”; and McGuire, who showed signs of 

intoxication, stated 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 because the police reasonably could have believed, based on the 

surrounding circumstances [including facts that appellant was found shortly after 
9

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 scene 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 believed 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 hitand-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. Cribley 

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 article 14.03(a)(1) does not mention exigency. It 

states only that a warrant is not necessary to arrest
10

persons found in suspicious places and under circumstances 

which reasonably show that such persons 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 TEX. CODE CRIM. PROC. ANN. 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 reasonable 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 366. I do not read this to require exigent circumstances in all cases under

article 14.03(a)(1). While exigency 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 addressed the suspicious place 

exception without ever mentioning exigency, 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 suspects 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 time 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 assailant; 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 circumstances, 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 of 
12

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 raise the issue on appeal.4 Further, the State acknowledges that exigent 

circumstances may figure into the 14.03(a)(1) equation, and correctly notes that 

courts “sometimes use the term ‘exigent circumstances’ and sometimes not,” and 

 

burglary, man meeting appellant’s description had recently committed separate 

burglary, 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 residence 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 dance 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 

requested 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 

absent 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 

without a warrant” were not “enough to apprise the trial court that it must consider 

whether there were exigent circumstances to permit the warrantless search”).

Assuming, nevertheless, that there is an exigency requirement built into the 

suspicious place exception to justify a warrantless arrest and that the requirement 

applies in this case, I would hold, under Court of Criminal Appeals precedent, that 
14

the 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, 202 (Tex. Crim. App. 2004) (holding appellant’s 

warrantless arrest for DWI met exigency requirement of suspicious place exception 

because “the circumstances surrounding 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, 

2009 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 holding that the need to preserve evidence of McGuire’s blood alcohol level 

did not constitute exigent circumstances, the majority relies on the United 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 warrantless 
15

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 an 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 

expansion of McNeely into new territory is the unpublished case State v. Donohoo,

in which the San Antonio Court of Appeals assumed 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, other 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 place 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 article 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 under Article 14.03(a)(1)).
16

Minimizing the holdings in these cases, the majority points out that they do 

not mention McNeely. I reply that there is good reason for the 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 and into his veins.” See McNeely, 569 

U.S. at 148. “Such 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)5implicitly 

recognize the crucial distinction between a warrantless blood draw and a warrantless 

arrest—and consequently McNeely’s inapplicability to the exigency requirement 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 these 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, 

in Minassian v. State, this Court held that that the possibility of the “immediate 

erasure of any evidence of wrongdoing provides the necessary 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: there 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 truck—

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 

366–67 (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 the 
18

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); cf.

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 

accident 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 hitand-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 and the ensuing loss of evidence are among the factors that must be 

considered in deciding whether a warrant is required.”); id. at 153 (“We do not doubt 

that some circumstances will make obtaining a warrant impractical such that the 

dissipation of alcohol from the bloodstream will support an exigency justifying a 

properly conducted warrantless blood test.”); see also Weems v. State, 493 S.W.3d 

574, 580–81 (Tex. Crim. App. 2016) (holding that McNeely does not require courts 
19

“to turn a blind eye to alcohol’s evanescence 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 inappropriately 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 availability 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, the United 

States Supreme Court has recognized that a totality of the circumstances analysis 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, 753 (1984);

see also State v. Villarreal, 475 S.W.3d 784, 857 (Tex. Crim. App. 2014) (Yeary, J., 

dissenting) (noting, in dissenting to denial of State’s motion for rehearing, that “as 

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 

obtained”). McGuire stands accused of committing the grave offense of intoxication 
20

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.

Thus, even though I disagree with the majority’s conclusions 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 evidence 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 under 

exigency principles . . . [L]aw enforcement was confronted with not only the natural 

destruction of evidence through natural dissipation of intoxicating substances, but 
21

also with the logistical and practical constraints posed by a potentially fatal accident 

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, the 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

blood, regardless of the separate search warrant required 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 the State proved that McGuire’s warrantless arrest 

was justified 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.

Publish. TEX. R. APP. P. 47.2(b).