Filed 11/27/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Appellant,

v.

EDWARD RYAN FISH,

 Defendant and Respondent.

2d Crim. No. B290108

(Super. Ct. No. 2016028518)

(Ventura County)

When blood is drawn from a person arrested for driving 

under the influence, the Fourth Amendment requires that it be 

drawn in a “reasonable manner.” (Schmerber v. California (1966) 

384 U.S. 757, 771-772; see also People v. Mateljan (2005) 129 

Cal.App.4th 367, 376.) Here, the question is who has the burden 

of proof on the “reasonable manner” issue when a valid search 

warrant authorizes the blood draw. This is an issue of first 

impression in California. We hold that, where the circumstances 

of the blood draw are typical and routine, i.e., not peculiarly 

within the knowledge of the People, the burden of proof is on the 

defendant. (See post, at p. 10.)

Defendant is charged with one count of driving while under 

the influence of an alcoholic beverage and one count of driving 
2

with a blood-alcohol level of 0.08 percent or more. (Veh. Code, 

§ 23152, subds. (a), (b).) After his arrest, his blood was drawn 

pursuant to a valid search warrant. The trial court granted 

defendant’s Penal Code section 1538.5 (section 1538.5) motion to 

suppress the results of the blood test because the People had 

failed to carry their burden of proving that the blood had been 

drawn in a reasonable manner. 

The People appealed from the interlocutory suppression 

order to the Appellate Division of the Ventura County Superior 

Court (Appellate Division). (§ 1538.5, subd. (j).) The Appellate 

Division reversed. We granted the petition to transfer to this 

court. 

Factual and Procedural Background

Defendant does not dispute that he was lawfully arrested 

for driving while under the influence of an alcoholic beverage. 

We therefore omit a summary of the facts leading to his arrest. 

He filed a written motion to suppress evidence alleging: “The 

collection of blood, breath, or urine constitutes a search and 

seizure within the meaning of the Fourth Amendment and must 

be done pursuant to accepted medical practices. [Citations.]” 

At the section 1538.5 hearing the only witness was the 

arresting officer, Michael Ramos. He testified that, after 

defendant had refused to submit to a breath or blood test, a blood 

draw was performed pursuant to a search warrant. The warrant 

was not received in evidence and is not included in the record on 

appeal. In its opinion below the Appellate Division “judicially 

notice[d] that the form DUI search warrant authorized and used 

by the Ventura Superior Court contains an order mirroring [the] 

statutory requirement” of Penal Code section 1524, subdivision 

(a)(13), which provides that a blood “‘sample will be drawn from 
3

the person in a reasonable, medically approved manner.’” As to 

the circumstances of the blood draw, Officer Ramos testified that 

the blood was drawn in his presence at a hospital. 

After the parties had rested, defendant argued that the 

People had failed to carry their “burden to prove that the blood 

was taken according to acceptable medical practices.” The People 

responded that, because the blood draw was pursuant to a 

warrant, the burden was on defendant to show that the blood was 

not drawn in a reasonable manner. 

The trial court suppressed the blood-test results. It 

explained that, although “[t]he defense pled in their moving 

papers that acceptable medical practices must be followed[,] . . . 

[n]o evidence was adduced as to that fact.” The court denied the 

People’s request to reopen for the purpose of recalling Officer 

Ramos to establish that the blood had been properly drawn. The 

court stated: “[N]one of this is a secret. This is in the moving 

papers all the time. So the Court saw this coming a mile away. 

It’s a little disappointing the People didn’t. The Court’s not 

inclined to allow the People to reopen.” 

Suppression of Evidence Based on The Manner

of How a Search Warrant is Executed

“[A] search conducted under color of a warrant is not 

‘reasonable per se,’ but may be unreasonable in the constitutional 

sense on a number of grounds.” (People v. Cook (1978) 22 Cal.3d 

67, 97.) “Even if the warrant is legally sufficient . . . , the search 

is . . . unreasonable when the warrant is executed in an improper 

manner.” (Id. at p. 98.) Section 1538.5, subdivision (a)(1)(B)(iv) 

provides that a defendant may move to suppress evidence on the 

ground that “[t]he method of execution of the warrant violated 

federal . . . constitutional standards.” (See In re Lance W. (1985) 
4

37 Cal.3d 873, 896 [“a court may exclude . . . evidence [pursuant 

to section 1538.5] only if exclusion is . . . mandated by the federal 

exclusionary rule applicable to evidence seized in violation of the 

Fourth Amendment”].)

Burden of Proof

The issue of which party has the burden of proof is purely a 

question of law. We therefore independently review the issue. 

(People v. Carter (2005) 36 Cal.4th 1114, 1140.) “[W]hen . . . the 

police . . . obtain a warrant, that warrant is presumed valid. 

‘Thus if the defendant attempts to quash a search warrant, . . . 

the burden rests on him.’ [Citation.] A defendant claiming that 

the warrant or supporting affidavit is inaccurate or incomplete 

bears the burden of alleging and then proving the errors or 

omissions. [Citations.]” (People v. Amador (2000) 24 Cal.4th 387, 

393; see also Franks v. Delaware (1978) 438 U.S. 154, 171 [“There 

is, of course, a presumption of validity with respect to the 

affidavit supporting the search warrant”].) Because the

presumption of validity applies to a warrant and its supporting 

affidavit, there is no reason to conclude that the presumption of 

validity does not apply to the manner of its execution. This is but 

an offshoot of the “preference for warrants” rule. (See United 

States v. Ventresca (1965) 380 U.S. 102, 105-106; see also People 

v. Smith (1994) 21 Cal.App.4th 942, 948-949.) To rule otherwise, 

there would be a presumption of invalidity and the “preference 

for warrants” rule would be markedly less preferential. 

The United States Supreme Court has not determined 

which party has the burden of proof when the defendant contends 

that a valid search warrant was improperly executed. (See 6 

LaFave, Search and Seizure (5th ed. 2012) § 11.2(b), p. 72.) But 

it has “expressed a strong preference for warrants and declared 
5

that ‘in a doubtful or marginal case a search under a warrant

may be sustainable where without one it would fall.’ [Citations.]” 

(United States v. Leon (1984) 468 U.S. 897, 914.) Searches 

“‘pursuant to a warrant will rarely require any deep inquiry into 

reasonableness,’ [citation], for ‘a warrant issued by a magistrate 

normally suffices to establish’ that a law enforcement officer has 

‘acted in good faith in conducting the search.’ [Citation.]” (Id. at 

p. 922.)

California Cases

Pursuant to California case law, the defendant bears the 

burden of proof if he claims that a search pursuant to a warrant 

went beyond the scope of the warrant. (People v. Reyes (1990) 

223 Cal.App.3d 1218, 1224 [“Because the questioned search in 

this case occurred during execution of a search warrant, 

defendant had the burden of proving the search was beyond the 

warrant's scope”].) Defendant is not claiming that the blood draw

was beyond the scope of the warrant. But “[b]ecause the [blood 

draw] occurred during execution of a search warrant,” Reyes

supports placing the burden on defendant to prove that the blood 

draw was not performed in a reasonable manner. (Ibid.; see also 

Levenson, California Criminal Procedure (The Rutter Group 

2017) § 6:17, p. 6-19, fn. omitted [“If a warrant was used, the 

search or seizure is presumed to be lawful, and the burden of 

demonstrating that it was illegally executed remains with the 

defendant”]; Skelton v. Superior Court (1969) 1 Cal.3d 144, 154, 

fn. 8 [“where the right to conduct a search is obtained ostensibly 

for one purpose, it may not be used in reality for another. 

However, where the search was conducted pursuant to a warrant 

validly issued, the burden should be on the one attacking the 

search to show that the motive of the officers was improper and 
6

that their conduct was unreasonable”]; People v. Hernandez

(1974) 43 Cal.App.3d 581, 590 [“where a search is made pursuant 

to a warrant, the burden of proving the invalidity of the search 

rests upon the challenger”]; People v. Schad (1971) 21 Cal.App.3d 

201, 207 [“Since the officers had a search warrant, the burden is 

not upon the prosecution to show proper justification [for an 

alleged noncompliance with knock-notice requirements] but upon 

the defendant to show an unlawful entry and search”].)

Federal Cases

Two federal cases are on point. The first is United States v. 

Vigo (5th Cir. 1969) 413 F.2d 691 (Vigo). There, the search 

warrant required that it be served in the daytime. The defendant 

sought to suppress evidence on the ground the warrant was 

served prior to daytime. The appellate court placed on the 

defendant the burden of proving that it was not served in the 

daytime: “The warrant stands cloaked with a presumption of 

validity both in the court below and on this appeal. The 

[defendant] had the burden of proof in challenging the validity of 

its execution or service.” (Id. at p. 693.)

The second federal case is United States v. Marx (5th Cir. 

1981) 635 F.2d 436 (Marx). There, the defendants contended that 

the district court had erred in denying their motion to suppress 

evidence seized from two suitcases pursuant to a search warrant.

The defendants argued that the service and execution of the 

warrant were technically deficient. Citing Vigo, the appellate 

court stated: “[Defendants] have the burden of proof in 

challenging the validity of the execution or service of the search 

warrant. [Citation.] We conclude that they have failed to 

discharge this burden, and accordingly the district court correctly 

denied [their] motion to suppress.” (Id. at p. 441.)
7

Vigo and Marx are consistent with a long line of federal 

cases concluding that, because a search conducted pursuant to a 

warrant is presumed valid, the burden is on the defendant to 

prove that the search was unlawful. “The general federal rule on 

who bears the burden of proof with respect to an allegedly 

illegal search or seizure is based upon the warrantno warrant dichotomy: If the search or seizure was effected 

pursuant to a warrant, the defendant bears the burden of proving 

its illegality; if the police acted without a warrant, the 

prosecution bears the burden of establishing legality. [Citation.] 

Where the police have acted pursuant to a warrant, the 

independent determination of probable cause by a magistrate 

gives rise to a presumption that the arrest or search was legal. 

But where the police have acted without a warrant, the legality of 

their action will not be presumed. The dichotomy may be 

explained, in part, by the often-stated preference that searches 

and seizures be effected pursuant to warrants.” (United States v. 

Longmire (7th Cir. 1985) 761 F.2d 411, 417; see Samuels v. 

McCurdy (1925) 267 U.S. 188, 200 [“As a search warrant issued,

the seizure was presumably valid”]; United States v. Esser (10th 

Cir. 2006) 451 F.3d 1109, 1112 [“Generally, the defendant has 

the burden of showing a constitutional infirmity if a search or 

seizure was carried out pursuant to a warrant”]; United States v. 

Awadallah (2d Cir. 2003) 349 F.3d 42, 64 [“Ordinarily, a search 

or seizure pursuant to a warrant is presumed valid”]; United 

States v. Kimbrough (5th Cir. 1995) 69 F.3d 723, 728 

[“Kimbrough has failed to meet his burden of proof in challenging 

the execution of the search warrants”].)
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Sister State Cases

Because of the preference for warrants, “[w]ith respect to 

the issue which is usually central in a motion to suppress hearing 

- the reasonableness of the challenged search or seizure - most

states follow the rule utilized in the federal courts: if the search 

or seizure was pursuant to a warrant, the defendant has the 

burden of proof; but if the police acted without a warrant the 

burden of proof is on the prosecution. . . . [I]t is said that 

‘[w]ithout such a rule there would be little reason for law 

enforcement agencies to bother with the formality of a warrant.’” 

(6 LaFave, Search and Seizure, supra, § 11.2(b), pp. 50-52, fns. 

omitted; see Smith v. State (Ala.Crim.App. 1991) 588 So.2d 561, 

577 [“‘With regard to search warrants, the general rule is that 

the defendant has the burden of proof in challenging the validity 

of the execution or service of the search warrant’”].)

Official Duty Presumption

In State v. Kuznitz (1969) 105 N.J. Super. 33, 42 [250 A.2d 

802, 807], the court stated: “There is a presumption that law 

enforcement officers acted legally in executing the court’s [search] 

warrant. [Citations.] . . . [¶] The burden of proof is therefore on 

defendant to establish that the officers executed the warrant 

illegally.”

There is a similar presumption in California. Evidence 

Code section 664 provides: “It is presumed that official duty has 

been regularly performed. This presumption does not apply on 

an issue as to the lawfulness of an arrest if it is found or 

otherwise established that the arrest was made without a 

warrant.” The presumption appears to apply “on an issue as to 

the lawfulness of” a search made pursuant to a valid warrant.

(Ibid.; see Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 
9

[“In the absence of evidence to the contrary, it is presumed that 

the officers acted legally”].)

Defendant’s blood was statutorily required to “be drawn . . . 

in a reasonable, medically approved manner.” (Pen. Code, 

§ 1524, subd. (a)(13).) According to the Appellate Division, the 

warrant included this requirement. Officer Ramos did not 

personally draw defendant’s blood, but he was personally present 

at the blood draw. We therefore presume that he oversaw the 

procedure to assure it was performed in a sanitary manner that 

did not involve pain or trauma. (Evid. Code, § 664.) 

Furthermore, the blood was drawn at a hospital. Officer 

Ramos had an official duty to assure that it was drawn by a 

person who was statutorily authorized to draw blood for the 

purpose of determining its alcoholic content. Vehicle Code 

section 23158, subdivision (a) provides in relevant part, “[O]nly a 

licensed physician and surgeon, registered nurse, licensed 

vocational nurse, duly licensed clinical laboratory scientist or 

clinical laboratory bioanalyst, a person who has been issued a 

‘certified phlebotomy technician’ certificate pursuant to Section 

1246 of the Business and Profession Code, unlicensed laboratory 

personnel regulated pursuant to Sections 1242, 1242.5, and 1246 

of the Business and Professions Code, or certified paramedic 

acting at the request of a peace officer may withdraw blood for 

the purpose of determining the alcoholic content therein.” We 

presume that Officer Ramos performed this duty.

The Burden of Proof Rests on Defendant

The official duty presumption and the preference accorded 

to search warrants do not automatically result in placing the 

burden of proof on defendant. If the relevant facts are peculiarly 

within the government’s knowledge or control so that it is in a 
10

much better position than the defendant to present evidence 

concerning those facts, the burden of proof may rest on the 

People. (See Willis, supra, 28 Cal.4th at p. 38; Dixon v. United 

States (2006) 548 U.S. 1, 9 [“‘where the facts with regard to an 

issue lie peculiarly in the knowledge of a party, that party has 

the burden of proving the issue’”]; accord, Smith v. United States

(2013) 568 U.S. 106, 112; cf. People v. Salas (2006) 37 Cal.4th 

967, 981 (Salas) [“Under the so-called rule of convenience and 

necessity, ‘“the burden of proving an exonerating fact may be 

imposed on a defendant if its existence is ‘peculiarly’ within his 

personal knowledge and proof of its nonexistence by the 

prosecution would be relatively difficult or inconvenient”’”].) 

The circumstances of the blood draw here are typical and 

routine. The circumstances are not peculiarly within the 

government’s knowledge or control and there is no suggestion 

that there was anything unusual about the blood draw. The 

blood was not drawn at a police station by a government

employee. It was drawn at a hospital, presumably by a person 

legally licensed to draw blood. Defendant was in as good a 

position as Officer Ramos to observe the blood draw. If 

defendant’s observations had led him to suspect that the blood 

draw was not performed in a reasonable manner, he could have 

subpoenaed the person who performed the blood draw. 

As the Attorney General notes in his amicus curiae brief, 

defendant “could have simply averred that the blood draw 

procedures were unsanitary, painful, or unsafe and provided 

support from his own recollection.” He also could have 

questioned Officer Ramos about the blood draw during crossexamination. “[T]he testimony of a police officer, when he or she 

is a percipient witness to the blood draw in question, may 
11

properly be considered in evaluating whether that blood draw 

was conducted in a constitutionally reasonable manner.” (People 

v. Cuevas (2013) 218 Cal.App.4th 1278, 1285.) “[T]he evidence of 

the manner of the blood draw [need not] come from the individual 

who performed it or from some other expert witness.” (Id. at 

p. 1282.)

Accordingly, “[t]here is no unfairness or hardship in 

requiring [defendant] to assume the burden of presenting 

evidence of the facts on which he . . . relies.” (Salas, supra, 37 

Cal.4th at p. 982.) Defendant failed to carry his burden of 

proving that the blood draw was not performed in a reasonable 

manner. What he fails to appreciate is that the officer was 

ordered by a neutral and detached magistrate to seize this 

evidence in a “reasonable medically approved manner.” (Ante, at 

p. 3.) This was not a suggestion to the officer. Neither the letter 

nor the spirit of the Fourth Amendment were violated in this 

case.

Disposition

The order suppressing defendant’s blood test results is 

reversed. 

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.
Michael S. Lief, Judge

Superior Court County of Ventura

______________________________

Lessem, Newstat & Tooson and Danielle E. Tamir, 

Kenneth N. Hamilton for Defendant and Respondent.

Gregory D. Totten, District Attorney, Michelle J. Contois, 

Deputy District Attorney for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Edward DuMont, 

Solicitor General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, 

Joshua A. Klein, Idan Ivri, Deputy Attorneys General as Amicus 

Curiae on behalf of Plaintiff and Appellant.