State v. Jordan

The State appeals an order suppressing evidence in a prosecution for driving while intoxicated. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2009). On June 6, 2008, a search warrant was issued authorizing the taking of a sample of appellee Jed Jordan’s blood to test for alcohol concentration. See id. art. 18.02(10) (West 2005); see also Gentry v. State, 640 S.W.2d 899, 902 (Tex. Crim. App. 1982) (holding that blood is item of evidence for which search warrant may issue); Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002) (holding that implied consent law does not prohibit drawing blood pursuant to search warrant). Jordan moved to suppress the test result on the ground that the search warrant affidavit failed to state probable cause. After a hearing consisting of arguments by counsel, the motion was granted. We affirm the order.

A warrant to search for and seize items constituting evidence of an offense or tending to show that a particular person committed an offense must be supported by an affidavit containing facts sufficient to give the issuing magistrate probable cause to believe that: (1) a specific offense has been committed, (2) the items to be searched for and seized constitute evidence of that offense or that a particular person committed that offense, and (3) the items are located at or on the particular person, place, or thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (West Supp. 2009). A search warrant affidavit must be interpreted in a common sense and realistic manner, recognizing that reasonable inferences may be drawn from the affidavit. Hespeth v. State, 249 S.W.3d 732, 737 (Tex. App.–Austin 2008, pet. ref’d). A reviewing court–which means in this case both the county court at law and this Court–must give the issuing magistrate’s determination of probable cause great deference, and the decision to issue the warrant will be sustained if the magistrate had a substantial basis for concluding that probable cause was shown. Illinois v. Gates, 462 U.S. 213, 236-37 (1983); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004); State v. Davila, 169 S.W.3d 735, 738 (Tex. App.–Austin 2005, no pet.).