2016 WI 10
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1267CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Andy J. Parisi,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 360 Wis. 2d 491, 864 N.W.2d 121)
(Ct. App. 2015 – Unpublished)
OPINION FILED: February 24, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 5, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Daniel J. Bissett
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, ABRAHAMSON, J.J., dissent.
(Opinion Filed)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Tristan S. Breedlove, assistant state public defender, and
oral argument by Tristan S. Breedlove.
For the plaintiff-respondent, the cause was argued by
Thomas J. Balistreri, assistant attorney general, with whom on
the brief was Brad D. Schimel, attorney general.
2016 WI 10
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1267-CR
(L.C. No. 2013CF242)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. FEB 24, 2016
Andy J. Parisi, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, State v. Parisi,
No. 2014AP1267-CR, unpublished slip op. (Wis. Ct. App. Jan. 21,
2015) (per curiam), which affirmed the Winnebago County circuit
court's1 judgment of conviction and denial of defendant Andy J.
Parisi's ("Parisi") motion to suppress evidence of heroin
possession.
¶2 The circuit court below upheld a warrantless draw of
Parisi's blood as justified under the exigent circumstances
1
The Honorable Daniel J. Bissett presided.
No. 2014AP1267-CR
exception to the warrant requirement of the Fourth Amendment to
the United States Constitution and Article I, § 11 of the
Wisconsin Constitution. The court of appeals below affirmed on
different grounds. Relying on our decisions in State v. Foster,
2014 WI 131, 360 Wis. 2d 12, 856 N.W.2d 847, and State v.
Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834, the court
of appeals determined that the good faith exception to the
exclusionary rule applied to prevent suppression of the drug-
related evidence in this case.
¶3 We conclude that the blood draw in this case was
constitutional because it was supported by exigent
circumstances. We therefore need not address whether the good
faith exception to the exclusionary rule also applies in this
case. See State v. Tullberg, 2014 WI 134, ¶¶4-5, 359
Wis. 2d 421, 857 N.W.2d 120 (declining to address State's
argument that the good faith exception to the exclusionary rule
justified warrantless blood draw where blood draw had been found
constitutional under exigent circumstances doctrine).
I. FACTUAL BACKGROUND
¶4 On October 16, 2012, at 12:38 a.m., several officers
were dispatched to an address in Winnebago County, Wisconsin, to
respond to a report of a male subject who was possibly not
breathing.2 One of the officers who responded to the call was
Officer Kaosinu Moua ("Officer Moua") of the Oshkosh Police
2
The facts in this section are taken from testimony
provided at the July 12, 2013 suppression hearing.
2
No. 2014AP1267-CR
Department, who arrived at the residence "within five to ten
minutes or so" after dispatch along with "a couple other
officers."
¶5 Officer Moua testified that when he arrived at the
residence, "one of the roommates[,] I believe one of the girls
was outside waving us--trying to get us directed to the proper
residence." Officer Moua entered the residence. During the
medical call, police officers, members of the Oshkosh Fire
Department, and the four roommates who lived at the residence in
question were at the residence.
¶6 Inside, a male individual was lying in the living room
on the floor on his side. There was vomit on the floor and on
the sofa. The individual was not immediately identified by
Officer Moua because the individual "wasn't able to talk to"
Moua or the other officers. Eventually, the individual was
identified as Parisi.
¶7 Members of the fire department were "checking for
[Parisi's] vitals and making sure he was breathing." Officer
Benjamin Fenhouse ("Officer Fenhouse"), who arrived at the
residence at an unspecified time, was told that Narcan had been
administered to Parisi. Officer Fenhouse testified that he had
seen Narcan administered "between five and ten times" in the
course of his employment, and that Narcan is "usually
administered for people who have overdosed on heroin[,] and it
reverses the effects and usually brings them back to a
3
No. 2014AP1267-CR
responsive state pretty rapidly."3 According to Officer
Fenhouse, the Narcan "work[ed]" when administered to Parisi.
¶8 Officer Moua spoke with two of the roommates, who said
that they did not know why Parisi was ill because they had been
asleep. The roommates explained that Parisi had come over
between 9:00 p.m. and 9:30 p.m. to watch "the game." "After the
game," Parisi told his friends "that he wanted to go to the gas
station, get something to eat and drink, so he did walk to the
gas station and walked back," alone. After midnight, and after
the roommates had gone to sleep, one of the roommates went to
get a drink of water and "could hear some[body] breathing hard
or [somebody] having problems breathing." The roommate entered
the living room and saw Parisi.
¶9 There were a total of five to seven officers "working
on [the] case" that evening.4 Because at least one of the
3
Narcan is the trade or brand name of the narcotic
antagonist naxolone. 2 Robert K. Ausman and Dean E. Snyder,
Ausman & Snyder's Medical Library: Lawyers Edition § 3:45
(1988). "Naxolone is a narcotic antagonist indicated for the
complete or partial reversal of narcotic depression, including
respiratory depression, induced by narcotics such
as . . . heroin . . . . Naxolone is also indicated for the
diagnosis of suspected acute narcotic overdosage." Id.
4
Counsel for Parisi asked Officer Moua on cross-examination
whether each of six specific officers had been present at the
residence. Officer Moua confirmed that five out of the six
named officers were present, but could not remember whether the
sixth named officer had also been present. Officer Moua then
volunteered that there had also been a sergeant present at the
residence, bringing the potential number of officers at the
residence to seven. Yet when counsel for Parisi then asked
Officer Moua, in summary, if a total of "possibly five to six
officers were involved" in the case, Officer Moua responded,
(continued)
4
No. 2014AP1267-CR
officers had had "prior contact involving drugs with" Parisi,
there was "suspicion" that drug use had been the cause of
Parisi's condition.
¶10 A search of the upstairs was performed. The officers
located, in a room separate from the room in which Parisi was
found, "a bindle of what looked to be heroin wrapped in tinfoil,
some cut ends, and [a] marijuana pipe." Officer Moua testified
that Parisi did not live at the residence, but that Officer Moua
had been told by the roommates that "everybody had access to
[the] room [where the drug-related items were found]."
¶11 Officer Moua testified that the officers were at the
apartment investigating "probably about an hour."5 At some point
during the investigation, Parisi was taken to the hospital by
ambulance. Some officers continued their investigation at the
residence after Parisi's departure. Officer Fenhouse followed
the ambulance to the hospital in order to "investigate a heroin
overdose and obtain . . . an evidentiary test of [Parisi's]
"Sure." Officer Fenhouse similarly testified that there had
been between five and six officers involved in the medical call.
5
On direct examination Officer Moua testified that the
officers were at the apartment "probably within the hour." On
cross-examination counsel for Parisi asked:
Q: And when the State asked you how long you--
the officers were on scene, you said within an hour?
A: I said probably about an hour, sure.
Q: So maybe slightly less than an hour?
A: I couldn't even remember.
5
No. 2014AP1267-CR
blood." Officer Fenhouse estimated that he was at the residence
"like 20 minutes to a half hour" before leaving with the
ambulance. Officer Moua also followed the ambulance.
¶12 At the hospital, according to Officer Fenhouse,
"Parisi's medical condition was[,] I guess for lack of a better
term[,] up in the air. [Hospital staff] were tending to him and
then it seemed things were getting better and then it would
deteriorate again." At some point in time, Officer Fenhouse
asked for Parisi's consent to take a blood sample, but "did not
get [it]." Officer Fenhouse asked a phlebotomist to draw a
sample of Parisi's blood without Parisi's consent in order "[t]o
analyze it for evidence of a crime . . . [specifically, for]
evidence of heroin." When asked on direct examination whether
"there [was] something beyond administration of Narcan that
suggested" to Officer Fenhouse that Parisi might have used
heroin, Officer Fenhouse responded:
I was on the scene for a period of time and then I
went to [the hospital]. I was in contact with persons
that were still on scene, mainly officers, who
provided me information that there was evidence of
drug use and that led the investigation in a way that
it could be heroin overdose.
¶13 Officer Fenhouse filled out a form specifying, among
other things, the time that Parisi's blood was drawn. The form
originally read that Parisi's blood was taken at "1:55 a.m.,"
but that time was crossed out and the time "3:10" was written in
its place. Next to "3:10" were initials belonging, apparently,
to Officer Fenhouse and the phlebotomist. Officer Fenhouse
6
No. 2014AP1267-CR
testified that according to his report, the time on the form was
changed because
[Parisi's] health deteriorated or there was something
else happening inside the room where it didn't kind of
go as planned. That was filled out and we were
intending on drawing [Parisi's blood] at a certain
time, however, based on the medical needs of
Mr. Parisi, it was obtained at a later time.
¶14 Officer Fenhouse testified that in his experience——
which consisted of the acquisition of "about 12" search
warrants——it takes approximately two hours to obtain a search
warrant. Officer Fenhouse did not attempt to obtain a search
warrant prior to the blood draw. Later testing of Parisi's
blood at the State Crime Lab "indicated the presence of opiates
and morphine (a metabolite of heroin)."6
II. PROCEDURAL BACKGROUND
¶15 On March 25, 2013, the State filed a criminal
complaint against Parisi, charging him with possession of
narcotic drugs (heroin), second and subsequent offense, contrary
to Wis. Stat. §§ 961.41(3g)(am), 939.50(3)(i), and 961.48(1)(b)
(2013-14).7 On June 14, 2013, Parisi filed a motion to suppress
the evidence of drug possession taken from the draw of Parisi's
blood as unconstitutionally obtained without a warrant and
without consent.
6
This last fact was taken from the affidavit in support of
the criminal complaint against Parisi.
7
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
7
No. 2014AP1267-CR
¶16 On July 12, 2013, a hearing on Parisi's suppression
motion was held in Winnebago County circuit court. The State
argued that exigent circumstances justified the blood draw at
issue because the rapid rate of heroin dissipation in the human
body rendered obtaining a warrant infeasible. The State based
its assertions in part on a scientific article that summarized
various studies on the metabolism of heroin in the human body.
See Elisabeth J. Rook et al., Pharmacokinetics and
Pharmacokinetic Variability of Heroin and its Metabolites:
Review of the Literature, 1 Current Clinical Pharmacology 109
(2006) ("Rook article"). The article was admitted without
objection from the defense.8
¶17 The article defines heroin as "a semi-synthetic
morphine derivative." Id. at 109. Before the circuit court,
the State cited the article to explain that heroin breaks down
in human blood into 6-monoacetylmorphine, which breaks down
further into morphine. The State offered the relevant
timeframes for the metabolism of heroin, as set forth in the
Rook article: "When heroin is used, the heroin that's actually
in the blood lasts just basically a few minutes, and I don't
recall the exact numbers . . . but it's in the neighborhood of
8
The defense informed the circuit court, "I guess I would
have no objection to the [c]ourt considering the scientific
article because I certainly think there's been some peer review
of that."
8
No. 2014AP1267-CR
five minutes.[9] . . . 6-monoacteylmorphine was detected in
plasma for one to three hours." The State did not dispute that
morphine was detectable in the blood for some time thereafter,
but argued that unlike 6-monoacetylmorphine, morphine "can be
created by a number of different substances. It could indicate
somebody used heroin and it's been a number of hours or it could
indicate something like they used morphine and there are other
prescription drugs that break down into morphine as well."
¶18 Thus, "while the presence of morphine in someone's
blood is relevant to whether they possessed heroin, it's
certainly not conclusive evidence." The thrust of the State's
argument, then, was that
if it's going to be more than that one to three-hour
range that means that the State would be losing what
could be necessary evidence in proving possession of
heroin. And in this case . . . we don't know the
exact time of use . . . . And it was approximately
two and a half hours after the dispatch when the blood
draw actually occurred.
The State concluded by arguing for a per se rule, maintaining
that "in basically any case where we have heroin use, it's
creating an exigency because of the short timeframe."
¶19 Parisi did not contest any of the scientific data set
forth by the State. Nor did he contest Officer Fenhouse's
testimony that obtaining a warrant required approximately two
9
As the State clarified on appeal, the Rook article
indicates a window of 10 to 40 minutes. Elisabeth J. Rook et
al., Pharmacokinetics and Pharmacokinetic Variability of Heroin
and its Metabolites: Review of the Literature, 1 Current
Clinical Pharmacology 111 (2006).
9
No. 2014AP1267-CR
hours. Instead, he argued that a totality-of-the-circumstances
analysis applied under Missouri v. McNeely, 569 U.S. ___, 133 S.
Ct. 1552 (2013), and that, under the totality of the
circumstances, no exigent circumstances justified the
warrantless blood draw. In particular, Parisi argued: there was
no evidence the officers knew the scientific evidence the State
presented; evidence of heroin's metabolites in the blood could
be coupled with corroborating evidence to show possession of
heroin; there were multiple officers involved with the case, so
at least one of them could have attempted to obtain a search
warrant; and a search warrant could have been obtained while
Parisi was in the process of being medically stabilized.
¶20 The circuit court denied Parisi's motion, finding that
the warrantless blood draw was constitutional because it was
supported by exigent circumstances. With regard to the
elimination of heroin from the human body, the court stated:
The study that [the State] has included . . . does
indicate generally that heroin does dissipate fairly
quickly from the human body. I think it's safe to say
that it dissipates quicker than that of alcohol and
that the half-lives are such that the breakdown causes
a fairly quick inability to detect the heroin in the
blood.
However, the court refused to adopt a per se rule that the
dissipation of heroin in the blood constitutes an exigent
circumstance in all cases. The court instead used a totality-
of-the-circumstances analysis, relying on Missouri v. McNeely.
The court concluded:
10
No. 2014AP1267-CR
In this case, it does appear that there [were]
exigent circumstances that were present here in
regards to the unknown time of intake of the
substance, the delay that took place in trying to
determine what the defendant may or may not have
taken, and what his medical condition was, the delays
that were involved in regards to the treatment of him
at the hospital setting, the time that it would take
for obtaining the warrant, the dissipation of the
heroin within the human body, and the speed in which
it does that[;] so I think those are all factors in
this particular case. And when the [c]ourt does look
at the totality of those factors, I do think that the
officer was justified in not pursuing a warrant in
this case.
¶21 On September 13, 2013, Parisi pled no contest to
possession of narcotic drugs; the State agreed to dismissal of
the second and subsequent offense enhancer. On November 25,
2013, the court withheld sentence and placed Parisi on probation
for 24 months. On May 23, 2014, Parisi filed a notice of
appeal.
¶22 On January 21, 2015, the court of appeals affirmed the
circuit court's judgment of conviction and denial of Parisi's
suppression motion in an unpublished decision. See State v.
Parisi, No. 2014AP1267-CR, unpublished slip op., ¶¶1, 12 (Wis.
Ct. App. Jan. 21, 2015) (per curiam). The court of appeals
upheld the search as constitutional under the good faith
exception to the exclusionary rule. Id., ¶12.
¶23 The court of appeals explained that on the date that
Officer Fenhouse ordered the blood drawn from Parisi, State v.
Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), abrogated by
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013), "was
the law of this state." Parisi, unpublished slip op., ¶9.
11
No. 2014AP1267-CR
Bohling, the court of appeals reasoned, "held that the
dissipation of alcohol in a person's bloodstream, alone,
constituted an exigent circumstance justifying a warrantless
blood draw." Id. Although Bohling was later abrogated by
McNeely, the court of appeals cited two of our recent cases for
the proposition that "the good faith exception precludes
application of the exclusionary rule where police searched a
suspect's blood without a warrant in objectively reasonable
reliance on Bohling." Id., ¶11 (citing State v. Kennedy, 2014
WI 132, 359 Wis. 2d 454, 856 N.W.2d 834; State v. Foster, 2014
WI 131, 360 Wis. 2d 12, 856 N.W.2d 847).
¶24 Finding "no legal difference between drawing blood to
test it for alcohol or controlled drugs," the court of appeals
concluded that the challenged evidence in Parisi's case was
"obtained in conformity with [Bohling]" and that Kennedy and
Foster were "controlling precedent applicable to this case."
Id., ¶¶11-12. "Thus, regardless of whether the warrantless
blood draw of Parisi may or may not have been retroactively
unlawful under new United States Supreme Court precedent, the
good faith exception precludes application of the exclusionary
rule to exclude the evidence obtained." Id., ¶12.
¶25 On February 19, 2015, Parisi filed a petition for
review in this court. On June 12, 2015, we granted the
petition.
III. STANDARD OF REVIEW
¶26 "Our review of an order granting or denying a motion
to suppress evidence presents a question of constitutional
12
No. 2014AP1267-CR
fact." Tullberg, 359 Wis. 2d 421, ¶27 (quoting State v.
Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463).
"When presented with a question of constitutional fact, this
court engages in a two-step inquiry." Id. (quoting Robinson,
327 Wis. 2d 421, ¶22). "We accept the circuit court's findings
of historical fact unless they are clearly erroneous. We review
the application of constitutional principles to those historical
facts de novo." Foster, 360 Wis. 2d 12, ¶27 (citations
omitted).
¶27 "We apply this two-step inquiry when determining
whether exigent circumstances justified a warrantless search."
Tullberg, 359 Wis. 2d 421, ¶28.
IV. ANALYSIS
¶28 The Fourth Amendment to the United States Constitution
and Article I, § 11 of the Wisconsin Constitution prohibit
"unreasonable searches and seizures." U.S. Const. amend. IV;
Wis. Const. art. 1, § 11.10 When the police draw a sample of a
person's blood in order to test it for evidence of a crime, a
search under the Fourth Amendment has occurred. See Tullberg,
359 Wis. 2d 421, ¶31; State v. Faust, 2004 WI 99, ¶10, 274
Wis. 2d 183, 682 N.W.2d 371. "[W]arrantless searches are per se
unreasonable unless they fall within a well-recognized exception
to the warrant requirement." Foster, 360 Wis. 2d 12, ¶32.
10
"[T]his court interprets [these] two constitutional
provisions in concert." State v. Krajewski, 2002 WI 97, ¶18
n.9, 255 Wis. 2d 98, 648 N.W.2d 385 (citations omitted).
13
No. 2014AP1267-CR
¶29 The State argues, and the circuit court below agreed,
that the warrantless search in this case was justified under the
exigent circumstances exception to the warrant requirement.
This exception "applies when the exigencies of the situation
make the needs of law enforcement so compelling that a
warrantless search is objectively reasonable under the Fourth
Amendment." Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552,
1558 (2013) (citation omitted).
¶30 Application of the exigent circumstances exception
requires probable cause and exigent circumstances. See, e.g.,
State v. Hughes, 2000 WI 24, ¶¶17-18, 233 Wis. 2d 280, 607
N.W.2d 621 (citations omitted). See generally 44 Geo. L.J. Ann.
Rev. Crim. Proc. 95 (2015) (citations omitted). The burden is
on the State to establish both. Hughes, 233 Wis. 2d 280, ¶17;
State v. Smith, 131 Wis. 2d 220, 228, 388 N.W.2d 601 (1986),
abrogated on other grounds by State v. Felix, 2012 WI 36, 339
Wis. 2d 670, 811 N.W.2d 775. In analogous cases involving
warrantless blood draws of suspected drunken drivers, we have
also required that the police draw the blood in a reasonable
manner, and that the suspect not raise any reasonable objections
to the blood draw. See, e.g., Tullberg, 359 Wis. 2d 421, ¶31.
There is no reason these two concerns should lose their
relevancy in scenarios not involving drunk driving, given the
familiar refrain that "[t]he touchstone of the Fourth Amendment
is reasonableness." Faust, 274 Wis. 2d 183, ¶32 (quoting
Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Cf. State v.
Payano-Roman, 2006 WI 47, ¶38, 290 Wis. 2d 380, 714 N.W.2d 548
14
No. 2014AP1267-CR
("The Fourth Amendment neither forbids nor permits all bodily
intrusions. Rather, the Amendment's function is to constrain
against intrusions 'which are not justified in the
circumstances, or which are made in an improper manner.'"
(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).
¶31 In his petition to this court, however, Parisi does
not allege that his blood was drawn in an unreasonable manner or
that he offered a reasonable objection to the blood draw. Nor
does he argue that the State lacked probable cause to conduct
the search in question. Parisi instead contends that exigent
circumstances did not support the drawing of his blood. Cf.
Foster, 360 Wis. 2d 12, ¶43 n.12 ("Aside from exigency, [the
defendant] does not contest that the four requirements we set
forth in Bohling for conducting a lawful search and seizure of a
person's blood incident to arrest were satisfied.").11
11
In any event, we would conclude that such requirements
are met in this case. First, Parisi's blood was drawn in a
reasonable manner. Blood tests "are a commonplace in these days
of periodic physical examination and experience with them
teaches that the quantity of blood extracted is minimal, and
that for most people the procedure involves virtually no risk,
trauma, or pain." Schmerber v. California, 384 U.S. 757, 771
(1966) (footnote omitted). Further, the draw was conducted in a
hospital by a phlebotomist. See id. ("[T]he record shows that
the test was performed in a reasonable manner. Petitioner's
blood was taken by a physician in a hospital environment
according to accepted medical practices.").
Second, there is no evidence in the record that Parisi
reasonably objected to the blood draw, such as "on grounds of
fear, concern for health, or religious scruple." Id.
(continued)
15
No. 2014AP1267-CR
¶32 Although "[a] variety of circumstances may give rise
to an exigency sufficient to justify a warrantless search,"
McNeely, 133 S. Ct. at 1558, one "well-recognized exigent
circumstance is the threat that evidence will be lost or
destroyed if time is taken to obtain a warrant." State v.
Bohling, 173 Wis. 2d 529, 537-38, 494 N.W.2d 399 (1993)
(citation omitted).
¶33 Consequently, the State argues that, based on the
limited knowledge possessed by the officers at the time, there
was no time for police to obtain a warrant before performing a
draw of Parisi's blood because Parisi's body was rapidly
metabolizing any heroin he may have taken and because the "best
evidence of heroin use" would therefore have been gone before a
warrant was secured.
¶34 In response, Parisi presents three challenges to the
circuit court's determination that exigent circumstances existed
Third, there was "a 'fair probability' that contraband or
evidence of a crime [would] be found in" Parisi's blood. State
v. Tullberg, 2014 WI 134, ¶33, 359 Wis. 2d 421, 857 N.W.2d 120;
State v. Hughes, 2000 WI 24, ¶21, 233 Wis. 2d 280, 607
N.W.2d 621. One of the roommates found Parisi having difficulty
breathing, and the police, responding to the medical call, found
Parisi on the floor and surrounded by vomit. Officer Fenhouse
testified that Parisi reacted positively to the administration
of Narcan, a drug which Officer Fenhouse knew was used to
counteract the effects of heroin overdose. While at the
hospital, Officer Fenhouse was told by officers still at the
residence that "there was evidence of drug use." Police at the
residence in fact uncovered evidence of drug use. "[U]nder the
totality of the circumstances," Tullberg, 359 Wis. 2d 421, ¶34,
Officer Fenhouse had probable cause to believe that Parisi's
blood contained evidence that Parisi had used heroin.
16
No. 2014AP1267-CR
in this case: (1) evidence of heroin use remains detectable in
the human body for "many hours, or even days"; (2) the officers
could have, but did not attempt to obtain a warrant before
conducting the blood draw at issue; and (3) because this is not
a drunk driving case, Parisi's Fourth Amendment protections were
not "relaxed."
¶35 When examining whether exigent circumstances premised
on the imminent destruction of evidence justified a warrantless
search, we employ an objective test: "Whether a police officer
under the circumstances known to the officer at the time
reasonably believes that delay in procuring a warrant
would . . . risk destruction of evidence." Smith, 131 Wis. 2d
at 230, abrogated on other grounds by Felix, 339 Wis. 2d 670;
see also Bohling, 173 Wis. 2d at 538 (citation omitted);
Schmerber v. California, 384 U.S. 757, 770 (1966) (citing
Preston v. United States, 376 U.S. 364, 367 (1964)).
A. Whether Exigent Circumstances Existed
¶36 The State has sufficiently established that an officer
in this case, under the circumstances known to him or her at the
time, might reasonably have believed that the delay necessary to
obtain a warrant would have risked destruction of evidence.
¶37 The officers in this case were confronted with a
medical emergency in which there were several unknown facts.
The officers did not know with certainty what Parisi had
ingested and, once heroin was suspected, did not know when he
had ingested it or how much he had ingested.
17
No. 2014AP1267-CR
¶38 Based on the uncontested evidence before it, which
indicated that both heroin and its first metabolite could become
undetectable in blood plasma in as little as one hour, the
circuit court concluded that heroin "dissipates quicker
than . . . alcohol" and that "the breakdown causes a fairly
quick inability to detect . . . heroin in the blood." The court
rested its finding of exigent circumstances in part on "the
dissipation of . . . heroin within the human body, and the speed
in which it does that." Given the data in the Rook article,
these findings were not clearly erroneous. See State v. Popke,
2009 WI 37, ¶20, 317 Wis. 2d 118, 765 N.W.2d 569 (under clearly
erroneous standard, "we are bound not to upset the trial court's
findings of historical or evidentiary fact unless they are
contrary to the great weight and clear preponderance of the
evidence" (citation omitted)).
¶39 Further, in Officer Fenhouse's experience, obtaining a
warrant took approximately two hours. The circuit court
implicitly found Officer Fenhouse's undisputed testimony
regarding the time required to obtain a warrant credible,
because the circuit court referenced Officer Fenhouse's
testimony in its ruling12 and based its ruling in part on "the
time that it would take for obtaining the warrant," while
Officer Fenhouse provided the only testimony regarding the time
12
The circuit court stated, "The officer did testify as to
his experience in regards to trying to obtain and obtaining
search warrants in the past."
18
No. 2014AP1267-CR
needed to obtain a warrant. See State v. Echols, 175
Wis. 2d 653, 672, 499 N.W.2d 631 (1993) ("A trial court is not
required to recite 'magic words' to set forth its findings of
fact. An implicit finding of fact is sufficient when the facts
of record support the decision of the trial court." (citations
omitted)); see also id. at 673 ("When a trial court does not
expressly make a finding necessary to support its legal
conclusion, an appellate court can assume that the trial court
made the finding in the way that supports its decision."
(citation omitted)). This finding was also not clearly
erroneous. See Popke, 317 Wis. 2d 118, ¶20 (citation omitted).
¶40 Finally, Parisi's health was unstable. At the
hospital, "[hospital staff] were tending to him and then it
seemed things were getting better and then it would deteriorate
again." Under the circumstances, Officer Fenhouse might
reasonably have feared that if he attempted to obtain a warrant
before drawing Parisi's blood, Parisi's condition could again
lapse, causing Officer Fenhouse to miss his window of
opportunity. Cf. Tullberg, 359 Wis. 2d 421, ¶48 (deputy sheriff
investigating drunk driver performed blood draw in part because
hospital staff planned to perform a CT scan and because the
deputy sheriff did not know whether the CT scan would lead to
subsequent medical treatment).
¶41 Given all of these factors——the multiple unknown
facts, the rapid dissipation of heroin in the blood, the time
needed to obtain a warrant, and Parisi's unstable condition——
"[t]he officer in the present case . . . might reasonably have
19
No. 2014AP1267-CR
believed that he was confronted with an emergency, in which the
delay necessary to obtain a warrant, under the circumstances,
threatened 'the destruction of evidence.'" Schmerber, 384 U.S.
at 770 (citation omitted). Critical evidence of heroin use in
Parisi's body was disappearing by the minute, and had been since
an unknown time that evening. Officer Fenhouse could reasonably
conclude that waiting two hours for acquisition of a warrant,
with no guarantee that Parisi would be available for a blood
draw once a warrant was acquired, would mean loss of access to
that evidence.
¶42 Before proceeding, we take a moment to emphasize that
this case does not establish a per se rule that the dissipation
of heroin in the blood always constitutes an exigency justifying
a warrantless blood draw. We instead resolve this case "based
'on its own facts and circumstances.'" McNeely, 133 S. Ct. at
1559 (citations omitted). Any number of factual variations
might change the result in a future case: police might initially
have more facts at their disposal, such as the type and amount
of an ingested drug, as well as the time it was ingested; other
jurisdictions might allow for more rapid acquisition of search
warrants; scientific evidence on heroin dissipation may become
clearer in the future; and so on.
B. Whether the Presence of Morphine in Parisi's Blood
Precludes a Finding of Exigent Circumstances
¶43 Before the circuit court, Parisi did not object to
admission of the Rook article and did not provide any scientific
evidence of his own. Indeed, Parisi concedes on appeal, "Heroin
20
No. 2014AP1267-CR
converts to its first metabolite, 6-[mono]acetylmorphine[,]
within a few minutes. 6-[mono]acetylmorphine then converts to
morphine. 6-[mono]acetylmorphine is detectable in plasma for 1-
3 hours after heroin use."13
¶44 Citing the Rook article, however, Parisi argues that
because morphine resulting from the metabolism of heroin
"remains in the system for many hours after heroin use," exigent
13
Parisi has provided further scientific evidence for the
first time on appeal before this court in the appendix to his
brief. In particular, Parisi cites a scientific article which
was not before the circuit court for the proposition that 6-
monoacetylmorphine is detectable in urine for an average of five
hours and as much as 34.5 hours. See Alain G. Verstraete,
Detection Times of Drugs of Abuse in Blood, Urine, and Oral
Fluid, 26 Therapeutic Drug Monitoring 200 (2004) ("Verstraete
article"). The passage relied upon states, "After
administration of 3, 6, and 12 mg heroin intravenously, 6-
acetylmorphine is detectable in urine during respectively 2.3,
2.6, and 4.5 hours. . . . In the Lübeck study, 6-
acetylmorphine . . . was detectable for 5 hours on average
(maximum 34.5 hours) . . . in urine." Id. at 203. In contrast,
the Rook article states, "6-monoacetylmorphine was detectable
for 1.2-4.3 hrs in urine after intravenous injection or
inhalation of 2.6-20 mg heroin." Rook, supra, at 111. Based on
the evidence, then, 6-monoacetylmorphine can become undetectable
in urine in as little as 1.2 to 2.3 hours, as opposed to the
Rook article's indication that 6-monoacetylmorphine can become
undetectable in blood in as little as one hour. Id. Parisi's
article does not affect our analysis. Even assuming that an
involuntary urine test was feasible in this case——a contention
the State questions——the amount of time before 6-
monoacetylmorphine is potentially undetectable in urine is not
materially different for our purposes from the amount of time
before 6-monoacetylmorphine is potentially undetectable in
blood.
21
No. 2014AP1267-CR
circumstances did not exist.14 Parisi points out that morphine
was found in Parisi's blood sample, which was drawn "almost two
and a half hours after police encountered him." He agrees that
morphine indicates that a person used either heroin or morphine,
but argues:
Because the presence of drugs in blood is not
sufficient by itself to support a conviction of
possessing a controlled substance, any blood test
result would be coupled with other corroborating
evidence from the case in order to convict. State v.
Griffin, 220 Wis. 2d 371, 381, 584 N.W.2d 127 (Ct.
App. 1998). That other evidence in a case will inform
which of [the] two Schedule 1 narcotics, heroin or
morphine, the individual unlawfully consumed.
¶45 The flaws in Parisi's reasoning are two-fold. First,
the test we use to analyze whether or not exigent circumstances
exist is an objective one based on "the circumstances known to
the officer at the time," Smith, 131 Wis. 2d at 230, and
although an officer might reasonably have believed that a two-
hour delay would risk the destruction of evidence in this case
because of, among other things, the rapid dissipation of heroin
in the blood, it is not clear that an officer would have
knowledge of the specific metabolic processes involved
subsequent to ingestion of heroin, or the specific rates of
each. Whether morphine was eventually found in Parisi's blood
14
We do not possess, but do not require, information
regarding precisely how long morphine remains in the human body
after ingestion of heroin. According to the State, the Rook
article indicates that "one quarter of the morphine [that was
initially in the blood] can still be detected . . . about three
to nine hours later."
22
No. 2014AP1267-CR
is not relevant to what a police officer might reasonably have
believed prior to conducting the blood draw. See State v.
Jennifer Parisi, 2014 WI App 129, ¶12, 359 Wis. 2d 255, 857
N.W.2d 472 ("The exigent circumstances exception . . . does not
require that officers observe actual destruction of
evidence . . . . The exception rather requires only that
officers have a reasonable belief 'that delay in procuring a
search warrant would risk destruction of evidence.'" (citing
Hughes, 233 Wis. 2d 280, ¶24)).
¶46 Second, even assuming for the sake of argument that a
reasonable police officer knows that heroin is detectable in
blood as morphine for several hours after ingestion, the officer
in this case did not know what corroborating evidence of heroin
or morphine use police would ultimately find, or what alibis
Parisi might raise. Parisi might have a plausible defense to a
charge based on heroin found in the residence and morphine found
in his blood, but no defense to a charge based on heroin found
in the residence and heroin or 6-monoacetylmorphine found in his
blood. In other words, heroin or its first metabolite, 6-
monoacetylmorphine, remained the most probative evidence that
Parisi had used heroin.
¶47 Parisi argues that "this Court will be making new law
if it adopts the [S]tate's argument that no warrant is required
when seeking one will risk the destruction of the 'best
evidence.'" Parisi instead contends that McNeely dictates
application of the exigent circumstances exception "when waiting
23
No. 2014AP1267-CR
for a warrant means the only evidence of the crime may be
destroyed."
¶48 We do not agree with Parisi's reading of McNeely. The
McNeely court held that, "In those drunk-driving investigations
where police officers can reasonably obtain a warrant before a
blood sample can be drawn without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they
do so." McNeely, 133 S. Ct. at 1561 (emphasis added). Here,
assuming that an officer possessed full knowledge of the manner
in which heroin is metabolized, the officer could reasonably
believe that waiting two hours to obtain a warrant would
"significantly undermin[e] the efficacy" of a blood draw by
leading to ambiguous test results; evidence of heroin or
morphine use, rather than of heroin use alone, might result if
sufficient time has passed (this was in fact the result in this
case). Depending on the corroborating evidence eventually
obtained in the case, and testimony given by the defendant or
other witnesses, the State might not be able to prove illegal
possession of any drug.
¶49 The McNeely court also alluded to a "best evidence"
approach when it stated:
While experts can work backwards from the [blood
alcohol concentration] at the time the sample was
taken to determine the [blood alcohol concentration]
at the time of the alleged offense, longer intervals
may raise questions about the accuracy of the
calculation. For that reason, exigent circumstances
justifying a warrantless blood sample may arise in the
regular course of law enforcement due to delays from
the warrant application process.
24
No. 2014AP1267-CR
Id. at 1563. In other words, a warrantless blood sample may be
justified even where an inferior form of evidence may be
available. Chief Justice John Roberts, joined by Justices
Stephen Breyer and Samuel Alito, was even more forceful:
McNeely contends that there is no compelling need
for a warrantless blood draw, because . . . the State
can use math and science to work backwards and
identify a defendant's [blood alcohol concentration]
at the time he was driving. But that's not good
enough. We have indicated that exigent circumstances
justify warrantless entry when drugs are about to be
flushed down the toilet. We have not said that,
because there could well be drug paraphernalia
elsewhere in the home, or because a defendant's co-
conspirator might testify to the amount of drugs
involved, the drugs themselves are not crucial and
there is no compelling need for warrantless entry.
The same approach should govern here. There is a
compelling need to search because alcohol——the nearly
conclusive evidence of a serious crime——is dissipating
from the bloodstream. The need is no less compelling
because the police might be able to acquire second-
best evidence some other way.
Id. at 1571 (Roberts, C.J., concurring in part and dissenting in
part) (footnote omitted) (citations omitted). See also State v.
Peardot, 119 Wis. 2d 400, 404, 351 N.W.2d 172 (Ct. App. 1984)
("Exigent circumstances existed here. The marked currency was
the best evidence linking defendant with the sale of the LSD.
If the police had not moved quickly, defendant could easily have
disposed of the money in any of several ways." (emphasis
added)).
¶50 In sum, the fact that morphine remains in the body for
several hours after the ingestion of heroin does not mean that
it would be unreasonable for Officer Fenhouse to believe that
25
No. 2014AP1267-CR
taking the time to obtain a search warrant in this case risked
destruction of evidence of heroin use.15
C. Whether a Finding of Exigent Circumstances is Precluded
Because this is not a Drunk-Driving Case
¶51 Finally, Parisi notes that in both Bohling and
McNeely, the public safety risk presented by drunk-driving was
balanced against the defendant's privacy interest "in preventing
an agent of the government from piercing his skin." McNeely,
133 S. Ct. at 1565.
¶52 In Bohling, we noted in passing, "[O]ur interpretation
of Schmerber makes sense from a policy standpoint. It strikes a
15
For all of the reasons discussed, we reject Parisi's
arguments that a warrant could have been pursued because of (1)
the number of officers involved in this case (five to seven
officers) and (2) the delay that occurred while hospital staff
stabilized Parisi. Officer Fenhouse could reasonably believe
that asking another officer to obtain a warrant would be futile,
given the short timeframe before evidence of heroin use
disappeared. For instance, if officers suspect drugs are being
flushed behind a closed door, see, e.g., Kentucky v. King, 563
U.S. 452 (2011), the exigency is not eliminated merely because
there are multiple officers at the scene. See United States v.
Fiasche, 520 F.3d 694, 698 (7th Cir. 2008).
Similarly, Officer Fenhouse had no way of knowing, at the
hospital at 1:55 a.m., that Parisi would be unavailable for a
blood draw until 3:10 a.m. Based on Officer Fenhouse's
testimony, it is unlikely that a warrant process begun at 1:55
a.m. would have been completed by 3:10 a.m. anyway. It was not
so unreasonable as to render the blood draw unconstitutional for
Officer Fenhouse to fail to begin the warrant process when
Parisi's health lapsed. "[T]he calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments——in circumstances that are
tense, uncertain, and rapidly evolving." King, 563 U.S. at 466
(quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
26
No. 2014AP1267-CR
favorable balance between an individual's right to be free from
unreasonable searches and Wisconsin's interest in enforcing its
drunk driving laws. Wisconsin's interest is vital whereas the
resulting intrusion on individual privacy is minimal." Bohling,
173 Wis. 2d at 545. Further, we recognized that "in the context
of driving on public highways, public safety concerns reduce a
driver's expectation of privacy." Id. at 541.
¶53 In McNeely the Supreme Court likewise acknowledged
both "the compelling governmental interest in combating drunk
driving" and "the fact that people are 'accorded less privacy
in . . . automobiles because of th[e] compelling governmental
need for regulation.'" McNeely, 133 S. Ct. at 1565 (alteration
in original) (quoting California v. Carney, 471 U.S. 386, 392
(1985)). The Court also stated that "a blood test conducted in
a medical setting by trained personnel . . . is concededly less
intrusive than other bodily invasions we have found
unreasonable," while adding that "any compelled intrusion into
the human body implicates significant, constitutionally
protected privacy interests." Id. At bottom, however, the
Court found no reason to depart from "the traditional Fourth
Amendment totality-of-the-circumstances analysis to determine
whether an exigency justified a warrantless search." McNeely,
133 S. Ct. at 1565-66.
¶54 Here, Parisi argues that he "never operated a vehicle
or put anyone other than himself at risk. . . . Heroin use is
dangerous[,] but if the user does not get behind the wheel, the
threat it poses is to the person who uses it, not to the public
27
No. 2014AP1267-CR
at large. . . . [T]he warrant requirement should not be
'relaxed' in [t]his case as it is in drunk driving cases."
¶55 We agree that, because this is not a case involving
intoxicated driving, the reduced privacy interest in such cases
does not apply. Likewise, we agree that the governmental
interest in preventing intoxicated driving is less relevant
because Parisi was not found driving a vehicle. But these
considerations only carry Parisi so far. It does not follow
that, because Parisi's privacy interests are somewhat greater in
this case than if he had been stopped on a highway, we must
therefore abandon our totality-of-the-circumstances analysis and
the exigent circumstances exception to the warrant requirement.
¶56 Our discussion of a "relaxed" warrant requirement in
the context of driving on state highways supported our
conclusion that Schmerber created a per se rule that dissipation
of alcohol alone constitutes an exigency. Bohling, 173 Wis. 2d
at 539-40. But Bohling was later abrogated by the Supreme
Court's McNeely decision, as were the decisions of other state
supreme courts. See Bohling, 173 Wis. 2d 529, abrogated by
McNeely, 133 S. Ct. 1552; State v. Shriner, 751 N.W.2d 538
(Minn. 2008), abrogated by McNeely, 133 S. Ct. 1552; State v.
Woolery, 116 Idaho 368 (1989), abrogated by McNeely, 133 S. Ct.
1552.
¶57 In McNeely the Court explained that without a warrant,
"'the fact-specific nature of the reasonableness inquiry'
demands that we evaluate each case of alleged exigency based 'on
its own facts and circumstances.'" McNeely, 133 S. Ct. at 1559
28
No. 2014AP1267-CR
(citations omitted). Schmerber, the Court continued, "applied
this totality of the circumstances approach. . . . [W]e
considered all of the facts and circumstances of the particular
case and carefully based our holding on those specific facts."
Id. at 1559-60.
¶58 The question Parisi essentially raises is whether the
search at issue was "unreasonable" simply because this is not a
drunk driving case. U.S. Const. amend. IV; Wis. Const. art. 1,
§ 11. In effect, Parisi is asking for a per se rule of his own.
Instead, taking our cue from McNeely, we analyze this case on
its facts. Parisi unquestionably possessed "significant,
constitutionally protected privacy interests" in avoiding the
warrantless, nonconsensual blood draw that occurred in this
case. McNeely, 133 S. Ct. at 1565. But that Parisi never used
a car in this case does not thereby elevate his privacy
interests to such heights as to render any warrantless blood
draw under exigent circumstances unreasonable. Cf. Payano-
Roman, 290 Wis. 2d 380, ¶38 ("The Fourth Amendment neither
forbids nor permits all bodily intrusions. Rather, the
Amendment's function is to constrain against intrusions 'which
are not justified in the circumstances, or which are made in an
improper manner.'" (quoting Winston, 470 U.S. at 760).
¶59 The warrantless blood draw at issue was justified
under the circumstances, regardless of the presence or not of an
automobile. As we have already determined, under the facts of
this case, the police reasonably feared destruction of evidence
of a crime. Further, "[t]he intrusion in the usual blood draw
29
No. 2014AP1267-CR
is slight," State v. Krajewski, 2002 WI 97, ¶60,255 Wis. 2d 98,
648 N.W.2d 385, and the draw in this case was performed
reasonably, in a hospital by a phlebotomist. Finally, we would
be remiss if we failed to recognize the State's own compelling
interest in countering heroin use and addiction. Cf. State v.
Peck, 143 Wis. 2d 624, 634, 422 N.W.2d 160 (1988) ("Preservation
of the public health and safety is the obvious purpose
underlying Wisconsin's drug laws, and we see a compelling state
purpose in the regulation of marijuana and other controlled
substances.")16 Adoption of Parisi's argument would lead to the
16
Heroin use and addiction is a problem that has become a
state and national epidemic. See, e.g., Jerry L. Halverson,
Michael M. Miller, and George L. Morris, We Have a Heroin and
Opioid Problem; Let's Fix It, Milwaukee Journal Sentinel,
Aug. 16, 2015, http://www.jsonline.com/news/opinion/we-have-a-
heroin-and-opioid-problem-lets-fix-it-b99556485z1-
321917961.html; Kathleen Hennessey, Obama: U.S. Will Tackle
'Epidemic' of Heroin, Prescription Drug Abuse, NBC New York,
Oct. 21, 2015, http://www.nbcnewyork.com/news/national-
international/Obama-Prescription-Drug-Abuse-Epidemic-
335251301.html; Nate Beck, Former UWO Athlete Guilty of
Homicide-By-Heroin, Oshkosh Northwestern, Dec. 17, 2015,
http://www.thenorthwestern.com/story/news/crime/2015/12/17/forme
r-uwo-athlete-guilty-homicide--heroin/77493166/ ("Though
attorneys sparred over the timeline of events that led to [the]
overdose, neither disputed heroin's grip on Winnebago County.").
From 2002 to 2013 "the rate of heroin-related overdose
deaths [in the United States] nearly quadrupled, according to
the Centers for Disease Control and Prevention." The Numbers
Behind America's Heroin Epidemic: A Guide to the Drug's Spread
and Impact, N.Y. Times, Oct. 30, 2015,
http://www.nytimes.com/interactive/2015/10/30/us/31heroin-
deaths.html?_r=0. In Wisconsin, "the number of overdose deaths
annually involving prescription painkillers and heroin now
exceeds the number of traffic fatalities." Halverson, supra.
(continued)
30
No. 2014AP1267-CR
We vigorously reject any suggestion that "the threat
[heroin] poses is to the person who uses it, not to the public
at large." The heroin epidemic is destroying lives across the
country, and not just those of heroin users. See, e.g., Krystle
Kacner, "It's a Nightmare:" Menomonee Falls Father Wants to Help
Others After Son Dies of Overdose," Fox6 News, Nov. 17, 2015,
http://fox6now.com/2015/11/17/its-a-bloody-nightmare-menomonee-
falls-father-wants-to-help-others-after-son-dies-of-overdose/.
Kacner's article features the father of a 22-year old who died
from a heroin overdose. According to Kacner, the father is
"living proof that the addict's life may not be the only thing
the drug takes. 'We got divorced, went bankrupt, foreclosure,
lost the company. . . . It's terrible for the other children——
not only losing a brother, but going through the addiction
process——because they don't get the attention growing up that
they deserved.'" See also Deborah Sontag, Heroin's Small-Town
Toll, and a Mother's Grief, N.Y. Times, Feb. 10, 2014,
http://www.nytimes.com/2014/02/11/us/heroins-small-town-toll-
and-a-mothers-pain.html (discussing story of woman from Hudson,
Wisconsin, whose 21-year-old daughter "was a heroin abuser" and
died after overdosing on "a mix of drugs" in 2013). Federal
data show that nearly 20 percent of those who died from heroin
in 2010 were ages 15 to 24. Id.
The Wisconsin Legislature is working to address the heroin
problem in our state. See, e.g., Jessie Opoien, Led by State
Rep. John Nygren, Wisconsin Families Caught in Heroin's Grasp
Fight Back, The Capital Times, Dec. 2, 2015,
http://host.madison.com/ct/news/local/govt-and-politics/led-by-
state-rep-john-nygren-wisconsin-families-caught-
in/article_640a242f-91d6-5dd6-a8c4-ca46a14304d8.html. Wisconsin
State Representative John Nygren, whose own daughter struggled
with heroin addiction,
has become the Wisconsin Legislature's torchbearer for
combating the state's heroin and opiate epidemic. In
2014, he ushered a package of bills aimed at curbing
heroin abuse and deaths through the Legislature with
unanimous support. In September, he introduced a
second package focusing on prescription painkillers.
As the crisis has deepened, other politicians and
affected families have gotten involved.
Id.
31
No. 2014AP1267-CR
loss of police access to critical evidence in countless
situations in which obtaining a warrant in time is simply not
practical, through no fault of the officers seeking the
evidence. Cf. McNeely, 133 S. Ct. at 1561. That this case is
distinguishable from Bohling and McNeely on the ground that
Parisi did not operate a vehicle does not make the drawing of
his blood automatically unreasonable.
V. CONCLUSION
¶60 We conclude that the blood draw in this case was
constitutional because it was supported by exigent
circumstances. We therefore need not address whether the good
faith exception to the exclusionary rule also applies in this
case. See State v. Tullberg, 2014 WI 134, ¶¶4-5, 359 Wis. 2d
421, 857 N.W.2d 120 (declining to address State's argument that
the good faith exception to the exclusionary rule justified
warrantless blood draw where blood draw had been found
constitutional under exigent circumstances doctrine).
By the Court.—The decision of the court of appeals is
affirmed.
32
No. 2014AP1267-CR.awb
¶61 ANN WALSH BRADLEY, J. (dissenting). The primary
issue addressed by the majority is whether Parisi's warrantless
blood draw is an exigent circumstance justifying an exception to
the warrant requirement. If it is not, then the warrantless
blood draw was a violation of the Fourth Amendment of the United
States Constitution and the evidence obtained must be
suppressed.
¶62 All agree that absent an emergency, search warrants
are required for intrusions into the human body. Missouri v.
McNeely, 133 S. Ct. 1552, 1558 (2013) (citing Schmerber v.
California, 384 U.S. 757, 770 (1966)).
¶63 Likewise, it is undisputed that pursuant to McNeely a
per se rule authorizing warrantless blood draws based on
dissipation of evidence in the bloodstream is prohibited under
the Fourth Amendment. See id. Nevertheless, the majority
creates a per se rule by inventing a new best evidence rule for
every heroin case, concluding that exigent circumstances exist
due to the rapid speed at which heroin dissipates in the blood.
¶64 Not only does the majority opinion disregard McNeely’s
prohibition of a per se rule based on dissipation, it also
ignores the circumstances under which McNeely directs that the
police must always obtain a warrant. McNeely instructs that
"where police officers can reasonably obtain a warrant before a
blood sample can be drawn without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they
do so." Id. at 1561.
1
No. 2014AP1267-CR.awb
¶65 Contrary to the majority, I conclude that the State
has failed to show there were exigent circumstances justifying
an exception to the warrant requirement. During the
approximately two and one-half hours available, at least one of
the five to seven officers involved in the investigation could
have and should have obtained a warrant. The warrantless blood
draw violated Parisi's Fourth Amendment rights and the evidence
resulting from it should be suppressed.1 Therefore, I
respectfully dissent.
I.
¶66 The majority determines that the circuit court's
finding of exigent circumstances based on "the dissipation of
. . . heroin within the human body, and the speed in which it
does that" were not clearly erroneous. Majority op. ¶38.
According to the majority, "critical evidence of heroin use in
Parisi’s body was disappearing by the minute, and had been since
an unknown time that evening." Majority op. ¶41.
1
Parisi asserts a violation of both the Fourth Amendment to
the U.S. Constitution and a violation of Article I, § 11 of the
Wisconsin Constitution. When we refer to the Fourth Amendment
in this discussion, we intend the discussion to be equally
applicable to Article I, § 11 of the Wisconsin Constitution.
"Generally, we have interpreted provisions of the Wisconsin
Constitution consistent with the United States Supreme Court's
interpretation of their counterparts in the federal
constitution. However, on occasion, we have interpreted a
provision in the Wisconsin Constitution more broadly than the
United States Supreme Court has interpreted a parallel provision
in the United States Constitution." State v. Arias, 2008 WI 84,
¶19, 311 Wis. 2d 358, 752 N.W.2d 748 (citations omitted).
2
No. 2014AP1267-CR.awb
¶67 Repeatedly, the majority focuses on dissipation. See,
e.g., majority op. ¶45 ("a two-hour delay would risk the
destruction of evidence in this case because of, among other
things, the rapid dissipation of heroin in the blood"); see also
majority op. ¶48 ("waiting two hours to obtain a warrant would
'significantly undermin[e] the efficacy' of a blood draw by
leading to ambiguous test results; evidence of heroin or
morphine use, rather than heroin use alone, might result if
sufficient time has passed"); majority op. ¶50 ("the fact that
morphine remains in the body for several hours after the
ingestion of heroin does not mean that it would be unreasonable
for Officer Fenhouse to believe that taking the time to obtain a
search warrant in this case risked destruction of evidence of
heroin use").
¶68 In asserting that the rapid dissipation of heroin is
an exigent circumstance, the majority relies on scientific
literature provided by the State. See Elisabeth J. Rook et al.,
Pharmacokinetics and Pharmacokinetic Variability of Heroin and
its Metabolites: Review of the Literature, 1 Current Clinical
Pharmacology 109, 111 (2006). Of particular import is the
scientific evidence that "[h]eroin converts to its first
metabolite, 6-[mono]acetylmorphine[,] within a few minutes. 6-
[mono]acetylmorphine then converts to morphine. 6-
[mono]acetylmorphine is detectable in plasma for 1-3 hours after
heroin use." Majority op. ¶43. According to the majority,
heroin or its first metabolite, 6-monoacetylmorphine, are the
3
No. 2014AP1267-CR.awb
most probative evidence of heroin use and therefore the best
evidence. Majority op. ¶46.
¶69 The majority concedes that morphine is evidence of
heroin use that remains in the blood for hours after heroin and
6-monoacetylmorphine dissipate. See, e.g., majority op. ¶50.
Nevertheless, it rejects this evidence as not being sufficiently
probative.2 Consequently, the majority creates a best evidence
rule in heroin cases.
¶70 Oddly, the majority ends up arguing that the very
evidence of morphine the State wishes to preserve in the
suppression motion is really not good enough because it is less
probative than heroin or 6-monoacetylmorphine. Majority op.
¶46. It contends, "Parisi might have a plausible defense to a
charge based on heroin found in the residence and morphine found
in his blood, but no defense to a charge based on heroin found
in the residence and heroin or 6-monoacetylmorphine found in his
blood." Majority op. ¶46.
II.
2
The majority goes to such lengths to minimize the
evidentiary value of morphine in the blood that it does not even
bother to determine how long morphine is detectable after heroin
use. According to the majority: "We do not possess, but do not
require, information regarding precisely how long morphine
remains in the human body after ingestion of heroin." Majority
op. ¶44 n.14.
The majority is incorrect. At oral argument, Parisi's
counsel explained that according to the Rook article supplied by
the State, "the metabolites of heroin stay in the system for 12,
could be even 24 hours..."
4
No. 2014AP1267-CR.awb
¶71 In our prior decisions, this court properly recognized
that McNeely "changed the landscape of warrantless blood draws
in Wisconsin." State v. Tullberg, 2014 WI 134, ¶42, 359 Wis. 2d
421, 857 N.W.2d 120; see also State v. Kennedy, 2014 WI 132,
¶29, 359 Wis. 2d 454, 856 N.W.2d 834 ("in 2013, the United
States Supreme Court issued its decision in McNeely, effectively
abrogating our holding in Bohling that the rapid dissipation of
alcohol alone constitutes an exigent circumstance sufficient for
law enforcement officers to order a warrantless investigatory
blood draw.").3 In Kennedy, this court concluded that under
McNeely, "the Fourth Amendment does not allow such per se rules
in the context of warrantless investigatory blood draws." 359
Wis. 2d 454, ¶29 (citing McNeely, 133 S. Ct. at 1561).
¶72 Despite this court’s prior adherence to McNeely, the
cornerstone of the majority’s opinion rests on its repeated
assertion that the rapid dissipation of heroin in the blood
3
Bohling makes clear that it is specific to the drunk
driving context. It stated that "a warrantless blood sample
taken at the direction of a law enforcement officer is
permissible under the following circumstances: (1) the blood
draw is taken to obtain evidence of intoxication from a person
lawfully arrested for a drunk-driving related violation or
crime, (2) there is a clear indication that the blood draw will
produce evidence of intoxication, (3) the method used to take
the blood sample is a reasonable one and performed in a
reasonable manner, and (4) the arrestee presents no reasonable
objection to the blood draw." State v. Bohling, 173 Wis. 2d
529, 533-34, 494 N.W.2d 399 (1993) (emphasis added) abrogated by
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
The majority opinion fails to accurately state these
requirements. It omits the first factor, which provides an
essential distinction between Bohling and this case. See
majority op. ¶31 & n.11.
5
No. 2014AP1267-CR.awb
risks the destruction of evidence. See, e.g., majority op.
¶¶40-45. Yet, the majority admonishes that this case "does not
establish a per se rule that the dissipation of heroin in the
blood always constitutes an exigency justifying a warrantless
blood draw." Majority Op. ¶42.
¶73 Contrary to the above admonition, the author of the
majority opinion got it right at oral argument. The State's
argument, which the majority now adopts, is really "Bohling for
heroin":
Justice Ziegler: Ok, but it has never been the law
that just because evidence is really good, you don't
need a warrant. That's almost what you are saying and
you are losing me on that.
Counsel for the State: ... What I am saying is that
because this really good evidence, this really
probative evidence dissipates so quickly, at least in
the case of heroin, and the public defender brought up
some other drugs like marijuana and things like that,
this is a whole different animal. I agree if this is
a marijuana case, we would be done. We would be done
because marijuana being a natural substance–cocaine
being a natural substance-it doesn't break down.
Heroin is a not natural substance–it's a synthetic and
it does break down. That is why you need to get the
evidence quickly. And that is why you have exigent
circumstances because you need to get it quickly.
Justice Ziegler: So to be clear, you are basically
asking us to revive Bohling in terms of heroin cases
or substances that are not natural.
... [W]hat I really hear you saying is that in heroin
cases there is an exigency because it dissipates so
quickly. That's Bohling for heroin, isn't it?
¶74 The majority now asserts that "[w]e instead resolve
this case 'based on its own facts and circumstances.'" Majority
op. ¶42. Yet, all of the facts and circumstances the majority
6
No. 2014AP1267-CR.awb
discusses relate only to dissipation: the type and amount of an
ingested drug, the time it was ingested, the time it takes to
get a warrant in relation to dissipation, and scientific
evidence on the rapid dissipation of heroin. Id. Its best
evidence rule places the focus on facts and circumstances
relating only to dissipation. By inventing a best evidence rule
for every heroin case and concluding that exigent circumstances
exist because of the rapid dissipation of heroin, the majority
creates a per se rule for heroin cases.
¶75 If the majority is correct that heroin is in the blood
for only a few minutes and 6-monoacetylmorphine is present in
the blood for only one to three hours before metabolizing into
morphine, this would be the circumstance in every case.4 Even if
the scientific evidence regarding the rate of dissipation
changed, it would change for every case.
¶76 Likewise, the time it takes to obtain a warrant will
always cause some delay in every case. In this case, Officer
Fenhouse testified that that it takes approximately two hours to
obtain a search warrant. Majority op. ¶14. However, McNeely
sounds a note of caution, explaining that consideration of the
time it takes to obtain a warrant "might well diminish the
incentive for jurisdictions to pursue progressive approaches to
warrant acquisition that preserve the protections afforded by
4
The majority opinion dismisses the scientific articles
Parisi submitted and instead relies on a solo article submitted
by the State. See majority op. ¶43 n.13.
7
No. 2014AP1267-CR.awb
the warrant while meeting the legitimate interests of law
enforcement." McNeely, 133 S. Ct. at 1563 (citations omitted).
¶77 Underlying the majority's conclusion that the rate of
dissipation of heroin in the blood justifies an exception to the
warrant requirement is the majority's newly minted best evidence
rule for heroin cases. According to the majority, "the officer
could reasonably believe that waiting two hours to obtain a
warrant would 'significantly undermin[e] the efficacy' of a
blood draw by leading to ambiguous test results; evidence of
heroin or morphine use, rather than heroin use alone, might
result if sufficient time has passed." Majority op. ¶48.
¶78 The majority errs in its creation of a best evidence
rule for heroin cases. It contradicts well-established law when
it contends that a blood draw showing "heroin or its first
metabolite, 6-monoacetylmorphine, remained the most probative
evidence that Parisi had used heroin."5 Majority Op. ¶46.
"Neither Wisconsin law nor federal law recognizes a 'best
evidence rule' that established a hierarchy of evidence. In
effect, all evidence is created equal." 7 Daniel D. Blinka,
Wisconsin Practice Series: Wisconsin Evidence § 1001.1 at 928
5
The majority fails to adequately explain its singular
focus of needing to find heroin——not morphine——in the blood.
Parisi was charged with Possession of a Schedule I or II
narcotic drug. Wis. Stat. § 961.41(3g)(am) provides that: "If a
person possesses or attempts to possess a controlled substance
included in schedule I or II which is a narcotic drug... the
person is guilty of a Class I felony." Even if the police had
only been able to convict Parisi of possession of morphine, both
heroin and morphine carry the same criminal penalty. See Wis.
Stat. §§ 961.14(3)(k) and 961.16(2)(a)10.
8
No. 2014AP1267-CR.awb
(3rd ed. 2008) (explaining the "myth of the best evidence
rule").
¶79 Even if there were a best evidence rule, evidence of
drugs in the bloodstream alone is not enough to support a
possession charge. Here, Parisi was charged with possession of
a schedule I or II narcotic drug. In Wisconsin, "the mere
presence of drugs in a person’s system is insufficient to prove
that the drugs are knowingly possessed by the person or that the
drugs are within the person’s control." State v. Griffin, 220
Wis. 2d 371, 381, 584 N.W.2d 127 (1998). Evidence of drugs in
the bloodstream is "circumstantial evidence of prior possession"
and must be "combined with other corroborating evidence of
sufficient probative value" in order to prove possession. Id.
¶80 The majority’s reasoning is flawed because even if the
police had been able to detect heroin or its first metabolite 6-
monoacetylmorphine in the bloodstream, they still would need
corroborating evidence to convict Parisi of heroin possession.
In this case, police found "a bindle of what looked to be heroin
wrapped in tinfoil, some cut ends, and [a] marijuana pipe" at
the scene of the overdose. Majority op. ¶10. Additionally,
Parisi was given Narcan before he was transported to the
hospital, which Officer Fenhouse knew was "usually administered
for people who have overdosed on heroin." Majority op. ¶7.
Thus, the heroin found in the apartment where Parisi overdosed
and the fact that he was treated with Narcan present key
corroborating evidence.
9
No. 2014AP1267-CR.awb
¶81 The majority’s reliance on McNeely for support of a
best evidence rule is misplaced. The term "best evidence" does
not appear in the McNeely majority opinion. Additionally, there
are distinctions between the presence of alcohol in the
bloodstream and the presence of heroin.
¶82 Evidence of heroin or 6-monoacetylmorphine in the
bloodstream is less probative than evidence of alcohol in the
bloodstream because a BAC level alone is enough to obtain a
drunk driving conviction. In contrast, evidence of drug use in
the blood stream requires corroborating evidence for a
possession conviction. Moreover, the amount of alcohol in the
blood is relevant to a conviction, but the amount of heroin in
the blood is not. Unlike a BAC level, the police need find only
a trace of heroin or its metabolites in the bloodstream.
¶83 In State v. Jones the Nevada Supreme Court articulated
this distinction. It determined that the dissipation of cocaine
in the defendant’s bloodstream was not an exigent circumstance
that justified a departure from the normal procedure of
obtaining a warrant. 895 P.2d 643, 644 (1995). The Jones court
explained that evidence of alcohol and drugs in the blood
differ. Id. That analysis is applicable here: "a conviction
for driving under the influence requires a specific minimum
concentration of blood alcohol, whereas a conviction for being
under the influence of a controlled substance requires only a
trace amount of the substance or its metabolites." Id.
¶84 The majority also misunderstands State v. Peardot, 119
Wis. 2d 400, 351 N.W.2d 172 (1984), when it cites to that case
10
No. 2014AP1267-CR.awb
as support for the adoption of a best evidence rule. The term
"best" was used merely as an adjective to describe the evidence.
There is no discussion in Peardot supporting the adoption of a
best evidence approach.
¶85 Finally, the majority's insistence that evidence of
morphine in the bloodstream is less probative evidence than
heroin or 6-monoacetylmorphine ignores the facts of this case.
The warrantless blood draw performed on Parisi revealed evidence
of morphine in his bloodstream, not heroin or 6-
monoacetylmorphine. It is this very evidence of morphine in
Parisi's bloodstream that the State seeks to use and Parisi
seeks to suppress.
III.
¶86 Not only did McNeely reject a per se rule based on
dissipation, it also set forth circumstances in which the police
must obtain a warrant without exception. 133 S. Ct. at 1561.
McNeely instructs that "where police officers can reasonably
obtain a warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth
Amendment mandates that they do so." Id.; see also Tullberg,
359 Wis. 2d 421, ¶42.
¶87 In a footnote, the majority rejects Parisi's arguments
that a warrant should have been pursued because of the number of
officers involved in the case. Majority op. ¶50 n.15. It
advances that "Officer Fenhouse could reasonably believe that
asking another officer to obtain a warrant would be futile,
11
No. 2014AP1267-CR.awb
given the short timeframe before evidence of heroin use
disappeared." Id.
¶88 However, the McNeely court explained that in "a
situation in which the warrant process will not significantly
increase the delay before the blood test is conducted because an
officer can take steps to secure a warrant while the suspect is
being transported to a medical facility by another
officer . . . there would be no plausible justification for an
exception to the warrant requirement." Id. at 1561. That is
exactly the circumstance here, yet the majority's decision
directly contravenes McNeely.
¶89 Under McNeely, there is no plausible justification for
the majority's decision. It is undisputed that there were a
total of five to seven officers working on Parisi's case. See
majority op. ¶9. Officer Fenhouse and Officer Moua both
followed Parisi's ambulance to the hospital. Majority op. ¶11.
Any of the five to seven officers working on the case could have
applied for a warrant while Officer Fenhouse followed Parisi to
the hospital.
¶90 In addition, there was no reason for delay in
obtaining a warrant given that the officers had probable cause
as soon as they arrived at the scene. As referenced above,
Parisi was given Narcan before he was transported to the
hospital, which Officer Fenhouse knew was "usually administered
for people who have overdosed on heroin." Majority op. ¶7. The
officers at the scene also found "a bindle of what looked to be
12
No. 2014AP1267-CR.awb
heroin wrapped in tinfoil, some cut ends, and [a] marijuana
pipe." Majority op. ¶10.
¶91 There is also no explanation for the delay in
obtaining a warrant once Officer Fenhouse arrived at the
hospital. Although Officer Fenhouse intended to have Parisi's
blood drawn immediately, Parisi was initially deemed to be too
unstable for the procedure. During the two hours that Officer
Fenhouse waited at the hospital before Parisi's blood could be
drawn, there was nothing that prevented him from obtaining a
warrant.
¶92 After McNeely, this court has allowed only one
exception to the warrant requirement for blood draws based on
exigent circumstances. Tullberg, 359 Wis. 2d 421, ¶30. The
majority contends that Tullberg is an analogous case involving
warrantless blood draws. Majority op. ¶¶30, 40. It is not.
¶93 At the outset, the Tullberg court noted that the
investigating officer "did not improperly delay in obtaining a
warrant. He did not have probable cause to believe that
Tullberg operated the motor vehicle while under the influence of
an intoxicant until nearly three hours after the accident. If
anything, Tullberg's actions, rather than the deputy's,
necessitated the warrantless blood draw." 359 Wis. 2d 421, ¶44.
¶94 In contrast to the facts of this case, only one deputy
was initially dispatched to the chaotic scene of the fatal
collision in Tullberg. Id., ¶¶9-11. Additionally, Tullberg was
not at the scene of the collision and the investigating deputy
did not know he was the driver. Id., ¶¶8-10. When he was
13
No. 2014AP1267-CR.awb
finally interviewed at the hospital, Tullberg told the deputy
that he was a passenger in the vehicle. Id., ¶12. It was not
until nearly three hours after the collision when the
investigation uncovered evidence that helped identify Tullberg
as the driver responsible for the fatal collision. Id., ¶¶15-
16.
¶95 Given the extraordinary facts and circumstances of
that case, the Tullberg court explained that the deputy, when
"confronted with such an accident scene and obstruction of his
investigation, conducted himself reasonably." Id., ¶47. Under
McNeely, and as it is applied in Tullberg, an exception to the
warrant requirement for a blood draw is permissible only when
circumstances prevent an officer from timely obtaining a
warrant. McNeely, 133 S. Ct. at 1561; Tullberg, 359 Wis. 2d
421, ¶42. Here, however, the majority's analysis focuses only
on facts and circumstances relating to dissipation because there
were no facts and circumstances preventing at least one of the
five to seven officers from timely obtaining a warrant.
¶96 In its effort to excuse the multiple officers'
inexplicable failure to obtain a warrant, the majority conflates
dissipation in the bloodstream with cases involving the imminent
destruction of physical evidence. See majority op. ¶50 n.15.
Relying on destruction of evidence cases, the majority asserts
that "if officers suspect drugs are being flushed behind a
closed door, [] the exigency is not eliminated merely because
there are multiple officers at the scene." Id. (citing Kentucky
v. King, 563 U.S. 452 (2001); United States v. Fiasche, 520 F.3d
14
No. 2014AP1267-CR.awb
694, 698 (7th Cir. 2008)). The majority then analogizes Officer
Fenhouse’s failure to obtain a warrant at the hospital to
destruction of evidence cases where "split—second judgments-in
circumstances that are tense, uncertain, and rapidly evolving."
Id. (citing King, 563 U.S. at 466 (quoting Graham v. Connor, 490
U.S. 386, 396-97 (1989)).
¶97 Such reliance on destruction of evidence cases is
unpersuasive, because "[t]he context of blood testing is
different in critical respects from other destruction-of-
evidence cases in which the police are truly confronted with a
'now or never' situation." McNeely, 133 S. Ct. at 1561 (citing
Roaden v. Kentucky, 413 U.S. 496, 505 (1973)). Dissipation of a
substance in the blood differs from circumstances "in which the
suspect has control over easily disposable evidence." Id.
¶98 It is quite a stretch to compare the apparent
availability of five to seven officers including a police
officer sitting in a hospital waiting room for two hours, with a
drug raid where officers hear evidence being flushed away.
Likewise, the five to seven officers at the scene of the
overdose knew that Parisi was not about to imminently destroy
evidence. The police certainly did not have to break through
the door on a moment's notice because Parisi's friends met the
officers outside to help direct them to the proper location.
Majority op. ¶5. When the police entered the apartment, Parisi
was laying unresponsive on the living room floor in his own
vomit. Majority op. ¶6. Unlike making a split-second decision
to preserve evidence, the steady dissipation of heroin in the
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No. 2014AP1267-CR.awb
blood is just not the kind of emergency that justifies foregoing
a warrant.
¶99 I determine that under the facts and circumstances of
this case, one of the five to seven officers could have secured
a warrant in the two and one-half hours before Parisi's blood
was drawn without significantly undermining the efficacy of the
search. Officers were dispatched to the scene at 12:38 a.m. and
arrived five to ten minutes after dispatch. Majority op. ¶4.
Shortly thereafter, Narcan, the antidote for heroin, was
administered. Majority op. ¶7. The blood draw did not occur
until 3:10 a.m. Majority op. ¶13.
¶100 The State has the burden of proving the existence of
exigent circumstances. State v. Richter, 2000 WI 58, ¶29, 235
Wis. 2d 524, 612 N.W.2d 29. It has utterly failed to do so
here. Even if Officer Fenhouse's failure to seek a warrant is
excusable——and it is not——there is a complete dearth of
information as to why none of the available five to seven
officers failed to seek a warrant.
¶101 Contrary to the majority, I conclude that there were
no exigent circumstances justifying an exception to the warrant
requirement. As a result, the warrantless blood draw violated
Parisi's Fourth Amendment rights. Accordingly, I respectfully
dissent.
¶102 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON, J. joins this dissent.
16
No. 2014AP1267-CR.awb
1
State v. Andy J. Parisi
Combined Opinion