#27455-a-GAS
2016 S.D. 12
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
RONALD RAY FISCHER, JR., Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
CHARLES MIX COUNTY, SOUTH DAKOTA
****
THE HONORABLE BRUCE V. ANDERSON
Judge
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MARTY J. JACKLEY
Attorney General
KELLY MARNETTE
BRENT K. KEMPEMA
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
TIMOTHY R. WHALEN
Lake Andes, South Dakota Attorney for defendant
and appellant.
****
ARGUED ON
JANUARY 13, 2016
OPINION FILED 02/03/16
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SEVERSON, Justice
[¶1.] Ronald Fischer, Jr., was convicted of driving with alcohol in his blood
or while under the influence of alcohol or drug, two counts of vehicular homicide,
one count of possession of marijuana, and one count of ingesting a non-alcoholic
substance to become intoxicated. He appeals. He asserts that law enforcement and
hospital personnel took blood samples from him in violation of his constitutional
rights, and, therefore, the court erred when it refused to suppress the samples. We
affirm.
Background
[¶2.] On the night of July 8, 2013, around 8:30, Fischer failed to stop at a T-
intersection of two highways in Pickstown, South Dakota. He drove through the
intersection and into the parking lot of the Dakota Inn Hotel at a high rate of speed.
He struck a boat and two persons standing in the parking lot. Fischer’s vehicle
then collided with a pick-up and another vehicle. The two persons struck by
Fischer’s vehicle were immediately killed. The accident resulted in a large debris
field that included multiple body parts from both of the victims. A physician’s
assistant student was among the witnesses to the accident. After checking on both
victims, the student began administering medical care to Fischer, who was still in
the driver’s seat of his vehicle.
[¶3.] Three Charles Mix County deputy sheriffs responded to the scene of
the accident along with members of the local volunteer fire department and
emergency medical technicians. Deputies Rolston and Lake arrived at 8:47 p.m.,
and Deputy DeBuhr arrived one minute later. Deputy Rolston assisted the student
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and noticed that Fischer smelled of alcohol. Deputy DeBuhr also noticed the odor of
alcohol when he helped extricate Fischer from his vehicle. Deputy Lake attempted
to control the scene and the number of onlookers. Deputy Lake was responsible for
preserving evidence, which included skid marks, body parts, and vehicle parts.
Additionally, she attempted to identify the victims, gathered information from
witnesses, and took pictures of the scene, including Fischer and his vehicle. While
taking these pictures, she detected the odor of alcohol emanating from Fischer’s
vehicle. Fischer was taken by ambulance to the Wagner Hospital.
[¶4.] At 9:10 p.m., approximately twenty minutes after the deputies had
arrived on the scene, and after Fischer had been taken away by ambulance, Sheriff
Thaler arrived on the scene. By this time, light precipitation had begun to fall.
Sheriff Thaler was briefed on the accident and took control of delegating
responsibilities and managing the scene. He told the deputies to identify witnesses
and tasked Deputy Rolston with taking pictures. Sheriff Thaler thought that it may
start raining, and he asked the EMTs and firefighters to assist with securing the
scene using police tape and tarps to cover the physical evidence. Other than those
present at the scene, only two other law enforcement officers worked for Sheriff
Thaler. Both officers were unavailable that evening, one because he was working
on a drug sting and the other was needed at the office to respond to all other calls
that came in.
[¶5.] Deputy Debuhr testified at the suppression hearing that shortly after
Sheriff Thaler arrived on scene, the deputy informed the sheriff that alcohol may be
a factor. A volunteer fireman, who assisted in removing Fischer from Fischer’s
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vehicle, also told the sheriff that Fischer smelled of alcohol. Sheriff Thaler knew a
helicopter was on its way to transport Fischer from the Wagner Hospital to a
hospital in Sioux Falls, so he sent Deputy DeBuhr to the Wagner Hospital to obtain
a blood sample from Fischer. He did not tell Deputy Debuhr to obtain a search
warrant, and he did not think it would be possible to obtain one before Fischer was
transported to Sioux Falls.
[¶6.] At the Wagner Hospital, Dr. Pinter treated Fischer and ordered
several tests on Fischer, including a blood test to determine Fischer’s blood alcohol
content (BAC). Dr. Pinter’s training taught him that a trauma patient should have
his blood tested to determine BAC for treatment purposes. The test showed that
Fischer’s BAC was .274.
[¶7.] As Deputy DeBuhr was driving to the Wagner Hospital, he saw the
helicopter coming in to transport Fischer to Sioux Falls. He arrived at 9:38 p.m.,
the same time as the helicopter. At 9:45 p.m., Deputy DeBuhr directed a nurse to
draw a sample of Fischer’s blood. That sample showed Fischer’s BAC at .232 and
showed the presence of cannabinoids. Thirty minutes later, Fischer was discharged
from the Wagner Hospital and flown to Sioux Falls.
[¶8.] As a result of the incident, Fischer was indicted on the following seven
counts: driving or control of vehicle with alcohol in the blood or while under the
influence of alcohol or drug, two counts of first-degree manslaughter, two counts of
vehicular homicide, possession of marijuana, and ingesting a non-alcoholic
substance to become intoxicated. Fischer moved to suppress evidence of the blood
draws, alleging that they had been obtained contrary to his rights under the Fourth
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Amendment of the United States Constitution, applicable to the states via the
Fourteenth Amendment, and Article VI, § 11 of the South Dakota Constitution.
[¶9.] The circuit court found that the blood draw ordered by Dr. Pinter was
done at the sole request of a physician, a private individual, and thus constitutional
protections did not apply and the results would not be suppressed. 1 The circuit
court also found that Sheriff Thaler was busy directing the investigation, which
included: helping those injured; preserving evidence from the rain by covering it;
preserving evidence by photographing it; finding all evidence, including body parts;
finding witnesses; interviewing witnesses or giving them statement forms;
performing crowd control because curious individuals were arriving to see what
happened; taping off the scene; getting the blood sample from Fischer; and
coordinating with Highway Patrol. Therefore, it refused to suppress the blood draw
done at the direction of Deputy DeBuhr, finding that exigent circumstances existed.
Fischer appeals the circuit court’s decision, alleging that both draws should have
been suppressed.
Standard of Review
[¶10.] “We review the court’s grant or denial of a motion to suppress
involving an alleged violation of a constitutionally protected right under the de novo
standard of review. The court’s findings of fact are reviewed under the clearly
erroneous standard, but we give no deference to the court’s conclusions of law.”
1. Fischer stipulated to the release of his medical records from the Wagner
Hospital. Therefore, the circuit court also found that he had waived any
claim of physician-patient privilege. Fischer has not appealed that decision.
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State v. Fierro, 2014 S.D. 62, ¶ 12, 853 N.W.2d 235, 239 (quoting State v. Smith,
2014 S.D. 50, ¶ 14, 851 N.W.2d 719, 723).
Analysis
[¶11.] Fischer maintains that both blood draws, one done at the direction of
Dr. Pinter and one done at the direction of Deputy DeBuhr, should have been
suppressed. We first address the blood draw ordered by Dr. Pinter. Protection
against unreasonable searches and seizures under the Fourth Amendment to the
United States Constitution and Article VI, § 11 of the South Dakota Constitution
applies to governmental action. See United States v. Jacobsen, 466 U.S. 109, 113,
104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984); State v. Schwartz, 2004 S.D. 123, ¶ 11,
689 N.W.2d 430, 434. “[I]t is wholly inapplicable ‘to a search or seizure, even an
unreasonable one, effected by a private individual not acting as an agent of the
Government or with the participation or knowledge of any governmental official.’”
Jacobsen, 466 U.S. at 113, 104 S. Ct. at 1656 (quoting Walter v. United States, 447
U.S. 649, 662, 100 S. Ct. 2395, 2404, 65 L. Ed. 2d. 410 (1980)). Additionally,
“suppression of evidence is not a personal constitutional right, but a judicially
created remedy to deter constitutional violations by government officials.” State v.
Running Shield, 2015 S.D. 78, ¶ 7, 871 N.W.2d 503, 506 (quoting State v. Sorenson,
2004 S.D. 108, ¶ 8, 688 N.W.2d 193, 196).
[¶12.] Fisher argues that the “Fourth Amendment totality-of-the-
circumstances analysis [that applies] to law enforcement blood samples . . . should
apply to the hospital draw in this case.” He claims that law enforcement and
medical personnel in small communities have a close relationship because of the
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“prevalence of alcohol related offenses in [these] communities” and the frequent
contact between the two groups such as seeking assistance in blood draws. 2 Fischer
asks us to determine that the hospital blood draw was obtained in violation of his
constitutional rights because it had a dual purpose of medical and investigatory in
light of this alleged close relationship. Fischer’s arguments are unavailing,
particularly as here, where law enforcement had absolutely no involvement in the
blood draw. Officers were not present when the blood draw was ordered by Dr.
Pinter or performed by hospital staff. We will not equate medical decisions with
law enforcement action based on the alleged “sundry matters that bring them
together” and the relationship that allegedly results. When hospital staff draws
blood solely for medical purposes, there is no unconstitutional governmental activity
to deter and suppression is an inappropriate remedy in this case. See id.
[¶13.] Next, we consider Fischer’s assertion that the second blood draw
should have been suppressed because law enforcement did not obtain a search
warrant prior to drawing Fisher’s blood. “The Fourth Amendment’s prohibition
against unreasonable searches and seizures requires generally the issuance of a
warrant by a neutral judicial officer based on probable cause prior to the execution
of a search or seizure of a person.” Fierro, 2014 S.D. 62, ¶ 15, 853 N.W.2d at 240
(quoting Smith, 2014 S.D. 50, ¶ 15, 851 N.W.2d at 724). “‘Warrantless searches are
per se unreasonable, apart from a few, well-delineated exceptions,’ and it is the
State’s burden to prove that the search at issue falls within a well-delineated
exception to the warrant requirement.” Id. (quoting State v. Hess, 2004 S.D. 60,
2. Fischer cites no evidence or authority for these claims.
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¶ 23, 680 N.W.2d 314, 324). The State contends that the exigent circumstances
exception is applicable in this case. “The exigent circumstances exception is one of
the well-delineated exceptions to the warrant requirement.” Id. ¶ 17. It “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, ___ U.S. ___, ___, 133 S. Ct. 1552, 1558, 185 L.
Ed. 2d. 696 (2013) (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849,
1856, 179 L. Ed. 2d. 865 (2011)).
[¶14.] Fischer maintains that the State cannot establish that exigent
circumstances existed in this case because the United States Supreme Court has
determined that “the natural dissipation of alcohol in the bloodstream” does not
establish a “per se exigency that suffices on its own to justify an exception to the
warrant requirement for nonconsensual blood testing in drunk-driving
investigations.” See McNeely, 133 S. Ct. at 1558. Moreover, he contends that any
reliance on Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908
(1966) is misplaced because that rationale “has been squarely and decisively
rejected by the United States Supreme Court in the McNeely decision[.]” According
to Fischer, the State has no exigent circumstances other than the dissipation of
blood in this case; therefore, the warrantless blood draw was unconstitutional and
should have been suppressed. We disagree.
[¶15.] In Schmerber, the Supreme Court “upheld a warrantless blood test of
an individual arrested for driving under the influence of alcohol because the officer
‘might reasonably have believed that he was confronted with an emergency, in
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which the delay necessary to obtain a warrant, under the circumstances, threatened
the destruction of evidence.’” McNeely, 133 S. Ct. at 1552 (quoting Schmerber, 384
U.S. at 770, 86 S. Ct. at 1826). The Court reasoned that:
[T]he percentage of alcohol in the blood begins to diminish
shortly after drinking stops, as the body functions to eliminate it
from the system. Particularly in a case such as this, where time
had to be taken to bring the accused to a hospital and to
investigate the scene of the accident, there was no time to seek
out a magistrate and secure a warrant. Given these special
facts, we conclude that the attempt to secure evidence of blood-
alcohol content in this case was an appropriate incident to
petitioner’s arrest.
Schmerber, 384 U.S. at 770-71, 86 S. Ct. at 1836.
[¶16.] Fischer misconstrues the McNeely decision as rejecting Schmerber’s
rationale. Instead, the McNeely Court explained that the “analysis in Schmerber
fits comfortably within our case law applying the exigent circumstances exception.
In finding the warrantless blood test reasonable in Schmerber, we considered all of
the facts and circumstances of the particular case and carefully based our holding
on those specific facts.” McNeely, 133 S. Ct. at 1560. The McNeely Court reaffirmed
that “the reasonableness of a warrantless search under the exigency exception to
the warrant requirement must be evaluated on the totality of the circumstances.”
Id. “[T]he metabolization of alcohol in the bloodstream and the ensuing loss of
evidence are among the factors that must be considered in deciding whether a
warrant is required.” Id. at 1568. The McNeely Court further explained that it did
“not doubt that some circumstances will make obtaining a warrant impractical such
that the dissipation of alcohol from the bloodstream will support an exigency
justifying a properly conducted warrantless blood test. That, however, is a reason
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to decide each case on its facts, as we did in Schmerber[.]” Id. at 1561 (emphasis
added).
[¶17.] According to the Supreme Court’s guidance on the matter, we examine
the totality of the circumstances to determine whether law enforcement faced
exigent circumstances that justified the warrantless blood draw. See id. at 1559.
At a high rate of speed, Fischer struck multiple vehicles, a boat, and two people,
who were standing in a parking lot and immediately killed. The aftermath was a
major crime scene on a public golf course. The accident occurred at approximately
8:30 p.m. and at a time when the weather was unstable. At the suppression
hearing, Sheriff Thaler testified that all personnel available to him were dispatched
to the scene, including state highway patrol troopers. Only one deputy remained in
the office to handle other matters that arose in Charles-Mix County that night. The
circuit court found that the “magnitude of the accident and the size of the crime
scene could not be managed without a great deal of help. . . . The Sheriff, Deputies,
and Troopers were individually required to help at the scene rather than make
efforts to obtain a warrant. . . . [They] worked on the scene until the early hours of
the morning.” Suffice it to say that the nature of the fatal injuries received by the
victims resulted in an extensive debris field that required immediate attention to
ensure that all evidence was located, documented, and secured in the event of
potentially imminent rain. Sheriff Thaler enlisted the help of emergency personnel
and firemen to cover body parts and evidence with tarps. The circuit court found
that an unusually large number of witnesses had to be identified. Traffic and crowd
control functions also needed to be performed. Therefore, the court found that law
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enforcement reasonably believed that other tasks they were performing took
priority over taking time to get a warrant.
[¶18.] Fischer had also suffered serious injuries that required emergency
medical care. He was taken by ambulance to the hospital in Wagner. Before he
even arrived at the hospital, an air ambulance was dispatched there. The court
found that Deputy Debuhr “felt a sense of urgency because he would have missed
the helicopter had he stopped to obtain a warrant.” It found that Sheriff Thaler did
not believe he had the resources to prepare an affidavit for a warrant. As the court
found, Sheriff Thaler believed he needed to obtain the blood draw before Fischer
was airlifted because the officers did not know how medical procedures, such as
possible blood transfusions or intravenous fluids could affect Fischer’s BAC; there
was a possibility that intravenous fluid could compromise the integrity of the BAC
testing. Once Fischer departed the Wagner Hospital he was unavailable to law
enforcement for several hours. The court found that law enforcement did not have
access to Fischer again until 12:43 a.m., a little over four hours after the accident.
[¶19.] Fischer maintained at the suppression hearing, as he does now, that
our statutes allow warrants to be obtained quickly. He asserts that the officers
“would have needed less than 7 minutes of their time to secure a search warrant.”
The Supreme Court has recognized that “technological developments that enable
police officers to secure warrants more quickly, and do so without undermining the
neutral magistrate judge’s essential role as a check on police discretion, are relevant
to an assessment of exigency.” McNeely, 133 S. Ct. at 1562-63. However, the circuit
court squarely rejected Fischer’s argument at the suppression hearing “that law
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enforcement could have obtained a telephonic warrant in under five minutes[.]” As
the court explained, although SDCL 23A-35-5, -6 allow officers to obtain telephonic
warrants, the officer seeking a warrant must still prepare a physical document to be
read to the magistrate. See SDCL 23A-35-6 (“Prior to approval of a warrant issued
pursuant to § 23A-35-5, the committing magistrate shall require the law
enforcement officer or the prosecuting attorney who is requesting the warrant to
read to him verbatim the contents of the warrant.”). Here, an officer would have
needed to drive six miles from the scene, to Lake Andes, to prepare the warrant.
According to Sheriff Thaler and Deputy Debuhr, the preparation takes roughly 30
to 60 minutes. Once the officer prepared the warrant, called the magistrate, read
the warrant, and obtained approval, he or she would need to drive from Lake Andes
to the Wagner Hospital, which is roughly a distance of 15 miles. Therefore, the
court found it unlikely that the officers would have been able to obtain a warrant
prior to Fischer being airlifted out of Charles Mix County. See SDCL 23A-35-2 (“A
search warrant authorized by this chapter may be issued by a committing
magistrate in the county where the property sought is located, on the request of a
law enforcement officer or prosecuting attorney.”).
[¶20.] We likewise conclude that these facts established exigent
circumstances such that the warrantless blood draw in this case was reasonable.
The Supreme Court has recognized that although “experts can work backwards . . .
to determine the BAC 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
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of law enforcement due to delays from the warrant application process.” McNeely,
133 S. Ct. at 1563. Deputy DeBuhr arrived at the hospital at the same time as the
helicopter. Dr. Pinter testified during the suppression hearing that he would not
have kept Fischer at the hospital while law enforcement obtained a warrant. All
other available law enforcement officers were busy attending to the accident scene.
No one knew the impact that medical care would have on Fischer’s BAC, and
Fischer’s departure via helicopter to receive medical care was imminent. The
officers faced the possibility that evidence of alcohol would be destroyed or lost by
the time they secured a warrant. This case presents those “special facts” which the
Supreme Court anticipated:
“[S]pecial facts”, such as the need for the police to attend to a car
accident, . . . the procedures in place for obtaining a warrant or
the availability of a magistrate judge, may affect whether the
police can obtain a warrant in an expeditious way and therefore
may establish exigency that permits a warrantless search. The
relevant factors in determining whether a warrantless search is
reasonable, including the practical problems of obtaining a
warrant within a timeframe that still preserves the opportunity
to obtain reliable evidence, will no doubt vary depending upon
the circumstances in the case.
McNeely, 133 S. Ct. at 1568.
[¶21.] Fischer argues that it was law enforcement’s “neglect and failure to do
their job correctly [that] created the exigent circumstances[.]” See King, 563 U.S. at
470, 131 S. Ct. at 1862 (“Any warrantless entry based on exigent circumstances
must, of course, be supported by a genuine exigency.”). He argues:
in light of the type of accident and the horrific nature of the
same, it was incumbent on the part of law enforcement to
mobilize every available law enforcement officer and not simply
try to handle the crime scene . . . with just the Sheriff’s staff,
two highway patrol officers, and volunteer EMTs and
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firefighters. The failure to mobilize sufficient staff and officers
to handle the extensive accident scene was not Fischer’s fault
and is not an exigent circumstance[.]
Fischer thereby admits that the accident scene was “horrific” and “extensive” but
claims law enforcement officers were negligent because they did not request more
assistance. Although Fischer lists a number of agencies he believes Sheriff Thaler
could have called that night, he does not refer us to any evidence in the record to
support his assertions. We have no indication as to which agencies Sheriff Thaler
could have called or what they could have contributed. Sheriff Thaler testified at
the suppression hearing that there are no city officers in Pickstown. He also
testified that although he can request assistance through state radio for state
troopers or DCI, he does not control who responds to requests for assistance. State
troopers were called and present at the scene. The record does not reflect that law
enforcement acted negligently or created the exigent circumstances in this case.
Conclusion
[¶22.] Blood drawn by hospital personnel for medical purposes is not subject
to Fourth Amendment protection, and therefore suppression of the draw was not
warranted. In regard to the blood draw ordered by law enforcement, after
reviewing the totality of the circumstances, exigent circumstances existed such that
the warrantless blood draw of Fischer was objectively reasonable. Consequently, we
affirm.
[¶23.] GILBERTSON, Chief Justice, and ZINTER and WILBUR, Justices,
and SOGN, Circuit Court Judge, concur.
[¶24.] SOGN, Circuit Court Judge, sitting for KERN, Justice, disqualified.
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