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Illegal arrest of driver in her garage doesn’t require suppression of blood test

State v. Kari L. Schiewe, 2012AP2767-CR, District 4, 10/24/13; court of appeals decision (1-judge; ineligible for publication); case activity

Applying well-established principles the court of appeals holds that despite the lack of field sobriety tests or other additional investigatory steps there was probable cause to arrest Schiewe for OWI based on information from witnesses and the officer’s own observations of Schiewe at her home. (¶¶14-19). Further, the subsequent blood draw from Schiewe was not tainted by the fact that the police arrested Schiewe in her garage, into which she had retreated while the officer was questioning her. (¶6). The state conceded that, under the circumstances, this warrantless entry into the garage made the arrest illegal under Payton v. New York, 445 U.S. 573 (1980). (¶20). Applying State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775, which adopted the rule of New York v. Harris, 495 U.S. 14 (1990), the court of appeals holds the warrantless arrest didn’t require suppression of the blood draw because the arrest was supported by probable cause and, therefore, Schiewe was lawfully in police custody at the time the blood draw was done. (¶¶22-25).

The blood draw raises an interesting issue. Harris holds that if an arrest is made on probable cause but in circumstances violating the Fourth Amendment in some other sense–such as by an on-premises arrest made without an arrest warrant as required by Payton–suppression of subsequently obtained evidence is not necessarily required. Harris reasoned that the Payton requirement was “imposed to protect the home” and consequently was fully vindicated by suppression of “anything incriminating the police gathered from arresting Harris in his home, rather than elsewhere.” 495 U.S. at 20 (emphasis added).

But Harris shouldn’t extend automatically to all evidence seized “elsewhere.” For instance, Commonwealth v. Tyree, 619 N.E.2d 660, 699-700 (Mass. 2010), held the Harris exception does not extend to seizure and examination of an arrestee’s shoes:

The particular clothing, shoes, or other physical items an arrestee is wearing or carrying depend directly on the time and place of the arrest. Permitting the postarrest seizure of those items in the wake of a warrantless entry or search would invite the police to circumvent the well-settled rule that, in the course of an illegal warrantless entry and search, any physical evidence police take “from the defendant” while still in the house must be suppressed. … The risk of manipulation is particularly apparent in cases where, as here, the police note the potential evidentiary relevance of a piece of a suspect’s clothing while they are still unlawfully in the home. … We cannot assume the defendant would have been wearing the same shoes had the police proceeded by summons or waited to arrest him lawfully at another time or place.

The defendant in Felix relied on Tyree in arguing that the station house seizure of his shirt was not within the ambit of the Harris exception; the supreme court distinguished Tyree because there the police noted the potential evidentiary significance of the shoes while still unlawfully in his home, whereas the evidentiary significance of Felix’s shirt wasn’t notice till he was being questioned at the police station. Felix, ¶49 (citing Tyree at 682). (LaFave describes this distinction as “quite unconvincing[….]” 6 Search and Seizure: A Treatise on the Fourth Amendment § 11.4(d) n.354 (5th ed. 2012).)

Schiewe attempts to distinguish Felix by arguing the defendant in that case actually consented to giving DNA, Felix, ¶12, while she did not actually consent to the blood draw; instead, her blood sample was taken under the implied consent statute, and the validity of the sample-taking requires a lawful arrest. Though the court finds this claim “difficult to understand” (¶24), it seems to be a straightforward claim that the unlawful arrest necessarily means the blood sample was improperly obtained under the implied consent statute, and that unlike Felix, Schiewe did not actually consent. As the court points out, though, Felix engages in essentially no analysis of whether the defendant consented to the buccal swab, and in fact seems to say the DNA evidence was admissible simply because he was lawfully in police custody, and that he was lawfully in police custody because there was probable cause for the arrest, despite the unlawful entry to his home to make the arrest. (¶25, citing Felix, 339 Wis. 2d 670, ¶45). Under that holding Schiewe’s argument fails because she, too, was arrested on probable cause.

Schiewe makes another argument, though it isn’t addressed by the court. This argument compares her blood draw not to Felix’s buccal swab, but to the seizure of his shirt. Unlike the evidentiary value of Felix’s shirt, which was evident only after he was at the police station, the evidentiary value of Schiewe’s blood would have been immediately apparent at the time of arrest. Indeed, the evanescence of the alcohol in her blood was the very reason to go into her garage and seize her rather than just write her a citation or issue a summons. Thus, her blood is like Tyree’s shoes rather than Felix’s shirt. An interesting argument, worth developing further–though Felix, it should be noted, didn’t ground its holding about the defendant’s shirt solely because the facts differed from Tyree; instead, it seems to adopt a very broad rule that anything seized at the jail during questioning or booking would be admissible. Id., ¶¶46-48.

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