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Police didn’t unreasonably execute warrant for blood draw

State v. William Lawrence Bonfiglio, 2019AP188-CR, District 4, 10/22/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Police immobilized Bonfiglio because they thought he was going to resist the blood draw authorized under the search warrant they had obtained. The court of appeals rejects Bonfiglio’s claims this constituted an unreasonable execution of the warrant.

After arresting Bonfiglio for OWI, the officer read him the implied consent form three times without getting any response. The officer then obtained a warrant for a blood draw. (¶¶2-5). When advised of the warrant, Bonfiglio said “‘you’re going to have a hard time doing that,’ or words to that effect.” (¶6). Because Bonfiglio had been “belligerent” and disruptive when he was brought to the hospital, the officer interpreted this statement to mean he was going to resist the blood draw. So the officer and a colleauge immobilized Bonfiglio’s arms by holding them down against the side of the hospital bed he was on; how long isn’t known from the record, but at some point Bonfiglio indicated he’d comply with the draw and the officers released their hold. (¶¶4, 6-7).

As a threshold matter, the court disagrees with Bonfiglio’s claim that the state has the burden to prove the search was reasonable. While that is the rule for a warrantless search, in this case the police had a warrant, and the court finds that State v. LaCount, 2008 WI 59, ¶37, 310 Wis. 2d 85, 750 N.W.2d 780, “appears to place the burden” on the defendant to prove the execution of the warrant was unreasonable. (¶¶14-17).

Whether that’s right isn’t crystal clear, however; LaCount involved a claim the search exceeded the scope of the warrant, which is a rather different claim than an unreasonable use of force. And as we’re about to see, the test in this case involves balancing the state’s and the defendant’s interests under the totality of the circumstances. That suggests the defendant doesn’t so much have a burden of persuasion as a burden of production of evidence of the relevant circumstances. Even looked at this way, though, Bonfiglio runs into trouble, for he cites various gaps in the evidence to argue the state didn’t meet its burden; since the burden of production or persuasion is his, the absence of evidence gets turned against him. (¶25).

¶20     When officers execute a search or seizure pursuant to a warrant, they must do so “reasonably.” State v. Sveum, 2010 WI 92, ¶19, 328 Wis. 2d 369, 787 N.W.2d 317. “Whether a search was reasonably executed is determined by considering the ‘totality of the circumstances.’” State v. Pinder, 2018 WI 106, ¶53, 384 Wis. 2d 416, 919 N.W.2d 568 (quoting United States v. Banks, 540 U.S. 31, 35-36 (2003)). “Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time.” Los Angeles Cnty., California v. Rettele, 550 U.S. 609, 614 (2007). Determining whether force is excessive “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)). The reasonableness of “a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396.

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¶27     The State argues that the officer reasonably believed that Bonfiglio intended to resist the blood draw based on his belligerent behavior, and on his statement that the officer would have a “difficult time” drawing his blood. Bonfiglio’s arguments to the contrary are unavailing.

¶28     First, Bonfiglio contends that the State offered “[n]o consistent or reliable testimony” that he had been belligerent. However, the arresting officer specifically testified that Bonfiglio had been belligerent and disruptive at the hospital. Although Bonfiglio questions the officer’s credibility on this point, he introduced no evidence to contradict the officer’s version of the events…. In any event, appellate courts ordinarily do not resolve questions about witness credibility, … and the circuit court made no finding that the officer’s testimony was not credible.

¶29     Second, Bonfiglio argues that the officers should not have interpreted his statement that they would have a “difficult time” drawing his blood as demonstrating an intent to resist the blood draw. Bonfiglio argues that his statement was “vague and nebulous,” and that the officers “failed to even ask him what he meant.” Yet the evidence is ambiguous on this point—the arresting officer testified only that he did not recall whether either of the officers asked any clarifying questions. And even if they did not, Bonfiglio did not introduce any evidence of his own to support his proffered interpretation of his statement,.. nor does he explain why the officers’ interpretation was unreasonable in the context of his prior belligerent behavior.

It’s worth noting that the court of appeals expressly rejects the circuit court’s reasoning that the use of force was so minor it didn’t matter whether it was necessary to execute the warrant. (¶¶9, 21).

First, the use of force wasn’t minimal, even if it was short-lived. “Bonfiglio was an elderly man with limited mobility who had complained of breathing difficulties, and he had already displayed distress when the arresting officer confiscated his inhaler.” The use of force also restricted Bonfiglio’s access to his inhaler, and under these circumstances a reasonable officer would be aware that, even if the hold did not cause physical discomfort, it could have caused significant emotional distress. (¶22).

Second, under the circuit court’s reasoning force may be used to execute a warrant even when a reasonable officer would not believe it necessary to use any force at all. That’s contrary to the rule that a court must balance the individual’s privacy interests against the government’s interests when determining whether the force used to execute a warrant is excessive, for “[i]f no force is needed to execute the warrant, it is difficult [one might even say “impossible”—Ed.] to see how the use of force could serve any legitimate government interest.” (¶23)

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