Police found Andy Parisi unconscious and having trouble breathing. Almost two and a half hours later, at a hospital, an officer had his blood drawn to test for heroin. The state supreme court now holds that the circumstances of this case–which seem to boil down to the fact that heroin naturally dissipates within the bloodstream–were “exigent,” justifying the warrantless search.
“But,” you will ask, “did not the Supreme Court of the United States recently, in Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013), reject the notion that ‘the natural dissipation of alcohol in the bloodstream establishes a per se exigency’ obviating the need for a warrant (and overruling the prior Wisconsin rule of State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399 (1993))? How can it be,” you will continue, “that the natural dissipation of heroin supports such a rule?”
The majority hears you, and it has an answer: it’s not creating a per se rule, but is instead applying the traditional “totality of the circumstances” test:
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.
“And so on”? The majority seems to be having a hard time coming up with circumstances that could be any less exigent than the ones here. To wit: Parisi’s friends called the authorities when they found him unconscious and “possibly not breathing.” (¶¶4, 8). Between five and seven officers responded (in addition to the medics who administered a Narcan shot and transported him to the hospital). (¶¶7-9). The officers located what appeared to be heroin located nearby. (¶10). An officer first tried to draw blood about an hour and ten minutes after police first contacted Parisi but could not do so because Parisi’s condition deteriorated and he needed to be stabilized; the blood draw finally happened about an hour and a half after that. (¶13). At no time during these two and a half hours did any of the five to seven responding officers attempt to obtain a warrant for the blood. (One of the officers testified that getting a warrant takes about two hours in Winnebago County, apparently despite the Wis. Stat. § 968.12(c) procedure for obtaining one by telephone.) (¶¶9, 14).
The court’s discussion of exigency is largely founded on an article, submitted by the state in the trial court, that says that 6-monoacetylmorphine–a telltale heroin metabolite–is only detectable in the blood for one to three hours after ingestion. (¶17). After that, morphine remains in the blood for several more hours, but morphine can be a metabolite of other drugs, including some prescription medications. (¶17). So 6-monoacetylmorphine is better evidence of heroin use than morphine. But, having found Parisi in apparent distress near a supply of heroin, and having seen him revived by a Narcan shot, can it really be that the incremental evidentiary value of 6-monoacetylmorphine (which, by the way, was not detected in Parisi’s blood) over morphine was so great that it justified dispensing with the warrant requirement? And if it was, what “more facts” could the police possibly have in another case that would change that conclusion? The answer is left to the imagination of the reader (and to intrepid defense counsel in that “future case”). It seems for all the world like we’re stuck with a per se rule of the type McNeely expressly disavowed–at least until some unspecified “scientific” advance rescues us (once again, “in the future”).
This is not lost on the dissent (which dubs the majority rule “Bohling for heroin” (¶73)):
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 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.
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. Even if the scientific evidence regarding the rate of dissipation changed, it would change for every case.
Moreover, per the dissent, there was ample opportunity, given the need to stabilize and transport Parisi and the presence of a half-dozen officers, to at least attempt to obtain a warrant. Thus the majority disregards McNeely’s statement 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.” (¶64).
Compare also the majority’s averment that “[c]ritical evidence of heroin use in Parisi’s body was disappearing by the minute, and had been since an unknown time that evening,” (¶41), with McNeely’s rejection of the argument that a per se drunk driving rule was necessary because “BAC evidence ‘is actively being destroyed with every minute that passes.’… Consider, for example, 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. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.” McNeely, 133 S.Ct. at 1561 (emphasis added).