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State v. Andy J. Parisi, 2014AP1267-CR, petition for review granted 6/12/15

Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 10; case activity (including briefs)

Issue (composed by On Point)

Was a warrantless blood draw of a person suspected of having ingested heroin justified because, at the time of the search, State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), held that the dissipation of alcohol constituted a per se exigency that allowed a warrantless search, and police could reasonably extend Bohling‘s holding to a search for any drug?

This case raises a couple of interesting issues about the reach of the good-faith exception to the exclusionary rule that covers police who conduct a search or seizure based on clearly established appellate precedent that is later overruled, e.g., State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97. Here’s the background:

Police were dispatched to an apartment to attend to a person who was possibly not breathing. That person was Parisi, who was given a dose of Narcan and taken to a hospital. Police wanted to investigate whether Parisi had overdosed on heroin and asked him to consent to a blood draw; when he refused, the police had blood drawn anyway, without bothering to apply for a warrant, apparently on the strength of Bohling, which, of course, has been abrogated by Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013). Based on the blood test results showing metabolites of heroin, Parisi was charged with possession of a narcotic drug.

Parisi moved to suppress the evidence arguing there was no exigency and that there was ample time to secure a warrant. The court of appeals held the search was reasonable because, at the time of the search (2012), Bohling was good law, and based on Bohling‘s holding that the dissipation of alcohol created a per se exigency, a reasonable officer could conclude that the dissipation of drugs in Parisi’s blood likewise constituted a per se exigency justifying a warrantless blood draw.

The question, then, is to what extent police could rely in good-faith on Bohling to dispense with a warrant in a case like Parisi’s. The particular questions raised by Parisi’s case are these:

• Given that Bohling involved drunk-driving instead of simple possession of a drug other than alcohol, does it matter whether the dissipation of alcohol in blood differs from the dissipation of heroin? As it turns out, there’s a great difference, with the heroin itself dissipating quickly, but its metabolites linger far longer than alcohol, a fact Parisi argues shows there’s no basis for treating the dissipation of heroin as a per se exigency even at the time Bohling was in effect.

• Since Bohling itself addressed only alcohol and a search for alcohol above a specific level (greater than .02 or .08), would a reasonable officer extrapolate that its holding applied equally to any and all other drugs where any amount is evidence to support a possession charge? The court of appeals thought so, based on a treatise (Wayne LaFave, 3 Search & Seizure: A Treatise on the Fourth Amendment § 5.3(c) (5th ed. 2012)). But does the good-faith exception adopted in Dearborn go so far as to validate police officers’ extension of a case to other situations not specifically addressed by the case?

All in all, an interesting and potentially important case that could either limit or unfetter the Dearborn good-faith exception.

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