The results of a driver’s blood test should not be suppressed even if they were obtained without a warrant and in the absence of exigent circumstances in violation of Missouri v. McNeely, 133 S. Ct. 1552 (2013), because the arresting officer acted in good faith reliance on established Wisconsin Supreme Court precedent at the time the blood draw was conducted.
Reese was arrested for OWI in 2009. The police took a blood sample from Reese without a warrant, consistent with the holding in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), that the dissipation of alcohol from the blood stream creates a per se exigency that allows a warrantless, nonconsensual search. In 2013, while Reese’s direct appeal was pending, the U.S. Supreme Court held that the natural dissipation of alcohol in the blood does not constitute a per se exigency that justifies a warrantless blood draw. McNeely, 133 S. Ct. at 1563. Instead, the totality of circumstances must be analyzed to determine whether an exigency exists justifying a warrantless blood draw. Id.
As a result of McNeely, then, Bohling is no longer good law, so Reese argued his blood results should be suppressed because there was no evidence of exigency beyond dissipation of alcohol. The court of appeals holds suppression is not appropriate under State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, which adopted a good-faith exception to the exclusionary rule for police officers’ objective reliance on settled Wisconsin precedent:
¶22 As was the case in Dearborn, the police officer here was following the “clear and settled precedent” when he obtained a blood draw of Reese without a warrant. The deterrent effect on officer misconduct, which our supreme court characterized as “the most important factor” in determining whether to apply the good faith exception, would, as in Dearborn, be nonexistent in this case because the officer did not and could not have known at the time that he was violating the Fourth Amendment. See id., ¶49. At the time of the blood draw the officer was following clear, well-settled precedent established by the Wisconsin Supreme Court, which the court has stated “is exactly what officers should do.” Id.,¶44. Accordingly, because the officer reasonably relied on clear and settled Wisconsin Supreme Court precedent in obtaining the warrantless blood draw and because exclusion in this case would have no deterrent effect, we conclude that the blood draw evidence should not be suppressed.
The court also rejects Reese’s argument that the police lacked probable cause to arrest him for OWI. (¶¶2-4, 8-13).
Our post on McNeely noted the likelihood that the good-faith exception to the exclusionary rule adopted in Dearborn (and Davis v. United States, 131 S. Ct. 2419 (2011)) would be invoked to avoid suppression of the results of warrantless blood draws occurring before McNeely in reliance on Bohling. Others (e.g., Orin Kerr, who represented the defendant in Davis) have noted that the application of the Davis/Dearborn good-faith exception can be murky; the exception has also been unreasonably extended. Its application here, however, was predictable and unsurprising because the situation is so close to those in Davis and Dearborn as to be indistinguishable.