In these three cases, the supreme court addresses two issues arising from Missouri v. McNeely, 133 S. Ct. 1552 (2013): If a blood draw was conducted before McNeely in reliance on State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), does the good-faith exception to the exclusionary rule mean the test results should not be suppressed? And, if the dissipation of alcohol by itself doesn’t constitute exigent circumstances justifying a warrantless blood draw, what circumstances do establish such an exigency? Foster and Kennedy hold that the good-faith exception applies to pre-McNeely searches. Tullberg addresses the second question.
McNeely held that the natural dissipation of alcohol in the blood is not a per se exigency that justifies a warrantless, nonconsensual blood draw; instead, the totality of circumstances must be analyzed to determine whether an exigency exists justifying a warrantless blood draw. The supreme court now expressly acknowledges (as it must) that McNeely abrogates Bohling’s rule that the dissipation of alcohol from the blood stream created a per se exigency. Foster, 2014 WI 131, ¶40; Kennedy, 2014 WI 132, ¶¶14, 29, 32. Thus, for searches conducted after McNeely, police either need a warrant for a blood draw, or there must be exigent circumstances beyond the mere dissipation of alcohol.
What about blood draws conducted before McNeely in reliance on Bohling? Those blood draws violate McNeely because they were based solely on the dissipation of alcohol. And because McNeely applies to cases pending when it was decided, the blood draws of Foster and Kennedy, done as they were in reliance on Bohling, were unlawful. Foster, 2014 WI 131, ¶¶41-42; Kennedy, 2014 WI 132, ¶¶33-34. But must the evidence obtained from these unlawful blood draw be suppressed? The answer is “no.”
Like the court of appeals in State v. Reese, 2014 WI App 27, 353 Wis. 2d 266, 844 N.W.2d 396, the supreme court holds that 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. Foster, 2014 WI 131, ¶¶47-58; Kennedy, 2014 WI 132, ¶¶35-37. In Foster the court expressly considers and rejects the argument that the good-faith exception should not apply to searches involving bodily intrusions like blood draws:
¶58 ….[W]e are unconvinced that we should adopt a rule excluding bodily intrusion searches from the application of the good faith exception to the exclusionary rule. While intrusions into the human body implicate significant privacy concerns, they are permissible under reasonable circumstances. Schmerber [v. California], 384 U.S. [757,] 770-72 [(1966)]. Consistent with that principle, Bohling authorized the search and seizure of Foster’s blood. Thus, we see no reason to depart from Dearborn and our application of the good faith exception.
In Foster and Kennedy the state didn’t argue there were exigent circumstances beyond the normal dissipation of alcohol from the blood. Foster, 2014 WI 131, ¶46; Kennedy, 2014 WI 132, ¶34. In Tullberg, however, the state contended there were exigent circumstances, thus giving the court the opportunity to address what exigent circumstances will meet the McNeely test.
The facts in Tullberg’s case are set out in more detail in the opinion (¶¶6-19), but here’s a summary: Tullberg’s truck crashed early one morning. The only witnesses were the people in the truck. Tullberg’s family reported the accident about a half-hour after it happened, and by the time police arrived at the scene Tulllberg and another person in the vehicle, A.M., had gone to a hospital that was a 30-minute drive from the scene. After some time at the scene, one officer went to the hospital, where he interviewed Tullberg and A.M. Both said that M.A., who was found dead at the scene, was driving. After checking with another officer still at the scene investigating the accident, the officer concluded that wasn’t possible. Instead, the officer concluded Tullberg was driving. By this time about two and a half hours had passed since the accident, and Tullberg was about to undergo a CT scan that would make him unavailable for some period of time, probably beyond the three-hour time frame for prima facie probative value of a chemical test for alcohol under § 885.235. Based on Tullberg’s admissions of drinking alcohol and other indicia of intoxication, and because of the impending CT scan, the officer directed medical staff to get samples of Tullberg’s blood.
The court concludes that the warrantless blood draw from Tullberg was justified by exigent circumstances:
¶49 A law enforcement officer, such as Deputy Hoffman, who is confronted with an accident scene, should first attend to the emergency circumstances at hand. Deputy Hoffman properly spent 30 minutes investigating the accident scene. See Schmerber, 384 U.S. at 769, 770-71 (holding that exigent circumstances justified warrantless draw of suspected drunken driver’s blood partly because officer needed to investigate the scene of a car accident); McNeely, 133 S. Ct. at 1568 (“the need for the police to attend to a car accident” is one factor that the exigency analysis may consider). Deputy Hoffman did not spend an unreasonable amount of time at the accident scene. He was the first person to respond to the accident, he discovered a body under the truck, and he had to interact with Tullberg’s frantic father, Melvin, and other emergency personnel. He did not know that Tullberg owned the vehicle until Melvin arrived at the scene, and he did not know where Tullberg was until he spoke with Tullberg’s brother. Deputy Hoffman headed directly to the hospital once other law enforcement officers arrived at the accident scene to relieve him. An accident scene, such as the one at issue, can create exigent circumstances which would justify a warrantless blood draw.
¶50 Viewing the totality of these facts and circumstances, Deputy Hoffman reasonably responded to the accident, secured the scene, investigated the matter, and ultimately was left with a very narrow time frame in which Tullberg’s blood could be drawn so as to produce reliable evidence of intoxication. This sort of “now or never” moment is the epitome of an exigent circumstance. See McNeely, 133 S. Ct. at 1561 (“The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a ‘now or never’ situation.”)…. However, we do not mean to suggest that a warrantless blood draw would always require a “now or never” situation in order to be justified by exigent circumstances. Rather, exigent circumstances justify a warrantless blood draw if delaying the blood draw would “significantly undermin[e] [its] efficacy.” See id. The “now or never” moment in the present case quite clearly meets that test….
The court also rejects Tullberg’s argument that the blood draw was impermissible because he was not formally arrested before his blood was taken. Tullberg made this argument in reliance on the test for a legal blood draw as spelled out in Bohling, 173 Wis. 2d at 533-34, which lists a lawful arrest as a requirement. Formal arrest isn’t required, though probable cause to search is required; Bohling‘s statement simply reflects the fact that probable cause to search a specific person’s blood for evidence of intoxicated driving will also constitute probable cause to arrest that person for operating while intoxicated. Tullberg, 2014 WI 134, ¶¶52-56, citing State v. Erickson, 2003 WI App 43, ¶¶5-12, 260 Wis. 2d 979, 659 N.W.2d 407. (The converse is not necessarily true, as the court notes in Kennedy, 2014 WI 132, 18 n.7, citing Erickson, 260 Wis. 2d 979, ¶8; that is, probable cause to arrest will not provide probable cause to search if the evidence providing probable cause isn’t discovered till after any alcohol would have dissipated from the person’s blood.)
Chief Justice Abrahamson, joined (except for a few paragraphs) by Justice Bradley, writes a dissent in Foster that covers all three cases. The dissent “reluctantly” agrees with the majority’s conclusion about the good-faith exception to the exclusionary rule, with the reluctance arising from the concerns expressed in her dissent in Dearborn. (¶88). The dissent also faults the majority opinions for not “carefully integrat[ing]” the different tests for a warrantless blood draw expressed in Bohling and Erickson, blaming the new opinion writing timetables (discussed here) for the lack of integration. (¶¶85, 92-102). Finally, the Chief (not joined by Bradley) disputes the exigency finding in Tullberg as not based on specific, articulable facts that the blood draw was “imperative under the circumstances.” (¶106).