State v. Fischer, 27455.

• Decision Date: 03 February 2016
• Docket Number: No. 27455.,27455.
• Citation: 875 N.W.2d 40
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ronald Ray FISCHER, Jr., Defendant and Appellant.

875 N.W.2d 40

STATE of South Dakota, Plaintiff and Appellee,

v.Ronald Ray FISCHER, Jr., Defendant and Appellant.

No. 27455.

Supreme Court of South Dakota.

Argued on Jan. 13, 2016.

Decided Feb. 3, 2016.

Marty J. Jackley, Attorney General, Kelly Marnette, Brent K. Kempema, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Timothy R. Whalen, Lake Andes, South Dakota, Attorney for defendant and appellant.

SEVERSON, Justice.

[¶ 1.] Ronald Fischer, Jr., was convicted of driving with alcohol in his blood or while under the influence of alcohol or drug, two counts of vehicular homicide, one count of possession of marijuana, and one count of ingesting a non-alcoholic substance to become intoxicated. He appeals. He asserts that law enforcement and hospital personnel took blood samples from him in violation of his constitutional rights, and, therefore, the court erred when it refused to suppress the samples. We affirm.

Background

[¶ 2.] On the night of July 8, 2013, around 8:30, Fischer failed to stop at a T-intersection of two highways in Pickstown, South Dakota. He drove through the intersection and into the parking lot of the Dakota Inn Hotel at a high rate of speed. He struck a boat and two persons standing in the parking lot. Fischer's vehicle then collided with a pick-up and another vehicle. The two persons struck by Fischer's vehicle were immediately killed. The accident resulted in a large debris field that included multiple body parts from both of the victims. A physician's assistant student was among the witnesses to the accident. After checking on both victims, the student began administering medical care to Fischer, who was still in the driver's seat of his vehicle.

[¶ 3.] Three Charles Mix County deputy sheriffs responded to the scene of the accident along with members of the local volunteer fire department and emergency medical technicians. Deputies Rolston and Lake arrived at 8:47 p.m., and Deputy DeBuhr arrived one minute later. Deputy Rolston assisted the student and noticed that Fischer smelled of alcohol. Deputy DeBuhr also noticed the odor of alcohol when he helped extricate Fischer from his vehicle. Deputy Lake attempted to control the scene and the number of onlookers. Deputy Lake was responsible for preserving evidence, which included skid marks, body parts, and vehicle parts. Additionally, she attempted to identify the victims, gathered information from witnesses, and took pictures of the scene, including Fischer and his vehicle. While taking these pictures, she detected the odor of alcohol emanating from Fischer's vehicle. Fischer was taken by ambulance to the Wagner Hospital.

[¶ 4.] At 9:10 p.m., approximately twenty minutes after the deputies had arrived on the scene, and after Fischer had been taken away by ambulance, Sheriff Thaler arrived on the scene. By this time, light precipitation had begun to fall. Sheriff Thaler was briefed on the accident and took control of delegating responsibilities and managing the scene. He told the deputies to identify witnesses and tasked Deputy Rolston with taking pictures. Sheriff Thaler thought that it may start raining, and he asked the EMTs and firefighters to assist with securing the scene using police tape and tarps to cover the physical evidence. Other than those present at the scene, only two other law enforcement officers worked for Sheriff Thaler. Both officers were unavailable that evening, one because he was working on a drug sting and the other was needed at the office to respond to all other calls that came in.

[¶ 5.] Deputy Debuhr testified at the suppression hearing that shortly after Sheriff Thaler arrived on scene, the deputy informed the sheriff that alcohol may be a factor. A volunteer fireman, who assisted in removing Fischer from Fischer's vehicle, also told the sheriff that Fischer smelled of alcohol. Sheriff Thaler knew a helicopter was on its way to transport Fischer from the Wagner Hospital to a hospital in Sioux Falls, so he sent Deputy DeBuhr to the Wagner Hospital to obtain a blood sample from Fischer. He did not tell Deputy Debuhr to obtain a search warrant, and he did not think it would be possible to obtain one before Fischer was transported to Sioux Falls.

[¶ 6.] At the Wagner Hospital, Dr. Pinter treated Fischer and ordered several tests on Fischer, including a blood test to determine Fischer's blood alcohol content (BAC). Dr. Pinter's training taught him that a trauma patient should have his blood tested to determine BAC for treatment purposes. The test showed that Fischer's BAC was .274.

[¶ 7.] As Deputy DeBuhr was driving to the Wagner Hospital, he saw the helicopter coming in to transport Fischer to Sioux Falls. He arrived at 9:38 p.m., the same time as the helicopter. At 9:45 p.m., Deputy DeBuhr directed a nurse to draw a sample of Fischer's blood. That sample showed Fischer's BAC at .232 and showed the presence of cannabinoids. Thirty minutes later, Fischer was discharged from the Wagner Hospital and flown to Sioux Falls.

[¶ 8.] As a result of the incident, Fischer was indicted on the following seven counts: driving or control of vehicle with alcohol in the blood or while under the influence of alcohol or drug, two counts of first-degree manslaughter, two counts of vehicular homicide, possession of marijuana, and ingesting a non-alcoholic substance to become intoxicated. Fischer moved to suppress evidence of the blood draws, alleging that they had been obtained contrary to his rights under the Fourth Amendment of the United States Constitution, applicable to the states via the Fourteenth Amendment, and Article VI, § 11 of the South Dakota Constitution.

[¶ 9.] The circuit court found that the blood draw ordered by Dr. Pinter was done at the sole request of a physician, a private individual, and thus constitutional protections did not apply and the results would not be suppressed.¹ The circuit court also found that Sheriff Thaler was busy directing the investigation, which included: helping those injured; preserving evidence from the rain by covering it; preserving evidence by photographing it; finding all evidence, including body parts; finding witnesses; interviewing witnesses or giving them statement forms; performing crowd control because curious individuals were arriving to see what happened; taping off the scene; getting the blood sample from Fischer; and coordinating with Highway Patrol. Therefore, it refused to suppress the blood draw done at the direction of Deputy DeBuhr, finding that exigent circumstances existed. Fischer appeals the circuit court's decision, alleging that both draws should have been suppressed.

Standard of Review

[¶ 10.] "We review the court's grant or denial of a motion to suppress involving an alleged violation of a constitutionally protected right under the de novo standard of review. The court's findings of fact are reviewed under the clearly erroneous standard, but we give no deference to the court's conclusions of law." State v. Fierro, 2014 S.D. 62, ¶ 12, 853 N.W.2d 235, 239 (quoting State v. Smith, 2014 S.D. 50, ¶ 14, 851 N.W.2d 719, 723 ).

Analysis

[¶ 11.] Fischer maintains that both blood draws, one done at the direction of Dr. Pinter and one done at the direction of Deputy DeBuhr, should have been suppressed. We first address the blood draw ordered by Dr. Pinter. Protection against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article VI, § 11 of the South Dakota Constitution applies to governmental action. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) ; State v. Schwartz, 2004 S.D. 123, ¶ 11, 689 N.W.2d 430, 434. "[I]t is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ " Jacobsen, 466 U.S. at 113, 104 S.Ct. at 1656 (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (1980) ). Additionally, "suppression of evidence is not a personal constitutional right, but a judicially created remedy to deter constitutional violations by government officials." State v. Running Shield, 2015 S.D. 78, ¶ 7, 871 N.W.2d 503, 506 (quoting State v. Sorensen, 2004 S.D. 108, ¶ 8, 688 N.W.2d 193, 196 ).

[¶ 12.] Fisher argues that the "Fourth Amendment totality-of-the-circumstances analysis [that applies] to law enforcement blood samples ... should apply to the hospital draw in this case." He claims that law enforcement and medical personnel in small communities have a close relationship because of the "prevalence of alcohol related offenses in [these] communities" and the frequent contact between the two groups such as seeking assistance in blood draws.² Fischer asks us to determine that the hospital blood draw was obtained in violation of his constitutional rights because it had a dual purpose of medical and investigatory in light of this alleged close relationship.

Fischer's arguments are unavailing, particularly as here, where law enforcement had absolutely no involvement in the blood draw. Officers were not present when the blood draw was ordered by Dr. Pinter or performed by hospital staff. We will not equate medical decisions with law enforcement action based on the alleged "sundry matters that bring them together" and the relationship that allegedly results. When hospital staff draws blood solely for medical purposes, there is no unconstitutional governmental activity to deter and suppression is an inappropriate remedy in this case. See id.

[¶ 13.] Next, we consider Fischer's assertion that the second blood draw should have been suppressed because law enforcement did not obtain a search warrant prior to drawing Fisher's blood. "The Fourth Amendment's prohibition against unreasonable searches and seizures requires generally the issuance of a warrant by a neutral judicial...