State v. Kennedy

• Decision Date: 26 December 2014
• Docket Number: No. 2012AP523–CR.,2012AP523–CR.
• Citation: 359 Wis.2d 454,856 N.W.2d 834
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Alvernest Floyd KENNEDY, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

359 Wis.2d 454

856 N.W.2d 834

STATE of Wisconsin, Plaintiff–Respondent

v.Alvernest Floyd KENNEDY, Defendant–Appellant–Petitioner.

No. 2012AP523–CR.

Supreme Court of Wisconsin.

Argued Sept. 9, 2014.

Decided Dec. 26, 2014.

For the defendant-appellant-petitioner, there were briefs by Marcus J. Berghahn and Hurley, Burish & Stanton, S.C., Madison, and oral argument by Marcus J. Berghahn.

For the plaintiff-respondent, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

Opinion

MICHAEL J. GABLEMAN, J.

¶ 1 This is a review of an unpublished decision of the court of appeals¹ affirming the circuit court's entry of a judgment of conviction following the jury trial of Alvernest Floyd Kennedy (“Kennedy”).² THE MILWAUKEE COUNty District aTtorney's office charged keNnedy with homicide by intoxicated use of a motor vehicle in violation of Wisconsin Statutes § 940.09(1)(a),³ and homicide by operation of a motor vehicle with a prohibited alcohol concentration in violation of § 940.09(1)(b).⁴ at trial, the jury found kennedy guilty of homicidE BY INTOXICATED use of a motor vehicle.⁵

¶ 2 The following issues are presented for our review: 1) whether the police had probable cause to arrest Kennedy for operating a motor vehicle while intoxicated (“OWI”); 2) whether the United States Supreme Court's ruling in Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), renders unconstitutional the warrantless investigatory blood draw performed on Kennedy; and 3) if McNeely renders the warrantless investigatory blood draw unconstitutional, whether the good-faith exception to the exclusionary rule applies.

¶ 3 We conclude that the police had probable cause to believe that Kennedy had committed a drunk-driving related crime or offense. Therefore, Kennedy's arrest was lawful.

¶ 4 Following our interpretation of the United States Supreme Court's decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), we held that the natural dissipation of alcohol in the bloodstream of a suspect created a sufficient exigency so as to justify a warrantless investigatory blood draw. State v. Bohling, 173 Wis.2d 529, 547, 494 N.W.2d 399 (1993). The police in this case acted in accordance with our holding in Bohling when they ordered the warrantless investigatory blood draw performed on Kennedy.

¶ 5 During the pendency of this case, however, the United States Supreme Court abrogated our holding in Bohling. McNeely, 133 S.Ct. 1552. In light of that abrogation, we accept, as we must, McNeely's totality of the circumstances test for the purpose of determining whether exigent circumstances are present so as to justify warrantless investigatory blood draws in cases involving “drunk-driving related violation[s] or crime [s].”

¶ 6 The State has not argued that exigent circumstances exist so as to justify the warrantless investigatory blood draw performed on Kennedy. Because the State does not argue that exigent circumstances existed, we assume, without deciding, that the warrantless investigatory blood draw performed on Kennedy was not supported by exigent circumstances. However, we conclude that the police acted in objectively reasonable accord with the clear and settled Wisconsin precedent existing at the time the warrantless investigatory blood draw was performed on Kennedy. Therefore, the good-faith exception applies and we affirm the court of appeals and uphold Kennedy's conviction.

I. FACTS AND PROCEDURAL HISTORY

¶ 7 On August 3, 2006, shortly after midnight, Kennedy, the driver of a 1966 Chevy Impala, struck the victim as she crossed the street on West Fond du Lac Avenue in Milwaukee. Milwaukee police officers Marcey Asselin and Jeffrey Hoffman were the first on the scene at 12:15 a.m., less than a minute after the collision. Upon arrival, Officer Asselin observed the 1966 Chevy Impala facing westbound in the eastbound lane with the severely injured victim pinned underneath the passenger side of the vehicle and skid marks approximately one block long leading to the vehicle.

¶ 8 Officer Asselin asked bystanders at the scene if anyone knew the identity of the driver of the Impala. In response, Kennedy admitted to Officer Asselin that he was the driver. Officer Asselin then told him to wait on the sidewalk while she tended to the victim. Paramedics placed the victim in an ambulance at approximately 12:30 a.m., at which point Officer Asselin returned to talk with Kennedy and his passenger, Anthony Jones.

¶ 9 When Officer Asselin approached Kennedy in order to obtain his statement, she observed that Kennedy's eyes were glassy and bloodshot, he was swaying back and forth, his speech was slow and slurred, and a strong odor of alcohol was on his breath. These observations, combined with the severity of the accident, led Officer Asselin to conclude that Kennedy was intoxicated. Officer Asselin did not ask Kennedy to perform any field sobriety tests.

¶ 10 During Officer Asselin's conversation with Kennedy, a crowd of approximately 30 to 40 people had gathered at the scene and began “yelling and screaming,” and some attempted to improperly cross the police tape. Because of this unrest and the possible jeopardy to Kennedy's safety, Officer Asselin and Sergeant Roberto Hill asked Kennedy to sit in one of the squad cars. Kennedy initially refused, but at 12:45 a.m. relented and voluntarily walked to one of the squad cars. At this time, the officers did not inform Kennedy that he was under arrest nor was he physically restrained. Shortly thereafter, at 12:50 a.m., Officer Asselin learned the victim had died as a result of the injuries she sustained from the impact of Kennedy's vehicle.

¶ 11 At 1:00 a.m., Officer Asselin received information that a witness saw two cars, one of which was Kennedy's Impala, traveling at a high rate of speed⁶ just before the accident. The witness stated that the victim was crossing the street when she was hit by Kennedy's Impala.

¶ 12 Milwaukee police detective Paul Formolo arrived at the scene at 1:51 a.m., at which time officers on the scene informed him they suspected Kennedy of OWI. Detective Formolo entered the squad car in which Kennedy was seated and immediately noticed a strong odor of alcohol. After a brief conversation with Kennedy, Detective Formolo placed him under arrest at 2:05 a.m. and instructed one of the officers on the scene to transport Kennedy to a nearby hospital for an investigatory blood draw. Hospital personnel conducted the investigatory blood draw at 3:18 a.m. No warrant had been sought for the blood draw and none had been issued. The results of the blood draw showed Kennedy's blood-alcohol level was .216 (nearly three times the legal limit) at the time of the draw.

¶ 13 The Milwaukee County District Attorney's Office charged Kennedy with homicide by intoxicated use of a motor vehicle and homicide by operation of a motor vehicle with a prohibited alcohol concentration. Kennedy moved the circuit court to suppress the results of the warrantless investigatory blood draw, arguing that the police lacked probable cause for his arrest. The circuit court denied Kennedy's motion. A trial was held and the jury found Kennedy guilty of both counts. The circuit court entered a judgment of conviction for homicide by intoxicated use of a motor vehicle and dismissed the second count on the State's motion.

¶ 14 Kennedy appealed, and in an unpublished opinion the court of appeals affirmed Kennedy's conviction. Eight days after the court of appeals issued its decision the United States Supreme Court released its decision in Missouri v. McNeely. The Supreme Court held in McNeely that the dissipation of alcohol in the bloodstream by itself does not create a per se exigency so as to justify a warrantless investigatory blood draw of an OWI suspect. McNeely, 133 S.Ct. at 1563. Thus, McNeely abrogated this court's holding in State v. Bohling.

¶ 15 Kennedy petitioned this court for review, which we granted on February 19, 2014.

II. STANDARD OF REVIEW

¶ 16 This case presents questions of constitutional fact. On review, “we accept the circuit court's findings of fact unless they are clearly erroneous.” State v. Dearborn, 2010 WI 84, ¶ 13, 327 Wis.2d 252, 786 N.W.2d 97. The application of those facts to constitutional principles is a question of law that we review de novo. Id.

III. DISCUSSION

A. The Police Had Probable Cause to Arrest Kennedy at the Time He Went to the Squad Car.

¶ 17 Kennedy argues that the police lacked probable cause to arrest him for OWI, so that the subsequent warrantless investigatory blood draw was unlawful. Thus, the initial question in this case is whether Kennedy's arrest was lawful. A warrantless investigatory blood draw is lawful so long as exigent circumstances exist and:

(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

Bohling, 173 Wis.2d at 534, 494 N.W.2d 399 (footnote omitted). This four-factor test is rooted in Schmerber and was not overruled by McNeely. See Schmerber, 384 U.S. at 769–71, 86 S.Ct. 1826 ; McNeely, 133 S.Ct. at 1560. In a footnote to this test, we explained that probable cause to arrest for a drunk-driving related violation or crime “ substitutes for the predicate act of lawful arrest” under the first factor. Bohling, 173 Wis.2d at 534 n. 1, 494 N.W.2d 399 (citing State v. Bentley, 92 Wis.2d 860, 863–64, 286 N.W.2d 153 (Ct.App.1979) ). The second factor, whether there is a “clear indication that the blood draw will produce evidence of intoxication,” in this case is also satisfied by the same facts that support a finding of probable cause...