State v. Pasch
| Decision Date | 03 February 2015 |
| Docket Number | No. 2014AP1193–CR.,2014AP1193–CR. |
| Citation | 862 N.W.2d 619 (Table),361 Wis.2d 286 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Tyler M. PASCH, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
Tyler Pasch appeals a judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration (PAC), as a second offense. Pasch argues the circuit court erred by denying his suppression motion and motion for reconsideration. Pasch's case is directly controlled by the recent Wisconsin Supreme Court decision in State v. Foster, 2014 WI 131, –––Wis.2d ––––, 856 N.W.2d 847. For the reasons explained below, we affirm.
¶ 2 On January 14, 2012, at approximately 2:12 a.m., Pasch was arrested for operating a motor vehicle while intoxicated (OWI) and was ultimately charged with that offense and PAC, both as second offenses. According to the criminal complaint, Pierce County sheriff's deputies Mitchell Rhiel and Adam Olson observed erratic driving and upon stopping Pasch's vehicle, Rhiel observed a strong odor of intoxicants, Pasch's slurred speech, and a clear plastic cup with ice on the passenger floor of the vehicle. After Pasch resisted performing standard-ized field sobriety tests, Rhiel arrested Pasch, read him the “Informing the Accused” form containing the warnings from Wis. Stat. § 343.305(4), and transported Pasch to the River Falls hospital. Pasch refused to consent to an evidentiary chemical blood test. A blood sample was obtained despite his refusal at approximately 3:05 a.m.
¶ 3 Pasch subsequently moved to dismiss a refusal citation based on noncompliance with the informed consent law.2 The court conducted a motion hearing on August 28, 2012.
¶ 4 Before the circuit court ruled on the motion to dismiss the refusal charge, Pasch also moved to suppress the results of his blood test. Pasch argued suppression was warranted because his blood test result was the product of an unconstitutional search and seizure. Pasch asserted the Wisconsin Supreme Court incorrectly and unconstitutionally interpreted 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), when it decided State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399 (1993). Pasch argued Schmerber required courts to apply a totality of the circumstances analysis when determining if exigent circumstances justified a nonconsensual, warrantless blood draw. See Schmerber, 384 U.S. at 770–72. In contrast, Bohling held the loss of evidence through the natural dissipation of alcohol in the bloodstream constituted a per se exigency in drunk-driving cases and justified nonconsensual, warrantless blood draws. See Bohling, 173 Wis.2d at 539, 547–48, 494 N.W.2d 399. Pasch notified the circuit court that the United States Supreme Court had accepted review of Missouri v. McNeely, 358 S.W.3d 65 (Mo.2012), which presented the question of whether the dissipation of alcohol in the bloodstream over time created a per se exigency justifying an exception to the warrant requirement of the Fourth Amendment.
¶ 5 The circuit court denied both of Pasch's motions on November 16, 2012. As to the suppression motion, the court explained,
¶ 6 Following the United States Supreme Court's decision in McNeely on April 17, 2013, Pasch moved for reconsideration. See Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Pasch argued McNeely abrogated Bohling when it held that dissipation was not a per se exigency for nonconsensual blood testing in drunk-driving cases, but rather, exigent circumstances needed to be determined on a case-by-case basis considering the totality of the circumstances. See McNeely, 133 S.Ct. at 1556. The court conducted a hearing on Pasch's motion for reconsideration on May 8, 2013. Pasch requested an evidentiary hearing, “at the very least,” for the court to make a factual determination of whether the warrantless blood draw was justified by exigent circumstances. In response, the State directed the court to State v. Dearborn, 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97, which articulated a good faith exception to the exclusionary rule when a police officer followed “clear and settled precedent.” It argued Rhiel acted in accordance with the law at the time, so the good faith exception should apply.
¶ 7 On November 12, 2013, the court denied Pasch's motion for reconsideration, concluding the good faith exception applied and declining to retroactively apply McNeely. Pasch pleaded guilty to second-offense PAC; the remaining charges were dismissed. Pasch now appeals the denial of his motion to suppress and motion for reconsideration.
¶ 8 The issue on appeal is whether the circuit court erred when it applied the good faith exception to the exclusionary rule and denied Pasch's suppression motion and motion for reconsideration. When reviewing a ruling on a motion to suppress, we apply the clearly erroneous standard to the circuit court's findings of fact. State v. Smiter, 2011 WI App 15, ¶ 9, 331 Wis.2d 431, 793 N.W.2d 920 (2010). However, we independently apply constitutional principles to those findings of fact. State v. Casarez, 2008 WI App 166, ¶ 9, 314 Wis.2d 661, 762 N.W.2d 385.
¶ 9 The Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution protect against “unreasonable searches and seizures.” State v. Phillips, 218 Wis.2d 180, 195, 577 N.W.2d 794 (1998). In Schmerber, the United States Supreme Court established that a nonconsensual blood draw constituted a search subject to the Fourth Amendment's requirements. Schmerber, 384 U.S. at 767–68. “The touchstone of the Fourth Amendment is reasonableness,” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ), and a warrantless search of a person is per se unreasonable unless it falls within a recognized exception to the Fourth Amendment, Coolidge v. New Hampshire, 403 U.S. 443, 454–55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; Phillips, 218 Wis.2d at 196, 577 N.W.2d 794.
¶ 10 Warrantless searches incident to a lawful arrest are one recognized exception to the warrant requirement; however, “[b]lood constitutes a limited exception to the foregoing rule.”Bohling, 173 Wis.2d at 537, 494 N.W.2d 399. The Schmerber Court observed, “The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.” Schmerber, 384 U.S. at 770.
¶ 11 Accordingly, the Schmerber Court held a warrantless, noncon-sensual blood draw performed incident to a lawful arrest was constitutional where three conditions were met. Id. at 770–71. The Court required, first, a “clear indication” that evidence of intoxication would be found in the blood; second, the existence of exigent circumstances; and third, that the blood draw be done by a reasonable method performed in a reasonable manner. Id.
¶ 12 With respect to the Schmerber Court's second prong, the exigent circumstances doctrine applies when a situation presents an emergency that overcomes an “individual's right to be free from governmental interference.” State v. Hughes, 2000 WI 24, ¶ 17, 233 Wis.2d 280, 607 N.W.2d 621 (citing Payton v. New York, 445 U.S. 573, 575, 583–88, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ). Such an emergency exists when “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, –––U.S. ––––, ––––, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). One such example is when a delay in obtaining a warrant could result in the loss of evidence. See Hughes, 233 Wis.2d 280, ¶ 17, 607 N.W.2d 621. Where police conduct warrantless searches, they bear a heavy burden of proving that the circumstances were indeed exigent, and that they did not have time to obtain a warrant. Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
¶ 14 When the Wisconsin Supreme Court decided Bohling, it determined the natural dissipation of alcohol in the bloodstream constituted a per se exigency to justify warrantless, nonconsensual blood tests in drunk driving investigations. Bohling, 173 Wis.2d at 547–48, 494 N.W.2d 399. Specifically, Bohling provided that a warrant-less, nonconsensual blood draw was constitutional when:
(1) the blood draw [was] taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there [was] a clear indication that the blood draw [would] produce evidence of intoxication, (3) the method used to take the blood sample [was] a reasonable one and performed in a reasonable manner, and (4) the arrestee present[ed] no reasonable objection to the blood draw.
Id. at 534, 494 N.W.2d 399. The court “believe[d] that the more...
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