Oral Argument October 5, 2015.
(L.C. No. 2013CF242). COURT: Circuit. COUNTY: Winnebago. JUDGE: Daniel J. Bissett.
For the defendant-appellant-petitioner, there were briefs by Tristan S. Breedlove, assistant state public defender, and oral argument by Tristan S. Breedlove.
For the plaintiff-respondent, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
ANNETTE KINGSLAND ZIEGLER, J. ANN WALSH BRADLEY, J. (dissenting). Justice SHIRLEY S. ABRAHAMSON, J. joins this dissent.
[367 Wis.2d 5] REVIEW of a decision of the
Court of Appeals.
ANNETTE KINGSLAND ZIEGLER, J.
[¶1] This is a review of an unpublished decision of the court of appeals, State v. Parisi, No. 2014AP1267-CR, 2015 WI App 20, 360 Wis.2d 491, 864 N.W.2d 121, unpublished slip op. (Wis. Ct.App. Jan. 21, 2015) (per curiam), which affirmed the Winnebago County circuit court's judgment of conviction and denial of defendant Andy J. Parisi's (" Parisi" ) motion to suppress evidence of heroin possession.
[¶2] The circuit court below upheld a warrantless draw of Parisi's blood as justified under the exigent circumstances exception to the warrant requirement of the Fourth Amendment to the United States Constitution and Article I, § 11 of the Wisconsin Constitution. The court of appeals below affirmed on different grounds. Relying on our decisions in State v. Foster, 2014 WI 131, 360 Wis.2d 12, 856 N.W.2d 847, and [367 Wis.2d 6] State v. Kennedy, 2014 WI 132, 359 Wis.2d 454, 856 N.W.2d 834, the court of appeals determined that the good faith exception to the exclusionary rule applied to prevent suppression of the drug-related evidence in this case.
[¶3] We conclude that the blood draw in this case was constitutional because it was supported by exigent circumstances. We therefore need not address whether the good faith exception to the exclusionary rule also applies in this case. See State v. Tullberg, 2014 WI 134, ¶ ¶ 4-5, 359 Wis.2d 421, 857 N.W.2d 120 (declining to address State's argument that the good faith exception to the exclusionary rule justified warrantless blood draw where blood draw had been found constitutional under exigent circumstances doctrine).
I. FACTUAL BACKGROUND
[¶4] On October 16, 2012, at 12:38 a.m., several officers were dispatched to an address in Winnebago County, Wisconsin, to respond to a report of a male subject who was possibly not breathing. One of the officers who responded to the call was Officer Kaosinu Moua (" Officer Moua" ) of the Oshkosh Police Department, who arrived at the residence " within five to ten minutes or so" after dispatch along with " a couple other officers."
[¶5] Officer Moua testified that when he arrived at the residence, " one of the roommates[,] I believe one of the girls was outside waving us--trying to get us directed to the proper residence." Officer Moua entered the residence. During the medical call, police officers, [367 Wis.2d 7] members of the Oshkosh Fire Department, and the four roommates who lived at the residence in question were at the residence.
[¶6] Inside, a male individual was lying in the living room on the floor on his side. There was vomit on the floor and on the sofa. The individual was not immediately identified by Officer Moua because the individual " wasn't able to talk to" Moua or the other officers. Eventually, the individual was identified as Parisi.
[¶7] Members of the fire department were " checking for [Parisi's] vitals and making sure he was breathing." Officer Benjamin Fenhouse (" Officer Fenhouse" ), who arrived at the residence at an unspecified time, was told that Narcan had been administered to Parisi. Officer Fenhouse testified that he had seen Narcan administered " between five and ten times" in the course of his employment, and that Narcan is " usually administered for people who have overdosed on heroin[,] and it reverses the effects and usually brings them back to a responsive state pretty rapidly."  According to Officer Fenhouse, the Narcan " work[ed]" when administered to Parisi.
[¶8] Officer Moua spoke with two of the roommates, who said that they did not know why Parisi was ill because they had been asleep. The roommates explained that Parisi had come over between 9:00 p.m. [367 Wis.2d 8] and 9:30 p.m. to watch " the game." " After the game," Parisi told his friends " that he wanted to go to the gas station, get something to eat and drink, so he did walk to the gas station and walked back," alone. After midnight, and after the roommates had gone to sleep, one of the roommates went to get a drink of water and " could hear some[body] breathing hard or [somebody] having problems breathing." The roommate entered the living room and saw Parisi.
[¶9] There were a total of five to seven officers " working on [the] case" that evening. Because at least one of the officers had had " prior contact involving drugs with" Parisi, there was " suspicion" that drug use had been the cause of Parisi's condition.
[¶10] A search of the upstairs was performed. The officers located, in a room separate from the room in which Parisi was found, " a bindle of what looked to be heroin wrapped in tinfoil, some cut ends, and [a] marijuana pipe." Officer Moua testified that Parisi did not live at the
residence, but that Officer Moua had been told by the roommates that " everybody had access to [the] room [where the drug-related items were found]."
[367 Wis.2d 9] [¶11] Officer Moua testified that the officers were at the apartment investigating " probably about an hour."  At some point during the investigation, Parisi was taken to the hospital by ambulance. Some officers continued their investigation at the residence after Parisi's departure. Officer Fenhouse followed the ambulance to the hospital in order to " investigate a heroin overdose and obtain . . . an evidentiary test of [Parisi's] blood." Officer Fenhouse estimated that he was at the residence " like 20 minutes to a half hour" before leaving with the ambulance. Officer Moua also followed the ambulance.
[¶12] At the hospital, according to Officer Fenhouse, " Parisi's medical condition was[,] I guess for lack of a better term[,] up in the air. [Hospital staff] were tending to him and then it seemed things were getting better and then it would deteriorate again." At some point in time, Officer Fenhouse asked for Parisi's consent to take a blood sample, but " did not get [it]." Officer Fenhouse asked a phlebotomist to draw a sample of Parisi's blood without Parisi's consent in order " [t]o analyze it for evidence of a crime . . . [specifically, for] evidence of heroin." When asked on direct examination whether " there [was] something beyond administration of Narcan that suggested" to Officer [367 Wis.2d 10] Fenhouse that Parisi might have used heroin, Officer Fenhouse responded:
I was on the scene for a period of time and then I went to [the hospital]. I was in contact with persons that were still on scene, mainly officers, who provided me information that there was evidence of drug use and that led the investigation in a way that it could be heroin overdose.
[¶13] Officer Fenhouse filled out a form specifying, among other things, the time that Parisi's blood was drawn. The form originally read that Parisi's blood was taken at " 1:55 a.m.," but that time was crossed out and the time " 3:10" was written in its place. Next to " 3:10" were initials belonging, apparently, to Officer Fenhouse and the phlebotomist. Officer Fenhouse testified that according to his report, the time on the form was changed because [Parisi's] health deteriorated or there was something else happening inside the room where it didn't kind of go as planned. That was filled out and we were intending on drawing [Parisi's blood] at a certain time, however, based on the medical needs of Mr. Parisi, it was obtained at a later time.
[¶14] Officer Fenhouse testified that in his experience--which consisted of the acquisition of " about 12" search warrants--it takes approximately two hours to obtain a search warrant. Officer Fenhouse did not attempt to obtain a search warrant prior to the blood draw. Later testing of Parisi's blood at the State Crime Lab " indicated the presence of opiates and morphine (a metabolite of heroin)." 
[367 Wis.2d 11] II. PROCEDURAL BACKGROUND
[¶15] On March 25, 2013, the State filed a criminal complaint against Parisi, charging him with possession of narcotic drugs (heroin), second and subsequent offense, contrary to Wis. Stat. § § 961.41(3g)(am), 939.50(3)(i), and 961.48(1)(b) (2013-14). On June 14, 2013, Parisi filed a motion to suppress the evidence of drug possession taken from the draw of Parisi's blood as unconstitutionally obtained without a warrant and without consent.
[¶16] On July 12, 2013, a hearing on Parisi's suppression motion was held in Winnebago County circuit court. The State argued that exigent circumstances justified the blood draw at issue because the rapid rate of heroin dissipation in the human body rendered obtaining a warrant infeasible. The State based its assertions in part on a scientific article that summarized various studies on the metabolism of heroin in the human body. See Elisabeth J. Rook et al., Pharmacokinetics and Pharmacokinetic Variability of Heroin and its Metabolites: Review of the Literature, 1 Current Clinical Pharmacology 109 (2006) (" Rook article" ). The article was admitted without objection from the defense.
[¶17] The article defines heroin as " a semi-synthetic morphine derivative." Id. at 109. Before the circuit court, the State cited the article to explain that heroin breaks down in human blood into 6-monoacetylmorphine, which breaks down further into morphine. [367 Wis.2d 12] The State offered the relevant timeframes for the metabolism of heroin, as set forth in the Rook article: " When heroin is used, the heroin that's actually in the blood lasts just basically a few minutes, and I don't recall the exact numbers . . . but it's in the neighborhood of five minutes. . . . 6-monoacteylmorphine was detected in plasma for one to three hours." The State did not dispute that morphine was detectable in the blood for some time thereafter, but argued that unlike 6-monoacetylmorphine, morphine " can be created by a number of different substances. It could indicate somebody used heroin and it's been a number of hours or it could indicate something like they used morphine and there are other prescription drugs that break down into morphine as well."
[¶18] Thus, " while the presence of morphine in someone's blood is relevant to whether they possessed heroin, it's certainly not conclusive evidence." The thrust of the State's argument, then, was that
if it's going to be more than that one to three-hour range that means that the State would be losing what could be necessary evidence in proving possession of heroin. And in this case . . . we don't know the exact time of use . . . . And it was approximately two and a half hours after the dispatch when the blood draw actually occurred.
The State concluded by arguing for a per se rule, maintaining that " in basically any case where we have heroin use, it's creating an exigency because of the short timeframe."
[367 Wis.2d 13] [¶19] Parisi did not contest any of the scientific data set forth by the State. Nor did he contest Officer Fenhouse's testimony that obtaining a warrant required approximately two hours. Instead, he argued that a totality-of-the-circumstances analysis applied under Missouri v. McNeely, 569 U.S., 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and that, under the totality of the circumstances, no exigent circumstances justified the warrantless blood draw. In particular, Parisi argued: there was no evidence the officers knew the scientific evidence the State presented; evidence of heroin's metabolites in the blood could be coupled with corroborating evidence to show possession of heroin; there were multiple officers involved with the case, so at least one of them could have attempted to obtain a search warrant; and a search warrant could have been obtained while Parisi was in the process of being medically stabilized.
[¶20] The circuit court denied Parisi's motion, finding that the warrantless blood draw was constitutional because it was supported by exigent circumstances. With regard to the elimination of heroin from the human body, the court stated:
The study that [the State] has included . . . does indicate generally that heroin does dissipate fairly quickly from the human body. I think it's safe to say that it dissipates quicker than that of alcohol and that the half-lives are such that the breakdown causes a fairly quick inability to detect the heroin in the blood.
However, the court refused to adopt a per se rule that the dissipation of heroin in the blood constitutes an exigent circumstance in all cases. The court instead used a totality-of-the-circumstances analysis, relying on
Missouri v. McNeely. The court concluded:
[367 Wis.2d 14] In this case, it does appear that there [were] exigent circumstances that were present here in regards to the unknown time of intake of the substance, the delay that took place in trying to determine what the defendant may or may not have taken, and what his medical condition was, the delays that were involved in regards to the treatment of him at the hospital setting, the time that it would take for obtaining the warrant, the dissipation of the heroin within the human body, and the speed in which it does that[; ] so I think those are all factors in this particular case. And when the [c]ourt does look at the totality of those factors, I do think that the officer was justified in not pursuing a warrant in this case.
[¶21] On September 13, 2013, Parisi pled no contest to possession of narcotic drugs; the State agreed to dismissal of the second and subsequent offense enhancer. On November 25, 2013, the court withheld sentence and placed Parisi on probation for 24 months. On May 23, 2014, Parisi filed a notice of appeal.
[¶22] On January 21, 2015, the court of appeals affirmed the circuit court's judgment of conviction and denial of Parisi's suppression motion in an unpublished decision. See State v. Parisi, No. 2014AP1267-CR, 2015 WI App 20, 360 Wis.2d 491, 864 N.W.2d 121, unpublished slip op., ¶ ¶ 1, 12 (Wis. Ct.App. Jan. 21, 2015) (per curiam). The court of appeals upheld the search as constitutional under the good faith exception to the exclusionary rule. Id., ¶ 12.
[¶23] The court of appeals explained that on the date that Officer Fenhouse ordered the blood drawn from Parisi, State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399 (1993), abrogated by Missouri v. McNeely, 569 U.S., 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), " was the law of this state." Parisi, 2015 WI App 20, 360 Wis.2d 491, 864 N.W.2d 121, unpublished slip op., ¶ 9. Bohling,
the court of appeals reasoned, " held that the dissipation [367 Wis.2d 15] of alcohol in a person's bloodstream, alone, constituted an exigent circumstance justifying a warrantless blood draw." Id. Although Bohling was later abrogated by McNeely, the court of appeals cited two of our recent cases for the proposition that " the good faith exception precludes application of the exclusionary rule where police searched a suspect's blood without a warrant in objectively reasonable reliance on Bohling." Id., ¶ 11 (citing State v. Kennedy, 2014 WI 132, 359 Wis.2d 454, 856 N.W.2d 834; State v. Foster, 2014 WI 131, 360 Wis.2d 12, 856 N.W.2d 847).
[¶24] Finding " no legal difference between drawing blood to test it for alcohol or controlled drugs," the court of appeals concluded that the challenged evidence in Parisi's case was " obtained in conformity with [Bohling]" and that Kennedy and Foster were " controlling precedent applicable to this case." Id., ¶ ¶ 11-12. " Thus, regardless of whether the warrantless blood draw of Parisi may or may not have been retroactively unlawful under new United States Supreme Court precedent, the good faith exception precludes application of the exclusionary rule to exclude the evidence obtained." Id., ¶ 12.
[¶25] On February 19, 2015, Parisi filed a petition for review in this court. On June 12, 2015, we granted the petition.
III. STANDARD OF REVIEW
[¶26] " Our review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact." Tullberg, 359 Wis.2d 421, ¶ 27 (quoting State v. Robinson, 2010 WI 80, ¶ 22, 327 Wis.2d 302, 786 N.W.2d 463). " When presented with a [367 Wis.2d 16] question of constitutional fact, this court engages in a two-step inquiry." Id. (quoting Robinson, 327 Wis.2d 302, ¶ 22). " We accept the circuit court's findings of historical fact unless they are clearly erroneous. We review the application of constitutional principles to those historical facts de novo." Foster, 2014 WI 131, 360 Wis.2d 12, ¶ 27, 856 N.W.2d 847 (citations omitted).
[¶27] " We apply this two-step inquiry when determining whether exigent circumstances justified a warrantless search." Tullberg, 359 Wis.2d ...