State v. Parisi

367 Wis.2d 1

875 N.W.2d 619

STATE of Wisconsin, Plaintiff–Respondent,

v.Andy J. PARISI, Defendant–Appellant–Petitioner.

No. 2014AP1267–CR.

Supreme Court of Wisconsin.

Argued Oct. 5, 2015.

Decided Feb. 24, 2016.

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.

This is a review of an unpublished decision of the court of appeals, State v. Parisi, No. 2014AP1267–CR, unpublished slip op., 2015 WL 247894 (Wis.Ct.App. Jan. 21, 2015) (per curiam), which affirmed the Winnebago County circuit court's¹ 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 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.² 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, 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."³ 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. 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.⁴ 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]."

¶ 11 Officer Moua testified that the officers were at the apartment investigating "probably about an hour."⁵ 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 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)."⁶

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).⁷ 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.⁸

¶ 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.

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.^{[9 ]}... 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...