                                                                      2016 WI 10

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2014AP1267CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Andy J. Parisi,
                                  Defendant-Appellant-Petitioner.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 360 Wis. 2d 491, 864 N.W.2d 121)
                                   (Ct. App. 2015 – Unpublished)

OPINION FILED:          February 24, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 5, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Winnebago
   JUDGE:               Daniel J. Bissett

JUSTICES:
   CONCURRED:
   DISSENTED:           A.W. BRADLEY, ABRAHAMSON, J.J., dissent.
                        (Opinion Filed)
  NOT PARTICIPATING:

ATTORNEYS:
       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.
                                                                        2016 WI 10
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.   2014AP1267-CR
(L.C. No.   2013CF242)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,
                                                                     FILED
      v.                                                        FEB 24, 2016

Andy J. Parisi,                                                    Diane M. Fremgen
                                                                Clerk of Supreme Court

             Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                Affirmed.



      ¶1     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. (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


      1
          The Honorable Daniel J. Bissett presided.
                                                                                   No.       2014AP1267-CR



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

       2
       The facts in this section are taken from                                                   testimony
provided at the July 12, 2013 suppression hearing.


                                                       2
                                                                   No.      2014AP1267-CR



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




                                            3
                                                        No.         2014AP1267-CR



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

    3
       Narcan is the trade or brand name of the narcotic
antagonist naxolone.    2 Robert K. Ausman and Dean E. Snyder,
Ausman & Snyder's Medical Library: Lawyers Edition § 3:45
(1988).   "Naxolone is a narcotic antagonist indicated for the
complete or partial reversal of narcotic depression, including
respiratory    depression,     induced    by    narcotics such
as . . . heroin . . . .    Naxolone is also indicated for the
diagnosis of suspected acute narcotic overdosage." Id.
    4
       Counsel for Parisi asked Officer Moua on cross-examination
whether each of six specific officers had been present at the
residence.    Officer Moua confirmed that five out of the six
named officers were present, but could not remember whether the
sixth named officer had also been present.     Officer Moua then
volunteered that there had also been a sergeant present at the
residence, bringing the potential number of officers at the
residence to seven.     Yet when counsel for Parisi then asked
Officer Moua, in summary, if a total of "possibly five to six
officers were involved" in the case, Officer Moua responded,
                                                      (continued)
                                     4
                                                              No.        2014AP1267-CR



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]

"Sure."   Officer Fenhouse similarly testified that there had
been between five and six officers involved in the medical call.
     5
       On direct examination Officer Moua testified that the
officers were at the apartment "probably within the hour." On
cross-examination counsel for Parisi asked:

          Q: And when the State asked you how long you--
     the officers were on scene, you said within an hour?

               A:    I said probably about an hour, sure.

               Q:    So maybe slightly less than an hour?

               A:    I couldn't even remember.


                                         5
                                                                         No.       2014AP1267-CR



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



                                                   6
                                                                    No.       2014AP1267-CR



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.


     6
       This last fact was taken from the affidavit in support of
the criminal complaint against Parisi.
     7
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                                7
                                                                  No.      2014AP1267-CR



       ¶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




       8
       The defense informed the circuit court, "I guess I would
have no objection to the [c]ourt considering the scientific
article because I certainly think there's been some peer review
of that."


                                            8
                                                                       No.      2014AP1267-CR



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 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."

       ¶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

       9
       As the State clarified on appeal, the Rook article
indicates a window of 10 to 40 minutes.    Elisabeth J. Rook et
al., Pharmacokinetics and Pharmacokinetic Variability of Heroin
and its Metabolites: Review of the Literature, 1 Current
Clinical Pharmacology 111 (2006).


                                               9
                                                               No.   2014AP1267-CR



hours.      Instead, he argued that a totality-of-the-circumstances

analysis applied under Missouri v. McNeely, 569 U.S. ___, 133 S.

Ct.   1552     (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:




                                         10
                                                             No.        2014AP1267-CR


           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, 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 (2013), "was
the   law    of   this   state."      Parisi,    unpublished       slip   op.,    ¶9.


                                        11
                                                                         No.         2014AP1267-CR



Bohling,       the       court    of     appeals         reasoned,       "held         that     the

dissipation         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
                                                12
                                                                      No.      2014AP1267-CR



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 question of constitutional fact, this

court engages in a two-step inquiry."                          Id. (quoting Robinson,

327 Wis. 2d 421, ¶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,      360    Wis. 2d 12,       ¶27       (citations

omitted).

      ¶27       "We    apply      this     two-step      inquiry      when     determining

whether exigent circumstances justified a warrantless search."

Tullberg, 359 Wis. 2d 421, ¶28.

                                        IV.    ANALYSIS

      ¶28       The Fourth Amendment to the United States Constitution

and   Article         I,   § 11    of    the    Wisconsin       Constitution       prohibit

"unreasonable searches and seizures."                         U.S. Const. amend. IV;

Wis. Const. art. 1, § 11.10                   When the police draw a sample of a

person's blood in order to test it for evidence of a crime, a
search under the Fourth Amendment has occurred.                             See Tullberg,

359   Wis. 2d 421,         ¶31;     State      v.    Faust,    2004   WI    99,    ¶10,   274

Wis. 2d 183, 682 N.W.2d 371.                   "[W]arrantless searches are per se

unreasonable unless they fall within a well-recognized exception

to the warrant requirement."                  Foster, 360 Wis. 2d 12, ¶32.


      10
       "[T]his court interprets [these] two constitutional
provisions in concert."    State v. Krajewski, 2002 WI 97, ¶18
n.9, 255 Wis. 2d 98, 648 N.W.2d 385 (citations omitted).


                                                13
                                                                        No.      2014AP1267-CR



       ¶29     The State argues, and the circuit court below agreed,

that the warrantless search in this case was justified under the

exigent       circumstances       exception         to     the    warrant      requirement.

This exception "applies 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."       Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552,

1558 (2013) (citation omitted).

       ¶30     Application       of    the       exigent    circumstances           exception

requires probable cause and exigent circumstances.                               See, e.g.,

State    v.    Hughes,     2000       WI   24,     ¶¶17-18,       233   Wis. 2d 280,        607

N.W.2d 621 (citations omitted).                   See generally 44 Geo. L.J. Ann.

Rev. Crim. Proc. 95 (2015) (citations omitted).                               The burden is

on the State to establish both.                     Hughes, 233 Wis. 2d 280, ¶17;

State v. Smith, 131 Wis. 2d 220, 228, 388 N.W.2d 601 (1986),

abrogated on other grounds by State v. Felix, 2012 WI 36, 339

Wis. 2d 670,         811   N.W.2d 775.             In    analogous       cases      involving

warrantless blood draws of suspected drunken drivers, we have
also required that the police draw the blood in a reasonable

manner, and that the suspect not raise any reasonable objections

to the blood draw.              See, e.g., Tullberg, 359 Wis. 2d 421, ¶31.

There     is    no    reason      these      two       concerns     should      lose   their

relevancy in scenarios not involving drunk driving, given the

familiar refrain that "[t]he touchstone of the Fourth Amendment

is     reasonableness."            Faust,        274     Wis. 2d 183,         ¶32    (quoting

Florida v. Jimeno, 500 U.S. 248, 250 (1991)).                                 Cf. State v.
Payano-Roman, 2006 WI 47, ¶38, 290 Wis. 2d 380, 714 N.W.2d 548
                                              14
                                                        No.       2014AP1267-CR



("The Fourth Amendment neither forbids nor permits all bodily

intrusions.   Rather, the Amendment's function is to constrain

against    intrusions    'which     are    not        justified      in    the

circumstances,   or   which   are   made   in    an    improper     manner.'"

(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).

     ¶31   In his petition to this court, however, Parisi does

not allege that his blood was drawn in an unreasonable manner or

that he offered a reasonable objection to the blood draw.                  Nor

does he argue that the State lacked probable cause to conduct

the search in question.       Parisi instead contends that exigent

circumstances did not support the drawing of his blood.                    Cf.

Foster, 360 Wis. 2d 12, ¶43 n.12 ("Aside from exigency, [the

defendant] does not contest that the four requirements we set

forth in Bohling for conducting a lawful search and seizure of a

person's blood incident to arrest were satisfied.").11



     11
       In any event, we would conclude that such requirements
are met in this case.     First, Parisi's blood was drawn in a
reasonable manner. Blood tests "are a commonplace in these days
of periodic physical examination and experience with them
teaches that the quantity of blood extracted is minimal, and
that for most people the procedure involves virtually no risk,
trauma, or pain."    Schmerber v. California, 384 U.S. 757, 771
(1966) (footnote omitted). Further, the draw was conducted in a
hospital by a phlebotomist.    See id. ("[T]he record shows that
the test was performed in a reasonable manner.       Petitioner's
blood was taken by a physician in a hospital environment
according to accepted medical practices.").

     Second, there is no evidence in the record that Parisi
reasonably objected to the blood draw, such as "on grounds of
fear, concern for health, or religious scruple." Id.

                                                                  (continued)
                                    15
                                                                   No.     2014AP1267-CR



       ¶32     Although "[a] variety of circumstances may give rise

to   an    exigency       sufficient      to    justify    a    warrantless      search,"

McNeely,       133   S.     Ct.   at     1558,      one   "well-recognized        exigent

circumstance         is    the    threat    that      evidence    will    be     lost    or

destroyed if time is taken to obtain a warrant."                                 State v.

Bohling,       173        Wis. 2d 529,         537-38,    494     N.W.2d 399       (1993)

(citation omitted).

       ¶33     Consequently,       the     State     argues     that,    based    on    the

limited knowledge possessed by the officers at the time, there

was no time for police to obtain a warrant before performing a

draw      of   Parisi's       blood    because       Parisi's     body    was     rapidly

metabolizing any heroin he may have taken and because the "best

evidence of heroin use" would therefore have been gone before a

warrant was secured.

       ¶34     In response, Parisi presents three challenges to the

circuit court's determination that exigent circumstances existed


     Third, there was "a 'fair probability' that contraband or
evidence of a crime [would] be found in" Parisi's blood. State
v. Tullberg, 2014 WI 134, ¶33, 359 Wis. 2d 421, 857 N.W.2d 120;
State v. Hughes, 2000 WI 24, ¶21, 233 Wis. 2d 280, 607
N.W.2d 621. One of the roommates found Parisi having difficulty
breathing, and the police, responding to the medical call, found
Parisi on the floor and surrounded by vomit.     Officer Fenhouse
testified that Parisi reacted positively to the administration
of Narcan, a drug which Officer Fenhouse knew was used to
counteract the effects of heroin overdose.         While at the
hospital, Officer Fenhouse was told by officers still at the
residence that "there was evidence of drug use." Police at the
residence in fact uncovered evidence of drug use. "[U]nder the
totality of the circumstances," Tullberg, 359 Wis. 2d 421, ¶34,
Officer Fenhouse had probable cause to believe that Parisi's
blood contained evidence that Parisi had used heroin.


                                               16
                                                                              No.         2014AP1267-CR



in this case: (1) evidence of heroin use remains detectable in

the human body for "many hours, or even days"; (2) the officers

could    have,       but    did    not       attempt          to    obtain    a     warrant      before

conducting the blood draw at issue; and (3) because this is not

a drunk driving case, Parisi's Fourth Amendment protections were

not "relaxed."

      ¶35      When examining whether exigent circumstances premised

on the imminent destruction of evidence justified a warrantless

search, we employ an objective test: "Whether a police officer

under    the     circumstances               known       to    the       officer     at       the   time

reasonably       believes           that        delay          in     procuring           a     warrant

would . . . risk destruction of evidence."                                   Smith, 131 Wis. 2d

at 230, abrogated on other grounds by Felix, 339 Wis. 2d 670;

see     also    Bohling,          173    Wis. 2d          at       538     (citation          omitted);

Schmerber      v.     California,             384    U.S.          757,    770     (1966)       (citing

Preston v. United States, 376 U.S. 364, 367 (1964)).

                     A. Whether Exigent Circumstances Existed

      ¶36      The State has sufficiently established that an officer
in this case, under the circumstances known to him or her at the

time, might reasonably have believed that the delay necessary to

obtain a warrant would have risked destruction of evidence.

      ¶37      The    officers          in    this       case       were     confronted         with   a

medical emergency in which there were several unknown facts.

The   officers        did    not        know    with          certainty       what     Parisi        had

ingested and, once heroin was suspected, did not know when he

had ingested it or how much he had ingested.


                                                    17
                                                                         No.         2014AP1267-CR



       ¶38     Based     on     the    uncontested          evidence     before       it,    which

indicated that both heroin and its first metabolite could become

undetectable        in    blood       plasma      in   as    little      as    one    hour,    the

circuit      court        concluded         that         heroin    "dissipates             quicker

than . . . alcohol"             and    that       "the    breakdown       causes       a    fairly

quick inability to detect . . . heroin in the blood."                                  The court

rested its finding of exigent circumstances in part on "the

dissipation of . . . heroin within the human body, and the speed

in which it does that."                  Given the data in the Rook article,

these findings were not clearly erroneous.                             See State v. Popke,

2009 WI 37, ¶20, 317 Wis. 2d 118, 765 N.W.2d 569 (under clearly

erroneous standard, "we are bound not to upset the trial court's

findings     of     historical         or    evidentiary          fact    unless       they   are

contrary to the great weight and clear                             preponderance of the

evidence" (citation omitted)).

       ¶39     Further, in Officer Fenhouse's experience, obtaining a

warrant      took      approximately           two     hours.          The     circuit       court

implicitly         found        Officer        Fenhouse's         undisputed           testimony
regarding       the      time    required         to     obtain    a     warrant       credible,

because      the       circuit        court        referenced          Officer       Fenhouse's

testimony in its ruling12 and based its ruling in part on "the

time    that    it     would      take      for    obtaining       the        warrant,"      while

Officer Fenhouse provided the only testimony regarding the time


       12
       The circuit court stated, "The officer did testify as to
his experience in regards to trying to obtain and obtaining
search warrants in the past."


                                                  18
                                                                            No.       2014AP1267-CR



needed       to    obtain       a    warrant.           See        State     v.    Echols,       175

Wis. 2d 653, 672, 499 N.W.2d 631 (1993) ("A trial court is not

required to recite 'magic words' to set forth its findings of

fact.     An implicit finding of fact is sufficient when the facts

of record support the decision of the trial court." (citations

omitted)); see also id. at 673 ("When a trial court does not

expressly         make    a     finding      necessary            to     support      its      legal

conclusion, an appellate court can assume that the trial court

made    the       finding      in    the    way       that    supports          its   decision."

(citation         omitted)).         This     finding             was    also      not      clearly

erroneous.         See Popke, 317 Wis. 2d 118, ¶20 (citation omitted).

       ¶40    Finally,          Parisi's      health         was        unstable.         At    the

hospital, "[hospital staff] were tending to him and then it

seemed things were getting better and then it would deteriorate

again."           Under       the    circumstances,               Officer     Fenhouse         might

reasonably have feared that if he attempted to obtain a warrant

before drawing Parisi's blood, Parisi's condition could again

lapse,       causing        Officer        Fenhouse          to     miss     his      window      of
opportunity.         Cf. Tullberg, 359 Wis. 2d 421, ¶48 (deputy sheriff

investigating drunk driver performed blood draw in part because

hospital staff planned to perform a CT scan and because the

deputy sheriff did not know whether the CT scan would lead to

subsequent medical treatment).

       ¶41    Given       all       of   these        factors——the          multiple        unknown

facts, the rapid dissipation of heroin in the blood, the time

needed to obtain a warrant, and Parisi's unstable condition——
"[t]he officer in the present case . . . might reasonably have
                                                 19
                                                      No.      2014AP1267-CR



believed that he was confronted with an emergency, in which the

delay necessary to obtain a warrant, under the circumstances,

threatened 'the destruction of evidence.'"           Schmerber, 384 U.S.

at 770 (citation omitted).      Critical evidence of heroin use in

Parisi's body was disappearing by the minute, and had been since

an unknown time that evening.      Officer Fenhouse could reasonably

conclude that waiting two hours for acquisition of a warrant,

with no guarantee that Parisi would be available for a blood

draw once a warrant was acquired, would mean loss of access to

that evidence.

       ¶42   Before proceeding, we take a moment to emphasize that

this case does not establish a per se rule that the dissipation

of heroin in the blood always constitutes an exigency justifying

a warrantless blood draw.       We instead resolve this case "based

'on its own facts and circumstances.'"          McNeely, 133 S. Ct. at

1559   (citations   omitted).    Any   number   of   factual   variations

might change the result in a future case: police might initially

have more facts at their disposal, such as the type and amount
of an ingested drug, as well as the time it was ingested; other

jurisdictions might allow for more rapid acquisition of search

warrants; scientific evidence on heroin dissipation may become

clearer in the future; and so on.

       B.    Whether the Presence of Morphine in Parisi's Blood
              Precludes a Finding of Exigent Circumstances
       ¶43   Before the circuit court, Parisi did not object to

admission of the Rook article and did not provide any scientific
evidence of his own.     Indeed, Parisi concedes on appeal, "Heroin

                                  20
                                                      No.     2014AP1267-CR



converts    to   its   first    metabolite,   6-[mono]acetylmorphine[,]

within a few minutes.          6-[mono]acetylmorphine then converts to

morphine.    6-[mono]acetylmorphine is detectable in plasma for 1-

3 hours after heroin use."13

     ¶44    Citing the Rook article, however, Parisi argues that

because     morphine   resulting    from   the   metabolism   of   heroin

"remains in the system for many hours after heroin use," exigent




     13
        Parisi has provided further scientific evidence for the
first time on appeal before this court in the appendix to his
brief.    In particular, Parisi cites a scientific article which
was not before the circuit court for the proposition that 6-
monoacetylmorphine is detectable in urine for an average of five
hours and as much as 34.5 hours.         See Alain G. Verstraete,
Detection Times of Drugs of Abuse in Blood, Urine, and Oral
Fluid, 26 Therapeutic Drug Monitoring 200 (2004) ("Verstraete
article").        The   passage   relied    upon    states,    "After
administration of 3, 6, and 12 mg heroin intravenously, 6-
acetylmorphine is detectable in urine during respectively 2.3,
2.6,    and   4.5   hours. . . .    In   the    Lübeck    study,   6-
acetylmorphine . . . was detectable for 5 hours on average
(maximum 34.5 hours) . . . in urine." Id. at 203. In contrast,
the Rook article states, "6-monoacetylmorphine was detectable
for 1.2-4.3 hrs in urine after intravenous injection or
inhalation of 2.6-20 mg heroin." Rook, supra, at 111. Based on
the evidence, then, 6-monoacetylmorphine can become undetectable
in urine in as little as 1.2 to 2.3 hours, as opposed to the
Rook article's indication that 6-monoacetylmorphine can become
undetectable in blood in as little as one hour.        Id.   Parisi's
article does not affect our analysis. Even assuming that an
involuntary urine test was feasible in this case——a contention
the    State    questions——the   amount    of    time    before    6-
monoacetylmorphine is potentially undetectable in urine is not
materially different for our purposes from the amount of time
before 6-monoacetylmorphine is potentially undetectable in
blood.


                                     21
                                                                   No.       2014AP1267-CR



circumstances did not exist.14                 Parisi points out that morphine

was found in Parisi's blood sample, which was drawn "almost two

and a half hours after police encountered him."                          He agrees that

morphine indicates that a person used either heroin or morphine,

but argues:

       Because the presence of drugs in blood is not
       sufficient by itself to support a conviction of
       possessing a controlled substance, any blood test
       result would be coupled with other corroborating
       evidence from the case in order to convict. State v.
       Griffin, 220 Wis. 2d 371, 381, 584 N.W.2d 127 (Ct.
       App. 1998). That other evidence in a case will inform
       which of [the] two Schedule 1 narcotics, heroin or
       morphine, the individual unlawfully consumed.
       ¶45    The flaws in Parisi's reasoning are two-fold.                       First,

the test we use to analyze whether or not exigent circumstances

exist is an objective one based on "the circumstances known to

the    officer    at    the       time,"     Smith,   131    Wis. 2d      at   230,    and

although an officer might reasonably have believed that a two-

hour delay would risk the destruction of evidence in this case

because of, among other things, the rapid dissipation of heroin

in    the    blood,    it    is    not     clear   that     an   officer    would     have
knowledge       of     the        specific     metabolic         processes      involved

subsequent to ingestion of heroin, or the specific rates of

each.       Whether morphine was eventually found in Parisi's blood

       14
       We do not possess,                   but do not require, information
regarding precisely how long                morphine remains in the human body
after ingestion of heroin.                   According to the State, the Rook
article indicates that "one                 quarter of the morphine [that was
initially in the blood] can                still be detected . . . about three
to nine hours later."


                                             22
                                                                      No.        2014AP1267-CR



is not relevant to what a police officer might reasonably have

believed     prior    to    conducting       the    blood       draw.        See    State    v.

Jennifer Parisi, 2014 WI App 129,                       ¶12, 359 Wis. 2d 255, 857

N.W.2d 472 ("The exigent circumstances exception . . . does not

require      that      officers           observe        actual          destruction         of

evidence . . . .           The     exception       rather        requires        only      that

officers have a reasonable belief 'that delay in procuring a

search    warrant     would       risk    destruction       of    evidence.'"            (citing

Hughes, 233 Wis. 2d 280, ¶24)).

       ¶46   Second, even assuming for the sake of argument that a

reasonable police officer knows that heroin is detectable in

blood as morphine for several hours after ingestion, the officer

in this case did not know what corroborating evidence of heroin

or morphine use police would ultimately find, or what alibis

Parisi might raise.              Parisi might have a plausible defense to a

charge based on heroin found in the residence and morphine found

in his blood, but no defense to a charge based on heroin found

in the residence and heroin or 6-monoacetylmorphine found in his
blood.       In   other     words,       heroin    or    its     first      metabolite,      6-

monoacetylmorphine, remained the most probative evidence that

Parisi had used heroin.

       ¶47   Parisi argues that "this Court will be making new law

if it adopts the [S]tate's argument that no warrant is required

when     seeking     one    will     risk     the       destruction         of     the    'best

evidence.'"          Parisi       instead    contends          that   McNeely        dictates

application of the exigent circumstances exception "when waiting


                                             23
                                                                No.        2014AP1267-CR



for   a   warrant    means     the    only    evidence    of    the    crime    may    be

destroyed."

      ¶48    We do not agree with Parisi's reading of McNeely.                        The

McNeely court held that, "In those drunk-driving investigations

where police officers can reasonably obtain a warrant before a

blood sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they

do so."      McNeely, 133 S. Ct. at 1561 (emphasis added).                       Here,

assuming that an officer possessed full knowledge of the manner

in which heroin is metabolized, the officer could reasonably

believe     that    waiting     two    hours      to   obtain    a    warrant    would

"significantly       undermin[e]       the    efficacy"    of   a     blood    draw   by

leading     to     ambiguous    test    results;       evidence       of   heroin     or

morphine use, rather than of heroin use alone, might result if

sufficient time has passed (this was in fact the result in this

case).      Depending     on     the    corroborating       evidence       eventually

obtained in the case, and testimony given by the defendant or

other witnesses, the State might not be able to prove illegal
possession of any drug.

      ¶49    The McNeely court also alluded to a "best evidence"

approach when it stated:

      While experts can work backwards from the [blood
      alcohol concentration] at the time the sample was
      taken to determine the [blood alcohol concentration]
      at the time of the alleged offense, longer intervals
      may raise questions about the accuracy of the
      calculation.   For that reason, exigent circumstances
      justifying a warrantless blood sample may arise in the
      regular course of law enforcement due to delays from
      the warrant application process.

                                             24
                                                              No.      2014AP1267-CR



Id. at 1563.     In other words, a warrantless blood sample may be

justified    even   where     an    inferior      form   of   evidence     may   be

available.       Chief    Justice     John   Roberts,     joined    by    Justices

Stephen Breyer and Samuel Alito, was even more forceful:

         McNeely contends that there is no compelling need
    for a warrantless blood draw, because . . . the State
    can use math and science to work backwards and
    identify a defendant's [blood alcohol concentration]
    at the time he was driving.       But that's not good
    enough.   We have indicated that exigent circumstances
    justify warrantless entry when drugs are about to be
    flushed down the toilet.      We have not said that,
    because there could well be drug paraphernalia
    elsewhere in the home, or because a defendant's co-
    conspirator might testify to the amount of drugs
    involved, the drugs themselves are not crucial and
    there is no compelling need for warrantless entry.

         The same approach should govern here. There is a
    compelling need to search because alcohol——the nearly
    conclusive evidence of a serious crime——is dissipating
    from the bloodstream. The need is no less compelling
    because the police might be able to acquire second-
    best evidence some other way.
Id. at 1571 (Roberts, C.J., concurring in part and dissenting in

part) (footnote omitted) (citations omitted).                 See also State v.
Peardot, 119 Wis. 2d 400, 404, 351 N.W.2d 172 (Ct. App. 1984)

("Exigent circumstances existed here.               The marked currency was

the best evidence linking defendant with the sale of the LSD.

If the police had not moved quickly, defendant could easily have

disposed    of   the     money   in   any    of   several     ways."     (emphasis

added)).

    ¶50     In sum, the fact that morphine remains in the body for

several hours after the ingestion of heroin does not mean that
it would be unreasonable for Officer Fenhouse to believe that

                                        25
                                                       No.    2014AP1267-CR



taking the time to obtain a search warrant in this case risked

destruction of evidence of heroin use.15

  C.        Whether a Finding of Exigent Circumstances is Precluded
                 Because this is not a Drunk-Driving Case
       ¶51    Finally,   Parisi   notes   that   in   both   Bohling   and

McNeely, the public safety risk presented by drunk-driving was

balanced against the defendant's privacy interest "in preventing

an agent of the government from piercing his skin."              McNeely,

133 S. Ct. at 1565.
       ¶52    In Bohling, we noted in passing, "[O]ur interpretation

of Schmerber makes sense from a policy standpoint.           It strikes a


       15
       For all of the reasons discussed, we reject Parisi's
arguments that a warrant could have been pursued because of (1)
the number of officers involved in this case (five to seven
officers) and (2) the delay that occurred while hospital staff
stabilized Parisi.    Officer Fenhouse could reasonably believe
that asking another officer to obtain a warrant would be futile,
given the short timeframe before evidence of heroin use
disappeared. For instance, if officers suspect drugs are being
flushed behind a closed door, see, e.g., Kentucky v. King, 563
U.S. 452 (2011), the exigency is not eliminated merely because
there are multiple officers at the scene. See United States v.
Fiasche, 520 F.3d 694, 698 (7th Cir. 2008).

     Similarly, Officer Fenhouse had no way of knowing, at the
hospital at 1:55 a.m., that Parisi would be unavailable for a
blood draw until 3:10 a.m.         Based on Officer Fenhouse's
testimony, it is unlikely that a warrant process begun at 1:55
a.m. would have been completed by 3:10 a.m. anyway. It was not
so unreasonable as to render the blood draw unconstitutional for
Officer Fenhouse to fail to begin the warrant process when
Parisi's health lapsed. "[T]he calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments——in circumstances that are
tense, uncertain, and rapidly evolving." King, 563 U.S. at 466
(quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).


                                    26
                                                            No.         2014AP1267-CR



favorable balance between an individual's right to be free from

unreasonable searches and Wisconsin's interest in enforcing its

drunk driving laws.         Wisconsin's interest is vital whereas the

resulting intrusion on individual privacy is minimal."                     Bohling,

173 Wis. 2d at 545.        Further, we recognized that "in the context

of driving on public highways, public safety concerns reduce a

driver's expectation of privacy."             Id. at 541.

      ¶53   In   McNeely    the   Supreme      Court    likewise    acknowledged

both "the compelling governmental interest in combating drunk

driving" and "the fact that people are 'accorded less privacy

in . . . automobiles       because   of      th[e]    compelling    governmental

need for regulation.'"          McNeely, 133 S. Ct. at 1565 (alteration

in original) (quoting California v. Carney, 471 U.S. 386, 392

(1985)).    The Court also stated that "a blood test conducted in

a medical setting by trained personnel . . . is concededly less

intrusive     than      other     bodily       invasions    we      have       found

unreasonable," while adding that "any compelled intrusion into

the   human      body      implicates        significant,    constitutionally
protected privacy interests."                Id.     At bottom, however, the

Court found no reason to depart from "the traditional Fourth

Amendment     totality-of-the-circumstances            analysis    to     determine

whether an exigency justified a warrantless search."                       McNeely,

133 S. Ct. at 1565-66.

      ¶54   Here, Parisi argues that he "never operated a vehicle

or put anyone other than himself at risk.                . . .     Heroin use is

dangerous[,] but if the user does not get behind the wheel, the
threat it poses is to the person who uses it, not to the public
                                        27
                                                                         No.         2014AP1267-CR



at     large.      . . .        [T]he    warrant       requirement            should      not    be

'relaxed' in [t]his case as it is in drunk driving cases."

       ¶55    We agree that, because this is not a case involving

intoxicated driving, the reduced privacy interest in such cases

does    not     apply.          Likewise,       we    agree       that   the        governmental

interest      in    preventing          intoxicated         driving      is    less       relevant

because      Parisi       was    not    found    driving      a    vehicle.           But    these

considerations only carry Parisi so far.                              It does not follow

that, because Parisi's privacy interests are somewhat greater in

this case than if he had been stopped on a highway, we must

therefore abandon our totality-of-the-circumstances analysis and

the exigent circumstances exception to the warrant requirement.

       ¶56    Our discussion of a "relaxed" warrant requirement in

the     context       of    driving       on     state        highways         supported        our

conclusion that Schmerber created a per se rule that dissipation

of alcohol alone constitutes an exigency.                           Bohling, 173 Wis. 2d

at    539-40.       But     Bohling      was     later      abrogated         by    the    Supreme

Court's McNeely decision, as were the decisions of other state
supreme      courts.        See    Bohling,          173    Wis. 2d 529,           abrogated     by

McNeely,      133    S.    Ct.    1552;    State       v.    Shriner,         751    N.W.2d     538

(Minn. 2008), abrogated by McNeely, 133 S. Ct. 1552; State v.

Woolery, 116 Idaho 368 (1989), abrogated by McNeely, 133 S. Ct.

1552.

       ¶57    In McNeely the Court explained that without a warrant,

"'the     fact-specific           nature        of    the     reasonableness              inquiry'

demands that we evaluate each case of alleged exigency based 'on
its own facts and circumstances.'"                         McNeely, 133 S. Ct. at 1559
                                                28
                                                                    No.         2014AP1267-CR



(citations omitted).              Schmerber, the Court continued, "applied

this      totality       of      the    circumstances           approach. . . .         [W]e

considered all of the facts and circumstances of the particular

case and carefully based our holding on those specific facts."

Id. at 1559-60.

       ¶58      The question Parisi essentially raises is whether the

search at issue was "unreasonable" simply because this is not a

drunk driving case.             U.S. Const. amend. IV; Wis. Const. art. 1,

§ 11.     In effect, Parisi is asking for a per se rule of his own.

Instead, taking our cue from McNeely, we analyze this case on

its     facts.          Parisi     unquestionably          possessed      "significant,

constitutionally protected privacy interests" in avoiding the

warrantless,          nonconsensual      blood      draw    that   occurred        in   this

case.     McNeely, 133 S. Ct. at 1565.                 But that Parisi never used

a   car    in    this     case    does    not      thereby      elevate    his      privacy

interests to such heights as to render any warrantless blood

draw    under      exigent      circumstances       unreasonable.           Cf.     Payano-

Roman,     290     Wis. 2d 380,         ¶38   ("The       Fourth   Amendment        neither
forbids      nor      permits     all    bodily       intrusions.          Rather,       the

Amendment's function is to constrain against intrusions 'which

are not justified in the circumstances, or which are made in an

improper manner.'" (quoting Winston, 470 U.S. at 760).

       ¶59      The    warrantless      blood      draw    at   issue     was     justified

under the circumstances, regardless of the presence or not of an

automobile.           As we have already determined, under the facts of

this case, the police reasonably feared destruction of evidence
of a crime.           Further, "[t]he intrusion in the usual blood draw
                                              29
                                                                  No.         2014AP1267-CR



is slight," State v. Krajewski, 2002 WI 97, ¶60,255 Wis. 2d 98,

648   N.W.2d 385,       and   the   draw        in   this    case       was     performed

reasonably, in a hospital by a phlebotomist.                      Finally, we would

be remiss if we failed to recognize the State's own compelling

interest in countering heroin use and addiction.                         Cf. State v.

Peck, 143 Wis. 2d 624, 634, 422 N.W.2d 160 (1988) ("Preservation

of    the   public     health   and        safety    is     the    obvious        purpose

underlying Wisconsin's drug laws, and we see a compelling state

purpose     in   the   regulation     of    marijuana       and   other       controlled

substances.")16        Adoption of Parisi's argument would lead to the


      16
       Heroin use and addiction is a problem that has become a
state and national epidemic.     See, e.g., Jerry L. Halverson,
Michael M. Miller, and George L. Morris, We Have a Heroin and
Opioid Problem; Let's Fix It, Milwaukee Journal Sentinel,
Aug. 16, 2015,    http://www.jsonline.com/news/opinion/we-have-a-
heroin-and-opioid-problem-lets-fix-it-b99556485z1-
321917961.html; Kathleen Hennessey, Obama: U.S. Will Tackle
'Epidemic' of Heroin, Prescription Drug Abuse, NBC New York,
Oct.    21,     2015,    http://www.nbcnewyork.com/news/national-
international/Obama-Prescription-Drug-Abuse-Epidemic-
335251301.html; Nate Beck, Former UWO Athlete Guilty of
Homicide-By-Heroin,   Oshkosh   Northwestern,   Dec.  17,   2015,
http://www.thenorthwestern.com/story/news/crime/2015/12/17/forme
r-uwo-athlete-guilty-homicide--heroin/77493166/          ("Though
attorneys sparred over the timeline of events that led to [the]
overdose, neither disputed heroin's grip on Winnebago County.").

     From 2002 to 2013 "the rate of heroin-related overdose
deaths [in the United States] nearly quadrupled, according to
the Centers for Disease Control and Prevention."      The Numbers
Behind America's Heroin Epidemic: A Guide to the Drug's Spread
and     Impact,      N.Y.     Times,      Oct.     30,      2015,
http://www.nytimes.com/interactive/2015/10/30/us/31heroin-
deaths.html?_r=0. In Wisconsin, "the number of overdose deaths
annually involving prescription painkillers and heroin now
exceeds the number of traffic fatalities." Halverson, supra.

                                                                              (continued)
                                           30
                                                No.   2014AP1267-CR




     We vigorously reject any suggestion that "the threat
[heroin] poses is to the person who uses it, not to the public
at large."   The heroin epidemic is destroying lives across the
country, and not just those of heroin users. See, e.g., Krystle
Kacner, "It's a Nightmare:" Menomonee Falls Father Wants to Help
Others After Son Dies of Overdose," Fox6 News, Nov. 17, 2015,
http://fox6now.com/2015/11/17/its-a-bloody-nightmare-menomonee-
falls-father-wants-to-help-others-after-son-dies-of-overdose/.
Kacner's article features the father of a 22-year old who died
from a heroin overdose.     According to Kacner, the father is
"living proof that the addict's life may not be the only thing
the drug takes.   'We got divorced, went bankrupt, foreclosure,
lost the company. . . . It's terrible for the other children——
not only losing a brother, but going through the addiction
process——because they don't get the attention growing up that
they deserved.'"   See also Deborah Sontag, Heroin's Small-Town
Toll, and a Mother's Grief, N.Y. Times, Feb. 10, 2014,
http://www.nytimes.com/2014/02/11/us/heroins-small-town-toll-
and-a-mothers-pain.html (discussing story of woman from Hudson,
Wisconsin, whose 21-year-old daughter "was a heroin abuser" and
died after overdosing on "a mix of drugs" in 2013).       Federal
data show that nearly 20 percent of those who died from heroin
in 2010 were ages 15 to 24. Id.

     The Wisconsin Legislature is working to address the heroin
problem in our state.    See, e.g., Jessie Opoien, Led by State
Rep. John Nygren, Wisconsin Families Caught in Heroin's Grasp
Fight    Back,    The    Capital    Times,    Dec.    2,     2015,
http://host.madison.com/ct/news/local/govt-and-politics/led-by-
state-rep-john-nygren-wisconsin-families-caught-
in/article_640a242f-91d6-5dd6-a8c4-ca46a14304d8.html.    Wisconsin
State Representative John Nygren, whose own daughter struggled
with heroin addiction,


      has become the Wisconsin Legislature's torchbearer for
      combating the state's heroin and opiate epidemic.   In
      2014, he ushered a package of bills aimed at curbing
      heroin abuse and deaths through the Legislature with
      unanimous support.     In September, he introduced a
      second package focusing on prescription painkillers.
      As the crisis has deepened, other politicians and
      affected families have gotten involved.

Id.


                                31
                                                                          No.         2014AP1267-CR



loss    of     police        access    to       critical          evidence       in       countless

situations in which obtaining a warrant in time is simply not

practical,          through    no     fault       of        the    officers          seeking     the

evidence.       Cf. McNeely, 133 S. Ct. at 1561.                          That this case is

distinguishable         from    Bohling         and    McNeely       on    the       ground      that

Parisi did not operate a vehicle does not make the drawing of

his blood automatically unreasonable.

                                      V.    CONCLUSION

       ¶60     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).

       By     the    Court.—The       decision         of    the    court       of    appeals     is
affirmed.




                                                32
                                                                     No. 2014AP1267-CR.awb




      ¶61    ANN    WALSH      BRADLEY,          J.    (dissenting).       The     primary

issue addressed by the majority is whether Parisi's warrantless

blood draw is an exigent circumstance justifying an exception to

the warrant requirement.              If it is not, then the warrantless

blood draw was a violation of the Fourth Amendment of the United

States      Constitution        and        the        evidence     obtained      must      be

suppressed.

      ¶62    All agree that absent an emergency, search warrants

are required for intrusions into the human body.                              Missouri v.

McNeely,     133   S.    Ct.   1552,       1558       (2013)     (citing   Schmerber       v.

California, 384 U.S. 757, 770 (1966)).

      ¶63    Likewise, it is undisputed that pursuant to McNeely a

per   se    rule    authorizing        warrantless          blood     draws      based    on

dissipation of evidence in the bloodstream is prohibited under

the   Fourth   Amendment.            See    id.         Nevertheless,      the    majority

creates a per se rule by inventing a new best evidence rule for

every heroin case, concluding that exigent circumstances exist
due to the rapid speed at which heroin dissipates in the blood.

      ¶64    Not only does the majority opinion disregard McNeely’s

prohibition    of    a   per    se    rule       based     on    dissipation,     it     also

ignores the circumstances under which McNeely directs that the

police must always obtain a warrant.                            McNeely instructs that

"where police officers can reasonably obtain a warrant before a

blood sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they
do so."     Id. at 1561.

                                             1
                                                                   No. 2014AP1267-CR.awb


       ¶65     Contrary to the majority, I conclude that the State

has failed to show there were exigent circumstances justifying

an     exception           to     the     warrant     requirement.       During     the

approximately two and one-half hours available, at least one of

the five to seven officers involved in the investigation could

have and should have obtained a warrant.                     The warrantless blood

draw violated Parisi's Fourth Amendment rights and the evidence

resulting          from    it     should     be     suppressed.1       Therefore,     I

respectfully dissent.

                                              I.

       ¶66     The    majority          determines    that   the    circuit    court's

finding of exigent circumstances based on "the dissipation of

 . . . heroin within the human body, and the speed in which it

does       that"    were    not    clearly     erroneous.      Majority       op.   ¶38.

According to the majority, "critical evidence of heroin use in

Parisi’s body was disappearing by the minute, and had been since

an unknown time that evening."                Majority op. ¶41.




       1
       Parisi asserts a violation of both the Fourth Amendment to
the U.S. Constitution and a violation of Article I, § 11 of the
Wisconsin Constitution.   When we refer to the Fourth Amendment
in this discussion, we intend the discussion to be equally
applicable to Article I, § 11 of the Wisconsin Constitution.
"Generally, we have interpreted provisions of the Wisconsin
Constitution consistent with the United States Supreme Court's
interpretation    of   their   counterparts   in    the   federal
constitution.    However, on occasion, we have interpreted a
provision in the Wisconsin Constitution more broadly than the
United States Supreme Court has interpreted a parallel provision
in the United States Constitution." State v. Arias, 2008 WI 84,
¶19, 311 Wis. 2d 358, 752 N.W.2d 748 (citations omitted).


                                              2
                                                                   No. 2014AP1267-CR.awb


      ¶67   Repeatedly, the majority focuses on dissipation.                              See,

e.g.,   majority     op.      ¶45     ("a    two-hour      delay       would    risk      the

destruction of evidence in this case because of, among other

things, the rapid dissipation of heroin in the blood"); see also

majority op. ¶48 ("waiting two hours to obtain a warrant would

'significantly      undermin[e]        the       efficacy'    of   a    blood    draw      by

leading     to   ambiguous      test        results;      evidence      of     heroin      or

morphine use, rather than heroin use alone, might result if

sufficient time has passed"); majority op. ¶50 ("the fact that

morphine    remains      in    the     body      for    several    hours       after      the

ingestion of heroin does not mean that it would be unreasonable

for Officer Fenhouse to believe that taking the time to obtain a

search warrant in this case risked destruction of evidence of

heroin use").

      ¶68   In asserting that the rapid dissipation of heroin is

an   exigent     circumstance,         the    majority       relies     on     scientific

literature provided by the State.                  See Elisabeth J. Rook et al.,

Pharmacokinetics and Pharmacokinetic Variability of Heroin and
its Metabolites: Review of the Literature, 1 Current Clinical

Pharmacology      109,   111    (2006).           Of    particular      import       is   the

scientific       evidence      that    "[h]eroin         converts       to     its    first

metabolite, 6-[mono]acetylmorphine[,] within a few minutes.                                6-

[mono]acetylmorphine           then         converts       to      morphine.               6-

[mono]acetylmorphine is detectable in plasma for 1-3 hours after

heroin use."        Majority op. ¶43.                  According to the majority,

heroin or its first metabolite, 6-monoacetylmorphine, are the



                                             3
                                                                 No. 2014AP1267-CR.awb


most probative evidence of heroin use and therefore the best

evidence.      Majority op. ¶46.

       ¶69    The    majority    concedes        that   morphine    is   evidence     of

heroin use that remains in the blood for hours after heroin and

6-monoacetylmorphine dissipate.                  See, e.g., majority op. ¶50.

Nevertheless, it rejects this evidence as not being sufficiently

probative.2         Consequently, the majority creates a best evidence

rule in heroin cases.

       ¶70    Oddly,    the     majority    ends    up   arguing     that     the   very

evidence      of    morphine     the    State     wishes    to     preserve    in    the

suppression motion is really not good enough because it is less

probative      than    heroin    or    6-monoacetylmorphine.             Majority    op.

¶46.       It contends, "Parisi might have a plausible defense to a

charge based on heroin found in the residence and morphine found

in his blood, but no defense to a charge based on heroin found

in the residence and heroin or 6-monoacetylmorphine found in his

blood."      Majority op. ¶46.

                                           II.



       2
       The majority goes to such lengths to minimize the
evidentiary value of morphine in the blood that it does not even
bother to determine how long morphine is detectable after heroin
use. According to the majority: "We do not possess, but do not
require, information regarding precisely how long morphine
remains in the human body after ingestion of heroin." Majority
op. ¶44 n.14.

     The majority is incorrect.     At oral argument, Parisi's
counsel explained that according to the Rook article supplied by
the State, "the metabolites of heroin stay in the system for 12,
could be even 24 hours..."


                                            4
                                                            No. 2014AP1267-CR.awb


    ¶71    In our prior decisions, this court properly recognized

that McNeely "changed the landscape of warrantless blood draws

in Wisconsin."      State v. Tullberg, 2014 WI 134, ¶42, 359 Wis. 2d

421, 857 N.W.2d 120; see also State v. Kennedy, 2014 WI 132,

¶29, 359 Wis. 2d 454, 856 N.W.2d 834 ("in 2013, the United

States Supreme Court issued its decision in McNeely, effectively

abrogating our holding in Bohling that the rapid dissipation of

alcohol alone constitutes an exigent circumstance sufficient for

law enforcement officers to order a warrantless investigatory

blood   draw.").3   In    Kennedy,   this   court    concluded      that   under

McNeely, "the Fourth Amendment does not allow such per se rules

in the context of warrantless investigatory blood draws."                    359

Wis. 2d 454, ¶29 (citing McNeely, 133 S. Ct. at 1561).

    ¶72    Despite this court’s prior adherence to McNeely, the

cornerstone   of    the   majority’s   opinion      rests    on   its   repeated

assertion that the rapid dissipation of heroin in the blood

    3
       Bohling makes clear that it is specific to the drunk
driving context.    It stated that "a warrantless blood sample
taken at the direction of a law enforcement officer is
permissible under the following circumstances: (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."     State v. Bohling, 173 Wis. 2d
529, 533-34, 494 N.W.2d 399 (1993) (emphasis added) abrogated by
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

     The majority opinion fails to accurately state these
requirements.   It omits the first factor, which provides an
essential distinction between Bohling and this case.     See
majority op. ¶31 & n.11.


                                       5
                                               No. 2014AP1267-CR.awb


risks the destruction of evidence.     See, e.g., majority op.

¶¶40-45.   Yet, the majority admonishes that this case "does not

establish a per se rule that the dissipation of heroin in the

blood always constitutes an exigency justifying a warrantless

blood draw."   Majority Op. ¶42.

    ¶73    Contrary to the above admonition, the author of the

majority opinion got it right at oral argument.       The State's

argument, which the majority now adopts, is really "Bohling for

heroin":

    Justice Ziegler:   Ok, but it has never been the law
    that just because evidence is really good, you don't
    need a warrant. That's almost what you are saying and
    you are losing me on that.

    Counsel for the State:   ... What I am saying is that
    because this really good evidence, this really
    probative evidence dissipates so quickly, at least in
    the case of heroin, and the public defender brought up
    some other drugs like marijuana and things like that,
    this is a whole different animal. I agree if this is
    a marijuana case, we would be done. We would be done
    because marijuana being a natural substance–cocaine
    being a natural substance-it doesn't break down.
    Heroin is a not natural substance–it's a synthetic and
    it does break down.   That is why you need to get the
    evidence quickly.   And that is why you have exigent
    circumstances because you need to get it quickly.

    Justice Ziegler:   So to be clear, you are basically
    asking us to revive Bohling in terms of heroin cases
    or substances that are not natural.

    ... [W]hat I really hear you saying is that in heroin
    cases there is an exigency because it dissipates so
    quickly. That's Bohling for heroin, isn't it?
    ¶74    The majority now asserts that "[w]e instead resolve

this case 'based on its own facts and circumstances.'"    Majority
op. ¶42.   Yet, all of the facts and circumstances the majority

                                   6
                                                                     No. 2014AP1267-CR.awb


discusses relate only to dissipation: the type and amount of an

ingested drug, the time it was ingested, the time it takes to

get    a        warrant    in    relation       to    dissipation,       and    scientific

evidence on the rapid dissipation of heroin.                              Id.     Its best

evidence         rule     places    the       focus   on    facts   and       circumstances

relating only to dissipation.                   By inventing a best evidence rule

for every heroine case and concluding that exigent circumstances

exist because of the rapid dissipation of heroin, the majority

creates a per se rule for heroin cases.

       ¶75       If the majority is correct that heroin is in the blood

for only a few minutes and 6-monoacetylmorphine is present in

the blood for only one to three hours before metabolizing into

morphine, this would be the circumstance in every case.4                            Even if

the    scientific          evidence       regarding        the   rate    of     dissipation

changed, it would change for every case.

       ¶76       Likewise, the time it takes to obtain a warrant will

always cause some delay in every case.                           In this case, Officer

Fenhouse testified that that it takes approximately two hours to
obtain a search warrant.                  Majority op. ¶14.             However, McNeely

sounds a note of caution, explaining that consideration of the

time       it    takes    to    obtain    a    warrant     "might   well      diminish   the

incentive for jurisdictions to pursue progressive approaches to

warrant acquisition that preserve the protections afforded by



       4
       The majority opinion dismisses the scientific articles
Parisi submitted and instead relies on a solo article submitted
by the State. See majority op. ¶43 n.13.


                                                 7
                                                                       No. 2014AP1267-CR.awb


the    warrant       while       meeting      the   legitimate      interests      of    law

enforcement."         McNeely, 133 S. Ct. at 1563 (citations omitted).

       ¶77    Underlying the majority's conclusion that the rate of

dissipation of heroin in the blood justifies an exception to the

warrant requirement is the majority's newly minted best evidence

rule for heroin cases.                 According to the majority, "the officer

could reasonably         believe that waiting two hours to obtain a

warrant      would    'significantly           undermin[e]       the     efficacy'      of    a

blood draw by leading to ambiguous test results; evidence of

heroin or morphine use, rather than heroin use alone, might

result if sufficient time has passed."                    Majority op. ¶48.

       ¶78    The majority errs in its creation of a best evidence

rule for heroin cases.                 It contradicts well-established law when

it    contends   that        a   blood     draw     showing     "heroin    or    its   first

metabolite,      6-monoacetylmorphine,               remained     the     most   probative

evidence     that     Parisi       had     used     heroin."5      Majority      Op.    ¶46.

"Neither      Wisconsin          law    nor    federal    law     recognizes      a    'best

evidence rule' that established a hierarchy of evidence.                                     In
effect, all evidence is created equal."                          7 Daniel D. Blinka,

Wisconsin Practice Series: Wisconsin Evidence § 1001.1 at 928


       5
       The majority fails to adequately explain its singular
focus of needing to find heroin——not morphine——in the blood.
Parisi was charged with Possession of a Schedule I or II
narcotic drug. Wis. Stat. § 961.41(3g)(am) provides that: "If a
person possesses or attempts to possess a controlled substance
included in schedule I or II which is a narcotic drug... the
person is guilty of a Class I felony." Even if the police had
only been able to convict Parisi of possession of morphine, both
heroin and morphine carry the same criminal penalty.    See Wis.
Stat. §§ 961.14(3)(k) and 961.16(2)(a)10.


                                                8
                                                                     No. 2014AP1267-CR.awb


(3rd    ed.    2008)    (explaining        the   "myth       of     the   best    evidence

rule").

       ¶79     Even if there were a best evidence rule, evidence of

drugs    in    the    bloodstream       alone    is    not     enough      to    support   a

possession charge.           Here, Parisi was charged with possession of

a schedule I or II narcotic drug.                       In Wisconsin, "the mere

presence of drugs in a person’s system is insufficient to prove

that the drugs are knowingly possessed by the person or that the

drugs are within the person’s control."                       State v. Griffin, 220

Wis. 2d 371, 381, 584 N.W.2d 127 (1998).                       Evidence of drugs in

the bloodstream is "circumstantial evidence of prior possession"

and    must    be    "combined      with   other       corroborating         evidence      of

sufficient probative value" in order to prove possession.                           Id.

       ¶80     The majority’s reasoning is flawed because even if the

police had been able to detect heroin or its first metabolite 6-

monoacetylmorphine           in   the   bloodstream,         they    still      would   need

corroborating evidence to convict Parisi of heroin possession.

In this case, police found "a bindle of what looked to be heroin
wrapped in tinfoil, some cut ends, and [a] marijuana pipe" at

the scene of the overdose.                  Majority op. ¶10. Additionally,

Parisi       was    given    Narcan     before    he    was       transported      to   the

hospital, which Officer Fenhouse knew was "usually administered

for people who have overdosed on heroin."                            Majority op. ¶7.

Thus, the heroin found in the apartment where Parisi overdosed

and    the    fact    that    he    was    treated      with      Narcan     present    key

corroborating evidence.



                                            9
                                                                      No. 2014AP1267-CR.awb


       ¶81   The majority’s reliance on McNeely for support of a

best evidence rule is misplaced.                      The term "best evidence" does

not appear in the McNeely majority opinion.                       Additionally, there

are    distinctions         between        the     presence      of    alcohol     in        the

bloodstream and the presence of heroin.

       ¶82   Evidence       of    heroin         or   6-monoacetylmorphine         in        the

bloodstream is less probative than evidence of alcohol in the

bloodstream because a BAC level alone is enough to obtain a

drunk driving conviction.              In contrast, evidence of drug use in

the    blood       stream     requires           corroborating        evidence         for     a

possession conviction.             Moreover, the amount of alcohol in the

blood is relevant to a conviction, but the amount of heroin in

the blood is not.           Unlike a BAC level, the police need find only

a trace of heroin or its metabolites in the bloodstream.

       ¶83   In State v. Jones the Nevada Supreme Court articulated

this distinction.           It determined that the dissipation of cocaine

in the defendant’s bloodstream was not an exigent circumstance

that    justified      a     departure           from   the     normal     procedure          of
obtaining a warrant.             895 P.2d 643, 644 (1995).               The Jones court

explained      that    evidence       of    alcohol       and    drugs    in     the    blood

differ.      Id.      That analysis is applicable here: "a conviction

for    driving     under    the    influence          requires    a   specific     minimum

concentration of blood alcohol, whereas a conviction for being

under the influence of a controlled substance requires only a

trace amount of the substance or its metabolites."                         Id.

       ¶84   The majority also misunderstands State v. Peardot, 119
Wis. 2d 400, 351 N.W.2d 172 (1984), when it cites to that case

                                             10
                                                             No. 2014AP1267-CR.awb


as support for the adoption of a best evidence rule.                      The term

"best" was used merely as an adjective to describe the evidence.

There is no discussion in Peardot supporting the adoption of a

best evidence approach.

     ¶85    Finally, the majority's insistence that evidence of

morphine    in   the   bloodstream   is       less   probative    evidence      than

heroin or 6-monoacetylmorphine ignores the facts of this case.

The warrantless blood draw performed on Parisi revealed evidence

of   morphine      in     his     bloodstream,         not      heroin     or     6-

monoacetylmorphine.       It is this very evidence of morphine in

Parisi's bloodstream that the State seeks to use and Parisi

seeks to suppress.

                                     III.

     ¶86    Not only did McNeely reject a per se rule based on

dissipation, it also set forth circumstances in which the police

must obtain a warrant without exception.                 133 S. Ct. at 1561.

McNeely    instructs    that    "where    police     officers    can     reasonably

obtain a warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth

Amendment mandates that they do so."                 Id.; see also Tullberg,

359 Wis. 2d 421, ¶42.

     ¶87    In a footnote, the majority rejects Parisi's arguments

that a warrant should have been pursued because of the number of

officers involved in the case.                 Majority op. ¶50 n.15.            It

advances that "Officer Fenhouse could reasonably believe that

asking another     officer to obtain a warrant would be futile,



                                         11
                                                                  No. 2014AP1267-CR.awb


given     the    short   timeframe      before        evidence      of     heroin      use

disappeared."      Id.

    ¶88     However,     the    McNeely      court        explained      that    in     "a

situation in which the warrant process will not significantly

increase the delay before the blood test is conducted because an

officer can take steps to secure a warrant while the suspect is

being      transported     to     a     medical           facility       by      another

officer . . . there would be no plausible justification for an

exception to the warrant requirement."                     Id. at 1561.         That is

exactly    the    circumstance    here,      yet      the       majority's      decision

directly contravenes McNeely.

    ¶89     Under McNeely, there is no plausible justification for

the majority's decision.          It is undisputed that there were a

total of five to seven officers working on Parisi's case.                              See

majority    op.    ¶9.     Officer      Fenhouse          and    Officer      Moua    both

followed Parisi's ambulance to the hospital.                      Majority op. ¶11.

Any of the five to seven officers working on the case could have

applied for a warrant while Officer Fenhouse followed Parisi to
the hospital.

    ¶90     In    addition,     there     was        no    reason    for      delay     in

obtaining a warrant given that the officers had probable cause

as soon as they arrived at the scene.                       As referenced above,

Parisi    was    given   Narcan   before        he    was       transported      to    the

hospital, which Officer Fenhouse knew was "usually administered

for people who have overdosed on heroin."                   Majority op. ¶7.          The

officers at the scene also found "a bindle of what looked to be



                                        12
                                                                      No. 2014AP1267-CR.awb


heroin wrapped in tinfoil, some cut ends, and [a] marijuana

pipe."      Majority op. ¶10.

      ¶91    There        is   also     no     explanation         for     the     delay     in

obtaining      a    warrant      once       Officer    Fenhouse          arrived     at    the

hospital.      Although Officer Fenhouse intended to have Parisi's

blood drawn immediately, Parisi was initially deemed to be too

unstable for the procedure.                  During the two hours that Officer

Fenhouse waited at the hospital before Parisi's blood could be

drawn, there was nothing that prevented him from obtaining a

warrant.

      ¶92    After        McNeely,      this       court     has     allowed     only      one

exception to the warrant requirement for blood draws based on

exigent circumstances.                Tullberg, 359 Wis. 2d 421, ¶30.                       The

majority contends that Tullberg is an analogous case involving

warrantless blood draws.              Majority op. ¶¶30, 40.               It is not.

      ¶93    At     the    outset,      the     Tullberg      court      noted     that     the

investigating officer "did not improperly delay in obtaining a

warrant.       He    did       not    have    probable       cause    to     believe       that
Tullberg operated the motor vehicle while under the influence of

an intoxicant until nearly three hours after the accident.                                  If

anything,      Tullberg's            actions,       rather     than        the     deputy's,

necessitated the warrantless blood draw."                      359 Wis. 2d 421, ¶44.

      ¶94    In contrast to the facts of this case, only one deputy

was   initially      dispatched        to     the    chaotic       scene    of   the      fatal

collision in Tullberg.               Id., ¶¶9-11.      Additionally, Tullberg was

not at the scene of the collision and the investigating deputy
did not know he was the driver.                       Id., ¶¶8-10.           When he was

                                              13
                                                                   No. 2014AP1267-CR.awb


finally interviewed at the hospital, Tullberg told the deputy

that he was a passenger in the vehicle.                      Id., ¶12.       It was not

until    nearly       three     hours       after     the     collision      when    the

investigation uncovered evidence that helped identify Tullberg

as the driver responsible for the fatal collision.                           Id., ¶¶15-

16.

       ¶95    Given    the    extraordinary         facts    and   circumstances       of

that case, the Tullberg court explained that the deputy, when

"confronted with such an accident scene and obstruction of his

investigation, conducted himself reasonably."                      Id., ¶47.        Under

McNeely, and as it is applied in Tullberg, an exception to the

warrant requirement for a blood draw is permissible only when

circumstances         prevent    an     officer       from    timely     obtaining     a

warrant.      McNeely, 133 S. Ct. at 1561; Tullberg, 359 Wis. 2d

421, ¶42.          Here, however, the majority's analysis focuses only

on facts and circumstances relating to dissipation because there

were no facts and circumstances preventing at least one of the

five to seven officers from timely obtaining a warrant.
       ¶96    In     its   effort      to    excuse     the     multiple      officers'

inexplicable failure to obtain a warrant, the majority conflates

dissipation in the bloodstream with cases involving the imminent

destruction of physical evidence.                   See majority op. ¶50 n.15.

Relying on destruction of evidence cases, the majority asserts

that    "if   officers       suspect    drugs     are   being      flushed    behind   a

closed door, [] the exigency is not eliminated merely because

there are multiple officers at the scene."                    Id. (citing Kentucky
v. King, 563 U.S. 452 (2001); United States v. Fiasche, 520 F.3d

                                            14
                                                                       No. 2014AP1267-CR.awb


694, 698 (7th Cir. 2008)).               The majority then analogizes Officer

Fenhouse’s      failure      to   obtain        a    warrant     at    the     hospital        to

destruction of evidence cases where "split—second judgments-in

circumstances that are tense, uncertain, and rapidly evolving."

Id. (citing King, 563 U.S. at 466 (quoting Graham v. Connor, 490

U.S. 386, 396-97 (1989)).

       ¶97    Such    reliance     on     destruction          of    evidence        cases     is

unpersuasive,         because     "[t]he        context     of        blood    testing         is

different      in     critical         respects      from      other       destruction-of-

evidence cases in which the police are truly confronted with a

'now or never' situation."               McNeely, 133 S. Ct. at 1561 (citing

Roaden v. Kentucky, 413 U.S. 496, 505 (1973)).                          Dissipation of a

substance in the blood differs from circumstances "in which the

suspect has control over easily disposable evidence."                               Id.

       ¶98    It     is   quite    a     stretch       to      compare        the    apparent

availability         of   five    to    seven       officers        including       a     police

officer sitting in a hospital waiting room for two hours, with a

drug   raid     where     officers       hear       evidence     being      flushed        away.
Likewise,      the    five   to    seven        officers       at    the    scene         of   the

overdose knew that Parisi was not about to imminently destroy

evidence.       The police certainly did not have to break through

the door on a moment's notice because Parisi's friends met the

officers outside to help direct them to the proper location.

Majority op. ¶5.          When the police entered the apartment, Parisi

was laying unresponsive on the living room floor in his own

vomit.       Majority op. ¶6.           Unlike making a split-second decision
to preserve evidence, the steady dissipation of heroin in the

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blood is just not the kind of emergency that justifies foregoing

a warrant.

    ¶99     I determine that under the facts and circumstances of

this case, one of the five to seven officers could have secured

a warrant in the two and one-half hours before Parisi's blood

was drawn without significantly undermining the efficacy of the

search.    Officers were dispatched to the scene at 12:38 a.m. and

arrived five to ten minutes after dispatch.                   Majority op. ¶4.

Shortly    thereafter,    Narcan,      the    antidote       for    heroine,       was

administered.       Majority op. ¶7.         The blood draw did not occur

until 3:10 a.m.      Majority op. ¶13.

    ¶100 The State has the burden of proving the existence of

exigent circumstances.         State v. Richter, 2000 WI 58, ¶29, 235

Wis. 2d 524, 612 N.W.2d 29.             It has utterly failed to do so

here.     Even if Officer Fenhouse's failure to seek a warrant is

excusable——and      it   is    not——there      is    a     complete       dearth   of

information    as   to   why   none    of    the    available      five    to   seven

officers failed to seek a warrant.
    ¶101 Contrary to the majority, I conclude that there were

no exigent circumstances justifying an exception to the warrant

requirement.     As a result, the warrantless blood draw violated

Parisi's Fourth Amendment rights.              Accordingly, I respectfully

dissent.

    ¶102 I     am   authorized    to    state       that   Justice    SHIRLEY      S.

ABRAHAMSON, J. joins this dissent.




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