#26890-a-LSW
2014 S.D. 62

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                      ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellant,

      v.

SHAUNA FIERRO,                               Defendant and Appellee.

                               ****
                APPEAL FROM THE MAGISTRATE COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    BUTTE COUNTY, SOUTH DAKOTA

                               ****
                   THE HONORABLE MICHELLE K. PERCY
                               Judge
                               ****

MARTY J. JACKLEY
Attorney General

JEFFREY P. HALLEM
KELLY MARNETTE
Assistant Attorneys General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellant.


RONALD A. PARSONS, JR.
DELIA M. DRULEY of
Johnson, Heidepriem & Abdallah, LLP
Sioux Falls, South Dakota

      and

JOSEPH M. KOSEL of
Johns & Kosel, LLC
Lead, South Dakota                           Attorneys for defendant
                                             and appellee.

                                      ****
                                             ARGUED ON MAY 28, 2014
                                             OPINION FILED 08/20/14
#26890

WILBUR, Justice

[¶1.]        In this intermediate appeal, we examine a magistrate court’s

suppression of blood evidence seized without a warrant pursuant to South Dakota’s

implied consent statutes. We affirm the suppression of the blood evidence.

                    FACTS AND PROCEDURAL BACKGROUND

[¶2.]        On the evening of August 4, 2013, Shauna Fierro was riding her

motorcycle to her home in Butte County, South Dakota. At approximately 11:18

p.m., South Dakota Highway Patrol Troopers Jerry Kastein and Richard Olauson

stopped Fierro after she committed a traffic violation.

[¶3.]        After reviewing Fierro’s South Dakota driver’s license, Trooper Kastein

administered a number of standard sobriety tests and concluded that Fierro did not

pass some of them. Fierro was placed under arrest for driving under the influence

of alcohol (DUI).

[¶4.]        After making the arrest, Trooper Kastein, reading from a DUI

advisement card, informed Fierro that she was required by law to give a sample of

her blood. When Fierro specifically asked if she had to submit to a blood

withdrawal, Trooper Kastein responded: “Yep, because state law says you have to.”

[¶5.]        Both troopers escorted Fierro to the Meade County jail. Trooper

Olauson escorted Fierro inside the facility, where she was required to submit to a

blood draw performed by a county employee. While being processed, Fierro

informed the officers that she wanted to refuse the blood test and consult with an

attorney. When the technician first attempted to draw blood from Fierro’s arm, she

pulled away to avoid it. Ultimately, a sample was obtained.


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[¶6.]        Trooper Kastein made no attempt to obtain consent from Fierro for the

blood draw. And, at the hearing on the motion to suppress, Trooper Kastein

remarked:

             Q: Okay. So just so we’re clear, at no time did you give her any
             choice on whether or not she was going to have blood taken;
             right?
             A: That’s correct.

Trooper Kastein also testified that he had received training from his superior

officers regarding the United States Supreme Court’s decision in Missouri v.

McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

[¶7.]        On August 7, 2013, the State charged Fierro with alternative counts of

driving under the influence in violation of SDCL 32-23-1(1) and (2). On October 11,

2013, Fierro filed a motion to suppress the blood test administration and results.

An evidentiary hearing was held on October 25, 2013. The magistrate court heard

testimony from Trooper Kastein, Trooper Olauson, and Fierro. The court also had

the opportunity to view a video excerpt of the arrest. Ultimately, the court granted

Fierro’s motion to suppress.

[¶8.]        On November 4, 2013, the State filed a motion to reconsider the

suppression of the blood evidence and attempted to place new evidence into the

record by filing a motion for judicial notice with various documents attached. A

hearing on the motion to reconsider was held on November 22, 2013, and no

additional evidence was presented. Again, the court denied the motion for

reconsideration and reaffirmed its earlier ruling. The State’s motion for judicial

notice was never ruled upon by the court.



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[¶9.]          The court signed and entered its order granting Fierro’s motion to

suppress on November 27, 2013. In its findings of fact and conclusions of law

entered on December 2, 2013, the court found that Fierro was never asked to

consent to the seizure of her blood, that she did not voluntarily consent to the

seizure of her blood, and that she refused to voluntarily submit to the seizure of her

blood before the procedure was administered at the Meade County jail. The court

also found that there were no exigent circumstances provided by the State.

[¶10.]         The court held: “In light of the McNeely ruling, the [c]ourt finds that

the State’s interpretation of SDCL 32-23-10 in this particular case requiring a

mandatory blood withdrawal without a warrant and without proving a valid

exception to the warrant requirement is unconstitutional.” 1 The court concluded

that the State’s warrantless seizure of Fierro’s blood violated the Fourth

Amendment because the State did not demonstrate that an exception to the

warrant requirement applied. Lastly, the court held that the arresting officer was

aware of the McNeely ruling at the time of the search and that “[u]nder the

particular facts of this case and in consideration of its future deterrent effects, . . .

suppression of the evidence [was] an appropriate remedy.”




1.       In its hearing on November 22, 2013, the court explained:

               In this particular case, requiring a mandatory blood withdrawal
               without warrant and without proving a valid exception, the
               [c]ourt finds that to be unconstitutional.

               In reviewing the totality of the circumstances in this case, the
               [c]ourt finds that there was not an exception proven, that there
               wasn’t consent, and there was not exigency.

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[¶11.]       On January 13, 2014, this Court entered its order granting the State’s

petition to appeal from the court’s intermediate order. In this appeal, we review:

     I.      Whether the magistrate court erred by holding that the
             warrantless search conducted under South Dakota’s implied
             consent statutes was unconstitutional.

    II.      Whether the magistrate court erred by holding the good faith
             exception to the exclusionary rule was inapplicable.

                                 STANDARD OF REVIEW

[¶12.]       “We review the [ ] court’s grant or denial of a motion to suppress

involving an alleged violation of a constitutionally protected right under the de novo

standard of review.” State v. Smith, 2014 S.D. 50, ¶ 14, ___ N.W.2d ___, ___. “The [

] court’s findings of fact are reviewed under the clearly erroneous standard, but we

give no deference to the [ ] court’s conclusions of law.” Id. (quoting State v. Mohr,

2013 S.D. 94, ¶ 12, 841 N.W.2d 440, 444). And although “[f]actual findings of the

lower court are reviewed under the clearly erroneous standard, . . . once those facts

have been determined, ‘the application of a legal standard to those facts is a

question of law reviewed de novo.’” State v. Heney, 2013 S.D. 77, ¶ 8, 839 N.W.2d

558, 561-62 (quoting State v. Hess, 2004 S.D. 60, ¶ 9, 680 N.W.2d 314, 319).

                                     DECISION

     I.      Whether the magistrate court erred by holding that the
             warrantless search conducted under South Dakota’s implied
             consent statutes was unconstitutional.

[¶13.]       As to the first issue, the State contends that the court erred as a

matter of law in concluding that the United States Supreme Court’s holding in

McNeely controlled, and that as such, the blood draw under the State’s implied



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#26890

consent statute—SDCL 32-23-10 2—was unconstitutional. The State argues that

“[a]pplication of traditional Fourth Amendment analysis compels the conclusion

that the South Dakota Legislature may constitutionally condition the privilege to

drive within the state on a driver providing irrevocable consent to the withdrawal of

blood and other bodily substance[s] following a lawful DUI arrest.”

The Fourth Amendment and blood draws

[¶14.]        The Fourth Amendment to the United States Constitution guarantees

citizens the right to be free from unreasonable searches and seizures:

              The right of the people to be secure in their persons, houses,
              papers, and effects, against unreasonable searches and seizures,
              shall not be violated, and no Warrants shall issue, but upon
              probable cause, supported by Oath or affirmation, and
              particularly describing the place to be searched, and the persons
              or things to be seized.

Likewise, Article VI, § 11 of our state constitution guarantees our citizens the right

to be free from unreasonable searches and seizures:

              The right of the people to be secure in their persons, houses,
              papers and effects, against unreasonable searches and seizures


2.       SDCL 32-23-10 provides:

              Any person who operates any vehicle in this state is considered
              to have given consent to the withdrawal of blood or other bodily
              substance and chemical analysis of the person’s blood, breath, or
              other bodily substance to determine the amount of alcohol in the
              person's blood and to determine the presence of marijuana or
              any controlled drug or substance or any substance ingested,
              inhaled, or otherwise taken into the body as prohibited by
              [SDCL] 22-42-15 or any other substance that may render a
              person incapable of safely driving. The arresting law
              enforcement officer may, subsequent to the arrest of any
              operator for a violation of [SDCL] 32-23-1, require the operator
              to submit to the withdrawal of blood or other bodily substances
              as evidence.

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#26890

             shall not be violated, and no warrant shall issue but upon
             probable cause supported by affidavit, particularly describing
             the place to be searched and the person or thing to be seized.

[¶15.]       “The Fourth Amendment’s prohibition against unreasonable searches

and seizures requires generally the issuance of a warrant by a neutral judicial

officer based on probable cause prior to the execution of a search or seizure of a

person.” Smith, 2014 S.D. 50, ¶ 15, ___ N.W.2d at ___ (quoting Mohr, 2013 S.D. 94,

¶ 13, 841 N.W.2d at 444). “Warrantless searches are per se unreasonable, apart

from a few, [well-delineated] exceptions[,]” id. ¶ 15 (citation omitted), and it is the

State’s burden to prove that the search at issue falls within a well-delineated

exception to the warrant requirement. Hess, 2004 S.D. 60, ¶ 23, 680 N.W.2d at 324.

[¶16.]       This principle applies to the type of search that is the subject of the

present appeal, which involves a compelled, warrantless blood draw for alcohol

content to be analyzed and used as evidence in a criminal investigation and

prosecution. See Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616, 109 S.

Ct. 1402, 1412, 103 L. Ed. 2d 639 (1989) (stating that the United States Supreme

Court has “long recognized that a ‘compelled intrusion into the body for blood to be

analyzed for alcohol content’ must be deemed a Fourth Amendment search”)

(citation omitted). This type of invasion concerns an individual’s “most personal

and deep-rooted expectations of privacy[.]” Winston v. Lee, 470 U.S. 753, 760, 105 S.

Ct. 1611, 1616, 84 L. Ed. 2d 662 (1985). “Reasonableness of a search depends on

balancing the public’s interest in preventing crime with the individual’s right to be

free from arbitrary and unwarranted governmental intrusions into personal

privacy.” State v. Hirning, 1999 S.D. 53, ¶ 11, 592 N.W.2d 600, 603.


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#26890

Exceptions to warrant requirement

            a. Exigent circumstances exception to the warrant requirement

[¶17.]         The exigent circumstances exception is one of the well-delineated

exceptions to the warrant requirement. State v. Zahn, 2012 S.D. 19, ¶ 30, 812

N.W.2d 490, 499. The United States Supreme Court’s decision in Schmerber v.

California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) was the leading

decision on blood draws in cases involving DUI investigations. The holding in

Schmerber approved, under the particular facts of that case, 3 a warrantless blood

draw based on the exigent circumstances exception to the warrant requirement.

See id. at 770-72, 86 S. Ct. at 1835-36. Accordingly, in determining the

reasonableness of a warrantless blood draw based on exigent circumstances, a court


3.       In Schmerber, the defendant driver was involved in an automobile accident.
         Id. at 758, 86 S. Ct. at 1829. The defendant was arrested after being taken to
         a hospital in order to receive treatment for injuries he suffered in the
         accident. Id. At the direction of a police officer, the defendant’s blood was
         drawn by a physician at the hospital without a warrant or the defendant’s
         consent. Id. at 758-59, 86 S. Ct. at 1829. The defendant objected to the
         admission of the blood evidence at trial. Id. The Supreme Court upheld the
         warrantless blood test as constitutional under the Fourth and Fourteenth
         Amendments stating: “The officer in the present case, however, might
         reasonably have 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.’” Id. at 770, 86 S. Ct. at 1835-36
         (citation omitted). The Supreme Court further elaborated:

               It bears repeating, however, that we reach this judgment only on
               the facts of the present record. The integrity of an individual’s
               person is a cherished value of our society. That we today hold
               that the Constitution does not forbid the States minor intrusions
               into an individual’s body under stringently limited conditions in
               no way indicates that it permits more substantial intrusions, or
               intrusions under other conditions.

         Id. at 772, 86 S. Ct. at 1836.

                                           -7-
#26890

must consider all of the facts and circumstances of a particular case and base its

holding on those facts. See id. The State does not dispute the court’s factual finding

of no exigent circumstances nor does the State contest the court’s conclusion of law

that no exigent circumstances existed.

          b. Consent exception to the warrant requirement

[¶18.]       The State argues that the warrantless blood draw in this case was

constitutionally permissible under the consent exception to the warrant

requirement. See Zahn, 2012 S.D. 19, ¶ 30, 812 N.W.2d at 499 (providing the “well-

delineated exceptions” to the warrant requirement, including the consent

exception). “Even when police officers have neither probable cause nor a warrant,”

a search is permissible under the Fourth Amendment if the officers “obtain

voluntary consent from someone possessing adequate authority over the area.”

State v. Akuba, 2004 S.D. 94, ¶ 12, 686 N.W.2d 406, 412 (quoting United States v.

Chaidez, 906 F.2d 377, 380 (8th Cir. 1990)). See Schneckloth v. Bustamonte, 412

U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). “It has been said that consent to

conduct a search satisfies the Fourth Amendment, thereby removing the need for a

warrant or even probable cause.” Akuba, 2004 S.D. 94, ¶ 12, 686 N.W.2d at 412

(quoting State v. Sheehy, 2001 S.D. 130, ¶ 11, 636 N.W.2d 451, 453).

[¶19.]       “For consent to a search to be valid, the totality of the circumstances

must indicate that it was voluntarily given[,]” State v. Almond, 511 N.W.2d 572, 573

(S.D. 1994), and was not “the product of duress or coercion, express or implied[.]”

Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2048. The voluntariness of a search based

on consent is a factual question “to be determined from the totality of all the


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#26890

circumstances.” Id. “Whether the accused knew that he possessed a right to refuse

consent also is relevant to determining the voluntariness of the consent, although

the State need not prove that defendant knew of the right to refuse consent to show

that the consent was voluntary.” State v. Castleberry, 2004 S.D. 95, ¶ 9, 686 N.W.2d

384, 387 (citing Schneckloth, 412 U.S. at 248-49, 93 S. Ct. at 2059). Once given,

consent to search may be withdrawn at any time prior to the completion of the

search. See State v. Zachodni, 466 N.W.2d 624, 629 (S.D. 1991) abrogated on other

grounds by Akuba, 2004 S.D. 94, ¶ 13, 686 N.W.2d at 412-13 (providing that the

consensual search of the defendant’s pickup truck did not include a suitcase, which

the defendant verbalized his reluctance to allow, amounting to a withdrawal of

consent as to all). See also United States v. Sanders, 424 F.3d 768, 774 (8th Cir.

2005) (stating that “[o]nce given, consent to search may be withdrawn”); United

States v. Lattimore, 87 F.3d 647, 651 (4th Cir. 1996); Wayne R. LaFave, 4 Search &

Seizure § 8.2(f) (5th ed. 2013) (stating “[a] consent to search is not irrevocable, and

thus if a person effectively revokes his prior consent prior to the time the search is

completed, then the police may not thereafter search in reliance upon the earlier

consent”).

[¶20.]       The State’s argument that Fierro consented to the compelled,

warrantless blood draw without any right to refuse pursuant to SDCL 32-23-10 does

not fit within the consent exception to the warrant requirement. The court’s

findings of fact confirm that Fierro did not consent to the withdrawal of her blood

and the State does not dispute these factual findings. The record demonstrates that

Fierro verbally and physically refused to provide a sample. And even though a


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blood sample was ultimately taken from Fierro, we have previously held that the

State’s burden to show free and voluntary consent is not met by the submission to

authority. Castleberry, 2004 S.D. 95, ¶ 10, 686 N.W.2d at 387. These actions taken

in their totality can hardly be taken as “consent” by constitutional standards, 4 and

furthermore, even if consent were actually given, Fierro verbally and physically

revoked such consent by her actions.

            c.   “Special needs” exception to the warrant requirement

[¶21.]           Additionally, the State contends that the warrantless seizure of

Fierro’s blood is permissible under the “special needs” exception to the warrant

requirement. In delineating the use of this exception, the United States Supreme

Court has explained that it only applies “when special needs beyond the normal

need for law enforcement, make the warrant and probable-cause requirement

impracticable.” Skinner, 489 U.S. at 619, 109 S. Ct. at 1414 (citation omitted)


4.       As noted previously, the State asserts that the Legislature may
         constitutionally condition the privilege to drive within the state on a driver
         providing irrevocable consent to the withdrawal of blood and other bodily
         substances following a lawful DUI arrest. To this end, however, the Supreme
         Court, in another context, has stated:

                 [A]s a general rule, the state, having power to deny a privilege
                 altogether, may grant it upon such conditions as it sees fit to
                 impose. But the power of the state in that respect is not
                 unlimited, and one of the limitations is that it may not impose
                 conditions which require the relinquishment of constitutional
                 rights. If the state may compel the surrender of one
                 constitutional right as a condition of its favor, it may, in like
                 manner, compel a surrender of all. It is inconceivable that
                 guaranties embedded in the Constitution of the United States
                 may thus be manipulated out of existence.

         Frost v. R.R. Comm’n of State of Cal., 271 U.S. 583, 593-94, 46 S. Ct. 605,
         607, 70 L. Ed. 1101 (1926).

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(emphasis added). See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 82-83, 121

S. Ct. 1281, 1291-92, 149 L. Ed. 2d 205 (2001) (invalidating nonconsensual testing

of pregnant women for illicit drug use because “the immediate objective of the

searches was to generate evidence for law enforcement purposes”).

[¶22.]         We disagree with the State’s argument that the seizure of Fierro’s

blood falls under this exception to the warrant requirement. The primary purpose

of the warrantless seizure of Fierro’s blood was evidentiary and prosecutorial.

Peterson v. State, 261 N.W.2d 405, 408 (S.D. 1977) (stating that in addition to “a

fair, efficient and accurate system of detection and prevention of drunken driving . .

. [t]he immediate purpose of . . . the implied consent law is to obtain the best

evidence of blood and alcohol content at the time of the arrest of a person

reasonably believed to be driving while intoxicated”) (citation omitted). The State

also concedes this point in its brief: “The immediate purpose of the implied consent

statute is to obtain the best evidence of blood alcohol content at the time a person

reasonably believed to be driving while intoxicated is arrested.” 5 Therefore, based



5.       The State also asserts an “implied consent search” is constitutionally
         reasonable under the factors expressed in McGann v. Northeast Illinois
         Regional Commuter Railroad Corp., 8 F.3d 1174, 1181 (7th Cir. 1993). In
         McGann, the Seventh Circuit stated:

               Generally, in deciding whether to uphold a warrantless search
               on the basis of implied consent, courts consider whether (1) the
               person searched was on notice that undertaking certain conduct,
               like attempting to enter a building or board an airplane, would
               subject him to a search, (2) the person voluntarily engaged in
               the specified conduct, (3) the search was justified by a “vital
               interest”, (4) the search was reasonably effective in securing the
               interests at stake, (5) the search was only as intrusive as
               necessary to further the interests justifying the search and (6)
                                                            (continued . . .)
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on this set of facts, there are no “‘special needs’ beyond normal law enforcement

that may justify departure[ ] from the usual warrant and probable-cause

requirements.” Skinner, 489 U.S. at 620, 109 S. Ct. at 1415 (citation omitted).

            d. SDCL 32-23-10

[¶23.]         The State contends that SDCL 32-23-10 permits compelled,

warrantless blood draws in every case. SDCL 32-23-10, by itself, does not provide

an exception to the search warrant requirement in South Dakota and any argument

to the contrary cannot be reconciled with the United States Supreme Court and this

Court’s Fourth Amendment warrant requirement jurisprudence. We have never

held that SDCL 32-23-10, by itself, constitutes one of the “few specifically

established and well-delineated exceptions” to the Fourth Amendment warrant

requirement and decline to do so today. See Mincey v. Arizona, 437 U.S. 385, 390,

________________________________________
(. . . continued)
               the search curtailed, to some extent, unbridled discretion in the
               searching officers. See, e.g., McMorris, 567 F.2d at 899-900;
               United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir. 1973);
               Collier v. Miller, 414 F. Supp. 1357, 1362 (S.D. Tex. 1976); 2
               Ringel, supra at § 16.2(e). We decline to regard these six factors
               as dispositive criteria. Rather, these factors should be examined
               carefully in each case in evaluating the totality of the
               circumstances and in respecting the consideration that the
               courts not unnecessarily extend exceptions to the warrant
               requirement.
         Id.

         The State’s analysis of the search in this case under the McGann factors is
         unpersuasive. McGann and cases cited by McGann in support of its factor-
         analysis are administrative searches conducted for reasons other than
         normal law enforcement purposes. Here, as the State concedes, the search
         and seizure of Fierro’s blood under SDCL 32-23-10 was conducted to obtain
         the “best evidence of blood alcohol content” for purposes of criminal
         prosecution. Therefore, the factor-analysis in McGann is not applicable to
         the circumstances in this appeal.

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98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290 (1978) (quoting Katz v. United States, 389

U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967)). Furthermore, our

precedent is clear that the Legislature cannot enact a statute that would preempt a

citizen’s constitutional right, such as a citizen’s Fourth Amendment right. See

Poppen v. Walker, 520 N.W.2d 238, 242 (S.D. 1994), superseded by constitutional

amendment, November 8, 1994, amendment to S.D. Const. art. III, § 25, as

recognized in Brendtro v. Nelson, 2006 S.D. 71, 720 N.W.2d 670 (providing that

“[t]he legislature cannot define the scope of a constitutional provision by subsequent

legislation”); Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 43 n.10, 827 N.W.2d 55,

71 n.10 (stating “[a]s the Constitution is the ‘mother law,’ any statutory framework

must conform to it and not vice versa”) (quoting Poppen, 520 N.W.2d at 242).

Without more, SDCL 32-23-10 is not an exception to the warrant requirement.

[¶24.]       The State has failed to provide this Court with an exception to the

warrant requirement that permits the compelled, warrantless blood draw that

occurred in this case. Accordingly, this type of blood draw violates the warrant

requirement of the Fourth Amendment of the federal constitution and Article VI, §

11 of our state constitution.

    II.      Whether the magistrate court erred by holding the good faith
             exception to the exclusionary rule was inapplicable.

[¶25.]       We now examine whether suppression is the appropriate remedy for

this Fourth Amendment violation. See Davis v. United States, ___ U.S. ___, 131 S.

Ct. 2419, 2426, 180 L. Ed. 2d 285 (2011) (explaining that the Fourth Amendment

“says nothing about suppressing evidence obtained in violation of [its] command.

That rule—the exclusionary rule—is a ‘prudential’ doctrine . . . created by [the

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United States Supreme] Court to compel respect for the constitutional guaranty”)

(citations omitted). The State argues that the blood sample and test results are

admissible pursuant to the good faith exception to the exclusionary rule based upon

the officer’s reliance on SDCL 32-23-10. “We examine the good faith exception de

novo.” State v. Sorensen, 2004 S.D. 108, ¶ 9, 688 N.W.2d 193, 197.

[¶26.]         The exclusion or suppression of evidence is “‘not a personal

constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an

unconstitutional search.” Davis, ___ U.S. at ___, 131 S. Ct. at 2426 (quoting Stone v.

Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976)). “The rule’s sole

purpose . . . is to deter future Fourth Amendment violations.” Id. “Where

suppression fails to yield appreciable deterrence, exclusion is clearly . . .

unwarranted.” Id. at ___, 131 S. Ct. at 2426-27 (citation omitted). “For exclusion to

be appropriate, the deterrence benefits of suppression must outweigh its heavy

costs.” Id. at ___, 131 S. Ct. at 2427. “Because the goal of deterrence will not

always be advanced by excluding relevant, though illegally seized, evidence, the

Supreme Court has identified several exceptions to the exclusionary rule.”

Sorenson, 2004 S.D. 108, ¶ 8, 688 N.W.2d at 197 (citation omitted).

[¶27.]         The United States Supreme Court and this Court have applied the

good faith exception to the exclusionary rule in a variety of different contexts. 6 In




6.       The State cites to the United States Supreme Court’s decision in Illinois v.
         Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), for the
         proposition that suppression is not an appropriate remedy when the officer
         reasonably relied on a subsequently invalidated statute as authority for his
         search. In Krull, the United States Supreme Court extended the good faith
                                                            (continued . . .)
                                           -14-
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Davis v. United States, the United States Supreme Court held that an officer’s

objectively reasonable reliance on binding court precedent at the time of the search

or seizure, even if the precedent is later overruled, satisfies the good faith exception

to the exclusionary rule. Id. at ___, 131 S. Ct. at 2428-29. In so holding, the Court

noted that “[p]olice practices trigger the harsh sanction of exclusion only when they

are deliberate enough to yield meaningful deterrence, and culpable enough to be

worth the price paid by the judicial system.” Id. at ___, 131 S. Ct. at 2428 (citation

________________________________________
(. . . continued)
         exception to searches conducted in reasonable reliance on subsequently
         invalidated statutes. As the Court explained:

             The application of the exclusionary rule to suppress evidence
             obtained by an officer acting in objectively reasonable reliance
             on a statute would have as little deterrent effect on the officer’s
             actions as would the exclusion of evidence when an officer acts
             in objectively reasonable reliance on a warrant. Unless a
             statute is clearly unconstitutional, an officer cannot be expected
             to question the judgment of the legislature that passed the law.
             If the statute is subsequently declared unconstitutional,
             excluding evidence obtained pursuant to it prior to such a
             judicial declaration will not deter future Fourth Amendment
             violations by an officer who has simply fulfilled his
             responsibility to enforce the statute as written. To paraphrase
             the Court’s comment in Leon: “Penalizing the officer for the
             legislature’s error, rather than his own, cannot logically
             contribute to the deterrence of Fourth Amendment violations.”

      Krull, 480 U.S. at 349-50, 107 S. Ct. at 1167 (citation omitted). In sum, “[a]
      statute cannot support objectively reasonable reliance if, in passing the
      statute, the legislature wholly abandoned its responsibility to enact
      constitutional laws.” Id. at 355, 107 S. Ct. at 1170. “Nor can a law
      enforcement officer be said to have acted in good-faith reliance upon a statute
      if its provisions are such that a reasonable officer should have known that the
      statute was unconstitutional.” Id.

      Here, we do not “invalidate the statute,” but rather we hold that the search in
      this case violates the warrant requirement of both the federal and state
      constitutions. Therefore, the State’s reliance on Krull is not persuasive.

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omitted). The Court further reaffirmed “that the harsh sanction of exclusion should

not be applied to deter objectively reasonable law enforcement activity.” Id. at ___,

131 S. Ct. at 2429 (citation omitted). “Evidence obtained during a search conducted

in reasonable reliance on binding precedent is not subject to the exclusionary rule.”

Id.

[¶28.]       Following the United States Supreme Court’s decision in Schmerber,

this Court adopted the following:

             [B]odily substance samples [are] not subject to the exclusionary
             rule under the Fourth Amendment if they are taken (1) incident
             to a lawful arrest, (2) by a reliable and accepted method of
             obtaining such sample, (3) in a reasonable, medically approved
             manner, and (4) where there is probable cause to believe that
             the evidence sought exists. [Schmerber] also held that the
             elimination of alcohol by natural bodily functions presents
             exigent circumstances which obviate the necessity of obtaining a
             search warrant.

State v. Hartman, 256 N.W.2d 131, 134 (S.D. 1977) (citing Schmerber, 384 U.S. 757,

86 S. Ct. 1826, 16 L. Ed. 2d 908) (emphasis added). This rule was applied by this

Court and guided the practice of law enforcement officers for several decades. See,

e.g., State v. Mattson, 2005 S.D. 71, ¶ 44, 698 N.W.2d 538, 552; State v. Hanson,

1999 S.D. 9, ¶ 28, 588 N.W.2d 885, 891; State v. Tucker, 533 N.W.2d 152, 154 (S.D.

1995); State v. Lanier, 452 N.W.2d 144, 145 (S.D. 1990); State v. Parker, 444 N.W.2d

42, 44 (S.D. 1989). These authorities held that the rapid dissipation of alcohol in

the body was a per se exigent circumstance that provided law enforcement the

authority to conduct warrantless blood draws. Recently, however, the Supreme

Court’s decision in McNeely expressly rejected a per se rule that the natural

dissipation of alcohol in the blood alone is an exigent circumstance obviating the


                                         -16-
#26890

need for a warrant prior to a blood draw. See id. ___ U.S. at ___, 133 S. Ct. at 1556.

Instead, the Supreme Court relied on Schmerber’s case-by-case analysis in

reviewing exigent circumstances based on the totality of the circumstances and held

that “the natural dissipation of alcohol in the bloodstream does not constitute an

exigency in every case sufficient to justify conducting a blood test without a

warrant.” Id. at ___, 133 S. Ct. at 1568. The Supreme Court’s holding in McNeely

was a shift from this Court’s previous interpretation of Schmerber. See Siers v.

Weber, 2014 S.D. 51, ¶ 15, ___ N.W.2d ___ (discussing South Dakota’s pre-McNeely

interpretation and application of Schmerber).

[¶29.]         Here, Trooper Kastein arrested and drew Fierro’s blood on August 4,

2013—approximately four months after the United States Supreme Court released

its decision in McNeely. Trooper Kastein testified that he was aware of the McNeely

decision and had received new training as to its effect. When, as here, law

enforcement is aware of new case precedent and has received training as to the

effect of the new precedent, subsequent activity conducted in accordance with prior,

contrary, precedent cannot be said to be “objectively reasonable[.]” Davis, __ U.S. at

__, 131 S. Ct. at 2429. Therefore, in order to promote, meaningful deterrence of this

type of law enforcement conduct, the appropriate remedy is one of suppression. 7




7.       Likewise, the State’s request to allow the case to proceed under SDCL 32-23-
         7 is unpersuasive. Fierro’s blood sample was obtained as a result of a
         constitutional violation. Thus, suppression is the appropriate remedy. See
         State v. Herrmann, 2002 S.D. 119, ¶ 19, 652 N.W.2d 725, 731 (stating that
         “failure to comply with the procedure set forth in the implied consent statutes
         does not require the suppression of the test results, as long as the testing
         procedure complied with the driver’s constitutional rights”) (emphasis added).

                                           -17-
#26890

                                CONCLUSION

[¶30.]     Based on the foregoing, we affirm the court’s grant of the suppression

motion.

[¶31.]     GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

SEVERSON, Justices, concur.




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