                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-2361

                                  State of Minnesota,
                                      Respondent,

                                           vs.

                              Jonathan Lawrence Markle,
                                      Appellant

                              Filed November 3, 2014
                                     Affirmed
                                   Worke, Judge
                      Concurring specially, Cleary, Chief Judge
                            Hennepin County District Court
                               File No. 27-CR-13-4020
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Paul Engh, Minneapolis, Minnesota; and
Joseph S. Friedberg, Minneapolis, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and

Reyes, Judge.

                        UNPUBLISHED OPINION

WORKE, Judge

      Appellant argues that the district court erred in denying his motion to suppress the

results of a post-accident blood test, because no exigent circumstance existed which

would provide an exception to the Fourth Amendment’s warrant requirement. We affirm.
                                          FACTS

       On January 18, 2013, appellant Jonathan Lawrence Markle went to a restaurant on

Lake Minnetonka with his wife and two young daughters. Markle consumed alcohol

while there. While driving home, Markle decided to take a shortcut home across the

frozen lake, though his wife cautioned against doing so. Under the bridge connecting

Priest and Halsted Bays, the ice broke and the vehicle sank.

       Witnesses called 911 at about 5:08 p.m. After Markle’s wife and older daughter

were rescued from the water, Markle remained submerged while attempting to rescue his

younger infant daughter from the submerged vehicle. Rescuers arrived a few minutes

later and immediately commenced efforts to rescue the infant. Among the rescuers was

Hennepin County Sherriff’s Deputy Adam Moore, who would initiate the investigation

following rescue efforts. The infant was recovered from the water at 5:24 p.m. and

rushed to the hospital. Efforts to save her failed and she died three days later.

       While waiting for ambulances, Markle admitted to Orono Police Officer Kyle

Russeth that he had consumed alcohol and that he was the driver of the vehicle. Officer

Russeth noted that although Markle smelled of alcohol, he did not exhibit other common

signs of intoxication, such as slurred speech or bloodshot eyes. Officer Russeth later

relayed this information to Deputy Moore.

       The ambulance carrying Markle left the scene at 5:32 p.m. and arrived at the

Ridgeview Medical Center in Waconia at 5:45 p.m. The ambulance carried Markle from

Hennepin County to Carver County. Deputy Moore drove to the hospital in his squad

car, intending to commence his investigation. Upon arrival, Deputy Moore notified

hospital staff of his presence, but he was asked to wait for doctor approval before

                                              2
initiating contact with Markle. Deputy Moore waited 20 to 30 minutes before receiving

authorization from Markle’s treating doctor at approximately 6:30 p.m. Markle admitted

to Deputy Moore that he had two beers, and that he drank the last just before leaving the

restaurant.

       After about five minutes transpired, Deputy Moore asked Markle to take a

preliminary breath test; Markle declined. Deputy Moore then read Markle the implied

consent advisory, including the portion of the advisory regarding accidents involving

death or injury, which he does not normally do. Deputy Moore said: “Because I also

have probable cause to believe you have violated the criminal vehicular homicide or

injury laws, a test will be taken with or without your consent.” Markle asked to speak to

his attorney, and did so for about 20 minutes. At 6:57 p.m. Deputy Moore again asked

Markle if he would take the blood test. Markle replied, “I don’t have a choice, right?”

Deputy Moore said, “Correct,” and the test was administered without a warrant. The test

indicated a blood alcohol content (BAC) of .13.

       Markle was charged with criminal vehicular homicide. Markle moved to suppress

the blood test results, arguing that no exigency justified the warrantless search. The

district court denied Markle’s motion, and the matter proceeded on stipulated facts. See

Minn. R. Crim. P. 26.01, subd. 4 (preserving pretrial issue for appellate review). One of

the facts stipulated was that Markle did not consent to the blood test. He was convicted,

and this appeal follows.

                                    DECISION

       Markle argues that a warrant was required before administering the blood test

because no exigent circumstance existed that would provide an exception to the Fourth

                                           3
Amendment’s warrant requirement. Consequently, he contends, the test results must be

suppressed and his conviction reversed.

      When reviewing a pretrial ruling on the suppression of evidence in which facts are

not in dispute and the district court’s decision is a question of law, the appellate court

may independently review the facts and determine as a matter of law if suppression is

required. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

      Under the Fourth Amendment, a warrantless search is reasonable only if it falls

within a recognized exception. Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). The

presence of exigent circumstances is a recognized exception to the warrant requirement.

Id. “‘[E]xigency in the drunk-driving context must be determined case by case based on

the totality of the circumstances.’” State v. Stavish, 852 N.W.2d 906, 908 (Minn. App.

2014) (brackets omitted) (quoting McNeely, 133 S. Ct. at 1556). The natural dissipation

of alcohol in the bloodstream, standing alone, is not an exigent circumstance. McNeely,

133 S. Ct. at 1561. But such dissipation is one factor considered in a determination of

exigency. Id. One “important factor” that contributes to an exigency is “the gravity of

the underlying offense for which the arrest is being made.” Stavish, 852 N.W.2d at 909.

Other relevant factors include the suspect’s need for medical care, transport across county

lines, and time pressure created by the need to take action within two hours of the time of

driving. Id. at 908-09 (citing in support of time constraints Minn. Stat. § 169A.20 subd.

1(5) (2012) (stating that a person is guilty of driving while impaired (DWI) when his

BAC is 0.08 or more as measured within two hours of driving)).

      This court’s recent opinion in State v. Stavish largely controls this case.       In

Stavish, emergency personnel responded to a single-vehicle accident in which one of the

                                            4
occupants of the vehicle had died. Id. at 907. The driver, Stavish, needed medical care

and was transported by ambulance to a hospital in a neighboring county. Id. A state

patrol sergeant was instructed to take a blood sample and drove to the hospital where

Stavish was being treated. Id. The sergeant noted that Stavish “smelled of alcohol and

determined that there was probable cause to suspect that [Stavish] had committed

criminal vehicular homicide.” Id. Stavish moved to suppress the blood test results

following McNeely, and the district court granted the motion. Id.

       This court reversed. Id. at 909. The court concluded that an exigency existed

because Stavish needed medical treatment, was transported across county lines, and

because of the gravity of the underlying offense, “a probable criminal vehicular homicide

charge, not merely a DWI charge.” Id. The court noted that more than 50 minutes had

passed between the time Stavish had been driving and his blood drawn, which was

concerning given Minnesota statutory timeframes. Id. at 908-09.

       All the aforementioned factors are present here; the delay in taking the blood draw

was even longer in this case. 911 calls were placed at 5:08 p.m. Due to rescue efforts

and the need for medical attention due to hypothermia, Deputy Moore did not make

contact with Markle until about 90 minutes after Markle had been driving. Deputy

Moore was prohibited from doing so earlier due to the need to obtain approval from

Markle’s treating doctor. Deputy Moore had only second-hand information about Markle

prior to that time, and by the time Markle had consulted with his attorney nearly two

hours had elapsed. The blood test was administered at 6:57 p.m., nearly two hours after

the accident.



                                            5
       Such delays are important for two reasons. First, as Stavish recognized, the blood

test evidence was “essential to a probable criminal vehicular homicide charge, not merely

a DWI charge.” Id. at 909; see Minn. Stat. § 609.21, subd. 1(4) (2012) (requiring BAC

“of 0.08 or more, as measured within two hours of the time of driving” to support a

charge of criminal vehicular homicide).        Second, eight of nine justices in McNeely

recognized that “a significant delay in testing will negatively affect the probative value of

[blood test] results.” 133 S. Ct. at 1561; id. at 1571 n.1 (Roberts, C.J., concurring in part

and dissenting in part) (“When experts have worked backwards to identify a defendant’s

BAC at the time he was driving, defense attorneys have objected to that evidence, courts

have at times rejected it, and juries may be suspicious of it.”).

       Certainly, the factual fit between Stavish and this case is not perfect. In Stavish,

there was the possibility that Stavish could have been airlifted to another medical facility,

increasing the need to take a blood test without delay. 852 N.W.2d at 907. But this

divergent fact is outweighed by the similarities between Stavish and this case.

       In concluding that Stavish is largely precedential here, we note that it is best

practice for law enforcement to obtain a warrant whenever practicable. A determination

of exigency in cases such as this is “determined case by case based on the totality of the

circumstances.’” Id. at 908 (quoting McNeely, 133 S. Ct. at 1556). Uncertainty of

outcomes and lengthy court proceedings may be avoided with the signed approval, prior

to administration of a chemical test, of a detached, neutral magistrate. But cases of

accidents, particularly those involving death or serious injury, are not routine.        See

McNeely, 133 S. Ct. at 1568 (describing the facts presented as “unquestionably a routine



                                              6
DWI case”). This case demonstrates the need for law enforcement to be able to proceed

without a warrant in appropriate circumstances.

      The district court correctly concluded that the combination of factors here created

an exigency, and therefore a warrant for Markle’s blood test was not required.

      Affirmed.




                                            7
CLEARY, Chief Judge (concurring specially)

       I agree with the majority that there was not enough time to obtain a warrant given

the exigent circumstances found in this case, specifically the rescue efforts involving the

submerged vehicle, the transport across county lines, and appellant’s subsequent medical

treatment. I write a concurring opinion only to express my concern that law enforcement

should not be encouraged to rely on the exigent circumstances exception to administer

warrantless blood tests except in limited situations, and also to express my belief that

when relying on the gravity of the offense as an exigency, it is particularly critical that

law enforcement also respect constitutional protections surrounding the individual who

faces prosecution for that alleged grave offense.

       In my view, the majority’s suggestion to law enforcement that “it is best practice

for law enforcement to obtain a warrant whenever practicable” is insufficient. The

message to law enforcement should be that a warrant is always required under the Fourth

Amendment, except in emergency situations where exigent circumstances exist. See

Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (explaining that search warrants are

required for blood tests “absent an emergency,” and a warrantless search is permissible

“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”).

       The majority emphasizes that the blood test in this case was necessary, as it was in

State v. Stavish, as evidence related “to a probable criminal vehicular homicide charge.”

State v. Stavish, 852 N.W.2d 906, 909 (Minn. App. 2014). In doing so, the majority

emphasizes the gravity of the offense as an exigency in this case, and in doing so

                                           CS-1
suggests that consequently a suspect is entitled only to watered-down Fourth Amendment

protections when the crime is a serious offense, like criminal vehicular homicide. This

should not be the case. Instead, I believe that the gravity of the offense and potential

punishment require, in addition, that the suspect’s constitutional rights are highlighted as

well. See Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966) (“The

importance of informed, detached and deliberate determinations of the issue whether or

not to invade another’s body in search of evidence of guilt is indisputable and great.”).

       Finally, given the advances of modern communication, it should be easier than

ever for officers to coordinate and apply for a warrant remotely. See Minn. R. Crim. P.

36.01-.08 (permitting search warrants to be requested orally by telephone and issued

remotely by judges). While obtaining a warrant was not practicable in this case, the

worst message we can send law enforcement is that the failure to obtain a warrant will be

overlooked as “not practicable” in most cases, particularly those cases involving alleged

serious offenses. If gravity of the offense is allowed to stand alone as an exigency, or is

overemphasized as an exigency, warrants will not be obtained when they are most

needed, for I agree with the majority that “[u]ncertainty of outcomes and lengthy court

proceedings may be avoided with the signed approval . . . of a detached, neutral

magistrate.”




                                           CS-2
