                                                                       2014 WI 132

                  SUPREME COURT              OF     WISCONSIN
CASE NO.:                2012AP523-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Alvernest Floyd Kennedy,
                                   Defendant-Appellant-Petitioner.



                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 348 Wis. 2d 263, 831 N.W.2d 824)
                                      (Ct. App. – Unpublished)

OPINION FILED:           December 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           September 9, 2014

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Milwaukee
   JUDGE:                Jeffrey A. Wagner

JUSTICES:
   CONCURRED:            ABRAHAMSON, C.J., concurs. (Opinion filed.)
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by   Marcus       J.    Berghahn   and   Hurley,    Burish   &   Stanton,   S.C.,
Madison, and oral argument by Marcus J. Berghahn.




       For    the       plaintiff-respondent,      the   cause   was   argued   by
Thomas J. Balistreri, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
                                                                                 2014 WI 132
                                                                          NOTICE
                                                          This opinion is subject to further
                                                          editing and modification.   The final
                                                          version will appear in the bound
                                                          volume of the official reports.
No.        2012AP523-CR
(L.C. No.     2006CF4053)

STATE OF WISCONSIN                                   :               IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent,                                           FILED
       v.                                                                 DEC 26, 2014
Alvernest Floyd Kennedy,                                                     Diane M. Fremgen
                                                                          Clerk of Supreme Court
               Defendant-Appellant-Petitioner.




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



       ¶1      MICHAEL      J.   GABLEMAN,    J.     This       is    a     review      of    an

unpublished        decision      of   the   court    of     appeals1        affirming        the

circuit court's entry of a judgment of conviction following the
jury       trial   of    Alvernest      Floyd      Kennedy       ("Kennedy").2               The

Milwaukee County District Attorney's Office charged Kennedy with

homicide by intoxicated use of a motor vehicle in violation of




       1
       State v. Kennedy, No. 2012AP523-CR, unpublished slip op.
(Wis. Ct. App. Apr. 9, 2013).
       2
           The Honorable Jeffrey A. Wagner, presiding.
                                                          No.    2012AP523-CR



Wisconsin Statutes § 940.09(1)(a),3 and homicide by operation of

a   motor    vehicle   with   a   prohibited   alcohol   concentration     in

violation of § 940.09(1)(b).4         At trial, the jury found Kennedy

guilty of homicide by intoxicated use of a motor vehicle.5

      ¶2      The following issues are presented for our review: 1)

whether the police had probable cause to arrest Kennedy for

operating a motor vehicle while intoxicated ("OWI"); 2) whether

the United States Supreme Court's ruling in Missouri v. McNeely,

569 U.S. __, 133 S. Ct. 1552 (2013), renders unconstitutional

the warrantless investigatory blood draw performed on Kennedy;


      3
       All subsequent references to the Wisconsin Statutes are to
the 2005-06 version unless otherwise indicated. Wisconsin Stat.
§ 940.09(1)(a) provides:

      Any person who does any of the             following      may   be
      penalized as provided in sub. (1c):

      (a) Causes the death of another by the operation or
      handling of a vehicle while under the influence of an
      intoxicant.
      4
          Wisconsin Stat. § 940.09(1)(b) provides:

      Any person who does any of the             following      may   be
      penalized as provided in sub. (1c):

          . . .

      (b) Causes the death of another by the operation or
      handling of a vehicle while the person has a
      prohibited alcohol concentration, as defined in s.
      340.01 (46m).
      5
       While the jury also found Kennedy guilty of the companion
violation of homicide by operation of a motor vehicle with a
prohibited alcohol concentration, in accordance with Wis. Stat.
§ 346.63(1)(c) that charge was dismissed on the State's motion.


                                      2
                                                                 No.   2012AP523-CR



and 3) if McNeely renders the warrantless investigatory blood

draw unconstitutional, whether the good-faith exception to the

exclusionary rule applies.

    ¶3     We    conclude   that    the     police   had   probable      cause    to

believe that Kennedy had committed a drunk-driving related crime

or offense.      Therefore, Kennedy's arrest was lawful.

    ¶4     Following    our     interpretation       of    the    United    States

Supreme Court's decision in Schmerber v. California, 384 U.S.

757 (1966), we held that the natural dissipation of alcohol in

the bloodstream of a suspect created a sufficient exigency so as

to justify a warrantless investigatory blood draw.                       State v.

Bohling,   173    Wis. 2d 529,      547,    494   N.W.2d 399      (1993).        The

police in this case acted in accordance with our holding in

Bohling when they ordered the warrantless investigatory blood

draw performed on Kennedy.

    ¶5     During the pendency of this case, however, the United

States Supreme Court abrogated our holding in Bohling.                     McNeely,

133 S. Ct. 1552.      In light of that abrogation, we accept, as we
must,   McNeely's    totality      of   the   circumstances       test     for   the

purpose of determining whether exigent circumstances are present

so as to justify warrantless investigatory blood draws in cases

involving "drunk-driving related violation[s] or crime[s]."

    ¶6     The State has not argued that exigent circumstances

exist so as to justify the warrantless investigatory blood draw

performed on Kennedy.         Because the State does not argue that

exigent circumstances existed, we assume, without deciding, that
the warrantless investigatory blood draw performed on Kennedy
                                        3
                                                                           No.     2012AP523-CR



was    not    supported         by    exigent       circumstances.               However,    we

conclude that the police acted in objectively reasonable accord

with the clear and settled Wisconsin precedent existing at the

time the warrantless investigatory blood draw was performed on

Kennedy.          Therefore, the good-faith exception applies and we

affirm the court of appeals and uphold Kennedy's conviction.

                       I.       FACTS AND PROCEDURAL HISTORY

       ¶7     On August 3, 2006, shortly after midnight, Kennedy,

the driver of a 1966 Chevy Impala, struck the victim as she

crossed the street on West Fond du Lac Avenue in Milwaukee.

Milwaukee      police       officers       Marcey      Asselin   and       Jeffrey    Hoffman

were the first on the scene at 12:15 a.m., less than a minute

after the collision.             Upon arrival, Officer Asselin observed the

1966 Chevy Impala facing westbound in the eastbound lane with

the severely injured victim pinned underneath the passenger side

of    the    vehicle      and    skid      marks      approximately        one     block    long

leading to the vehicle.

       ¶8     Officer       Asselin        asked      bystanders      at     the    scene     if
anyone      knew    the     identity       of   the    driver    of    the       Impala.      In

response, Kennedy admitted to Officer Asselin that he was the

driver.      Officer Asselin then told him to wait on the sidewalk

while she tended to the victim.                     Paramedics placed the victim in

an ambulance at approximately 12:30 a.m., at which point Officer

Asselin returned to talk with Kennedy and his passenger, Anthony

Jones.

       ¶9     When Officer Asselin approached Kennedy in order to
obtain      his    statement,        she    observed      that   Kennedy's          eyes    were
                                                4
                                                                      No.    2012AP523-CR



glassy and bloodshot, he was swaying back and forth, his speech

was slow and slurred, and a strong odor of alcohol was on his

breath.     These observations, combined with the severity of the

accident,       led    Officer   Asselin       to   conclude    that        Kennedy   was

intoxicated.          Officer Asselin did not ask Kennedy to perform any

field sobriety tests.

      ¶10   During Officer Asselin's conversation with Kennedy, a

crowd of approximately 30 to 40 people had gathered at the scene

and     began    "yelling     and   screaming,"        and     some     attempted     to

improperly cross the police tape.                   Because of this unrest and

the possible jeopardy to Kennedy's safety, Officer Asselin and

Sergeant Roberto Hill asked Kennedy to sit in one of the squad

cars.     Kennedy initially refused, but at 12:45 a.m. relented and

voluntarily walked to one of the squad cars.                    At this time, the

officers did not inform Kennedy that he was under arrest nor was

he physically restrained.             Shortly thereafter, at 12:50 a.m.,

Officer Asselin learned the victim had died as a result of the

injuries she sustained from the impact of Kennedy's vehicle.
      ¶11   At    1:00     a.m.,    Officer     Asselin      received       information

that a witness saw two cars, one of which was Kennedy's Impala,

traveling at a high rate of speed6 just before the accident.                          The

witness stated that the victim was crossing the street when she

was hit by Kennedy's Impala.



      6
       The record varies on the speed of the 2 cars, but the
range was between 50 and 80 miles per hour.


                                           5
                                                                         No.    2012AP523-CR



       ¶12     Milwaukee police detective Paul Formolo arrived at the

scene at 1:51 a.m., at which time officers on the scene informed

him they suspected Kennedy of OWI.                      Detective Formolo entered

the    squad    car     in    which     Kennedy      was    seated       and   immediately

noticed a strong odor of alcohol.                      After a brief conversation

with Kennedy, Detective Formolo placed him under arrest at 2:05

a.m.    and    instructed         one   of   the      officers      on    the    scene    to

transport      Kennedy       to   a   nearby       hospital   for    an     investigatory

blood   draw.          Hospital       personnel      conducted      the     investigatory

blood draw at 3:18 a.m.                 No warrant had been sought for the

blood draw and none had been issued.                       The results of the blood

draw showed Kennedy's blood-alcohol level was .216 (nearly three

times the legal limit) at the time of the draw.

       ¶13     The     Milwaukee        County       District    Attorney's           Office

charged Kennedy with homicide by intoxicated use of a motor

vehicle and homicide by operation of a motor vehicle with a

prohibited      alcohol       concentration.           Kennedy      moved      the   circuit

court to suppress the results of the warrantless investigatory
blood draw, arguing that the police lacked probable cause for

his arrest.          The circuit court denied Kennedy's motion.                      A trial

was held and the jury found Kennedy guilty of both counts.                               The

circuit court entered a judgment of conviction for homicide by

intoxicated use of a motor vehicle and                        dismissed the second

count on the State's motion.

       ¶14     Kennedy appealed, and in an unpublished opinion the

court   of     appeals       affirmed    Kennedy's         conviction.          Eight    days
after the court of appeals issued its decision the United States
                                               6
                                                                      No.        2012AP523-CR



Supreme Court released its decision in Missouri v. McNeely.                               The

Supreme Court held in McNeely that the dissipation of alcohol in

the bloodstream by itself does not create a per se exigency so

as to justify a warrantless investigatory blood draw of an OWI

suspect.      McNeely, 133 S. Ct. at 1563.                 Thus, McNeely abrogated

this court's holding in State v. Bohling.

      ¶15     Kennedy    petitioned        this    court    for    review,        which   we

granted on February 19, 2014.

                              II.    STANDARD OF REVIEW

      ¶16     This case presents questions of constitutional fact.

On   review,    "we     accept      the    circuit    court's      findings        of   fact

unless they are clearly erroneous."                   State v. Dearborn, 2010 WI

84, ¶13, 327 Wis. 2d 252, 786 N.W.2d 97.                          The application of

those facts to constitutional principles is a question of law

that we review de novo.             Id.

                                    III. DISCUSSION

A.    The Police Had Probable Cause to Arrest Kennedy at the Time

                             He Went to the Squad Car.
      ¶17     Kennedy argues that the police lacked probable cause

to   arrest    him    for     OWI,    so    that     the    subsequent      warrantless

investigatory        blood    draw    was     unlawful.           Thus,     the     initial

question in this case is whether Kennedy's arrest was lawful.                              A

warrantless     investigatory         blood       draw     is   lawful      so     long   as

exigent circumstances exist and:

      (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

                                             7
                                                              No.   2012AP523-CR


    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.
Bohling,   173    Wis. 2d at      534   (footnote   omitted).       This   four-

factor test is rooted in Schmerber and was not overruled by

McNeely.   See Schmerber, 384 U.S. at 769-71; McNeely, 133 S. Ct.

at 1560.    In a footnote to this test, we explained that probable

cause to arrest for a drunk-driving related violation or crime

"substitutes for the predicate act of lawful arrest" under the

first factor.      Bohling, 173 Wis. 2d at 534 n.1 (citing State v.

Bentley, 92      Wis. 2d   860,    863-64,    286   N.W.2d    153   (Ct.   App.

1979)).    The second factor, whether there is a "clear indication

that the blood draw will produce evidence of intoxication," in

this case is also satisfied by the same facts that support a

finding of probable cause to arrest.           See Schmerber, 384 U.S. at

770 (noting that "the facts which established probable cause to

arrest in this case also suggested the required relevance and

likely success of a test of petitioner's blood for alcohol");

State v. Erickson, 2003 WI App 43, ¶12, 260 Wis. 2d 279, 659

N.W.2d 407 (noting that "in the absence of an arrest, probable

cause to believe blood currently contains evidence of a drunk-

driving related violation or crime" necessarily satisfies the

first and second prongs of Bohling).

    ¶18    We note that probable cause to arrest for a drunk-

driving related violation or crime is not the only avenue to a

lawful warrantless investigatory blood draw.                 Rather where law
enforcement officers have probable cause to search a suspect's


                                         8
                                                                   No.    2012AP523-CR



blood    for    evidence     of   a    drunk-driving   related       violation      or

crime,    they     will    necessarily     satisfy   the     first       two   Bohling

factors.7        Erickson,    260     Wis. 2d 279,   ¶12.8        Because      Kennedy

challenges whether his arrest was supported by probable cause,

we proceed under that analytical framework.                       However, in the

absence of an arrest, probable cause to search the suspect's

blood,     along    with     exigent     circumstances,      is     sufficient      to

satisfy Schmerber and McNeely.                See Erickson, 260 Wis. 2d 279,

¶¶12-16.

     ¶19       Kennedy argues he was under arrest at the time he was

placed in the squad car.              Further, he argues the police did not

have probable cause to arrest him for OWI at that time.                        Kennedy

claims that under the circumstances, he was not free to leave

and, even though not formally under arrest, he was under de

facto arrest.        In contrast, the State argues, and the court of


     7
       While probable cause to search for evidence of a drunk-
driving related violation or crime is sufficient to satisfy the
first two factors of Bohling, the converse is not necessarily
true. The fact of an arrest, or probable cause to arrest, for a
drunk-driving related violation or crime alone will not permit
an investigatory blood draw. Rather, there must also be a clear
indication that the blood draw will produce evidence of
intoxication.    State v. Erickson, 2003 WI App 43, ¶8, 260
Wis. 2d 279, 659 N.W.2d 407 (noting that "police sometimes come
into possession of information supporting an arrest long after
the intoxicated operation and at a time when there is no longer
reason to think the driver's blood contains alcohol.").
     8
       Kennedy does not argue that the warrantless investigatory
blood draw was performed in an unreasonable manner or that he
had a reasonable objection to it and we do not address these
issues.


                                          9
                                                                       No.      2012AP523-CR



appeals determined, Kennedy was not under arrest until Detective

Formolo arrived at the scene and placed Kennedy under formal

arrest.      The State and court of appeals concluded that at this

time the police officers on the scene had sufficient evidence to

support a finding of probable cause to arrest Kennedy for a

drunk-driving related violation or crime.

     ¶20     While the parties spend a great deal of time in their

briefs on the issue of when Kennedy was placed under arrest, we

need not decide that issue because the police had probable cause

to arrest Kennedy for a drunk-driving related violation or crime

when he was placed in the rear of the squad car.                             We therefore

assume, without deciding, that Kennedy was under arrest when

placed in the squad car, and hold that at that time the police

had probable cause to arrest him for a drunk-driving related

violation or crime.

     ¶21     Kennedy       argues    that        the    physical       indications         of

intoxication observed by the officers (i.e., his bloodshot and

glassy eyes, slurred speech, swaying, and the strong odor of
alcohol on his breath) were insufficient to establish probable

cause   to    believe      Kennedy    probably         committed      a    drunk-driving

related violation or crime.               He makes this argument based on his

understanding that field sobriety tests are a prerequisite to a

finding of probable cause.            Kennedy's understanding is mistaken.

Wisconsin     has    no    requirement      that       police   must      perform       field

sobriety     tests    in    order    to    determine      whether         probable      cause

exists that a person is operating a vehicle under the influence
of   alcohol.        See     State    v.     Lange,      2009    WI       49,    ¶43,    317
                                            10
                                                                                   No.     2012AP523-CR



Wis. 2d 383, 766 N.W.2d 551 (Ziegler, J. concurring).                                       "Probable

cause exists where the totality of the circumstances within the

arresting officer's knowledge at the time of the arrest would

lead a reasonable police officer to believe that the defendant

probably committed a crime."                      State v. Koch, 175 Wis. 2d 684,

701, 499 N.W.2d 152 (1993).                      Further, "[i]t is not necessary

that    the    evidence          giving        rise        to    such    probable           cause    be

sufficient to prove guilt beyond a reasonable doubt, nor must it

be sufficient to prove that guilt is more probable than not."

Id.    (quoting         State       v.   Paszek,           50    Wis. 2d 619,            624-25,    184

N.W.2d 836 (1971)).

       ¶22    In    the    context         of     an       arrest       for    a     drunk-driving

related      violation         or     crime,      a    law       enforcement             officer    may

consider numerous factors in order to determine probable cause

to arrest.         Probable cause may be established through a showing

of erratic driving and the subsequent "stumbling" of the driver

after getting out of the motor vehicle.                            See State v. Welsh, 108

Wis. 2d 319, 333-35, 321 N.W.2d 245 (1982) overruled on other
grounds, Welsh v. Wisconsin, 466 U.S. 740 (1984).                                           In other

cases, factors sufficient to support a finding of probable cause

have   included         bloodshot         eyes,        an       odor    of     intoxicants,         and

slurred      speech,       together        with        a    motor       vehicle          accident    or

erratic driving.           See State v. Wille, 185 Wis. 2d 673, 683, 518

N.W.2d 325         (Ct.        App.      1994)        (holding          that       the      officers'

observation        of     an    odor      of     intoxicants,            the       nature     of    the

accident, and the defendant's statement that he had "to quit
doing this," supported probable cause); State v. Babbitt, 188
                                                 11
                                                                            No.     2012AP523-CR



Wis. 2d 349, 357, 525 N.W.2d 102 (Ct. App. 1994) (holding that

the    officer's       observation          of        erratic    driving      and     physical

indications of intoxication supported probable cause); State v.

Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996)

(holding that the nature of the single-vehicle accident, odor of

intoxicants,         and        slurred     speech       supported       probable      cause).

These cases illustrate that "[p]robable cause is a 'flexible,

common-sense         measure         of      the       plausibility         of      particular

conclusions about human behavior.'"                       Lange, 317 Wis. 2d 383, ¶20

(quoting      State        v.     Higginbotham,          162     Wis. 2d 978,        989,    471

N.W.2d 24 (1991)).

       ¶23    Here,        the     facts      known       to      Officer        Asselin    are

undeniably sufficient to support a finding of probable cause

that    Kennedy      committed        a    drunk-driving          related     violation      or

crime.       Upon arrival at the scene, Officer Asselin observed

block-long skid marks leading to Kennedy's Impala which faced

the    opposite      direction       of     traffic.           Officer    Asselin      further

observed the results of the high speed impact between Kennedy's
vehicle      and   the      victim.         After       identifying       Kennedy      as   the

driver,      Officer       Asselin         observed       that    Kennedy's        eyes     were

bloodshot      and    glassy,        he     was       slurring     his    speech,      he   was

swaying, and he smelled of alcohol.                       Combined, these facts would

lead     a   reasonable           police     officer       to    believe      that     Kennedy

probably committed a drunk-driving related violation or crime.

       ¶24    In light of the foregoing, we hold that "the totality

of the circumstances within the arresting officer's knowledge at
the time of the arrest would lead a reasonable police officer to
                                                 12
                                                                        No.    2012AP523-CR



believe     that       the    defendant        probably      committed        a    crime;"

specifically, a drunk-driving related violation or crime.                             Koch,

175 Wis. 2d at 701.            Consistent with our discussion of Schmerber

and Bohling we also hold that these same facts and circumstances

provided    probable          cause    to     search      Kennedy's       blood.        See

Erickson, 260 Wis. 2d 279, ¶12.

                         B.     Wisconsin Law and McNeely

    ¶25     Having       addressed       the       threshold      issue       of   whether

Kennedy's    arrest      was    lawful,       we   turn    now    to    the   next    issue

before us: whether Kennedy's Fourth Amendment9 right to be free

from unreasonable searches and seizures was violated.                                At the

time of Kennedy's arrest, Wisconsin law regarding "drunk-driving

related    violation[s]        or     crime[s]"     stated       "the   dissipation      of

alcohol    from    a    person's      bloodstream         constitutes     a    sufficient

exigency to justify a warrantless [investigatory] blood draw."

Bohling,    173        Wis. 2d at      547.         In    Bohling,       we    considered

warrantless investigatory blood draws in light of the United

States Supreme Court's opinion in Schmerber v. California.                               In


    9
       The Fourth Amendment to the United States Constitution
provides:

    [t]he 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.

U.S. Const. amend. IV.


                                            13
                                                                     No.   2012AP523-CR



Schmerber, the Court held that seizing a suspect's blood for

evidentiary      purposes       was   different      than   other      searches    and

seizures subsequent to a lawful arrest because "[t]he interests

in human dignity and privacy which the Fourth Amendment protects

forbid any such         [bodily]      intrusions on the mere chance that

desired evidence might be obtained."                   Schmerber, 384 U.S. at

769-70.        Thus, the Court required "a clear indication"                       that

evidence of intoxication will be found through a blood draw.

Id.     Schmerber concluded that, under the circumstances of that

case,    the    blood    draw    performed     was    reasonable       and   did   not

violate the Fourth Amendment.            Id. at 772.

      ¶26      The Court used three important factors to reach its

conclusion that Schmerber's blood draw was reasonable.                         First,

the   same     facts    that    showed    probable     cause    to     indicate    the

defendant      operated    a    motor    vehicle     under     the     influence    of

alcohol also showed "likely success" in finding further evidence

by testing the defendant's blood.               Id. at 770.          Second, due to

the rapid, natural dissipation of alcohol in the defendant's
bloodstream, the officer "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. (internal quotations omitted).

Third, the Court concluded that the method chosen to draw and

test the defendant's blood, and the means by which the test was

performed, were reasonable.             Id. at 771.

      ¶27      In Bohling, we stated that Schmerber could


                                          14
                                                                  No.    2012AP523-CR


    be read in either of two ways: (a) that the rapid
    dissipation of alcohol in the bloodstream alone
    constitutes a sufficient exigency for a warrantless
    blood   draw   to   obtain  evidence  of    intoxication
    following a lawful arrest for a drunk driving related
    violation or crime——as opposed to taking a blood
    sample for other reasons, such as to determine blood
    type; or (b) that the rapid dissipation of alcohol in
    the    bloodstream,    coupled   with    an    accident,
    hospitalization, and the lapse of two hours until
    arrest, constitute exigent circumstances for such a
    blood draw.
Bohling, 173 Wis. 2d at 539 (emphasis added).                  We concluded that

following a lawful arrest for a drunk-driving related violation

or crime the "more reasonable" reading of                     Schmerber     was the

former:   that         the   "rapid     dissipation      of     alcohol"       alone

constitutes      the     kind   of     exigency     necessary       to   permit    a

warrantless investigatory blood draw from the suspect.                      Id.    We

reached   this       conclusion      based    on   "a   logical     analysis"      of

Schmerber, that the exigency presented was the fact that, as

time passed, the critical evidence of alcohol in the bloodstream

was rapidly being destroyed.            Id. at 539-40.        In other words, we

construed Schmerber to hold that the sole exigency in that case
was the destruction of critical evidence: the alcohol in the

defendant's blood.

    ¶28   As     a     result   of   this     construction,    we    held   that    a

warrantless investigatory blood draw, conducted at the direction

of a law enforcement officer, was lawful so long as:

    (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

                                         15
                                                                            No.     2012AP523-CR


     a reasonable manner, and (4) the arrestee presents no
     reasonable objection to the blood draw.
Id. at 534 (footnote omitted).10                       Each of these factors is rooted

in Schmerber.            See Schmerber, 384 U.S. at 769-771.                             Bohling

interpreted Schmerber to mean that the natural dissipation of

alcohol in a defendant's bloodstream was per se an "exigent

circumstance."             That        interpretation            remained       the      law     in

Wisconsin for 20 years.11

     ¶29       However,     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.     In McNeely, the Court considered an appeal in which the

State of Missouri argued for the creation of a per se rule

nearly identical to our holding in Bohling.                            McNeely, 133 S. Ct.

at 1556.         The Missouri Supreme Court held "Schmerber directs

lower     courts    to    engage        in    a    totality       of    the     circumstances

analysis         when     determining             whether        exigency          permits        a
nonconsensual,          warrantless          blood      draw."      Id.    at     1557.         The

United States Supreme Court "granted certiorari to resolve a

split     of     authority        on     the       question       whether         the    natural

     10
       As explained above, probable cause to arrest "substitutes
for the predicate act of lawful arrest." State v. Bohling, 173
Wis. 2d 529, 534 n.1, 494 N.W.2d 399 (1993) (citation omitted).
This portion of our holding is not affected by McNeely.
     11
       We decided Bohling on January 26, 1993, and the Supreme
Court decided McNeely on April 17, 2013.


                                                  16
                                                                                 No.        2012AP523-CR



dissipation           of    alcohol      in    the       bloodstream        establishes          a per

se exigency that suffices on its own to justify an exception to

the    warrant         requirement         for      nonconsensual           blood       testing      in

drunk-driving investigations."                           Id. at 1558.            The Court held

that the Fourth Amendment does not allow such per se rules in

the context of warrantless investigatory blood draws.                                           Id. at

1561    (stating           that    a    per    se     rule     would       be   a     "considerable

overgeneralization"                of    Schmerber).                The     Court      in      McNeely

clarified its decision in Schmerber and explained that, while

the    natural             dissipation         of        alcohol       in       the     defendant's

bloodstream was a significant factor in its analysis, it was not

dispositive.               Id.     Thus, because an investigatory blood draw

"implicates           an        individual's        most       personal         and     deep-rooted

expectations               of     privacy,"         in        the     absence          of      exigent

circumstances, a warrant is required in order to perform an

investigatory          blood       draw.         Id.     at    1558       (internal         quotations

omitted).

       ¶30       The Court noted that advancements in technology since
Schmerber have greatly reduced the time and effort needed to

secure       a    warrant          before      an        investigatory          blood        draw    is

performed, resulting in more time for law enforcement officials

to    obtain      a    warrant.          Id.     at      1562.        McNeely       did,      however,

acknowledge that such improvements do not guarantee that a judge

or magistrate will be available to approve a warrant in all

situations.                 Id.         McNeely        further        suggested         that        such

improvements do not eliminate the possibility that circumstances
may make it impractical for law enforcement to even attempt to
                                                    17
                                                                       No.        2012AP523-CR



obtain      a     warrant.         Id.   at    1568.          While    a     "variety      of

circumstances may give rise to an exigency sufficient to justify

a warrantless search," in each circumstance the exigency will be

"a compelling need for official action and no time to secure a

warrant."         Id. at 1558-59 (citations omitted).                       Nevertheless,

where law enforcement officers can "reasonably obtain a warrant

before a blood sample can be drawn . . . the Fourth Amendment

mandates that they do so."               Id. at 1561 (emphasis added).

      ¶31       McNeely recognized the difficulty such a requirement

creates         for    law   enforcement,          and    explained        that     "exigent

circumstances justifying a warrantless blood sample may arise in

the regular course of law enforcement due to delays from the

warrant application process."                 Id. at 1563.        As a result, while

the natural dissipation of alcohol in the bloodstream alone does

not create an exigent circumstance, it may serve to support a

finding of exigency.               Id.    Thus, the Court was clear that law

enforcement must procure a warrant when it is reasonable to do

so under the facts and circumstances of the situation.                              However,
law enforcement is not required to obtain a warrant when there

is "a compelling need for official action and no time to secure

a warrant."           Id. at 1559, 1561.

      ¶32       In light of the Supreme Court's decision in McNeely,

we recognize 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,      is         no   longer        an      accurate
interpretation          of   the    Fourth     Amendment's       protection          against
                                              18
                                                              No.        2012AP523-CR



unreasonable searches and seizures.            Accordingly, we hold that

the rapid dissipation of alcohol alone no longer constitutes a

per se exigent circumstance.          Exigent circumstances, sufficient

to justify a warrantless investigatory blood draw of a drunk-

driving suspect, are to be determined on a case-by-case totality

of the circumstances analysis.

                 1.    McNeely Applies to Kennedy's Case.

      ¶33   Following the Supreme Court's decision in McNeely, it

is   also   necessary    to   determine    whether    its    holding        applies

retroactively     to   Kennedy's   case.      We   recently       discussed      the

principle of retroactivity in State v. Dearborn.                    In Dearborn,

we   explained    that   "newly    declared   constitutional         rules      must

apply to all similar cases pending on direct review."                     Dearborn,

327 Wis. 2d 252, ¶31 (citations omitted).                 As Kennedy's direct

appeal was not yet final12 when the Supreme Court issued its

decision in McNeely, its holding applies and the State may not

rely solely on the natural dissipation of alcohol to justify the

warrantless      investigatory     blood   draw    performed        on     Kennedy.
Thus, even if the police officers acted in accordance with clear

and settled Wisconsin precedent at the time they ordered the

warrantless      investigatory     blood   draw,     we    must     nevertheless

analyze their conduct in light of McNeely.                 If the warrantless


      12
       In the context of retroactivity, "final" means "a case in
which a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition
for certiorari elapsed or a petition for certiorari finally
denied." Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).


                                      19
                                                                          No.    2012AP523-CR



investigatory blood draw was unconstitutional under McNeely, we

must then consider whether the exclusionary rule applies.

2.      The State Does Not Argue that the Warrantless Investigatory

         Blood Draw Performed on Kennedy was Constitutional.

       ¶34    In     order     to     determine        whether       the        warrantless

investigatory blood draw performed on Kennedy was constitutional

we look to whether, under the totality of the circumstances, the

police officers could reasonably have obtained a warrant before

ordering an investigatory blood draw be performed on Kennedy.

See McNeely, 133 S. Ct. at 1561.                  We note that it is the State

that    bears      the    burden     of    proving     the    existence         of    exigent

circumstances sufficient to justify a warrantless investigatory

blood    draw.        See    State    v.    Robinson,        2010    WI    80,       ¶24,    327

Wis. 2d 302, 786 N.W.2d 463.                 Under McNeely, the Supreme Court

left open the possibility that exigent circumstances could exist

even in "an ordinary traffic stop" due to the "procedures in

place    for       obtaining    a     warrant     or    the     availability            of    a

magistrate judge," among other factors.                      McNeely, 133 S. Ct. at
1568.     However, the State has not attempted to meet its burden

in this case.            In light of the State's concession, we find it

difficult to address whether exigent circumstances did or did

not exist, because we are deprived of arguments by either the

State    or     Kennedy.       As     a    result,     we     will    assume,         without




                                             20
                                                              No.     2012AP523-CR



deciding, that exigent circumstances did not support the blood

draw performed on Kennedy.13

     3.    The Police Officers Acted in Accordance with Clear and

     Settled Precedent and Thus, the Good-Faith Exception to the

                       Exclusionary Rule Applies.

      ¶35    In ordering the warrantless investigatory blood draw

on Kennedy the police followed our clear and settled precedent

in   Bohling.     Accordingly,      we    analyze   whether    the   good-faith

exception to the exclusionary rule applies.

      ¶36    "[S]ince its inception, the exclusionary rule has been

a remedy, not a right."           State v. Eason, 2001 WI 98, ¶48, 245

Wis. 2d 206,     629   N.W.2d 625.            The   main    purpose     of    the

exclusionary rule is to deter police misconduct and "necessarily

assumes that the police have engaged in willful or, at the very

least, negligent conduct which has deprived a defendant of a

constitutional right."        Id.,       ¶45 (quoting      State v. Gums, 69

Wis. 2d 513, 517, 230 N.W.2d 813 (1975)).             Moreover, application

of   the    exclusionary   rule    "is    not   absolute,     but    requires   a


      13
       The State, which would bear the burden, does not argue
that exigent circumstances existed in this case.     Neither the
State nor Kennedy focus on this issue.      Whether an exigency
exists in a given case will vary depending on any number of
facts or circumstances, as law enforcement investigations are
often extraordinarily fluid situations.    Our holding in this
case must not be read to affirmatively conclude that exigent
circumstances did not support the warrantless investigatory
blood draw performed on Kennedy.     Nonetheless, our analysis
remains focused on the arguments addressed by counsel and
ultimately   rests  upon  an  application   of   the  good-faith
exception.


                                         21
                                                                           No.    2012AP523-CR



weighing of the pertinent interests."                         Id., ¶43.           Thus, the

exclusionary rule applies "most appropriately when the deterrent

benefits outweigh the substantial costs to the truth-seeking and

law    enforcement       objectives        of   the     criminal        justice     system."

Dearborn, 327 Wis. 2d 252, ¶38.                  As such, "the exclusionary rule

should    not    apply    when       the   police     act     in    good      faith,    or   in

'objectively reasonable reliance' on a subsequently invalidated

search warrant."         Id., ¶36 (citing Herring v. United States, 555

U.S. 135, 142 (2009)); see also Eason, 245 Wis. 2d 206, ¶74.

Further, police conduct must be "sufficiently deliberate that

exclusion       can      meaningfully           deter       it."           Dearborn,         327

Wis. 2d 252, ¶36 (citing Herring, 555 U.S. at 144).

       ¶37     Here,     the     police         committed          no    misconduct          and

application of the exclusionary rule would be both inappropriate

and unnecessary as the police acted in accordance with clear and

settled      Wisconsin         precedent        in      ordering        the      warrantless

investigatory blood draw.              "[T]he good-faith exception precludes

application of the exclusionary rule where officers conduct a
search    [or    seizure]       in    objectively        reasonable          reliance    upon

clear    and    settled    Wisconsin        precedent         that      is    later    deemed

unconstitutional by the United States Supreme Court."                              Id., ¶51.

As we explained above, our decision in Bohling was the settled

law in Wisconsin for the two decades preceding the decision in

McNeely.       Our holding in Bohling was clear and straightforward:

"the     dissipation       of    alcohol         from     a    person's          bloodstream

constitutes a sufficient exigency to justify a warrantless blood
draw."       Bohling, 173 Wis. 2d at 547.                   Officer Asselin and the
                                            22
                                                                                No.     2012AP523-CR



other police officers involved in this case followed that rule.

To apply the exclusionary rule here would be counter to the

purposes for which it was created.                         Where police officers have

acted in accordance with clear and settled Wisconsin precedent,

there is no misconduct to deter.                          Dearborn, 327 Wis. 2d 252,

¶44.      We       see     no   reason       to    depart       from       Dearborn       and    our

application         of    the   good-faith          exception         to    the       exclusionary

rule.        As     a    result,   the       officers'      reliance            on    Bohling    was

reasonable and the results of Kennedy's warrantless blood draw

will not be suppressed.

                                      IV.      CONCLUSION

       ¶38     We       conclude   that      the       police   had        probable      cause    to

believe that Kennedy had committed a drunk-driving related crime

or offense.         Therefore, Kennedy's arrest was lawful.

       ¶39     Following        our    interpretation            of    the       United     States

Supreme Court's decision in Schmerber v. California, we held

that the natural dissipation of alcohol in the bloodstream of a

suspect      created        a   sufficient         exigency       so       as    to    justify    a
warrantless investigatory blood draw.                           Bohling, 173 Wis. 2d at

547.      The police in this case acted in accordance with our

holding       in        Bohling       when        they     ordered          the       warrantless

investigatory blood draw performed on Kennedy.

       ¶40     During the pendency of this case, however, the United

States Supreme Court abrogated our holding in Bohling.                                    McNeely,

133 S. Ct. 1552.             In light of that abrogation, we accept, as we

must,   McNeely's           totality      of      the    circumstances            test    for    the
purpose of determining whether exigent circumstances are present
                                                  23
                                                             No.     2012AP523-CR



so as to justify warrantless investigatory blood draws in cases

involving "drunk-driving related violation[s] or crime[s]."

      ¶41    The State has not argued that exigent circumstances

exist so as to justify the warrantless investigatory blood draw

performed on Kennedy.          Because the State does not argue that

exigent circumstances existed, we assume, without deciding, that

the warrantless investigatory blood draw performed on Kennedy

was   not    supported   by    exigent    circumstances.           However,   we

conclude that the police acted in objectively reasonable accord

with the clear and settled Wisconsin precedent existing at the

time the warrantless investigatory blood draw was performed on

Kennedy.      Therefore, the good-faith exception applies and we

affirm the court of appeals and uphold Kennedy's conviction.

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

affirmed.




                                     24
                                                                       No.   2012AP523-CR.ssa




    ¶42     SHIRLEY      S.     ABRAHAMSON,             C.J.     (concurring).             The

instant   case     is    part     of    a   trilogy        of    cases       examining     the

constitutionality        of     warrantless,            nonconsensual         blood   draws

performed on persons suspected of driving under the influence of

an intoxicant in light of Missouri v. McNeely, 133 S. Ct. 1552

(2013).     The    other      two      cases       in   this    trilogy      are   State    v.

Tullberg,   2014    WI     134,     ___     Wis. 2d ___,         ___     N.W.2d ___,       and

State v. Foster, 2014 WI 131, ___ Wis. 2d ___, ___ N.W.2d ___.

For a discussion of these three opinions, including the instant

case, and the issues arising therein, see my dissenting opinion

in State v. Foster, 2014 WI 131, ___ Wis. 2d ___, ___N.W.2d ___.




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