#27455-a-GAS

2016 S.D. 12

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

RONALD RAY FISCHER, JR.,                    Defendant and Appellant.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                  CHARLES MIX COUNTY, SOUTH DAKOTA

                                   ****

                  THE HONORABLE BRUCE V. ANDERSON
                               Judge

                                   ****

MARTY J. JACKLEY
Attorney General

KELLY MARNETTE
BRENT K. KEMPEMA
Assistant Attorneys General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


TIMOTHY R. WHALEN
Lake Andes, South Dakota                    Attorney for defendant
                                            and appellant.


                                   ****
                                            ARGUED ON
                                            JANUARY 13, 2016

                                            OPINION FILED 02/03/16
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SEVERSON, Justice

[¶1.]         Ronald Fischer, Jr., was convicted of driving with alcohol in his blood

or while under the influence of alcohol or drug, two counts of vehicular homicide,

one count of possession of marijuana, and one count of ingesting a non-alcoholic

substance to become intoxicated. He appeals. He asserts that law enforcement and

hospital personnel took blood samples from him in violation of his constitutional

rights, and, therefore, the court erred when it refused to suppress the samples. We

affirm.

                                     Background

[¶2.]         On the night of July 8, 2013, around 8:30, Fischer failed to stop at a T-

intersection of two highways in Pickstown, South Dakota. He drove through the

intersection and into the parking lot of the Dakota Inn Hotel at a high rate of speed.

He struck a boat and two persons standing in the parking lot. Fischer’s vehicle

then collided with a pick-up and another vehicle. The two persons struck by

Fischer’s vehicle were immediately killed. The accident resulted in a large debris

field that included multiple body parts from both of the victims. A physician’s

assistant student was among the witnesses to the accident. After checking on both

victims, the student began administering medical care to Fischer, who was still in

the driver’s seat of his vehicle.

[¶3.]         Three Charles Mix County deputy sheriffs responded to the scene of

the accident along with members of the local volunteer fire department and

emergency medical technicians. Deputies Rolston and Lake arrived at 8:47 p.m.,

and Deputy DeBuhr arrived one minute later. Deputy Rolston assisted the student


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and noticed that Fischer smelled of alcohol. Deputy DeBuhr also noticed the odor of

alcohol when he helped extricate Fischer from his vehicle. Deputy Lake attempted

to control the scene and the number of onlookers. Deputy Lake was responsible for

preserving evidence, which included skid marks, body parts, and vehicle parts.

Additionally, she attempted to identify the victims, gathered information from

witnesses, and took pictures of the scene, including Fischer and his vehicle. While

taking these pictures, she detected the odor of alcohol emanating from Fischer’s

vehicle. Fischer was taken by ambulance to the Wagner Hospital.

[¶4.]        At 9:10 p.m., approximately twenty minutes after the deputies had

arrived on the scene, and after Fischer had been taken away by ambulance, Sheriff

Thaler arrived on the scene. By this time, light precipitation had begun to fall.

Sheriff Thaler was briefed on the accident and took control of delegating

responsibilities and managing the scene. He told the deputies to identify witnesses

and tasked Deputy Rolston with taking pictures. Sheriff Thaler thought that it may

start raining, and he asked the EMTs and firefighters to assist with securing the

scene using police tape and tarps to cover the physical evidence. Other than those

present at the scene, only two other law enforcement officers worked for Sheriff

Thaler. Both officers were unavailable that evening, one because he was working

on a drug sting and the other was needed at the office to respond to all other calls

that came in.

[¶5.]        Deputy Debuhr testified at the suppression hearing that shortly after

Sheriff Thaler arrived on scene, the deputy informed the sheriff that alcohol may be

a factor. A volunteer fireman, who assisted in removing Fischer from Fischer’s


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vehicle, also told the sheriff that Fischer smelled of alcohol. Sheriff Thaler knew a

helicopter was on its way to transport Fischer from the Wagner Hospital to a

hospital in Sioux Falls, so he sent Deputy DeBuhr to the Wagner Hospital to obtain

a blood sample from Fischer. He did not tell Deputy Debuhr to obtain a search

warrant, and he did not think it would be possible to obtain one before Fischer was

transported to Sioux Falls.

[¶6.]        At the Wagner Hospital, Dr. Pinter treated Fischer and ordered

several tests on Fischer, including a blood test to determine Fischer’s blood alcohol

content (BAC). Dr. Pinter’s training taught him that a trauma patient should have

his blood tested to determine BAC for treatment purposes. The test showed that

Fischer’s BAC was .274.

[¶7.]        As Deputy DeBuhr was driving to the Wagner Hospital, he saw the

helicopter coming in to transport Fischer to Sioux Falls. He arrived at 9:38 p.m.,

the same time as the helicopter. At 9:45 p.m., Deputy DeBuhr directed a nurse to

draw a sample of Fischer’s blood. That sample showed Fischer’s BAC at .232 and

showed the presence of cannabinoids. Thirty minutes later, Fischer was discharged

from the Wagner Hospital and flown to Sioux Falls.

[¶8.]        As a result of the incident, Fischer was indicted on the following seven

counts: driving or control of vehicle with alcohol in the blood or while under the

influence of alcohol or drug, two counts of first-degree manslaughter, two counts of

vehicular homicide, possession of marijuana, and ingesting a non-alcoholic

substance to become intoxicated. Fischer moved to suppress evidence of the blood

draws, alleging that they had been obtained contrary to his rights under the Fourth


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Amendment of the United States Constitution, applicable to the states via the

Fourteenth Amendment, and Article VI, § 11 of the South Dakota Constitution.

[¶9.]          The circuit court found that the blood draw ordered by Dr. Pinter was

done at the sole request of a physician, a private individual, and thus constitutional

protections did not apply and the results would not be suppressed. 1 The circuit

court also found that Sheriff Thaler was busy directing the investigation, which

included: helping those injured; preserving evidence from the rain by covering it;

preserving evidence by photographing it; finding all evidence, including body parts;

finding witnesses; interviewing witnesses or giving them statement forms;

performing crowd control because curious individuals were arriving to see what

happened; taping off the scene; getting the blood sample from Fischer; and

coordinating with Highway Patrol. Therefore, it refused to suppress the blood draw

done at the direction of Deputy DeBuhr, finding that exigent circumstances existed.

Fischer appeals the circuit court’s decision, alleging that both draws should have

been suppressed.

                                 Standard of Review

[¶10.]         “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. 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.”




1.       Fischer stipulated to the release of his medical records from the Wagner
         Hospital. Therefore, the circuit court also found that he had waived any
         claim of physician-patient privilege. Fischer has not appealed that decision.

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State v. Fierro, 2014 S.D. 62, ¶ 12, 853 N.W.2d 235, 239 (quoting State v. Smith,

2014 S.D. 50, ¶ 14, 851 N.W.2d 719, 723).

                                      Analysis

[¶11.]       Fischer maintains that both blood draws, one done at the direction of

Dr. Pinter and one done at the direction of Deputy DeBuhr, should have been

suppressed. We first address the blood draw ordered by Dr. Pinter. Protection

against unreasonable searches and seizures under the Fourth Amendment to the

United States Constitution and Article VI, § 11 of the South Dakota Constitution

applies to governmental action. See United States v. Jacobsen, 466 U.S. 109, 113,

104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984); State v. Schwartz, 2004 S.D. 123, ¶ 11,

689 N.W.2d 430, 434. “[I]t is wholly inapplicable ‘to a search or seizure, even an

unreasonable one, effected by a private individual not acting as an agent of the

Government or with the participation or knowledge of any governmental official.’”

Jacobsen, 466 U.S. at 113, 104 S. Ct. at 1656 (quoting Walter v. United States, 447

U.S. 649, 662, 100 S. Ct. 2395, 2404, 65 L. Ed. 2d. 410 (1980)). Additionally,

“suppression of evidence is not a personal constitutional right, but a judicially

created remedy to deter constitutional violations by government officials.” State v.

Running Shield, 2015 S.D. 78, ¶ 7, 871 N.W.2d 503, 506 (quoting State v. Sorenson,

2004 S.D. 108, ¶ 8, 688 N.W.2d 193, 196).

[¶12.]       Fisher argues that the “Fourth Amendment totality-of-the-

circumstances analysis [that applies] to law enforcement blood samples . . . should

apply to the hospital draw in this case.” He claims that law enforcement and

medical personnel in small communities have a close relationship because of the


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“prevalence of alcohol related offenses in [these] communities” and the frequent

contact between the two groups such as seeking assistance in blood draws. 2 Fischer

asks us to determine that the hospital blood draw was obtained in violation of his

constitutional rights because it had a dual purpose of medical and investigatory in

light of this alleged close relationship. Fischer’s arguments are unavailing,

particularly as here, where law enforcement had absolutely no involvement in the

blood draw. Officers were not present when the blood draw was ordered by Dr.

Pinter or performed by hospital staff. We will not equate medical decisions with

law enforcement action based on the alleged “sundry matters that bring them

together” and the relationship that allegedly results. When hospital staff draws

blood solely for medical purposes, there is no unconstitutional governmental activity

to deter and suppression is an inappropriate remedy in this case. See id.

[¶13.]         Next, we consider Fischer’s assertion that the second blood draw

should have been suppressed because law enforcement did not obtain a search

warrant prior to drawing Fisher’s blood. “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.” Fierro, 2014 S.D. 62, ¶ 15, 853 N.W.2d at 240

(quoting Smith, 2014 S.D. 50, ¶ 15, 851 N.W.2d at 724). “‘Warrantless searches are

per se unreasonable, apart from a few, well-delineated exceptions,’ and it is the

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

exception to the warrant requirement.” Id. (quoting State v. Hess, 2004 S.D. 60,


2.       Fischer cites no evidence or authority for these claims.

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¶ 23, 680 N.W.2d 314, 324). The State contends that the exigent circumstances

exception is applicable in this case. “The exigent circumstances exception is one of

the well-delineated exceptions to the warrant requirement.” Id. ¶ 17. It “applies

when the exigencies of the situation make the needs of law enforcement so

compelling that a warrantless search is objectively reasonable under the Fourth

Amendment.” Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1558, 185 L.

Ed. 2d. 696 (2013) (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849,

1856, 179 L. Ed. 2d. 865 (2011)).

[¶14.]       Fischer maintains that the State cannot establish that exigent

circumstances existed in this case because the United States Supreme Court has

determined that “the natural dissipation of alcohol in the bloodstream” does not

establish 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.” See McNeely, 133 S. Ct. at 1558. Moreover, he contends that any

reliance on Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908

(1966) is misplaced because that rationale “has been squarely and decisively

rejected by the United States Supreme Court in the McNeely decision[.]” According

to Fischer, the State has no exigent circumstances other than the dissipation of

blood in this case; therefore, the warrantless blood draw was unconstitutional and

should have been suppressed. We disagree.

[¶15.]       In Schmerber, the Supreme Court “upheld a warrantless blood test of

an individual arrested for driving under the influence of alcohol because the officer

‘might reasonably have believed that he was confronted with an emergency, in


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which the delay necessary to obtain a warrant, under the circumstances, threatened

the destruction of evidence.’” McNeely, 133 S. Ct. at 1552 (quoting Schmerber, 384

U.S. at 770, 86 S. Ct. at 1826). The Court reasoned that:

             [T]he percentage of alcohol in the blood begins to diminish
             shortly after drinking stops, as the body functions to eliminate it
             from the system. Particularly in a case such as this, where time
             had to be taken to bring the accused to a hospital and to
             investigate the scene of the accident, there was no time to seek
             out a magistrate and secure a warrant. Given these special
             facts, we conclude that the attempt to secure evidence of blood-
             alcohol content in this case was an appropriate incident to
             petitioner’s arrest.

Schmerber, 384 U.S. at 770-71, 86 S. Ct. at 1836.

[¶16.]       Fischer misconstrues the McNeely decision as rejecting Schmerber’s

rationale. Instead, the McNeely Court explained that the “analysis in Schmerber

fits comfortably within our case law applying the exigent circumstances exception.

In finding the warrantless blood test reasonable in Schmerber, we considered all of

the facts and circumstances of the particular case and carefully based our holding

on those specific facts.” McNeely, 133 S. Ct. at 1560. The McNeely Court reaffirmed

that “the reasonableness of a warrantless search under the exigency exception to

the warrant requirement must be evaluated on the totality of the circumstances.”

Id. “[T]he metabolization of alcohol in the bloodstream and the ensuing loss of

evidence are among the factors that must be considered in deciding whether a

warrant is required.” Id. at 1568. The McNeely Court further explained that it did

“not doubt that some circumstances will make obtaining a warrant impractical such

that the dissipation of alcohol from the bloodstream will support an exigency

justifying a properly conducted warrantless blood test. That, however, is a reason


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to decide each case on its facts, as we did in Schmerber[.]” Id. at 1561 (emphasis

added).

[¶17.]       According to the Supreme Court’s guidance on the matter, we examine

the totality of the circumstances to determine whether law enforcement faced

exigent circumstances that justified the warrantless blood draw. See id. at 1559.

At a high rate of speed, Fischer struck multiple vehicles, a boat, and two people,

who were standing in a parking lot and immediately killed. The aftermath was a

major crime scene on a public golf course. The accident occurred at approximately

8:30 p.m. and at a time when the weather was unstable. At the suppression

hearing, Sheriff Thaler testified that all personnel available to him were dispatched

to the scene, including state highway patrol troopers. Only one deputy remained in

the office to handle other matters that arose in Charles-Mix County that night. The

circuit court found that the “magnitude of the accident and the size of the crime

scene could not be managed without a great deal of help. . . . The Sheriff, Deputies,

and Troopers were individually required to help at the scene rather than make

efforts to obtain a warrant. . . . [They] worked on the scene until the early hours of

the morning.” Suffice it to say that the nature of the fatal injuries received by the

victims resulted in an extensive debris field that required immediate attention to

ensure that all evidence was located, documented, and secured in the event of

potentially imminent rain. Sheriff Thaler enlisted the help of emergency personnel

and firemen to cover body parts and evidence with tarps. The circuit court found

that an unusually large number of witnesses had to be identified. Traffic and crowd

control functions also needed to be performed. Therefore, the court found that law


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enforcement reasonably believed that other tasks they were performing took

priority over taking time to get a warrant.

[¶18.]       Fischer had also suffered serious injuries that required emergency

medical care. He was taken by ambulance to the hospital in Wagner. Before he

even arrived at the hospital, an air ambulance was dispatched there. The court

found that Deputy Debuhr “felt a sense of urgency because he would have missed

the helicopter had he stopped to obtain a warrant.” It found that Sheriff Thaler did

not believe he had the resources to prepare an affidavit for a warrant. As the court

found, Sheriff Thaler believed he needed to obtain the blood draw before Fischer

was airlifted because the officers did not know how medical procedures, such as

possible blood transfusions or intravenous fluids could affect Fischer’s BAC; there

was a possibility that intravenous fluid could compromise the integrity of the BAC

testing. Once Fischer departed the Wagner Hospital he was unavailable to law

enforcement for several hours. The court found that law enforcement did not have

access to Fischer again until 12:43 a.m., a little over four hours after the accident.

[¶19.]       Fischer maintained at the suppression hearing, as he does now, that

our statutes allow warrants to be obtained quickly. He asserts that the officers

“would have needed less than 7 minutes of their time to secure a search warrant.”

The Supreme Court has recognized that “technological developments that enable

police officers to secure warrants more quickly, and do so without undermining the

neutral magistrate judge’s essential role as a check on police discretion, are relevant

to an assessment of exigency.” McNeely, 133 S. Ct. at 1562-63. However, the circuit

court squarely rejected Fischer’s argument at the suppression hearing “that law


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enforcement could have obtained a telephonic warrant in under five minutes[.]” As

the court explained, although SDCL 23A-35-5, -6 allow officers to obtain telephonic

warrants, the officer seeking a warrant must still prepare a physical document to be

read to the magistrate. See SDCL 23A-35-6 (“Prior to approval of a warrant issued

pursuant to § 23A-35-5, the committing magistrate shall require the law

enforcement officer or the prosecuting attorney who is requesting the warrant to

read to him verbatim the contents of the warrant.”). Here, an officer would have

needed to drive six miles from the scene, to Lake Andes, to prepare the warrant.

According to Sheriff Thaler and Deputy Debuhr, the preparation takes roughly 30

to 60 minutes. Once the officer prepared the warrant, called the magistrate, read

the warrant, and obtained approval, he or she would need to drive from Lake Andes

to the Wagner Hospital, which is roughly a distance of 15 miles. Therefore, the

court found it unlikely that the officers would have been able to obtain a warrant

prior to Fischer being airlifted out of Charles Mix County. See SDCL 23A-35-2 (“A

search warrant authorized by this chapter may be issued by a committing

magistrate in the county where the property sought is located, on the request of a

law enforcement officer or prosecuting attorney.”).

[¶20.]       We likewise conclude that these facts established exigent

circumstances such that the warrantless blood draw in this case was reasonable.

The Supreme Court has recognized that although “experts can work backwards . . .

to determine the BAC at the time of the alleged offense, longer intervals may raise

questions about the accuracy of the calculation. For that reason, exigent

circumstances justifying a warrantless blood sample may arise in the regular course


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of law enforcement due to delays from the warrant application process.” McNeely,

133 S. Ct. at 1563. Deputy DeBuhr arrived at the hospital at the same time as the

helicopter. Dr. Pinter testified during the suppression hearing that he would not

have kept Fischer at the hospital while law enforcement obtained a warrant. All

other available law enforcement officers were busy attending to the accident scene.

No one knew the impact that medical care would have on Fischer’s BAC, and

Fischer’s departure via helicopter to receive medical care was imminent. The

officers faced the possibility that evidence of alcohol would be destroyed or lost by

the time they secured a warrant. This case presents those “special facts” which the

Supreme Court anticipated:

             “[S]pecial facts”, such as the need for the police to attend to a car
             accident, . . . the procedures in place for obtaining a warrant or
             the availability of a magistrate judge, may affect whether the
             police can obtain a warrant in an expeditious way and therefore
             may establish exigency that permits a warrantless search. The
             relevant factors in determining whether a warrantless search is
             reasonable, including the practical problems of obtaining a
             warrant within a timeframe that still preserves the opportunity
             to obtain reliable evidence, will no doubt vary depending upon
             the circumstances in the case.

McNeely, 133 S. Ct. at 1568.

[¶21.]       Fischer argues that it was law enforcement’s “neglect and failure to do

their job correctly [that] created the exigent circumstances[.]” See King, 563 U.S. at

470, 131 S. Ct. at 1862 (“Any warrantless entry based on exigent circumstances

must, of course, be supported by a genuine exigency.”). He argues:

             in light of the type of accident and the horrific nature of the
             same, it was incumbent on the part of law enforcement to
             mobilize every available law enforcement officer and not simply
             try to handle the crime scene . . . with just the Sheriff’s staff,
             two highway patrol officers, and volunteer EMTs and

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             firefighters. The failure to mobilize sufficient staff and officers
             to handle the extensive accident scene was not Fischer’s fault
             and is not an exigent circumstance[.]

Fischer thereby admits that the accident scene was “horrific” and “extensive” but

claims law enforcement officers were negligent because they did not request more

assistance. Although Fischer lists a number of agencies he believes Sheriff Thaler

could have called that night, he does not refer us to any evidence in the record to

support his assertions. We have no indication as to which agencies Sheriff Thaler

could have called or what they could have contributed. Sheriff Thaler testified at

the suppression hearing that there are no city officers in Pickstown. He also

testified that although he can request assistance through state radio for state

troopers or DCI, he does not control who responds to requests for assistance. State

troopers were called and present at the scene. The record does not reflect that law

enforcement acted negligently or created the exigent circumstances in this case.

                                     Conclusion

[¶22.]       Blood drawn by hospital personnel for medical purposes is not subject

to Fourth Amendment protection, and therefore suppression of the draw was not

warranted. In regard to the blood draw ordered by law enforcement, after

reviewing the totality of the circumstances, exigent circumstances existed such that

the warrantless blood draw of Fischer was objectively reasonable. Consequently, we

affirm.

[¶23.]       GILBERTSON, Chief Justice, and ZINTER and WILBUR, Justices,

and SOGN, Circuit Court Judge, concur.

[¶24.]       SOGN, Circuit Court Judge, sitting for KERN, Justice, disqualified.


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