       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           BYRON MCGRAW,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-232

                            [March 21, 2018]

  Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Leonard Hanser, Judge; L.T. Case No. 50-2016-CT-
013594-AXXX-NB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

    The Defendant appeals an order denying his motion to suppress the
results of a warrantless blood draw in a DUI case. The county court found
the blood draw was an unconstitutional search under the Fourth
Amendment, but denied the motion to suppress based on the “good faith”
exception to the warrant requirement. The county court also certified the
following question to be of great public importance:

      Does the following sentence in § 316.1932(1)(c), Florida
      Statutes,

            Any person who is incapable of refusal by reason
            of unconsciousness or other mental or physical
            condition is deemed not to have withdrawn his or
            her consent to such [blood] test.

      remain constitutionally valid under the Fourth Amendment to
      the United States Constitution and Article 1, Section 12 of the
      Florida Constitution in light of Missouri v. McNeely, [569 U.S.
      141] (2013), State v. Liles, 191 So. 3d 484 (Fla. 5th DCA 2016),
      and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)?

We exercised our discretionary jurisdiction under Florida Rule of Appellate
Procedure 9.030(b)(4)(A) to answer the certified question.

   We address the case before us, and the certified question, in multiple
parts. First, we discuss the facts relevant to this appeal. Second, we
discuss the Defendant’s motion to suppress and the court’s ruling. Third,
we discuss Florida’s implied consent law. Fourth, we analyze the Supreme
Court’s decisions in Missouri v. McNeely, 569 U.S. 141 (2013), and
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and decisions from
courts around the country that have traveled this same path. Fifth, we
apply the Supreme Court’s decisions in McNeely and Birchfield to the case
before us.

  In applying the Supreme Court’s decisions, we rephrase the certified
question:

      Under the Fourth Amendment, may a warrantless blood draw
      of an unconscious person, incapable of giving actual consent,
      be pursuant to section 316.1932(1)(c), Florida Statutes (2016)
      (“Any person who is incapable of refusal by reason of
      unconsciousness or other mental or physical condition is
      deemed not to have withdrawn his or her consent to [a blood
      draw and testing].”), so that an unconscious defendant can be
      said to have “consented” to the blood draw?

We answer the rephrased certified question in the affirmative, and affirm
the county court’s denial of the Defendant’s motion to suppress.

                               Background

                    i. The Accident and Investigation

    The Defendant was involved in a single car rollover accident, causing
damage to his vehicle and injury to himself. An officer assigned to the
special operations division of the Riviera Beach Police Department arrived
at the scene around 8:00 a.m. When he arrived, officers had established
a crash site, and Riviera Beach Fire Rescue was “cutting away at portions
of the vehicle” trying to extricate the Defendant.



                                     2
   The officer testified that the Defendant was unconscious and
unresponsive to Fire Rescue. While standing “two to three feet behind the
Fire Rescue personnel” he could detect the odor of alcohol from the
Defendant, his clothing, and the vehicle.

    Fire Rescue removed the Defendant from the vehicle and transported
him to the emergency room. The officer followed the ambulance to the
hospital, a trip that took around five minutes. At the hospital, the officer
again made contact with the Defendant, who remained unconscious. The
officer testified that after the medical professionals completed treating the
Defendant, they brought the Defendant into a room and placed in “some
sort of device that was actually just keeping his head still and straight at
that time.” The officer observed bruises and scratches, but observed no
traumatic injuries to his body.

    The officer testified that, at this point, he was investigating a possible
driving under the influence case and “wanted to request . . . a sample of
his blood.” The officer “attempted to rub [the defendant’s] sternum to see
if there would be any kind of reaction from pain compliance. And the
registered nurse who was assisting [the officer] also conducted a sternum
rub, to which we had no effects at all.” At that time, the officer requested
that the registered nurse assigned to the Defendant draw his blood. After
they drew his blood, and about thirty to sixty minutes after arriving at the
hospital, the officer left the hospital and had no further contact with the
Defendant or the hospital about the Defendant.

                ii. The Defendant’s Motion to Suppress

   The State later charged the Defendant by amended information with
two counts of driving under the influence causing or contributing to injury
to persons or property (enhanced). Arguing “the U.S. Supreme Court
[recently] held that warrantless blood draws are not permissible incident
to arrest, and are not per se permissible under the exigent circumstances
exception,” the Defendant moved to suppress the blood draw.

   The court held a hearing on the Defendant’s motion to suppress,
hearing testimony from the officer, and subsequently rendered an order
denying the motion to suppress and certifying a question of great public
importance. The court held Florida’s implied consent law does not provide
consent for a warrantless blood draw. The court then found the officer’s
testimony supported no other exception to the warrant requirement.
Finally, the court found that the officer proceeded in an objectively
reasonable reliance on the validity of the implied consent law. As a result
of the officer’s good faith reliance on a presumptively valid statute, the

                                      3
court denied the motion to suppress. The Defendant was convicted, and
appeals the court’s ruling.

                                 Analysis

   “We review motions to suppress under a mixed standard, deferring to
the trial court’s factual findings but reviewing legal conclusions de novo.”
Strachan v. State, 199 So. 3d 1022, 1024 (Fla. 4th DCA 2016). And, the
constitutionality of a statute presents a pure question of law subject to de
novo review. Braddy v. State, 219 So. 3d 803, 819 (Fla. 2017).

                   i. Florida’s Implied Consent Law

   The Fourth Amendment to the United States Constitution protects
“persons, houses, papers and effects against unreasonable searches.”
Amend. IV, U.S. Const. In Florida, we construe this right “in conformity
with [and] as interpreted by the United States Supreme Court.” Art. I, §
12, Fla. Const. In other words, “the search and seizure provision of the
Florida Constitution imposes no higher standard than that of the Fourth
Amendment to the United States Constitution.” State v. Hetland, 366 So.
2d 831, 836 (Fla. 2d DCA 1979).

    The Defendant argues that the blood draw violated his Fourth
Amendment rights. First, we begin with the premise that the “compulsory
administration of a blood test . . . plainly involves the broadly conceived
reach of a search and seizure under the Fourth Amendment.” Schmerber
v. California, 384 U.S. 757, 767 (1966). In other words, a blood draw is a
“search” under the Fourth Amendment. Therefore, the Defendant is
initially correct that, to compel a blood draw, the State must either: (a)
obtain a warrant; or (b) establish a valid exception to the warrant
requirement. It is undisputed that the State did not obtain a warrant.
Rather, the State relies on an exception to the warrant requirement —
namely, the Defendant’s consent based on Florida’s implied consent law.

   “All 50 States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within the State, to
consent to [blood alcohol content] testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense.” McNeely, 569 U.S. at
161.

   Generally, our implied consent law is codified in chapter 316, Florida
Statutes. See §§ 316.1932, .1933, .1934, Fla. Stat. (2015). These statutes
“essentially require all persons accepting a license to drive in Florida to
consent to a blood-alcohol test upon being arrested for driving under the

                                     4
influence.” Montes-Valeton v. State, 216 So. 3d 475, 481 n.1 (Fla. 2017)
(quotation omitted).

    Specifically at issue here is section 316.1932(1)(c):

       Any person who accepts the privilege extended by the laws of
       this state of operating a motor vehicle within this state is, by
       operating such vehicle, deemed to have given his or her
       consent to submit to an approved blood test for the purpose
       of determining the alcoholic content of the blood . . . . Any
       person who is incapable of refusal by reason of
       unconsciousness or other mental or physical condition is
       deemed not to have withdrawn his or her consent to [a blood
       draw and testing].

    The Defendant argues this statute is insufficient, by itself, to satisfy the
Fourth Amendment. Further, he argues it is unconstitutional “to the
degree it provides involuntary implied consent to perform a blood draw any
time a person suspected of driving under the influence is unconscious at
a hospital — this is because implied consent is not the same as consent
for Fourth Amendment purposes.”

   In addition to recent United States Supreme Court decisions, the
Defendant cites two Florida decisions in support of his position. See Liles,
191 So. 3d at 486; Williams v. State, 167 So. 3d 483, 488 (Fla. 5th DCA
2015), vacated, No. SC15-1417, 2016 WL 6637817 (Fla. Nov. 9, 2016).1
While we can certainly look to the decisions of our sister court, we first
consider decisions from the United States Supreme Court, as, again,
Florida provides no Fourth Amendment protection beyond that determined
by the Supreme Court.

       ii. The Supreme Court’s Decisions in McNeely and Birchfield

    Two recent United States Supreme Court cases control our resolution
of this case.

————————————————————————————————————
1  The Florida Supreme Court vacated the Fifth District’s decision for
reconsideration in light of the Supreme Court’s issuance of Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016). On remand, the Fifth District found its “task
significantly easier” and concluded “that breath-alcohol tests are permissible
under the search-incident-to-arrest exception to the Fourth Amendment’s
warrant requirement.” Williams v. State, 210 So. 3d 774, 776 (Fla. 5th DCA
2017).

                                       5
    First, in Missouri v. McNeely, 569 U.S. 141 (2013), the defendant was
stopped by a Missouri police officer and declined to use a portable breath-
test device to measure his blood alcohol level. Id. at 145. The officer
arrested him, and took him to a local hospital for blood testing. Id. He
moved to suppress the blood test, arguing the compelled taking of his
blood without a warrant violated the Fourth Amendment. Id. at 146. The
trial court granted his motion, and the Missouri Supreme Court affirmed.
The United States Supreme Court granted certiorari to determine “whether
the natural metabolization of alcohol in the bloodstream presents a per se
exigency that justifies an exception to the Fourth Amendment’s warrant
requirement for nonconsensual blood testing in all drunk-driving cases.”
Id. at 145. Justice Sotomayor, writing for a fractured majority, 2 rejected
Missouri’s argument for a per se exception to the warrant requirement in
DUI investigations based on exigent circumstances. Id. The Court held
that “that exigency in this context must be determined case by case based
on the totality of the circumstances.” Id.

    Three years after McNeely, and after the accident at issue here, the
Supreme Court issued Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).
Birchfield involved three consolidated cases, two arising from North Dakota
and a third from Minnesota. Danny Birchfield accidentally drove his car
off a North Dakota highway, and later refused to consent to a blood draw.
Id. at 2170–71. William Robert Bernard, Jr. had gotten a truck stuck in a
river at a boat ramp in Minnesota, and refused to allow an officer to give
him a breath test. Id. at 2171. An officer saw the third petitioner, Steve
Michael Beylund, unsuccessfully try to turn into a driveway. Unlike
Birchfield and Bernard, Beylund consented to a blood draw at a nearby
————————————————————————————————————
2 Justices Scalia, Ginsburg, Kennedy, and Kagan joined Parts I, II-A, II-B, and IV
of Justice Sotomayor’s opinion. Justices Scalia, Ginsburg, and Kagan joined
Parts II-C and III of Justice Sotomayor’s opinion. Justice Kennedy wrote a
separate concurring opinion, explaining his view that the case did not require an
analysis of the issues discussed in Parts II-C and III of Justice Sotomayor’s
opinion. The Chief Justice wrote a separate opinion, joined by Justices Breyer
and Alito, concurring in the Court’s conclusion that the totality of the
circumstances should govern a Fourth Amendment inquiry. Yet the Chief Justice
dissented from the majority opinion based on his view that, in the context of DUI
investigations, “proper rule is straightforward.” The Chief Justice would require
a warrant when there was sufficient time for the officer to obtain one but,
otherwise, would find the dissipation of the alcohol in the blood stream presents
a sufficient exigent circumstance to provide an exception to the warrant
requirement. Finally, Justice Thomas filed a separate dissenting opinion to
explain his view that the dissipation of alcohol in the blood stream constitutes an
exigent circumstance and, as a result, a warrantless blood draw does not violate
the Fourth Amendment.

                                        6
hospital after the officer read him North Dakota’s implied consent warning.
Id. at 2171–72.

    The issue before the Supreme Court was “whether motorists lawfully
arrested for drunk driving may be convicted of a crime or otherwise
penalized for refusing to take a warrantless test measuring the alcohol in
their bloodstream.” Id. at 2172. The Court first reviewed its Fourth
Amendment jurisprudence in the context of DUI cases; more specifically
in the context of the search-incident-to-arrest doctrine. Id. at 2173–76.
As with searches of cell phones and DUI investigations, the situation
before the Court could not have been envisioned in the founding era.
Therefore, the Court applied a balancing test to determine “whether to
exempt a given type of search from the warrant requirement by assessing,
on the one hand, the degree to which it intrudes upon an individual’s
privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.” Id. at 2176 (internal
citation omitted).

   Examining the effect of breath tests and blood tests on an individual’s
privacy interests, the Court reaffirmed its earlier conclusion that a breath
test does not implicate significant privacy concerns. Id. (citing Skinner v.
Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616–17 (1989)). It noted that the
results of a breath test capture only limited information — the amount of
alcohol in a defendant’s breath; and participation in a breath test is not
an experience likely to enhance any embarrassment to the defendant. Id.
at 2177.

   Blood tests, the Court found, “are a different matter.” Id. at 2178.
Blood tests pierce the skin and are far more intrusive than a breath test.
And, the Court explained, a blood test “places in the hands of law
enforcement authorities a sample that can be preserved and from which it
is possible to extract information beyond a simple BAC reading.” Id. at
2178.

   After determining the scope of the privacy interest, the Court turned to
the states’ asserted need to obtain blood alcohol readings. Id. On that
issue, there is no doubt the states have a legitimate interest in ensuring
the safety of the roads. Id. The Court rejected the dissent’s argument that
“an officer making an arrest for drunk driving should not be allowed to
administer a BAC test unless the officer procures a search warrant or
could not do so in time to obtain usable test results.” Id. at 2179. This
argument contravened their “decisions holding that the legality of a search
incident to arrest must be judged on the basis of categorical rules.” Id.
Further, “requiring the police to obtain a warrant in every case would

                                     7
impose a substantial burden but no commensurate benefit.” Id. at 2181–
82.

   The Court then turned to the constitutionality of warrantless breath
and blood tests. As for breath tests, the Court found “that the Fourth
Amendment permits warrantless breath tests incident to arrests for drunk
driving. The impact of breath tests on privacy is slight, and the need for
BAC testing is great.” Id. at 2184. The Court reached a different answer
about blood tests, stating “[b]lood tests are significantly more intrusive,
and their reasonableness must be judged in light of the availability of the
less invasive alternative of a breath test. Respondents have offered no
satisfactory justification for demanding the more intrusive alternative
without a warrant.” Id.

   Although not relevant to any of the three petitioners in Birchfield, but
relevant to our case, the Court commented on blood draws of unconscious
drivers:

      It is true that a blood test, unlike a breath test, may be
      administered to a person who is unconscious (perhaps as a
      result of a crash) or who is unable to do what is needed to take
      a breath test due to profound intoxication or injuries. But we
      have no reason to believe that such situations are common in
      drunk-driving arrests, and when they arise, the police may
      apply for a warrant if need be.

Id. at 2184–85.

   On first read, this statement appears to support Judge Gross’s
conclusion that Florida’s implied consent law is unconstitutional as it
applies to unconscious drivers. But Birchfield actually reaffirmed the
constitutionality of implied consent laws, stating its “prior opinions have
referred approvingly to the general concept of implied consent laws that
impose civil penalties and evidentiary consequences on motorists who
refuse to comply.” Id. at 2185. Despite other conclusions in the opinion,
the Court specifically stated that “nothing we say here should be read to
cast doubt on them.” Id.

    Nevertheless, implied consent laws did not escape unscathed. Instead,
the Court stated that “[i]t is another matter, however, for a State not only
to insist upon an intrusive blood test, but also to impose criminal penalties
on the refusal to submit to such a test.” Id. We now turn to this analysis.



                                     8
          iii. Birchfield and McNeely Do Not Render Florida’s
                  Implied Consent Law Unconstitutional

   The Defendant and the concurrence both believe Birchfield and McNeely
render our implied consent law unconstitutional. We disagree.

    In fact, it is on that issue — the continued constitutionality of certain
implied consent laws — on which we resolve this case. After noting that
all fifty states have enacted some form of implied consent laws, Birchfield
held that implied consent laws that do not impose criminal penalties are
constitutionally valid. If no implied consent law could survive the Fourth
Amendment, the Court would have stated as much. There was no reason
for the Supreme Court to separately categorize implied consent laws
imposing criminal penalties from those imposing administrative and
evidentiary penalties, if both categories fail to satisfy the Fourth
Amendment. Instead, we are comfortable concluding the Court did so to
excise those that impose criminal penalties from constitutional protection,
while leaving those that merely impose administrative or evidentiary
penalties. Because Florida’s implied consent law falls in the latter
category, it remains constitutionally valid.

   Additionally, the Supreme Court held that the reasonableness of blood
tests “must be judged in light of the availability of the less intrusive
alternative of a breath test.” Birchfield, 136 S. Ct. at 2184. When an officer
is investigating an unconscious defendant, a breath test is not an
alternative. As such, the effectiveness of the breath test that an officer
may give to a conscious defendant is not relevant to an unconscious
defendant.

   Interpreting Birchfield is a path well-traveled. In a number of these
cases the defendant, like the Defendant here, was unconscious. See, e.g.,
State v. Speelman, No. L-16-1295, 2017 WL 6628527 (Ohio Ct. App. Dec.
29, 2017); Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017); State v.
Dalton, No. 2016AP2483-CR, 2017 WL 3078331 (Wis. Ct. App.), review
granted, 905 N.W.2d 840 (Wis. 2017); State v. Romano, 800 S.E.2d 644
(N.C. 2017); People v. Hyde, 393 P.3d 962 (Colo. 2017); State v. Havatone,
389 P.3d 1251 (Ariz. 2017).

   In other cases, the defendant was conscious. See, e.g., State v. Hi Ta
Lar, No. 27951, 2018 WL 1003786 (S.D. Feb. 21, 2018); Vondrachek v.
Comm’r of Pub. Safety, 906 N.W.2d 262 (Minn. Ct. App. 2017); Olevik v.
State, 806 S.E.2d 505 (Ga. 2017); State v. Vargas, 404 P.3d 416 (N.M.
2017); State v. Hoerle, 901 N.W.2d 327 (Neb. 2017); State v. Ryce, 396 P.3d
711 (Kan. 2017); State v. Pettijohn, 899 N.W.2d 1 (Iowa 2017); State v.

                                      9
Boyd, 156 A.3d 748 (Me. 2017); Wolfe v. Commonwealth, 793 S.E.2d 811
(Va. Ct. App. 2016); State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016); State
v. Charlson, 377 P.3d 1073 (Idaho 2016).

    Of these opinions, we find the Colorado Supreme Court’s opinion most
persuasive. In Hyde, the defendant drove his pickup truck into a light
pole rendering him unconscious. 393 P.3d at 964. An officer took the
defendant to a local hospital and, under Colorado’s implied consent law,
directed the hospital to draw the defendant’s blood to establish his blood
alcohol level. Id. The defendant’s motion to suppress was granted by the
trial court, based on his argument that the blood draw was
unconstitutional. Id.

    The Colorado Supreme Court recognized that “the McNeely plurality
underscored the utility of implied consent laws such as Colorado's
Expressed Consent Statute.” Id. at 968 (citing McNeely, 569 U.S. at 156–
57). Further, the court recognized that Birchfield reaffirmed the Supreme
Court’s approval of implied consent laws. Id. at 968 (citing Birchfield, 136
S. Ct. at 2185). As we do, the Colorado Supreme Court recognized that
the United States Supreme Court’s approval of implied consent laws was
not without limitation, but determined the limitations are not applicable
to the Colorado law:

      True, the Court’s approval extended only to implied consent
      laws that impose civil penalties if a driver refuses to take a
      blood test; the Court considered laws that impose criminal
      penalties on a driver’s refusal to be going a step too far. But
      Colorado’s Expressed Consent Statute falls into the former
      category — the Statute imposes only civil, and not criminal,
      penalties on drivers who refuse to submit to a blood test.
      Birchfield therefore sanctions the warrantless blood draw that
      was conducted here on the basis of statutory consent.

Id. at 968 (internal citation omitted). Based on this interpretation, the
Colorado Supreme Court found that “[b]y driving in Colorado, Hyde
consented to the terms of the Expressed Consent Statute, including its
requirement that he submit to blood-alcohol testing under the
circumstances present here.” Id. at 969. That consent “satisfied the
consent exception to the Fourth Amendment warrant requirement” and
“the blood draw was constitutional.” Id.

   Justice Eid wrote a persuasive opinion concurring in the court’s
judgment, explaining that “[t]he Court in Birchfield reasoned that
traditional implied consent laws like Colorado’s — namely, laws that deem

                                    10
a person to have consented to BAC testing by virtue of driving, with
administrative and evidentiary consequences for refusal to test — are
reasonable under the Fourth Amendment.” Id. at 971. Justice Eid
analogized another Supreme Court case, Marshall v. Barlow’s, Inc., 436
U.S. 307 (1978), a case involving implied consent in a heavily regulated
industry. Id. at 971–72. In that case, the question presented “was whether
implied consent could justify an OSHA search of a plumbing business.”
Id. at 972 (citing Marshall, 436 U.S. at 313). Justice Eid explained that
the “Court recognized that ‘[t]he businessman in a regulated industry in
effect consents to the restrictions placed upon him.’” Id.

    In her view, Marshall and Birchfield “looked at the overall statutory
regime in which the search was to take place, not the individual facts at
the time the search was conducted, to determine whether implied consent
would apply.” Id. at 972. As a result, Justice Eid concluded, consent can
be inferred from context and “[d]riving on the roads and being engaged in
a highly regulated industry are two such contexts from which consent can
be inferred.” Id. And, in light of Birchfield, the defendant’s consent is
implied from the context of driving. Id.; see also State v. Howes, 893
N.W.2d 812, 834 (Wis. 2017) (Gableman, J., concurring) (“Far from
disapproving the concept of consent by conduct within the context of a
driver’s implied consent, the Court [in Birchfield] expressly endorsed the
general validity of state implied consent laws that infer motorists’ consent
to testing from the conduct of driving.”).

   The Virginia Court of Appeals agreed, concluding that Birchfield “has
not implicated the constitutional validity of Virginia’s implied consent
statute as it relates to civil penalties for refusing a blood alcohol test.”
Wolfe, 793 S.E.2d at 814. That court relied on the same distinction in
Birchfield that we do, recognizing that “the Court referred approvingly to
the general concept of implied consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to comply [but] drew a
distinction between statutes that impose civil penalties and those that
impose criminal penalties.” Id.

   Also relying on the Birchfield distinction is the Minnesota Court of
Appeals, which noted that, in Birchfield, all three of the “challenged laws
criminalized the refusal to submit to post-arrest testing.” Vondrachek, 906
N.W.2d at 271 (emphasis in original). But, it noted, Birchfield “expressly
exempted” implied consent laws that do not criminalize the refusal to
submit to a test. Id. Thus, because the Minnesota law at issue did not
criminalize a refusal to submit to a test, it survived Birchfield. Id.
Similarly, the Idaho Supreme Court upheld the denial of a motion to
suppress, concluding that the defendant “gave his implied consent to

                                    11
having his blood drawn by virtue of Idaho’s implied consent statute.”
Charlson, 377 P.3d at 1080.

   We recognize that not all courts addressing this issue after Birchfield
have reached the same conclusion. Yet many of those decisions turn on
the specifics of the implied consent law at issue. For example, even though
the North Carolina Supreme Court has rejected the implied consent law
as an exception to the warrant requirement, in that case, the state
conceded the statute was unconstitutional. Romano, 800 S.E.2d at 648,
653 (“To be sure, the implied consent statute, as well as a person’s decision
to drive on public roads, are factors to consider when analyzing whether a
suspect has consented to a blood draw, but the statute alone does not
create a per se exception to the warrant requirement.”).

    The Arizona Supreme Court concluded that the unconscious clause in
Arizona’s statute “can be constitutionally applied only when case-specific
exigent circumstances prevent law enforcement officers from obtaining a
warrant.” Havatone, 389 P.3d at 1255. But, the court also held that
“[w]here police have probable cause to believe a suspect committed a DUI,
a nonconsensual blood draw from an unconscious person is
constitutionally permissible if, under the totality of the circumstances, law
enforcement officials reasonably determine that they cannot obtain a
warrant without significant delay that would undermine the effectiveness
of the testing.” Id.

   Finally, we briefly discuss the two Florida decisions upon which the
Defendant relies. Neither Liles nor Williams directly address the issue
here: whether the State may compel a blood draw from an unconscious
defendant based on Florida’s implied consent law.

   In Liles, and relevant here, the state relied on a different, but similar,
implied consent law as the basis for compelling a blood draw. 191 So. 3d
at 487. But the defendant in Liles explicitly withdrew his consent before
the blood was drawn. Id. (“[E]ven if we agree . . . [the defendants] impliedly
consented to the blood draws by driving, they explicitly revoked that
consent when they refused to submit to the blood draws.”).

   We agree with Liles’s conclusion that when a defendant specifically
withdraws his or her consent, the state cannot compel a blood draw. In
that situation, the State would not be able to rely on implied consent as
an exception to the warrant requirement; and the defendant would be
subject to the administrative and evidentiary penalties provided by the
implied consent law (and approved of in Birchfield).


                                     12
   The other case, Williams, is also unhelpful. As noted above, the
decision cited by the Defendant was vacated by the Florida Supreme
Court. On remand, the court held: “Birchfield has made our task
significantly easier. Under the Florida Constitution, our Fourth
Amendment jurisprudence is governed by decisions of the United States
Supreme Court. Thus, we adopt the holding in Birchfield that breath-
alcohol tests are permissible under the search-incident-to-arrest exception
to the Fourth Amendment’s warrant requirement.” Williams, 210 So. 3d
at 775–76 (internal citation omitted). We also agree with the ultimate
holding in Williams, that the State may compel a breath-alcohol test of a
driver suspected of driving under the influence.

                                 Conclusion

   The distinction between implied consent laws which impose criminal
penalties for non-compliance and those which impose administrative or
evidentiary penalties for non-compliance is important. The United States
Supreme Court has determined only the former violates the Fourth
Amendment. If the Court intended both categories of implied consent laws
to suffer the same fate, it would have said so. Because Florida’s law does
not impose criminal penalties, the statute does not violate the Fourth
Amendment. And, with an unconscious defendant, the “less intrusive
alternative of a breath test” is not available. In effect, the blood test is the
only option.

    As a result, we need not address the Defendant’s argument that the
court erred in applying the good faith exception to the warrant
requirement. The good faith exception is inapplicable when the search
itself did not violate the Fourth Amendment. However, if required to reach
it, we would agree with Judge Gross’s opinion dissenting in part and
concurring in part, and we would affirm the court’s application of the good
faith exception.

   The court’s denial of the Defendant’s motion to suppress is affirmed for
the reasons stated in this opinion.

   Affirmed.

GERBER, C.J., concurs.
GROSS, J., dissents in part and concurs in part, with opinion.




                                      13
GROSS, J., dissenting in part, concurring in part.

   I dissent from the majority’s determination of the constitutionality of
section 316.1932(1)(c). The majority has applied a backward-looking
jurisprudence contrary to the Fourth Amendment policy established by
the Florida Supreme Court under Article I, Section 12 of the Florida
Constitution. That policy is to move in the direction of the constitutional
winds set in motion by the United States Supreme Court, not to wait for
explicit direction from Washington on how to rule.

    This policy is demonstrated by Jardines v. State, 73 So. 3d 34 (Fla.
2011), aff’d, 569 U.S. 1 (2013) and Tracey v. State, 152 So. 3d 504 (Fla.
2014). In Jardines, the Florida Supreme Court held that a dog sniff at a
private residence was a search under the Fourth Amendment, requiring
probable cause. 73 So. 3d at 55-56. Not until the United States Supreme
Court affirmed Jardines in 2013 did that court expressly rule on whether
a warrantless dog sniff search on the porch of a private residence was a
search within the meaning of the Fourth Amendment. 569 U.S. at 11-12.
In Tracey, the Florida Supreme Court held that police officers’ use of cell
site location information to track a defendant on public roads was a search
falling under the Fourth Amendment. 152 So. 3d at 525-26. The United
States Supreme Court will confront that issue this term. See Carpenter v.
United States, No. 16-402 (argued Nov. 29, 2017).

   This case is factually well-developed and the direction of the
constitutional law is clear. To paraphrase a Nobel Laureate, you don’t
need to be a weatherman to know which way the legal wind blows. 3

   We should find the statute unconstitutional but affirm the county court
because the officer acted in good faith in ordering the blood draw.


————————————————————————————————————
3   Walk on your tiptoes
    Don’t try “No-Doz”
    Better stay away from those
    That carry around a fire hose
    Keep a clean nose
    Watch the plain clothes
    You don’t need a weatherman
    To know which way the wind blows

Bob     Dylan,     Subterranean    Homesick    Blues,     BOB       DYLAN,
https://bobdylan.com/songs/subterranean-homesick-blues/ (last visited Feb.
21, 2018).

                                       14
                     Introduction and Background

   Byron McGraw appeals an order denying his motion to suppress the
results of a warrantless blood draw in a DUI case. The Palm Beach County
Court denied the motion to suppress and certified the following question
to be of great public importance:

      Does the following sentence in § 316.1932(1)(c), Florida
      Statutes,

         Any person who is incapable of refusal by reason of
         unconsciousness or other mental or physical condition
         is deemed not to have withdrawn his or her consent to
         such [blood] test.

      remain constitutionally valid under the Fourth Amendment to
      the United States Constitution and Article 1, Section 12 of the
      Florida Constitution in light of Missouri v. McNeely, 569 U.S.
      141 (2013), State v. Liles, 191 So. 3d 484 (Fla. 5th DCA 2016),
      and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)?

   We should answer the certified question in the negative, holding that,
under the Fourth Amendment, a blood draw of an unconscious person,
incapable of giving consent, must be done pursuant to a warrant or to a
recognized exception to the warrant requirement, such as exigent
circumstances; a statutorily created consent “implied” by the act of driving
on Florida roads does not satisfy the Fourth Amendment, so an
unconscious defendant cannot be said to have “consented” to the blood
draw.

   Nonetheless, I agree to affirm the trial court’s denial of the motion to
suppress based on the good faith exception to the exclusionary rule,
because the officer requesting the blood draw made an objectively
reasonable mistake of law. See Heien v. North Carolina, 135 S. Ct. 530
(2014).

   McGraw was charged with two counts of driving under the influence
causing or contributing to injury to person or property. The evidence of
his impairment came from a warrantless blood draw performed pursuant
to section 316.1932(1)(c), Florida Statutes (2016), while he was
unconscious at the hospital. Section 316.1932(1)(c), which is part of
Florida’s implied consent statutory scheme, provides in relevant part:



                                    15
      Any person who accepts the privilege extended by the laws of
      this state of operating a motor vehicle within this state is, by
      operating such vehicle, deemed to have given his or her
      consent to submit to an approved blood test for the purpose
      of determining the alcoholic content of the blood . . . . Any
      person who is incapable of refusal by reason of
      unconsciousness or other mental or physical condition is
      deemed not to have withdrawn his or her consent to such test.

Id.

    McGraw moved to suppress the results of the warrantless blood draw
as a “violation of his rights under the Fourth and Fourteenth
Amendment[s] to the United States Constitution, and Article I, Section 12
of the Florida Constitution.” Relying upon Birchfield, 136 S. Ct. at 2160,
and McNeely, 569 U.S. at 141, he contended the blood draw was unlawful
because “warrantless blood draws are not permissible incident to arrest,
and are not per se permissible under the exigent circumstances
exception.” McGraw argued there were no exigent circumstances that
justified the warrantless blood draw and that the “police made no efforts
to get a warrant for [his] blood,” despite the ability to do so.

   After a motion to suppress hearing, Judge Hanser made the following
findings of fact which are supported by the record:

      2. On April 16, 2016, at approximately 8:00 a.m., Officer De
      Santis of the Riviera Beach Police Department responded to a
      one-car accident . . . . Fire-Rescue was extricating Defendant
      from his vehicle when Officer De Santis arrived. Defendant’s
      car had rolled over and was lying on its roof on the highway.

      3. Defendant was the only person in the vehicle. Defendant
      was unconscious and unresponsive when Officer De Santis
      arrived and while he was being extricated from the vehicle.
      The officer stood close behind the Fire-Rescue crew as it
      worked to free Defendant from the vehicle and he noticed the
      odor of alcohol emanating from Defendant’s skin, mouth and
      clothes.

      4. Fire-Rescue transported Defendant to St. Mary’s Hospital
      Emergency Room as a trauma alert patient.

      5. Officer De Santis went to St. Mary’s Hospital, a travel time
      of five to six minutes.

                                    16
     6. Defendant was unconscious when Officer De Santis arrived
     at the hospital. Defendant remained unconscious during the
     entire time the officer had contact with Defendant, a total time
     of not more than one hour, including time at the scene of the
     accident and at the hospital.

     7. Defendant was lying with a neck brace on in the emergency
     room but he had no apparent “traumatic injuries”; bumps and
     bruises were present.

     8. Attempts to revive Defendant using a sternum rub were
     unsuccessful and Officer De Santis did not communicate with
     Defendant at any time.

     9. Officer De Santis requested that hospital personnel take a
     blood draw of Defendant. He provided the blood draw kit used
     by hospital personnel to obtain the draw.

     10. During cross-examination, Officer De Santis stated the
     length of time of Defendant’s stay at the hospital did not
     influence his decision to obtain the blood draw. The officer
     did not know when Defendant might be discharged from the
     hospital. . . . [T]he officer did not determine whether it would
     be impossible or impracticable to have Defendant submit to a
     breath test. He did not attempt to obtain a search warrant
     prior to taking the blood draw.

   In a thoughtful order, Judge Hanser wrote that because section
316.1932(1)(c) did “not provide consent as required under the Fourth
Amendment for a blood draw, based on recent constitutional
jurisprudence,” McGraw did not consent to a blood draw. The court
identified the facts that led to its conclusion:

     Defendant remained unconscious during the entire time
     Officer De Santis had contact with him, making common law
     voluntary consent impossible to obtain. Had it been possible
     to communicate with Defendant, Defendant would have had
     the opportunity to decide whether he would provide a blood
     sample or not, his refusal then requiring the officer to inform
     Defendant of implied consent. Properly informed of implied
     consent, Defendant would have been able to weigh the
     potential consequences of providing the blood sample against
     the real consequences of refusing.

                                   17
(Footnote omitted).

   The trial court also found that no exigent circumstances existed, stating
that “[t]he total time the officer spent with Defendant was no more than
one hour, from the time the officer arrived on scene, went to the hospital
where Defendant had been taken, had the blood drawn, and left the
hospital,” and that “[t]he officer made no attempt to obtain a warrant for
the blood draw.”

    Notwithstanding these conclusions, the trial court denied Defendant’s
motion to suppress based on the “good faith” exception to the exclusionary
rule, finding that “it was reasonable for Officer De Santis to have a good
faith belief in the constitutional validity of a warrantless blood draw
authorized by section 316.1932(1)(c), Florida Statutes, under the
circumstances [presented].”

            Warrantless Blood Draws and Implied Consent

    The Fourth Amendment to the United States Constitution and Article
I, Section 12 of the Florida Constitution enshrine the “right of the people
to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures.” Amend. IV, U.S. Const.; Art. I, § 12,
Fla. Const. The Florida Constitution requires section 12 to “be construed
in conformity with the 4th Amendment to the United States Constitution,
as interpreted by the United States Supreme Court.” Art. I, § 12, Fla.
Const.

    “A blood draw conducted at the direction of the police is a search and
seizure under the Fourth Amendment.” Liles, 191 So. 3d at 486 (citing
Schmerber v. California, 384 U.S. 757, 767 (1966)). “To comply with the
Fourth Amendment, law enforcement officers must obtain a warrant or
consent for a blood draw, or there must be some other exception to the
warrant requirement.” Id. at 486. “When, as here, no warrant is obtained,
‘[t]he state has the burden to prove that an exception to the warrant
requirement applies.’” Id. (quoting Kilburn v. State, 54 So. 3d 625, 627
(Fla. 1st DCA 2011)).

   There are five recognized exceptions to the warrant requirement: (1)
consent; (2) search incident to a lawful arrest; (3) probable cause to search
but with exigent circumstances; (4) hot pursuit; and (5) stop and frisk.
Reed v. State, 944 So. 2d 1054, 1058 (Fla. 4th DCA 2006). The exception
pertinent to this case is consent.


                                     18
  It is undisputed that McGraw did not explicitly consent to the
warrantless blood draw at the hospital, as he was unconscious at the time.
However, the State contends that Defendant’s consent was implied
pursuant to section 316.1932(1)(c), and his consent was not withdrawn
due to his unconsciousness.

   Two recent cases of the United States Supreme Court have solidified
and expanded the Fourth Amendment protection applicable to breath and
blood tests incident to investigations of alcohol-related driving offenses.

   In McNeely, the Court clarified that the natural metabolization of
alcohol in the bloodstream is not “a per se exigency that justifies an
exception to the Fourth Amendment’s warrant requirement for
nonconsensual blood testing in all drunk-driving cases.” 569 U.S. at 145.
The court held that the existence of exigent circumstances “must be
determined case by case based on the totality of the circumstances.” Id.
Focusing on nonconsensual blood testing, a plurality of the Court wrote
that it was “aware of no evidence indicating that restrictions on
nonconsensual blood testing have compromised drunk-driving
enforcement efforts in the States that have them.” Id. at 162. The plurality
noted that “state restrictions on nonconsensual blood testing provide
further support for our recognition that compelled blood draws implicate
a significant privacy interest.” Id.

   The Supreme Court elaborated on the “significant privacy interest” in
compelled blood draws in Birchfield, 136 S. Ct. at 2160. Unlike breath
tests, blood tests “implicat[e] significant privacy concerns.” Id. at 2178
(quoting Skinner v. Ry. Labor Executives’ Assoc., 489 U.S. 602, 626 (1989)).
“They ‘require piercing the skin’ and extract[ing] a part of the subject’s
body.” Id. at 2178 (quoting Skinner, 489 U.S. at 625). “In addition, a blood
test, unlike a breath test, places in the hands of law enforcement
authorities a sample that can be preserved and from which it is possible
to extract information beyond a simple [blood alcohol] reading.” Id.

   In differentiating blood tests from breath tests, the Supreme Court
suggested that, for an unconscious defendant, the preferred method of
obtaining blood is through a warrant:

      It is true that a blood test, unlike a breath test, may be
      administered to a person who is unconscious (perhaps as a
      result of a crash) or who is unable to do what is needed to take
      a breath test due to profound intoxication or injuries. But we
      have no reason to believe that such situations are common in


                                    19
      drunk-driving arrests, and when they arise, the police may
      apply for a warrant if need be.

Id. at 2184-85.

    The Supreme Court in Birchfield then discussed the consent exception
to the warrant requirement and “implied-consent laws that impose civil
penalties and evidentiary consequences on motorists who refuse to
comply.” Id. at 2185. The Court cited to a consent to search case where
the consent was the product of a conscious mind and, based on the totality
of the circumstances, was voluntarily given and not the result of duress or
coercion, express or implied. Id. (citing Schneckloth v. Bustamonte, 412
U.S. 218, 248-49 (1973)).

   The Court next referred to two cases imposing Fourth Amendment
limitations on the extent to which consent may be inferred from “context”
or conduct. Id. at 2185. In Florida v. Jardines, 569 U.S. at 8-9, the Court
rejected the notion that a warrantless dog sniff search at the front door of
a home could be upheld on the theory that the officer had an implied
invitation or license to approach the front door. Similarly, Marshall v.
Barlow’s Inc., 436 U.S. 307, 313 (1978), observed that the “owner of a
business has not, by the necessary utilization of employees in his
operation, thrown open the areas where employees alone are permitted to
the warrantless scrutiny of Government agents.” Birchfield’s citation to
these cases suggests that the Court recognized that the Fourth
Amendment limits government’s attempt to imply a person’s consent.

   The central issue in Birchfield was whether state implied consent laws
could impose criminal penalties upon persons who refused to submit to a
blood test. Birchfield held that under implied consent laws there was “a
limit to the consequences to which motorists may be deemed to have
consented by virtue of a decision to drive on public roads”—“motorists
cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” 136 S. Ct. at 2185-86.

   Birchfield and many of the state cases cited by the majority concern the
parameters for securing consent to a search from a conscious defendant.
Under Birchfield, implied consent laws permit law enforcement to apply
some coercion to secure consent to a blood draw, subject to Fourth
Amendment limitations—threatening a suspect with administrative
sanctions is permissible, threatening criminal penalties is not. This is
consistent with the notion of “consent” under the Fourth Amendment,
which “has come to mean that set of circumstances that the law will


                                    20
tolerate as an exception to the probable cause or warrant requirement.”
Ruiz v. State, 50 So. 3d 1229, 1231 (Fla. 4th DCA 2011).

    The majority has read Birchfield too broadly. The case concerned a
consent obtained from a conscious defendant. It cannot be read beyond
its facts to authorize an implied consent from an unconscious suspect.

   Although the precise holding of Birchfield did not address the extent to
which an unconscious defendant has “consented” to a blood test, the
reasoning of that case supports the conclusion that the statutorily implied
consent of an unconscious defendant under section 316.1932(1)(c) is “not
equivalent to Fourth Amendment consent.” Liles, 191 So. 3d at 486.

    Under reams of case law, Fourth Amendment consent is the product of
a conscious mind. 4 An unconscious defendant cannot be coerced or
intimidated. An unconscious defendant is incapable of “conduct, gestures,
or words” that can indicate consent. State v. Gomez, 34 So. 3d 245, 247
(Fla. 2d DCA 2010).        For an unconscious defendant, if exigent
circumstances do not exist, “the police may apply for a warrant if need be.”
Birchfield, 136 S. Ct. at 2185. Birchfield leads to the conclusion that
because of the significant privacy concerns surrounding blood draws,
consent to a blood draw cannot be indirectly implied from the act of driving
on Florida roads. The government cannot create a statutory sidestep of
the Fourth Amendment to “imply” a consent where actual consent or
exigent circumstances do not exist. From an unconscious defendant,
blood may be drawn pursuant to a warrant or under the exigent
circumstances exception to the warrant requirement. See, e.g., Goodman
v. State, 229 So. 3d 366, 380-82 (Fla. 4th DCA 2017). Only a conscious
defendant may voluntarily consent to a blood draw consistent with the
Fourth Amendment.

                 Good Faith and the Exclusionary Rule

   I agree with Judge Hanser that the good faith exception to the
exclusionary rule applies to this case.

   McGraw challenges Judge Hanser’s application of the good faith
exception. He argues that a reasonable officer in Officer De Santis’s
————————————————————————————————————
4 Courts analyze the totality of the surrounding circumstances at or near the time
of the warrantless search to determine whether a conscious defendant’s consent
is freely and voluntarily given under the Fourth Amendment. See, e.g., State v.
Ojeda, 147 So. 3d 53 (Fla. 3d DCA 2014); Ruiz, 50 So. 3d at 1231; State v. Evans,
9 So. 3d 767 (Fla. 2d DCA 2009).

                                       21
position should have known that a warrant was necessary to perform the
blood draw, absent consent or exigent circumstances, and that implied
consent is not the functional equivalent of consent for Fourth Amendment
purposes.

    “The exclusionary rule is a judicially-created remedy adopted to protect
Fourth Amendment rights by deterring illegal searches and seizures.”
Liles, 191 So. 3d at 489 (citing Davis v. U.S., 564 U.S. 229, 236-37 (2011)).
“It is intended to deter police misconduct, not to remedy the prior invasion
of a defendant’s constitutional rights.” Id. at 489 (citing Montgomery v.
State, 69 So. 3d 1023, 1033 (Fla. 5th DCA 2011)). Given the purpose of
the exclusionary rule, “evidence obtained from a search should be
suppressed only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search
was unconstitutional under the Fourth Amendment.” United States v.
Leon, 468 U.S. 897, 919 (1984) (quoting United States v. Peltier, 422 U.S.
531, 542 (1975)).

    In Leon, the United States Supreme Court established the good faith
exception to the exclusionary rule, holding that improperly secured
evidence need not be excluded where officers acted in the “objectively
reasonable” belief that their conduct did not violate the Fourth
Amendment. 468 U.S. at 918-19. Although the Leon test was specifically
tailored to search warrants, Courts have extended the good faith exception
to situations where an officer conducts a warrantless search under the
authority of a statute, but the statute is later found to be unconstitutional.
See Davis, 564 U.S. at 229; Illinois v. Krull, 480 U.S. 340 (1987).

   In Birchfield, the Court recognized that in a blood draw case, where
there is a Fourth Amendment violation but “the search was carried out
pursuant to a state statute,” it is appropriate to address the good faith
exception under Heien, 135 S. Ct. at 530. Birchfield, 136 S. Ct. at 2186
n.9.

    In Heien, an officer stopped the defendant’s car after observing that one
of the car’s two rear brake lights was not working. 135 S. Ct. at 534.
During a consent search of the vehicle, drugs were recovered, and the
defendant was subsequently arrested. Id. The defendant moved to
suppress the evidence seized from the car, arguing that the stop and
search violated the Fourth Amendment. Id. at 535. After a hearing, the
trial court denied the motion, finding that the faulty brake light had given
the officer reasonable suspicion to stop the defendant. Id.



                                     22
    On appeal, the North Carolina Court of Appeals reversed, determining
that driving with a single working brake light was not illegal under North
Carolina law, and therefore the stop violated the Fourth Amendment. Id.
The state appealed and the North Carolina Supreme Court reversed,
finding that the officer who initiated the stop “could have reasonably, even
if mistakenly, read the [statute] to require that both brake lights be in good
working order.” Id.

    The United States Supreme Court granted certiorari. Id. The Court
found that because the North Carolina statute at issue was ambiguous as
to what was required, it was “objectively reasonable for an officer in [the
officer]’s position to think that [the defendant]’s faulty right brake light was
a violation of North Carolina law.” Id. at 540. Accordingly, “because the
mistake of law was reasonable, there was reasonable suspicion justifying
the stop.” Id. “The Fourth Amendment tolerates only reasonable
mistakes, and those mistakes—whether of fact or of law—must be
objectively reasonable.” Id. at 539 (emphasis in original).

       Applying the Good Faith Exception to the Present Case

   Assuming that the blood draw was unconstitutional, McGraw argues
that Officer De Santis did not act in good faith because at the time of the
blood draw, Liles “recognized that statutory implied consent [is] not
equivalent to Fourth Amendment consent.” 191 So. 3d at 487. He asserts
that, based on Liles, an objectively reasonable officer in Officer De Santis’s
position should have known that he could not rely on implied consent
alone to justify a warrantless search.

    The “good faith” aspect of this case is controlled by Heien. Like the
officer in Heien, it was reasonable for Officer De Santis to think that his
actions were authorized by the plain language of section 316.1932(1)(c). If
anything, Officer De Santis’s reliance on the statute is more compelling
than the officer’s reliance in Heien because in Heien, the statutory
language was ambiguous and could be interpreted in multiple ways; in
this case, the plain language of the statute was unambiguous and the
statute, on its face, plainly authorized the warrantless blood draw here at
issue.    Liles concerned implied consent as applied to a conscious
defendant who explicitly refused a blood draw. At the time of McGraw’s
arrest, no Florida appellate decision considered the Fourth
Amendment/implied consent tension as it applied to an unconscious
defendant incapable of refusal.




                                      23
   Because the language of section 316.1932(1)(c) is clear and there was
no appellate decision calling the statute into question, McGraw’s reliance
on Carpenter v. State, 228 So. 3d 535 (Fla. 2017), is misplaced.

    Unlike this case, Carpenter involved an officer’s reliance on an appellate
opinion that was not final. The Florida Supreme Court considered whether
the exclusionary rule applied to a warrantless search of a defendant’s cell
phone incident to arrest based on an officer’s reliance on a district court
decision 5 which, at the time, was under review by the Supreme Court. 228
So. 3d at 538. Subsequent to the defendant’s arrest, the Florida Supreme
Court ruled that such searches were unlawful. Id. at 537. On this basis,
the defendant moved to suppress the evidence found on his cell phone,
relying on Smallwood v. State (Smallwood II), 113 So. 3d 724 (Fla. 2013).
Id. The Court ultimately held that the good faith exception did not apply
to the warrantless search, noting that

         in the Smallwood I opinion, the First District certified the
         precise question to this Court with regard to the new subject
         of cell phone searches as one of great public importance, thus
         placing law enforcement officers on actual notice that the case
         was subject to further consideration on the face of the opinion.

Id. at 540 (emphasis in original). The Court found that the “certified
question . . . only furthers the notion that the officers in [the defendant]’s
case should not have relied on Smallwood I as being the final controlling
judicial precedent in this area of constitutional law while the case was
certified to this Court for final decision.” Id. at 541 (emphasis in original).
Thus, an officer’s reliance on a district court opinion is not objectively
reasonable if the case is “not final, well-settled, unequivocal, or clearly
established.” Id. at 540.

   Unlike Carpenter, no Florida appellate decision squarely addressed the
unconscious defendant situation here at issue, making it reasonable for
the officer to rely on the statute’s plain language. An objectively
reasonable officer in Officer De Santis’s position would not have known
that a warrantless blood draw was not authorized under these
circumstances. The Fourth Amendment does not hold officers to the
standard of law professors.

   For these reasons, I concur in the majority’s decision to affirm the
ruling of the County Court.

————————————————————————————————————
5   Smallwood v. State (Smallwood I), 61 So. 3d 448 (Fla. 1st DCA 2011).

                                        24
                       *        *       *

Not final until disposition of timely filed motion for rehearing.




                               25
