COURT OF APPEALS

DECISION

DATED AND FILED

 

April 17, 2014

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports. 

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62. 

 

 

 

 

Appeal No. 

2013AP2366-CR

Cir. Ct. No.  2012CT1089

STATE OF WISCONSIN 

IN COURT OF APPEALS

 

DISTRICT IV

 

 

 

 

State of Wisconsin,

 

          Plaintiff-Respondent,

 

     v.

 

Neil A. Morton,

 

          Defendant-Appellant.

 

 

 

            APPEAL from a judgment of the circuit court for Dane County:  julie genovese, Judge.  Affirmed. 

1        Sherman, J.[1]   Neil Morton appeals a judgment of conviction for operating a motor vehicle while intoxicated (OWI), third offense.  Morton contends the circuit court erred in failing to suppress the results of his blood test because the results were obtained without a warrant and in the absence of exigent circumstances.  I conclude that this court’s recent opinion in State v. Reese, 2014 WI App 27, ___ Wis. 2d ___, ___ N.W.2d ___, is controlling and that because the arresting officer was acting in good faith reliance on established Wisconsin Supreme Court precedent at the time the blood draw was obtained, the circuit court did not err in denying Morton’s motion to suppress.  Accordingly, I affirm.

Discussion

2        Morton was charged with OWI and operating a motor vehicle with a prohibited alcohol concentration, as third offenses.  Morton moved the circuit court to suppress the results of his warrantless blood draw, relying on the United States Supreme Court’s recent opinion in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1563 (2013), wherein the Supreme Court held that the natural dissipation of alcohol in the blood does not, standing alone, constitute an exigency justifying a warrantless blood draw.  In this case, after the vehicle Morton was driving was stopped, Morton was placed under arrest and transported to Meriter Hospital for a blood test, which he refused.  Over Morton’s objection, a warrantless blood draw was conducted, which indicated that Morton’s blood alcohol concentration was over the legal limit. 

3        The circuit court denied Morton’s motion to suppress.  The circuit court determined that under State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, the blood draw was admissible because at the time the blood draw was obtained, the officer was relying on clear Wisconsin precedent that the natural dissipation of alcohol from a person’s bloodstream alone constituted a per se exigency justifying an exception to the warrant requirement for nonconsensual blood testing in drunk driving arrests.  See State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), cert. denied, Bohling v. Wisconsin, 510 U.S. 836 (1993). 

4        Morton argues that the validity of his blood draw should not be upheld because the only evidence of exigent circumstances in this case justifying the warrantless blood draw was the natural dissipation of alcohol from his blood stream, which the United States Supreme Court held in McNeely does not alone constitute a per se exigency justifying a warrantless blood draw.  See McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1563.  Morton argues that the good faith exception articulated in Dearborn, wherein remedy of exclusion for a constitutional violation was not applied where the officer’s conduct was undertaken with the “objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court,” should not be applied post-McNeely, and thus not in his case.  Dearborn, 327 Wis. 2d 252, ¶4. 

5        We recently addressed this issue in Reese.  In Reese, as in this case, the only evidence of exigent circumstances justifying a warrantless blood draw was the natural dissipation of alcohol from the defendant’s blood stream.  Reese, ___ Wis. 2d ___, ¶19.  The blood draw in Reese was obtained after our supreme court’s opinion in Bohling, wherein the court held that the natural dissipation of alcohol alone constitutes an exigent circumstance justifying a warrantless blood draw, but before McNeely, wherein the United States Supreme Court held that it does not.  We held in Reese that the Dearborn good faith exception should apply and that the warrantless blood draw should not be suppressed even though McNeely makes clear that the dissipation of alcohol from the blood system does not alone justify a warrantless blood draw.  See id., ¶22.  We observed that the officer in Reese was following clear and settled Wisconsin precedent when the blood draw was obtained and that any deterrent effect on officer misconduct would be nonexistent because at the time of the blood draw, the officer did not and could not have known that he was violating the Fourth Amendment.  Id. 

6        I am bound by this court’s decision in Reese.   See Cook v. Cook, 208 Wis. 2d 166, 185–190, 560 N.W.2d 246 (1997) (the court of appeals is bound by published decisions of the court of appeals).  Accordingly, I conclude that in this case, where a warrantless blood draw was obtained after Bohling but prior to McNeely, and where the appellant has not argued that the officer was not following clear, well-settled Wisconsin precedent when obtaining the warrantless blood draw, the good faith exception precludes suppression of the blood draw evidence.  Accordingly, I affirm the decision of the circuit court denying Morton’s motion to suppress and the judgment of conviction.         

            By the Court.—Judgment affirmed.

            This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)4.

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2011-12).  All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.