State v. Alvernest Floyd Kennedy ( 2014 )


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    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 – Unpublished)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    unpublished        decision      of   the   court    of     appeals1        affirming        the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 ___.
    1
    No.   2012AP523-CR.ssa
    1