BENCH BLOG: Court stretches in heroin blood draw case

Listen to this article

In a case involving suspected heroin abuse, the Wisconsin Supreme Court decided a warrantless blood draw was justified primarily because heroin tends to dissipate rapidly in a person’s bloodstream.

State v. Parisi began with an emergency call at 12:38 a.m. for someone not breathing. Police and fire departments responded, finding Parisi unresponsive on the living room floor near vomit.

Narcan, an opioid antidote used in emergencies to treat narcotic overdoses, was administered and Parisi became responsive. He was taken by ambulance to a hospital.

Two police officers followed to obtain a blood draw from Parisi, suspecting a heroin overdose. The remaining officers, numbering between three and five and including a police sergeant, stayed behind to conduct an investigation. Their work turned up heroin paraphernalia in a room accessible to all of Parisi’s roommates.

At the hospital, Parisi refused to let his blood be drawn. The between five and seven officers who had followed him there decided against initiating an application for a search warrant for the draw — a process that they said would take about two hours. One of them instead ordered a hospital phlebotomist at 1:55 a.m. to do the draw. Because Parisi’s medical condition fluctuated, however, his blood could not be drawn until 3:10 a.m.

The result was “the presence of opiates and morphine (a metabolite of heroin).” Because of this and the heroin paraphernalia, Parisi was charged with the possession of narcotic drugs.

Suppression motion

Parisi moved to suppress the evidence from the blood sample on the grounds that the search was nonconsensual and warrantless. At the motion hearing, the state introduced a 2006 scientific treatise about the rate of heroin’s dissipation in the bloodstream.

Heroin breaks down within minutes into 6-monoacetylmorphine, which can be detected for as many as three hours afterward. Then it breaks down into morphine, which remains in the body much longer. But morphine is detectable when it is morphine itself, rather than heroin, that a person has taken. Its presence is thus relevant, but not conclusive, evidence of the possession of heroin.

Because of the short timeframe for detecting the conclusive 6-monoacetylmorphine, the state argued for a per se exigent circumstances rule in heroin cases.

Parisi responded with an argument in three parts: (1) that the police probably didn’t know the science that the state presented; (2) that heroin possession cannot be proved with metabolites alone; it requires corroborating evidence; and (3) that a search warrant could have been sought by one of the officers at the scene, particularly while Parisi was being medically stabilized.

Winnebago County Circuit Judge Daniel Bissett denied the motion, concluding that the exigent circumstances exception to the Fourth Amendment’s warrant requirement applied.

Court of Appeals

In an unpublished per curiam decision, the court of appeals noted that at the time of the blood draw, State v. Bohling had not yet been abrogated by Missouri v. McNeely. Bohling held that the rapid dissipation of alcohol from the bloodstream was, in itself, an exigent circumstance justifying a warrantless blood draw.

Since Bohling was still the law, the court, likening alcohol dissipation to heroin dissipation, applied the good faith exception to the exclusionary rule and affirmed the outcome at the circuit court level.

Supreme Court opinion

In a 32-page decision, Justice Annette Ziegler wrote for the majority. The arguments advanced by the parties were similar to those that had been presented to Judge Bissett.

And like Judge Bissett, the court decided there were exigent circumstances — initially unknown facts about when and what Parisi had taken, the rapid dissipation of heroin in the blood, the time needed to obtain a warrant, and Parisi’s unstable condition.

Ziegler then paused to specifically emphasize that the court was not adopting a per se rule based on the rate of heroin dissipation but rather deciding this case “on its own facts and circumstances.”

The court next took a “best evidence” approach to support its declaration that the longer-lasting presence of morphine in the blood “does not mean that it would be unreasonable” for police to believe that “taking the time to obtain a search warrant in this case risked destruction of evidence (6-monoacetylmorphine) of heroin use.”

Parisi argued that the fact that this was not a drugged driving case elevated his privacy interest over the public safety interests that are present in drunken driving cases. The court countered that the lack of an automobile in this case was irrelevant. “The warrantless blood draw at issue was justified under the circumstances” in which “police reasonably feared destruction of evidence of a crime.”

Dissent

Justice Ann Walsh Bradley asserted in the dissent that in the 2-1/2 hours that elapsed from the time of the call for help to the time of the blood draw, at least one of the officers who was present should have obtained a warrant.

She noted McNeely’s conclusion that the Fourth Amendment forbids a per se rule for warrantless blood draws that are done in response to the likely dissipation of evidence in a person’s bloodstream.

She was therefore critical of the majority’s repeated references to heroin’s rapid dissipation to justify the warrantless blood draw.

“(A)ll of the facts and circumstances the majority discusses relate only to dissipation: the type and amount of an ingested drug, the time it was ingested, the time it takes to get a warrant in relation to dissipation, and scientific evidence on the rapid dissipation of heroin.”

She concluded that by “inventing a best evidence rule for every heroin case and concluding that exigent circumstances exist because of the rapid dissipation of heroin, the majority creates a per se rule for heroin cases.”

Commentary

It is hard not to see this decision as “Bohling for heroin,” in the words Ziegler used to size up the state’s position in oral arguments, since the quotations from McNeely and other cases were often taken out of context as the court tried to conjure support for its ruling.

And the court overreached in creating a “best evidence” approach when the facts of this case didn’t even involve the best evidence of heroin’s presence in the bloodstream.

Nonetheless, the effect of this case may be relatively minor. Search warrants to check for alcohol in the blood are now easily obtained within 30 minutes using a form that was developed following McNeely. Once completed, the form can be digitally transmitted to a judge for the approval of a warrant.

There is no reason that a similar form can’t be developed to expedite warrant applications aimed at detecting heroin in the blood.

In all events, prosecutors can now expect cases with evidence of heroin’s first serum metabolite rather than its second.