Warrantless Blood Draw for Heroin – Exigent Circumstances
State v. Parisi, 2016 WI 10 (filed 24 Feb. 2016)
HOLDING: The warrantless blood draw in this case was constitutional because it was supported by exigent circumstances.
SUMMARY: Police officers responded to an emergency call for a man who was not breathing. He was found lying on the living room floor of a home and was not able to talk to the officers. He was later identified as Parisi. Narcan (a drug that, according to one of the officers, is usually administered to people who have overdosed on heroin) was administered to Parisi and it “worked.” He was then conveyed to a hospital where, at the request of an officer but without Parisi’s consent and without a warrant, a blood draw was done. Testing of the blood indicated the presence of opiates and morphine (a metabolite of heroin).
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
In the subsequent criminal prosecution for possession of heroin, the defendant moved to suppress the evidence obtained from the blood draw. The circuit court denied the motion, finding that the blood draw was constitutional because it was supported by exigent circumstances. In an unpublished opinion, the court of appeals affirmed but on other grounds. In a majority decision authored by Justice Ziegler, the supreme court affirmed; it concluded that the blood draw was supported by exigent circumstances (see ¶ 3).
Application of the exigent-circumstances exception to the warrant requirement requires probable cause and exigent circumstances. In analogous cases involving warrantless blood draws of suspected intoxicated drivers, the courts have also required that the police draw the blood in a reasonable manner, and that the suspect not raise any reasonable objections to the blood draw; in this opinion the supreme court remarked that “[t]here is no reason these two concerns should lose their relevancy in scenarios not involving drunk driving…” (¶ 30).
In this case the defendant challenged only the existence of exigent circumstances. “When examining whether exigent circumstances premised on the imminent destruction of evidence justified a warrantless search, we employ an objective test: ‘Whether a police officer under the circumstances known to the officer at the time reasonably believes that delay in procuring a warrant would … risk destruction of evidence’” (¶ 35) (citations omitted).
In this case the officers did not know with certainty what Parisi had ingested and, once heroin was suspected, did not know when he had ingested it. Moreover, based on the uncontested evidence before it, which indicated that both heroin and its first metabolite could become undetectable in blood plasma in as little as one hour, the circuit court concluded that heroin “dissipates quicker than … alcohol” and that “the breakdown causes a fairly quick inability to detect … heroin in the blood” (¶ 38).
Further, the officer testified that, in his experience, obtaining a search warrant for the blood would have taken approximately two hours. “Given all of these factors – the multiple unknown facts, the rapid dissipation of heroin in the blood, the time needed to obtain a warrant, and Parisi’s unstable condition [at the hospital], [t]he officer in the present case … 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” (¶ 41) (citations and internal quotations omitted).
The court emphasized, however, that “this case does not establish a per se rule that the dissipation of heroin in the blood always constitutes an exigency justifying a warrantless blood draw” (¶ 42).
Lastly, the court rejected the defendant’s argument that a finding of exigent circumstances was precluded because this was not a drunk-driving case
(see ¶¶ 51-59).
Justice Ann Walsh Bradley filed a dissenting opinion that was joined by Justice Abrahamson. They concluded that the officers involved in the investigation had sufficient time to obtain a search warrant (see ¶ 65).
Warrantless Search of the Home – Community-caretaker Exception to Warrant Requirement
State v. Matalonis, 2016 WI 7 (filed 10 Feb. 2016)
HOLDING: Police officers reasonably exercised a bona fide community-caretaker function when they searched the defendant’s home.
SUMMARY: Police officers, responding to a call for medical assistance, were confronted with a beaten, bloody, and highly intoxicated man, injured to an extent sufficient to justify transport to the hospital. The man (Antony Matalonis – the brother of the defendant) provided the officers with inconsistent accounts of how many people had injured him, but both accounts featured multiple potential assailants. The officers followed a “trail” of blood in the snow to another residence (that of the defendant). At that residence, they found blood-stained doors and heard loud bangs coming from inside. The officers noted a “pretty significant amount of blood” and were concerned that there might be injured persons inside the residence, so they called for backup and then knocked on the front door of the home. The door was answered by a breathless, shirtless, and “pretty upset” individual (the defendant), who informed the officers that he lived alone and that he had fought with his brother Antony, who had since left. This was inconsistent with Antony’s statement that he had been injured by multiple assailants outside a bar.
The defendant admitted the officers to his home, where they observed blood on a handrail, a broken mirror, and blood on the locked door to one of the interior rooms. An officer testified that he was interested in knowing whether there was someone injured in the room behind that door. He could not hear any human sounds from the room but he did detect a strong odor of marijuana coming through the door and could hear a fan running. Without consent, the officer entered the locked room. No one was inside, but the officer found a large marijuana plant.
In this prosecution for a controlled-substance violation, the defendant moved to suppress the evidence found in the locked room. The circuit court denied the motion. In an unpublished opinion, the court of appeals reversed. In a majority decision authored by Justice Ziegler, the supreme court reversed the court of appeals. It concluded that the officers in this case reasonably exercised a bona fide community-caretaker function when they searched the defendant’s home (see ¶ 3).
The state conceded that the inspection of the defendant’s home was a search within the meaning of the Fourth Amendment. Thus, the only disputed issues with respect to the requirements of the community-caretaker exception to the warrant requirement were whether the officers were exercising a bona fide community-caretaker function at the time of the search and, if so, whether the public interest outweighed the intrusion upon the privacy of the individual such that the community-caretaker function was reasonably exercised within a home.
The court concluded that “[t]he evidence in this case sufficiently provides an objectively reasonable basis for the police to believe an injured individual needed their help. We conclude that the officers in this case were engaged in the exercise of a bona fide community caretaker function when they searched Matalonis’s home” (¶ 49). The court recognized that the officers may have had other subjective, enforcement-related interests at the time they entered the locked room. In particular, one officer testified that he heard a running fan behind the locked door and smelled marijuana.
Said the court, “[t]he potential for the presence of marijuana in the locked room did not render it impossible that there were also injured parties in that room” (¶ 54). “[I]n a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer’s subjective law enforcement concerns” (¶ 32) (quoting State v Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598).
The court concluded that “the officers in this case exercised their community caretaker function reasonably. Although the nature of the officers’ intrusion was substantial, the public interest to be served by the intrusion was also substantial, and the nature of the intrusion was strictly limited to the requirements of the situation” (¶ 58).
Justice Prosser filed a dissenting opinion that was joined by Justice Abrahamson and Justice Ann Walsh Bradley. Justice Abrahamson also filed her own dissent.
“Donning” and “Doffing” – Wages and Hours
United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp., 2016 WI 13 (filed 1 March 2016)
HOLDING: Workers required to put on and take off clothing at a plant were entitled to be compensated for time spent “donning” and “doffing” the clothing.
SUMMARY: A union filed a class action against Hormel, alleging that Hormel violated wage and hour laws by not paying employees for the time spent putting on (donning) and taking off (doffing) required clothing and equipment. The circuit court ruled in favor of the union. This case was before the supreme court on certification from the court of appeals.
The supreme court affirmed the circuit court in an opinion authored by Justice Abrahamson. First, the court held that “Wisconsin Admin. Code § DWD 272.12 requires Hormel to compensate its employees for the 5.7 minutes per day spent donning and doffing the clothing and equipment at the beginning and end of the day. [Controlling case law requires] that the employees’ donning and doffing clothing and equipment at the beginning and end of the day brought Hormel into compliance with federal food and safety regulations and was integral and indispensable to sanitation and safety in the employees’ principal work activities, namely food production” (¶ 7).
The lead opinion discusses in detail the plant’s protocols and various applicable work rules, including what constitutes the “principal activity or activities” of Hormel (¶ 41). Also addressed is the U.S. Supreme Court’s donning-and-doffing opinion in Sandifer v. U.S. Steel, 134 S. Ct. 870 (2014) (¶ 72). The supreme court held that the circuit court properly determined that the 5.7 minutes per day spent donning and doffing was “integral and indispensable” to the employees’ principal work activities (¶ 91).
The court also rejected the contention that the 5.7 minutes was “de minimis” (¶ 95). The court assumed without deciding that the de minimis doctrine applies to claims arising under Wisconsin’s employment laws. Viewed as an annual sum, however, pay for the 5.7 minutes came to more than $500 per year per employee, a nontrivial amount (see ¶ 105).
Chief Justice Roggensack, joined by Justice Prosser, concurred and dissented. They agreed with the lead opinion that the 5.7 minutes per day spent donning and doffing was nontrivial, compensable activity. They dissented, however, on whether the employees were entitled to compensation for such when leaving the workplace for lunch (see ¶ 109).
Justice Gableman, joined by Justice Ziegler, dissented. They did not believe that the donning and doffing of “white” clothing was “integral and indispensable” to the plant’s work activity (see ¶ 142).
Justice Rebecca Bradley did not participate in this decision.
Defective Ingredients – “Property Damage” – Covered “Occurrences”
Wisconsin Pharmacal Co. v. Nebraska Cultures of Cal. Inc., 2016 WI 14 (filed 1 March 2016)
HOLDING: The use of a defective ingredient in a supplement tablet did not result in “property damage” caused by an “occurrence.”
SUMMARY: This case involves a coverage dispute among insurers and insureds resulting from the use of a defective ingredient in a probiotic supplement tablet. The circuit court granted summary judgment to the insurers. In a published decision, the court of appeals reversed. See 2014 WI App 111.
The supreme court reversed the court of appeals in an opinion authored by Chief Justice Roggensack. The court held that “there is no ‘property damage’ caused by an ‘occurrence’ because the incorporation of a defective ingredient into the supplement tablets did not damage other property and did not result in loss of use of property” (¶ 3). Under choice-of-law principles, Wisconsin law governed one policy and California law the other (see ¶ 16).
The court briefly addressed a “duty to defend” issue, ruling that the insurer did not breach its duty to defend “[a]s this coverage determination by the circuit court properly came prior to any proceedings regarding the merits of the underlying claims” (¶ 19).
As to the policy controlled by Wisconsin law, the court looked to whether there was property damage. Applying “an integrated systems analysis” that was used in other cases, the court found no physical damage (¶ 34). “[W]e conclude that the complained of injury was sustained by the integrated system itself, i.e., the tablets, such that no other property was injured” (¶ 35).
Nor did coverage attach because the defective ingredient rendered the tablets “useless” to Pharmacal. A diminution in value, even to the point of worthlessness, is not the same as a covered “loss of use” (¶ 41).
Finally, the use of a defective ingredient did not constitute an occurrence within the meaning of the policy. The supplier’s provision of a defective ingredient was, the court said, analogous to a soil engineer’s bad advice and defectively constructed windows discussed in prior cases (see ¶ 56).
The court applied the same analysis to the policy governed by California law. There was no property damage because the defective ingredient did not render the tablets “hazardous” (¶ 65). Nor was the permanent loss of use compensable under California law. Finally, there was no occurrence within the meaning of the policy in light of the “deliberate nature” of the supplier’s actions (¶ 73).
In the interest of “completeness,” the lead opinion also held that even if there was an initial grant of coverage under the policies, “the plain meaning of both policies’ ‘impaired property’ exclusions operate to negate coverage” (¶ 77).
Justice Abrahamson dissented, joined by Justice Ann Walsh Bradley, lamenting that the economic loss doctrine, like the “Blob,” continues to devour the legal landscape. “In the instant case, the majority opinion expands the already swollen flow of economic loss jurisprudence into heretofore unknown territory, grafting the ‘integrated system’ rule from the economic loss doctrine onto the analysis of two commercial general liability (CGL) insurance policies’ definitions of ‘property damage’ and ‘occurrence’” (¶ 88). The dissenting justices found this “unwise” and contrary to case law (¶ 97).
Justice Ziegler and Justice Rebecca Bradley did not participate in this decision.
Duty to Defend – “Other Insurance”
Burgraff v. Menard Inc., 2016 WI 11 (filed 24 Feb. 2016)
HOLDINGS: 1) Millers First Insurance Co. was required to provide a defense for defendant Menard until it paid its $100,000 limit of liability as provided for in an auto insurance policy. 2) Menard’s $500,000 self-insured retention qualified as “other applicable liability insurance” under the Millers First policy’s “other insurance” clause.
SUMMARY: Plaintiff Burgraff was injured when a Menard employee loaded materials onto Burgraff’s trailer using a forklift. Burgraff sued Menard for damages. Burgraff’s vehicle and trailer were insured under an automobile insurance policy issued by Millers First. Menard contended that it was entitled to coverage under the Millers First policy as a permissive user of Burgraff’s vehicle and it tendered defense of Burgraff’s claim to Millers First, which agreed that Menard was entitled to coverage under Burgraff’s automobile policy.
In the supreme court, Millers First sought review of a published court of appeals decision (see 2014 WI App 85) that reversed the circuit court’s summary judgment order. The circuit court determined that Millers First no longer had a continuing duty to defend Menard after Burgraff reached a settlement with Millers First for its proportionate share of the plaintiff’s claim. In reversing, the court of appeals concluded that Millers First had a continuing duty to defend and that it breached the duty when it withdrew its defense of Menard after the Burgraff settlement.
Millers First contended that its “limits of liability for this coverage” were exhausted when it settled with Burgraff for $40,000 because that amount represented its maximum proportional liability for Burgraff’s claim. Once it satisfied its proportionate share of Burgraff’s claim, Millers First argued, it had no further duty to defend Menard even though it had not paid its full $100,000 limit of liability.
In a decision authored by Justice Ann Walsh Bradley, the supreme court held that “under the terms of the policy, Millers First was required to provide a defense for Menard until it paid its $100,000 limit of liability. Like the court of appeals, we determine that Millers First breached its duty to defend when it withdrew its defense of Menard following the settlement with Burgraff” (¶ 3). The policy specifically provides for a pro-rata share of liability payments, but it does not contain a similar pro-rata clause for defense costs
(see ¶ 53).
Menard sought review of that part of the court of appeals opinion that affirmed a judgment of the circuit court determining that Menard’s $500,000 self-insured retention qualified as “other applicable liability insurance” under the Millers First policy’s other-insurance clause. The court of appeals concluded that Menard’s self-insured retention was other insurance pursuant to Hillegass v. Landwehr, 176 Wis. 2d 76, 499 N.W.2d 652 (1993). The supreme court agreed with the court of appeals (see ¶ 5).
Accordingly, the supreme court affirmed the court of appeals and remanded the case to the circuit court “for a determination of the amount of costs and attorney fees Menard incurred after Millers First breached its duty to defend” (¶ 80).
Chief Justice Roggensack, joined by Justice Ziegler, concurred in part and dissented in part. These justices agreed that Millers First breached its duty to defend and that Menard’s self-insured retention constitutes “other applicable liability insurance” under Millers First’s other-insurance clause (see ¶ 82). However, they concluded that the matter should be remanded to the circuit court “to apply equitable contribution principles to determine how best to allocate the total defense costs incurred by Millers First and Menard” (¶ 83).
Justice Gableman and Justice Rebecca Bradley did not participate in this decision.
Eminent Domain – Highways
Hoffer Props. LLC v. Department of Transp., 2016 WI 5 (filed 4 Feb. 2016)
HOLDING: The Wisconsin Department of Transportation (DOT) complied with the statutes governing changes to a property owner’s access to a controlled-access highway.
SUMMARY: When reconfiguring a highway, the DOT changed the access of an abutting property owner, Hoffer Properties, while also taking some of its land (0.72 acres). Hoffer rejected the DOT’s proffer of $90,000 for the taking. The circuit court granted partial summary judgment to the DOT, finding that the elimination of Hoffer’s direct access and replacement of the direct access with a more circuitous route was noncompensable because reasonable access was provided. In an unpublished opinion, the court of appeals affirmed.
The supreme court affirmed in an opinion authored by Justice Gableman. First, the court held that “Wis. Stat. § 84.25(3) authorizes DOT to change Hoffer’s access to [State Trunk Highway] 19 in whatever way it deems ‘necessary or desirable.’ Such changes, including elimination of direct access points, are duly authorized exercises of the police power and are not compensable under Wis. Stat. § 32.09 as long as alternate access is given that does not deprive the abutting owner of all or substantially all beneficial use of the property” (¶ 6).
Second, the supreme court held “that when DOT changes an abutting property owner’s access to a controlled-access highway but other access is given or exists, the abutting property owner is precluded from compensation pursuant to Wis. Stat. § 32.09(6)(b) as a matter of law and no jury determination of reasonableness is required. Reasonableness is the wrong standard to apply because the provision of some access preserves an abutting property owner’s right of access to a controlled-access highway, and thus no taking compensable under Wis. Stat. § 32.09(6)(b) occurs” (¶ 6). “Replacement access which results in a circuitous route rather than a direct one is a lawful – if regrettable – result of controlling access” (¶ 27).
Justice Abrahamson, joined by Justice Ann Walsh Bradley, concurred but did not join the “long, complex [lead] opinion” because it “unnecessarily” discussed a number of issues, including inverse condemnation as it applies to abutting owners (¶ 51).
Justice Prosser dissented. “Henceforward, juries are precluded from ever finding that the alternative access provided to replace direct access to a controlled-access highway is unreasonable. By transforming a traditional fact question into a question of law, the court justifies depriving property owners of their statutory right to a jury trial and also bars circuit judges from ever finding that alternative access is not reasonable” (¶ 58).
Justice Rebecca Bradley did not participate in this decision.