# State v. Seibel > Wisconsin Supreme Court · June 27, 1991 · 163 Wis. 2d 164 URL: https://www.frixlaw.com/law-library/cases/9528526 ## Case - **Full name:** STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael L. SEIBEL, Defendant-Appellant - **Court:** Wisconsin Supreme Court - **Decided:** June 27, 1991 - **Citations:** 163 Wis. 2d 164; 471 N.W.2d 226; 1991 Wisc. LEXIS 495 - **Precedential status:** Published - **Opinion:** Dissent by Abrahamson - **Judges:** Louis J. Ceci - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9528526 ## How later opinions describe it (automated extraction) - noting that “belligerence … [is] often associated with excessive [intoxication]” ## Opinion text SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree with the unanimous decision of the court of appeals in this case that the police must have probable cause to believe a person's blood contains evidence of a crime before ordering blood drawn as a search incident to arrest. Accordingly, I dissent. The United States Supreme Court squarely addressed the fourth amendment requirements for a blood test incident to arrest in Schmerber v. California, 384 U.S. 757 (1966). I believe that Schmerber established, at a minimum, a requirement of probable cause for blood tests incident to arrest and that Schmerber is good law. 1 The United States Supreme Court has not *185 subsequently addressed the issue of blood tests ordered as a search incident to arrest. The defendant in Schmerber was arrested at a hospital where he was being treated for injuries sustained in an automobile accident. The police officer who arrived at the scene of the accident smelled alcohol on the defendant's breath and testified that the defendant's eyes were bloodshot, watery, and glassy in appearance. The United States Supreme Court noted that there was "plainly" probable cause to arrest the defendant and charge him with driving an automobile while under the influence of intoxicating liquor. The Court recognized the general rule that the person of an accused may be searched incident to a lawful arrest. The Court concluded, however, that this rule has "little applicability with respect to searches involving intrusions beyond the body's surface." According to the Court: The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear *186 unless there is an immediate search. 484 U.S. at 769-70 (emphasis added). The Court concluded that "although 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," the question remained whether the officer was required to obtain a warrant for the blood test. The Court held that exigent circumstances allowed the officer to order the blood test in Schmerber without a warrant. The Court in Schmerber thus assumed that a warrant was required to proceed with a blood test and that a blood test may proceed without a warrant only in exigent circumstances. A warrant could not be obtained unless the state could show probable cause. Thus I conclude that the "clear indication" language in Schmerber should be read to require the police to meet at least the probable cause standard before they can order a blood test as a search incident to arrest. 2 The majority relies on United States v. Montoya de Hernandez, 473 U.S. 531 (1985), for its conclusion that the police need only reasonable suspicion to order a blood test as a search incident to arrest. I agree with the court of appeals that Montoya does not govern the case at bar. Montoya applied fourth amendment requirements to the detention of, not a search of, a traveler at the border, a situation in which the United States Supreme Court has held that an individual's expectation of privacy is diminished, and that the balance between the interests of the government and the privacy rights of the individual is struck "much more favorably" to the government. Id. at 540 . No bodily intrusion occurred in *187 Montoya. The Court specifically admonished that "it is important to note what we do not hold. Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body cavity, or involuntary x-ray searches." Id. at 541, n. 4 . The conclusion that probable cause is needed for an invasion of the person's body makes good sense when one considers that the police must have probable cause before they may open a suitcase or a brown paper bag in an automobile. 3 Furthermore, as the Court in Schmerber noted, "search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required when intrusions into the human body are concerned." 384 U.S. at 770 . The circuit court found, and the state concedes, that the police in this case lacked probable cause to believe that the defendant was under the influence of an intoxicant. 4 Accordingly, I join the court of appeals in conclud *188 ing that taking the defendant's blood in this case violated the fourth amendment. The results of the test must be suppressed. For the reasons set forth, I dissent. I am authorized to state that Chief Justice Nathan S. Heffernan joins this dissent. See 2 LaFave, Search and Seizure, sec. 5.3(c), pp. 501-502 (2d ed. 1987). See California v. Acevedo, — U.S. —, 59 U.S.L.W. 4559 (May 30, 1991). The circuit court commented on the lack of probable cause to believe that the defendant was under the influence of an intoxicant as follows: There is absolutely no evidence that's credible in this record to support a finding of probable cause to believe that at the time of this accident the defendant was under the influence of an intoxicant. In fact the record is to the contrary and would support a finding that he was not under the influence of an intoxicant. There was no erratic driving, the only odor of alcohol was the observation by Officer Peterson, and his testimony under oath is I thought I could smell an odor of alcohol, but after he thought about that, he then made a concerted effort to determine if that was in fact what he had observed, and he was unable to detect any further odor even when he was trying to detect such an odor in the presence of Mr. Seibel in the x-ray room. So far as this court is concerned why there is no evidence which *188 would support a finding of probable cause that at the time of the accident the defendant, Michael Seibel, was operating or under the influence of an intoxicant. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9528526. Public record. Not legal advice.