Opposition Brief — Faust v. Wisconsin
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No. 04-471
In The
Supreme Court of the United States
¢
JACOB J. FAUST,
Petitioner,
Vv.
STATE OF WISCONSIN,
Respondent.
+
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF WISCONSIN
¢
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI
7
PEGGY A. LAUTENSCHLAGER
Attorney General
AARON R. O'NEIL
Assistant Attorney General
DAVID J. BECKER*
Assistant Attorney General
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-7447
*Counsel of Record
QUESTIONS PRESENTED
Does the exigent circumstances exception to the
Fourth Amendment’s warrant requirement allow a police
officer to perform a nonconsensual blood draw from a person
arrested for driving while intoxicated when the officer has
already performed a test of that person’s breath?
i ieee
TABLE OF CONTENTS
QUESTION PRESENTED os csssicscssciiaseriemammataicae i
FURESDAC TION .........is.sissstonsnjianeshanapengaiaeaeasaeaann 2
I.
CERTIORARI IS NOT WAR-
RANTED BECAUSE THE
DECISION OF THE WISCONSIN
SUPREME COURT IS NOT FINAL
WITHIN THE MEANING OF
28 US § ERGO. cotdinaeiasoeas 5
A. Faust has not yet been tried for
the two drunk driving charges
against him and it is not clear
what role the blood test’s
results will play in future
POOR .niiscontnennitinthianianen 5
B. Faust’s case does not meet any
of the exceptions to the final
PORE siinciscicisininibinristonennites 7
CERTIORARI IS NOT WAR-
RANTED BECAUSE THE
WISCONSIN SUPREME COURT’S
DECISION DOES NOT CONFLICT
WITH NELSON v. CITY OF IRVINE. ........... 9
A. Relevant facts about Nelson. ............ 10
ill
B. Faust’s alleged conflict relies
entirely on dicta from Nelson. .......... 1]
1. Faust focuses’ on
exigent circumstances
while Nelson almost
exclusively addresses
| 12
2. Nelson’s exigent cir-
cumstances discussion
would not apply to any
of the plaintiffs in that
II siesntissciintsteccntiviancscnnnnsntnccets 13
oo Nelson does not present the
same factual circumstances as
Faust because, in Nelson, the
police generally only
administered one chemical
RI cihivsaidatinccuissictncinntiincuiieidaaimesbeainneetenis 14
D. Faust and Nelson present
entirely different procedural
NUT susllcnnctupeiinstinancepnciaeduadétconienn 15
Il. CERTIORARI IS NOT WAR-
RANTED BECAUSE THE FAUST
DECISION DOES NOT CONFLICT
WITH ANY OTHER SUPREME
CPR SE OID i cncesssssnivetniensnesinnenscssens 16
ea ITTTT stich clnelaccepsmiensietatihaicaeiennishtinnieaiiaawbanting 20
iV
CASES CITED
Cox Broadcasting Corp. v. Cohn,
ee tt SP TTD seresahcecsdcissnnitansnnsontannninacennasuaans 7,8
Cupp v. Murphy,
RIE Ete SEARED scnapicaatasansnstcndabnstianinnadoitiuass 16, 17
Florida v. Thomas,
See ARs FP GED nehecainnesssctnbcnsnniitnsenstnntennetnaunss 5, 6
Fort Wayne Books v. Indiana,
a a ie AD seis thihainkccsntnrichinrnnnsasmnibintnisitasestinsaiea 6
Johnson v. California,
341 US... 124.S. Ce 1833 (Q006) .0..ccccccsscecesceeses. 8
Ker v. California,
Be i it bicicinithstdsaicac teins tibinace ieee 17
Nelson v. City of Irvine,
143 F.3d 1196 (9th Cir.),
cert. denied, 525 U.S. 981 (1998)... passim
Schmerber v. California,
Pe Ge Fane CRIED wcccicacinshinriasinslasicansioenee 4,9, 18, 19
State v. Bohling,
173 Wis. 2d 529, 494 N.W.2d 399,
cert. denied, 510 U.S. 836 (1993)... 12, 18
State v. Faust,
2003 WI App 243, 267 Wis. 2d 783,
Re OSI seth Ge 3
ee ee ee
State v. Faust,
2004 WI 99, 274 Wis. 2d 183, |
GFR le Or al EB nscisanicnaraisstvasnssnsonncsianiasnincaane passim
State v. Krajewski,
2002 WI 97, 255 Wis. 2d 98,
Oe a Ne eisai anntsasinaslepiniiste ntncdaitehaindnnbiatainnn 3
United States v. Santana,
GET UB BR ID beseinisssintnnsrinatnviasndintatancnsrnighariasi 18
Warden, Maryland Penitentiary v. Hayden,
BE Ga Be CD iatanimesticnsininnissincibnasiathcimnianeamnia 17
Welsh v. Wisconsin,
MED TIS. FED IGG A) iiciesistcsrcensarsnitiicissrsssninnnrnanctinninns 18
STATUTES CITED
Be OAL, © Ea arcs nictntssnccsintescsapicndttnmingnnstiancnisae pe
42 ULS.C. § 1983 .......cscscescccscrscosescesesenescersssensssseerans 9, 10, 15
Wis. Stat. § 346.62(1)(a) (2001-02)... ee eeseeeeees adliaielans 5
Wis. Stat. § 346.62(1)(b) (2001-02) wrsvssssennetvsensen 5
Wis. Stat. § 346.63(1)(a) (2001-02) 0.0... eescesteeereeeeneees 3
Wis. Stat. § 346.63(1)(b) (2001-02) .0... eee eeeeseeteeeeeeeeneees 3
Wis. Stat. § 885.235(1g)(cd) (2001-02) ........ceeeesseeseees 2,6
Wis. Stat. § 974.05(1)(d)2 (2001-02) ........cceeseeseseeeeereeeeeees 5
vi
CONSTITUTIONAL PROVISION
U.S. CORSE. GUBGIRE, BV ceconcsscrncncsonsncscessessensnnssesneesnnuianned passim
OTHER AUTHORITIES
Supp. Ce, BR. HOG) acccocerossvececcesescoseasssinneynetnotenniasesasesousnseumaenneans 9
Bump. C2 BR. BGC) cccsesccssescccsssersesessnssssnevesensiansesenstsnbesannaneenants 19
No. 04-471
In The
Supreme Court of the United States
¢
JACOB J. FAUST,
Petitioner,
v.
STATE OF WISCONSIN,
Respondent.
+
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF WISCONSIN
*
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI
¢
Respondent, the State of Wisconsin, files this bref
opposing Petitioner Jacob J. Faust’s petition for a writ of
certiorari to review the opinion of the Wisconsin Supreme
Court in State v. Faust, 2004 WI 99, 274 Wis. 2d 183,
682 N.W.2d 371; Pet-Ap. la-35a. Respondent files this brief
in opposition pursuant to this Court’s request on
November 16, 2004, that Respondent file such a bref.
2
JURISDICTION
Respondent disagrees with Petitioner’s contention that
this Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).
The decision of the Wisconsin Supreme Court does not reflect
a final judgment within the meaning of that statute.
Respondent will address this argument further in the “Reasons
for Denying the Petition” section of this brief.
STATEMENT OF THE CASE
The facts relevant to Faust’s claim are undisputed.
Faust was stopped in Sheboygan, Wisconsin, after City of
Sheboygan Police Officer James Olsen noticed the license
plate on his car was registered to a different vehicle. Faust,
682 N.W.2d 371, 4 4; Pet-Ap. at 3a. Olsen smelled a strong
odor of intoxicants in Fausi’s vehicle and also noticed that
Faust’s eyes were bloodshot and glassy and that he was
slurring his speech. Faust told Olsen that he had drank “five
brandies.” Jd.
Faust failed a field sobriety test and submitted to a
preliminary breath test, which indicated a blood alcohol level
of 0.13. Jd. at § 5; Pet-Ap. at 3a-4a. Olsen arrested Faust
and transported him to the police station. There, Faust
voluntarily gave a breath sample for chemical analysis, the
results of which indicated that Faust’s blood alcohol level
was 0.09. Jd. Because Faust had two prior convictions for
operating while intoxicated, he was prohibited from
operating a motor vehicle with a blood alcohol concentration
greater than 0.08. Jd.; Wis. Stat. § 885.235(1g)(cd) (2001-
02).
Desiring to obtain additional evidence because the
previous tests were close to the legal limit, Olsen requested
3
that Faust submit to a blood test. Jd. at § 6; Pet-Ap. at 4a-5a.
Faust refused. Olsen then took Faust to a hospital where a
blood test was performed. The results of this test indicated
that Faust’s blood alcohol level was 0.1. Jd.
The State charged Faust with operating while
intoxicated and operating with a prohibited blood alcohol
concentration. Jd. at § 7; Pet-Ap. at 5a; Wis. Stat.
§ 346.63(1)(a) and (b) (2001-02). Faust moved to suppress
the results of the blood test. He claimed that the test violated
the Fourth Amendment because it was taken without a
warrant. Specifically, he argued that the exigent
circumstances exception to the warrant requirement, which
normally allows police officers to test the blood alcohol
levels of persons arrested for drunk driving without a
warrant, did not apply to the blood test because any exigency
that would have justified the blood draw ended when Olsen
obtained the breath test. Faust, 682 N.W.2d 371, § 7; Pet-
Ap. at 5a. The circuit court agreed and suppressed the
results of the blood test. Jd.
The State appealed the court’s suppression order.
The Wisconsin Court of Appeals affirmed the circuit court,
based upon a Wisconsin Supreme Court case, State v.
Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385.
See State v. Faust, 2003 WI App 243, 4§ 14-16, 267 Wis. 2d
783, 672 N.W.2d 97; Pet-Ap. at 42a-43a.
The Wisconsin Supreme Court granted the State’s
petition for review and reversed. Faust, 682 N.W.2d 371,
93; Pet-Ap. 2a-3a. It concluded that the exigent
circumstances exception applied to the blood draw because
of the rapid dissipation of alcohol in the bloodstream, and
rejected Faust’s claim that the exigency ended simply
because Olsen had obtained a valid breath test. Jd. at Jj 22-
23; Pet-Ap. at 12a-13a. The court’s conclusion was based
ee
a ee eee
4
primarily on Wisconsin case law interpreting this Court’s
decision in Schmerber v. California, 384 U.S. 757 (1966).
Faust, 682 N.W.2d 371, §§ 16-18; Pet-Ap. at 9a-lla. The
court concluded that the nature of the evidence in this case,
alcohol, and the fact that it rapidly dissipates from the
bloodstream, presented the exigent circumstances necessary to
conduct the test without a warrant, and the existence of other
evidence did not end the exigency. Jd. at § 22; Pet-Ap. at 12a-
13a.
The court also noted that concerns about the later
usability of the test were consistent with its finding of exigent
circumstances. Jd. at § 24; Pet-Ap. 14a-15a. In particular, the
court said that breath tests are often challenged as inaccurate.
Id. at § 25; Pet-Ap. at 15a. Additionally, the court said
police often need additional, more definite evidence when
the test results place the defendant close to the legal limit, as
they did here. Jd. at § 26; Pet-Ap. 15a-16a. The court also
noted that defendants often later challenge their consent to
chemical tests, even though consent was apparently given.
Id. at § 27; Pet-Ap. at 16a-16b. The court’s discussion of
these issues was tied to its finding of exigent circumstances,
not, as Faust suggests, a series of “what if” scenarios.
(Petition at 7-8).
Finally, based primarily on Faust’s concession, the
court also concluded that the blood draw was reasonable.
Faust, 682 N.W.2d 371, § 31;-Pet-Ap. at 20a-22a. The court
stated that merely because it had concluded that exigent
circumstances obviated the need to obtain a warrant in this
case, it was not holding that police would be justified in
taking any number of tests as long as there was alcohol in the
suspect’s blood. Jd. The court did not define what it would
consider unreasonable, see id. at {§] 32-33; Pet-Ap. at 22a-
23a, but concluded, based upon Faust’s concession and the
a
5
particular facts of the case, that Olsen’s blood draw was
reasonable. Jd. at {4 31-33; Pet-Ap. 20a-23a.
REASONS FOR DENYING THE PETITION
I CERTIORARI IS NOT WAR-
RANTED BECAUSE THE
DECISION OF THE WISCONSIN
SUPREME COURT IS NOT FINAL
WITHIN THE MEANING OF
28 U.S.C. § 1257(a).
A. Faust has not yet been tried for
the two drunk driving charges
against him and it is not clear
what role the blood test’s
results will play in future
proceedings.
As Faust briefly mentions in his petition, he has not
been tried on the charges against him, one count each of
operating a motor vehicle while intoxicated and operating a
motor vehicle with a prohibited blood alcohol concentration.
(Petition at 3). See Wis. Stat. § 346.62(1)(a) and (b) (2001-
02). The Wisconsin Supreme Court’s decision arose from an
appeal by the State challenging the circuit court’s decision to
suppress the results of the blood sample taken from Faust.
See Wis. Stat. § 974.05(1)(d)2. (2001-02); Faust,
682 N.W.2d 371, 4 7; Pet-Ap. at 5a.
Under 28 U.S.C. § 1257(a), certiorari review of a
state court decision is available only for “[f]inal judgments
or decrees rendered by the highest court of a State in which a
decision could be had.” In a criminal proceeding, “finality
generally is defined by a judgment of conviction and the
imposition of a sentence.” Florida v. Thomas, 532 U.S. 774
eo
(2001) (citing Fort Wayne Books v. Indiana, 489 U.S. 46, 54
(1989)). There has not yet been a tnal, or any other
proceedings involving the charges against Faust, and this
Court should not accept his petition for certiorari.
At this point, it is entirely unclear what effect the
Wisconsin Supreme Court’s decision, or any decision by this
Court, will have on Faust’s prosecution. The arresting
officer took two samples from Faust, one of his breath and
the other of his blood. Faust, 682 N.W.2d 381, {J 5-6; Pet-
Ap. at 3a-5a. While the results were different, both placed
Faust over the legal limit at which he was allowed to operate
because of his two prior operating while intoxicated
convictions. Jd. at § 5; Pet-Ap. at 3a-4a. See Wis. Stat.
§ 885.235(1g)(cd). Either or both of these tests could be
used as evidence against Faust. Without knowing what role
the blood test results will play in any future proceedings, any
resolution of the question presented at this point may wind
up being largely academic.
rnahanaah eee.
In its decision, the Wisconsin Supreme Court noted
that Faust could challenge the validity of one or both of his
prior convictions, thus requiring the State to prove that his
blood alcohol level was above .10, rather than .08. Jd. at
426; Pet-Ap. at 15a-16a. The court also said that Faust
could, and had indicated that he likely would, challenge the
accuracy of the breath test and might also challenge his
consent to that test. Jd. at §§ 25, 27; Pet-Ap. 15a-17a.
While, under these scenarios, the blood test would become
more relevant, the fact is that neither has happened yet. It is
speculative to suggest that these challenges will occur, or
more importantly, that they will succeed. As such, it is
impossible to gauge what effect, if any, a decision by this
Court would have on the outcome of the charges against
Faust. This Court should deny his petition for certiorari
sat ne oh rah DR Nl i ie emi toes
7
because the Wisconsin Supreme Court’s decision is not a
final judgment under 28 U.S.C. § 1257(a).
B. Faust’s case does not meet any
of the exceptions to the final
judgment rule.
This Court has recognized four types of cases that
may be excepted from the final judgment rule. See Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). None of
these apply to Faust’s case. The first category includes cases
in which “there are further proceedings—even entire trials—yet
to occur in the state courts but where for one reason or
another the federal issue is conclusive or the outcome of
further proceedings preordained.” Jd. at 479. As noted, it is
entirely unclear what will occur in this case’s future state
court proceedings. Further, the federal issue presented,
whether the blood draw violated the Fourth Amendment, is
not conclusive to the outcome of the future state proceedings
because, even if the results were suppressed, Faust could still
be prosecuted based upon the breath test.
The second category of excepted cases are those in
which “the federal issue, finally decided by the highest court
in the State, will survive and require decision regardless of
the outcome of future state-court proceedings.” Jd. at 480.
This exception does not apply. Again, it is far from clear
what role the results of the blood test will have in the
subsequent state court proceedings. Further, it may be that
Faust will not be convicted. As such, it is not at all clear that
the federal issue would remain regardless of the outcome of
the state proceedings.
Third, Cox exempts cases where “the federal claim
has been finally decided, with further proceedings on the
merits in the state courts to come, but in which later review
8
eee ee
of the federal issue cannot be had, whatever the ultimate
outcome of the case.” Jd. at 481. Here, if Faust is convicted
at trial, he could still later seek review of his claim. See
Johnson v. California, 541 U.S. __, 124 S. Ct 1833, 1834
(2004). His case does not meet this exception.
The last Cox exception includes those cases where:
[T]he federal issue has been finally decided in
the state courts with further proceedings
pending in which the party seeking review
here might prevail on the merits on nonfederal
grounds, thus rendering unnecessary review
of the federal issue by this Court, and where
reversal of the state court on the federal issue
would be preclusive of any further litigation
on the relevant cause of action rather than
merely controlling the nature and character of,
or determining the admissibility of evidence
in, the state proceedings still to come. In
these circumstances, if a refusal immediately
to review the state court decision might
seriously erode federal policy, the Court has
entertained and decided the federal issue,
which itself has been finally determined by |
the state courts for purposes of the state
litigation.
Cox, 420 U.S. at 482-83.
This exception plainly does not apply to Faust. If this
Court were to reverse the Wisconsin Supreme Court, it
would not preclude Faust’s prosecution because of the
existence of the breath test. Instead, the Court’s resolution
of the federal issue presented here would only control the
admissibility of some evidence against Faust. See id.
9
Faust’s case does not meet any of this Court’s recognized
exceptions to the 28 U.S.C. § 1257(a) finality requirement,
and this Court should deny the petition for certiorari.
II. CERTIORARI IS NOT WAR-
RANTED BECAUSE THE
WISCONSIN SUPREME COURT’S
DECISION DOES NOT CONFLICT
WITH NELSON v. CITY OF IRVINE.
The centerpiece of Faust’s certiorari petition is the
purported conflict between the Wisconsin Supreme Court’s
decision and the Ninth Circuit’s decision in Nelson v. City of
Irvine, 143 F.3d 1196 (9th Cir. 1998), cert. denied, 525 U.S.
981 (1998). (Petition at 11-15). Sup. Ct. R. 10(b). Faust
points to some language in Nelson suggesting that the Ninth
Circuit and Wisconsin take drastically different approaches
to the exigent circumstances exception to the warrant
requirement in the context of nonconsensual blood tests of
drunk driving arrestees and this Court’s decision in
Schmerber. (Petition at 11-15). As such, Faust claims that
this Court must grant certiorari to resolve this dispute.
Faust overstates the conflict. First, the purported
conflicting language in Nelson is dicta. It is not essential to
the court’s holding, and presents no meaningful conflict with
the Wisconsin Supreme Court’s decision. Second, the
alleged improper police conduct in Nelson is factually
different from that in Faust because none of the claims in
Nelson involved the subsequent administration of a chemical
test after one had already been obtained. Finally, the
procedural postures in Faust and Nelson, which was a
proposed 42 U.S.C. § 1983 class action, are entirely
different. There is no reason for this Court to grant certiorari
based upon Faust’s alleged conflict with Nelson.
10
A. Relevant facts about Nelson.
Nelson involved an appeal of a proposed class action
§ 1983 suit that had been dismissed on its pleadings. Nelson,
143 F.3d at 1199. The proposed class members were all
persons convicted of drunk driving who were generally not
informed of their right, under California’s implied consent
law, to take their choice of a blood, breath, or urine test upon
their arrest. Jd. The class members claimed that their nights
under the Fourth Amendment had been violated because
“they were coerced into submitting to blood tests in order to
determine their blood alcohol level, and deprived of the
statutorily mandated option to take a breath or urine test
instead.” Jd.
The Ninth Circuit agreed that the proposed class
representatives had alleged violations of their Fourth
Amendment rights. Jd. at 1205. Accepting the plaintiffs’
allegations as true, the court first concluded, after a lengthy
discussion, that it was unreasonable for the officers to force
the arrestees to submit to blood tests when urine and breath
tests were available and required to be offered by state
statute. Jd. at 1200-04. It also briefly addressed the exigent
circumstances exception the warrant requirement. Jd. at
1204-05.
It is Nelson’s short discussion of exigent
circumstances that Faust relies upon to establish his claimed
conflict. In particular, he maintains that the Wisconsin
Supreme Court’s decision that the exigent circumstances
exception is based upon the rapid dissipation of alcohol from
the blood and that the exigency does not end when a valid
test is taken conflicts with Nelson’s statement that:
When an arrestee requests but is denied the
choice of an available breath or urine test, the
et eS need a a ea li hae to Meee ae
11
exigency used to justify the warrantless blood
test continues only because of the City’s
failure to perform the requested alternative
test. Whenever a DUI arrestee consents to a
breath or urine test, and such tests are
available, the administration of either the
breath or urine test would preserve the
evidence and end the exigency. In such cases,
because the sole justification advanced to
excuse the officers from obtaining a warrant
disappeared when the exigency ended, the
blood tests were not only unnecessary and
unreasonable, but violated the Fourth
Amendment’s warrant requirement.
Id. at 1205 (footnote omitted).
B. Faust’s alleged conflict relies
entirely on dicta from Nelson.
Faust’s claim of conflict between the Wisconsin
Supreme Court’s decision and the Ninth Circuit’s is
premised entirely on dicta in the Nelson decision. Faust and
Nelson each focus on different aspects of the Fourth
Amendment inquiry into warrantless blood draws from
drunk driving arrestees: exigent circumstances and
reasonableness. Each decision focuses on one almost to the
exclusion of the other. That Nelson’s discussion of exigent
circumstances is dicta is further demonstrated by the fact
that, assuming that Nelson stands for the proposition that
Faust claims it does, the court’s statements would not apply
to any of the proposed class representatives’ claims.
Nelson’s exigent circumstances discussion is dicta and does
not conflict with Faust.
12
l. Faust focuses on
exigent circumstances
while Nelson almost
exclusively addresses
reasonableness.
As noted in Faust and Nelson, in order to comply
with the Fourth Amendment, police officers drawing blood
without a warrant must find an exception to the warrant
requirement, and their ensuing search must also be
reasonable. Faust, 682 N.W.2d 371, 4 31; Pet-Ap. at 20a-
22a; Nelson, 143 F.3d at 1200. While both decisions address
these two issues, they each focus on a different one.
Nelson’s discussion of exigent circumstances is an
afterthought following a _ lengthy discussion of
reasonableness. Nelson, 143 F.3d at 1200-05. In contrast,
Faust focuses entirely on exigent circumstances, primarily
because Faust conceded the blood draw’s reasonableness
under the test established in State v. Bohling, 173 Wis. 2d
529, 494 N.W.2d 399, 400, cert. denied, 510 U.S. 836
(1993); Faust, 682 N.W.2d 371, 4f 10-31; Pet-Ap. at 7a-22a.
In addition to its extremely brief treatment of the
issue, the Ninth Circuit’s discussion of exigency is not
necessary to its conclusion that the blood draws alleged
violated the Fourth Amendment. Exigent circumstances
only excuse the need for a warrant; any search subsequently
performed must still be reasonable. Had the officers in
Nelson obtained warrants, it would not have affected the
court’s conclusion that the blood draws were unreasonable
based upon the availability of other tests that the officers
were statutorily required to offer. Reasonableness, not
exigent circumstances, is the focus and the holding of the
Nelson decision.
13
In contrast, the Faust decision primarily addresses
exigent circumstances. Faust conceded that the blood draw
was reasonable under the Fourth Amendment. Faust,
682 N.W.2d 371, § 31; Pet-Ap. at 20a-21a. Thus, the only
issue presented in Faust was whether the arresting officer
needed to obtain a warrant, or find another exception to the
warrant rule, to perform the blood draw. Nelson’s primary
discussion, and the only one necessary to sustain its holding,
is that it was unreasonable to take a blood test from an
arrestee when other tests were available and had to be
offered. Faust and Nelson focus on two different Fourth
Amendment inquiries and do not present a conflict that this
Court should resolve.
2. Nelson’s exigent cir-
cumstances discussion
would not apply to any
of the plaintiffs in that
case.
The exigent circumstances discussion in Nelson is
also dicta because it is far from clear how the discussion, as
Faust interprets it, would even apply to the facts presented in
that case. Faust argues that Nelson stands for the proposition
that once a valid chemical test is taken, the exigency ends
and bars any subsequent warrantless search. (Petition at 12).
If this is the holding, however, it would not apply to any of
Nelson’s proposed class members’ allegations, and is
therefore not essential to the Ninth Circuit’s decision.
It does not appear that any of the proposed class
representatives in Nelson ever had to submit to a valid
chemical test other than the blood test they claimed violated
their Fourth Amendment nights. According to the
descriptions provided in Nelson, one class member took an
inadmissible preliminary breath test and another failed in an
14
attempt to take a breath test. Nelson, 143 F.3d at 1199. The
others appear to have only been given one test, their blood
draw. Jd. If the exigent circumstances discussion in Nelson
is to stand for the proposition that a valid test of any kind
ends the exigent circumstances excusing the need to obtain a
warrant, then the exigency in the cases of the various class
representatives ended when their blood was taken and these
tests were all supported by exigent circumstances. Nelson's
discussion of exigent circumstances is dicta. The conflict
between Faust and Nelson is not genuine, and this Court
should not grant certiorari.
C. Nelson does not present the
same factual circumstances as
Faust because, in Nelson, the
police generally only
administered one chemical
test.
Similarly, this Court should deny Faust’s request for
certiorari because Faust and Nelson present entirely different
factual scenarios. Faust took two chemical tests. He claims
that the exigent circumstances that would have allowed his
warrantless blood draw no longer existed because he had
previously consented to a breath test. None of the proposed
class representatives in Nelson appear to have made a similar
claim, and it is unlikely they could have because, as noted,
none of them completed two valid tests. Due to this
distinction, the exigent circumstances discussion in Nelson
is inapplicable to the facts presented in that case, as already
noted.
However, another possible interpretation of the Ninth
Circuit’s exigency discussion, and really the only way to
interpret it as applying to that case, is to read it as stating that
an arrestee’s mere offer to take an alternative test ends the
15
exigent circumstances. Some of the class representatives
might have been able to prove a Fourth Amendment
violation based upon this interpretation because some of
them claimed they offered to take breath or urine tests. See
Nelson, 143 F.3d at 1203 n.3.
if Nelson’s exigent circumstances discussion is
interpreted in this way, however, it does not directly conflict
with Faust, which only rejected a claim that the exigency
ended when a valid test was taken, not when the offer to take
an alternative test is made. This would undoubtedly be a
much narrower rule that would not directly conflict with the
one Faust proposed the Wisconsin Supreme Court adopt and
which he now urges is correct to this Court. The only way to
view Nelson’s discussion of exigent circumstances as
anything but dicta is to read out the conflict Faust maintains
exists with the Wisconsin Supreme Court’s decision.
D. Faust and Nelson present
entirely different procedural
scenarios.
Finally, Faust’s attempt to show a conflict between
his case and Nelson must fail because they each involve
entirely different types of cases at different stages of
litigation. Faust arose from an actual criminal drunk driving
prosecution. The facts at issue in the lower courts were
undisputed. While the Wisconsin Supreme Court’s decision
was based upon a state’s appeal conducted before the case
was final, the court nonetheless applied the law to an
undisputed and concrete set of facts.
In contrast, Nelson involved a class action 42 U.S.C.
§ 1983 lawsuit that had been dismissed on the pleadings.
The Ninth Circuit was addressing facts that it had to presume
to be true. There is no indication that these facts were ever
16
proven or how the legal principles enunciated in Nelson were
applied on remand to the district court. The different
procedural postures of Nelson and Faust preclude the finding
of a conflict allowing this Court to grant certiorari.
Additionally, it is far from clear that Nelson has had
any impact on how blood or other chemical tests for drunk
driving arrestees are administered in California or any other
jurisdiction. Further, Respondent has uncovered no case law
from that state or any other adopting Nelson in a factual
Situation similar to the one presented here. Any conflict
between the principles in Faust and Nelson may be just that,
a conflict in principles. There is no indication that it reflects
a real conflict justifying certiorari.
Ill. CERTIORARI IS NOT WAR-
RANTED BECAUSE THE FAUST
DECISION DOES NOT CONFLICT
WITH ANY OTHER SUPREME
COURT DECISIONS.
Finally, Faust argues that the Wisconsin Supreme
Court’s decision conflicts with several of this Court’s cases
addressing the exigent circumstances doctrine. (Petition at
17-18). He maintains that Faust expands the doctrine far
beyond the permissible boundaries of this Court’s decisions.
Faust is incorrect. Almost all the cases he relies upon
address other Fourth Amendment issues and do not directly
conflict with Faust. To the extent that the cases are on point,
Faust has failed to make any showing that the cases conflict
in such a way to warrant this Court’s review.
Faust first points to Cupp v. Murphy, 412 U.S. 291
(1973). His reliance on this case, however, is entirely
misplaced. In Cupp, as Faust correctly notes, this Court
determined that the police taking scrapings from a
17
defendant’s fingernails without a warrant was permissible
under the Fourth Amendment. /d. at 295-96. The exception
to the warrant requirement upon which this Court sustained
the search, however, was not exigent circumstances, but
rather search incident to arrest. Jd. Cupp involves an
entirely different exception to the warrant requirement, and
Faust does not conflict with it.
Next, Faust points to Warden, Maryland
Penitentiary v. Hayden, 387 U.S. 294 (1967). (Petition at
17-18). There, police who were following a suspected
robber, entered a home to look for him. /d. at 297. Although
the police apparently obtained the occupant’s consent, see id.
at 297-98, this Court determined that exigent circumstances
justified the entry into the house, in part, because of threat to
safety that might develop by taking the time to obtain a
warrant. Jd. at 298. Faust compares the concern for public
safety in Hayden to similar safety concerns involving drunk
driving. (Petition at 17). He does not, however, explain why
this Court’s decision in Hayden conflicts with Faust, nor can
the Respondent discern any such conflict.
Nor has Faust shown any conflict between this
Court’s decision in Ker v. California, 374 U.S. 23 (1963),
and the Wisconsin Supreme Court’s decision. (Petition at
18). In Ker, police entered a home without a warrant to
arrest two persons suspected of having marijuana. Jd. at 28.
The issue there, as framed by this Court, was whether the
marijuana was lawfully seized incident to the persons’ arrest.
Id. at 34-35. Although the court briefly mentioned that there
was an exigency for the police to enter the home based on
the possible destruction of the evidence, the focus of the
court’s decision was whether the marijuana was admissible
under a different exception to the warrant requirement,
search incident to arrest. Ker does not conflict with Faust.
18
United States v. Santana, 427 U.S. 38 (1976), is
similarly inapplicable. (Petition at 18). There, the court
considered whether a defendant could “thwart an otherwise
proper arrest” by entering her home. /d. at 42. The court
concluded that the “hot pursuit” doctrine allowed the police
to follow the suspect into her home and make the arrest. Jd.
at 42-43. Again, while the court addressed the possible
destruction of evidence as a basis for justifying the
warrantless entry, the court’s decision was based on the hot
pursuit exception to the requirement for a warrant to arrest a
person in their home. /d. The court did not address the
exigent circumstances exception to the search warrant
requirement, and Santana does not conflict with Faust.
Finally, Faust points to Welsh v. Wisconsin, 466 U.S.
740 (1984), as conflicting with the Wisconsin Supreme
Court’s opinion. (Petition at 18). There, this Court
determined that exigent circumstances did not justify the
warrantless entry into a suspected drunk driver’s home to
arrest him. Welsh, 466 U.S. at 753. Faust argues that, had
this Court wanted to “extend Schmerber to treat all drunk
driving cases as exigency cases, it could have done so” in
Welsh. (Petition at 18). However, like Santana, this case is
inapposite because it involves warrantless entry into a home
to arrest, not warrantless blood draws of suspected drunk
drivers.
Additionally, Faust is wrong when he claims that
applying Faust’s rationale would have allowed the police in
Welsh to enter the home and take a blood sample from the
defendant. Under both Bohling and Schmerber, the person
whose blood is drawn must first be validly arrested. See
Schmerber, 384 U.S. at 768-70; Bohling, 494 N.W.2d at 400.
The issue in Welsh was the validity of the arrest, not a blood
draw. Because the defendant in Welsh had not been properly
Hae eee te. | eet
19
arrested, the police could not have taken a warrantless blood
sample from him.
In arguing that the Wisconsin Supreme Court’s
opinion conflicts with the aforementioned cases, Faust
maintains that the court greatly expanded the exigent
circumstances doctrine so that, in Wisconsin, “all searches of
blood [are] exigencies.” (Petition at 17). This is incorrect.
The Wisconsin Supreme Court properly applied this Court’s
ruling in Schmerber to conclude that the rapid dissipation of
alcohol in the bloodstream obviated the need to obtain a
warrant to perform the blood draw from Faust. Faust has not
demonstrated that the Wisconsin Supreme Court’s decision
is incongruent with Schmerber.
_ Similarly, this Court should not grant certiorari on the
grounds that Wisconsin Supreme Court’s decision presents
an important federal question that this Court needs to
address. (Petition at 15-17). Sup. Ct. R. 10(c). The court
did not, as Faust maintains, give police “unfettered discretion
to conduct an infinite number of searches based upon the
mere assertion that they believe the nature of the evidence
sought constitutes an exigency.” (Petition at 15). Instead,
the court properly recognized that, under Schmerber, the
police are not required to obtain a warrant to perform
chemical testing of drunk driving arrestees due to the rapid
dissipation of alcohol from their blood streams. Faust,
682 N.W.2d 371, § 12; Pet-Ap. at 7a-8a (citing Schmerber,
384 U.S. at 770). As the court also noted, any such test must
also be reasonable; and it is hardly obvious, as Faust
suggests, that 20 such tests would meet this requirement
under the court’s decision. (Petition at 16). The Wisconsin
Supreme Court’s decision is a proper application of
Schmerber, and there is no need for this Court to accept
review.
20
Faust’s doomsday scenarios really concern the
reasonableness of the warrantless tests, not the circumstances
that obviate the need for a warrant. Faust, however,
conceded that his test was reasonable in the state court, and
he should not be allowed to raise the issue here. It remains
to be seen under what circumstances multiple chemical tests
would be unreasonable. This however, is a subject for future
litigation and need not be resolved by this Court at this time.
CONCLUSION
Based upon the foregoing reasons, Respondent
respectfully requests that this court deny Faust’s petition for
a writ of certiorari.
Respectfully submitted,
PEGGY A. LAUTENSCHLAGER
Attorney General
AARON R. O'NEIL
Assistant Attorney General
DAVID J. BECKER*
Assistant Attorney General
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-7447
*Counsel of Record -
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.