NOTICE

Decision filed 02/18/16. The text of this decision may be NO. 5-15-0048 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 11-CF-724 ) STEPHEN HARRISON, ) Honorable ) Jan V. Fiss, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

PRESIDING JUSTICE SCHWARM delivered the judgment of the court, with opinion. Justices Welch and Goldenhersh concurred in the judgment and opinion.

OPINION

¶1 After refusing to submit to a breath test following his arrest for driving under the

influence of alcohol (DUI), the defendant, Stephen Harrison, was taken to a hospital

where samples of his blood were drawn without a warrant or his consent. Testing of the

samples revealed that more than two hours after the defendant had been driving, his

blood-alcohol concentration (BAC) was over twice the legal limit of 0.08. The defendant

later moved to suppress the test results, arguing that the blood samples had been illegally

obtained. Following the trial court's denial of the defendant's motion, the cause

1 proceeded to a jury trial where the defendant was convicted on two counts of aggravated

DUI.

¶2 On appeal, the defendant contends that the trial court erred in denying his motion

to suppress. In support of this contention, the defendant relies on Missouri v. McNeely,

,

(2013), and People v. Armer,

,

both of which stand for the propositions that the natural dissipation of alcohol in the

bloodstream is not a per se exigent circumstance justifying a warrantless, nonconsensual

draw of a DUI suspect's blood and that the reasonableness of such a draw must be

decided on a case-by-case basis by considering the totality of the circumstances. Citing

Davis v. United States,

,

(2011), and People v. Jones,

(2005), the State counters that because prior to McNeely and Armer, a

warrantless, nonconsensual draw of a DUI suspect's blood was authorized by binding

precedent interpreting section 11-501.2(c)(2) of the Illinois Vehicle Code (section 11-

501.2(c)(2)) (625 ILCS 5/11-501.2(c)(2) (West 2010)), the trial court properly denied the

defendant's motion on the basis that the good-faith exception to the exclusionary rule was

applicable under the circumstances. For the reasons that follow, we agree with the State

and affirm the trial court's judgment.

¶3 BACKGROUND

¶4 On March 3, 2011, at approximately 9:30 p.m., the defendant was driving his

pickup truck home from a bar when he "T-boned" an oncoming motorcycle while making

a left turn across Lebanon Avenue at Center Plaza Drive in Belleville. The motorcycle's

rider, Jason Wilson, sustained a massive injury to his left leg as a result and was 2 transported by ambulance to St. Elizabeth's Hospital in Belleville. A witness to the

accident described Wilson's leg as "pretty much amputated" at the scene, and Wilson later

recalled that he had panicked when he "thought [he] saw bone sticking out of it and blood

squirting out." Wilson was ultimately airlifted to St. Louis University Hospital, where

his left leg was surgically amputated at the knee.

¶5 Officer Anthony Branchini of the Belleville police department responded to the

scene of the accident shortly after it occurred. Branchini spoke with the defendant and

two independent eyewitnesses but was unable to talk to Wilson "because of the condition

that he was in." While speaking with the defendant, Branchini noticed that the defendant

had red, glossy eyes and an odor of alcohol emanating from his person. Acknowledging

that he had struck Wilson with his truck, the defendant told Branchini that he had just left

a bar in Shiloh where he had consumed "two beers." Branchini subsequently

administered various field sobriety tests, all of which the defendant failed. Believing that

the defendant had been operating his vehicle under the influence of alcohol, Branchini

placed him under arrest for DUI.

¶6 After the defendant refused to submit to a breath test at the Belleville police

department, Branchini transported him to St. Elizabeth's Hospital so that samples of his

blood could be drawn for toxicological testing. At trial, Branchini indicated that he had

obtained the blood samples "[d]ue to the severity of [Wilson's] injuries" and that there

were "special laws" that allowed him to do so.

¶7 At 11:45 p.m., a nurse at St. Elizabeth's drew two samples of the defendant's blood

at Branchini's request. Although the defendant did not agree to the procedure, he was 3 apparently cooperative while the samples were collected. A forensic toxicologist later

analyzed the samples, and the analysis revealed that the concentration of ethanol in the

blood was 0.161 grams per deciliter.

¶8 On October 29, 2014, the defendant filed a motion to suppress the test results

derived from the blood draw. Citing Armer, the defendant maintained that the blood

draw was a nonconsensual, warrantless search and seizure and that "there were no

exigent circumstances which would excuse the need for a warrant."

¶9 At the hearing on the defendant's motion to suppress, the State argued that Armer

was distinguishable from the present case because it had not involved an accident

resulting in death or personal injury to another. Citing Jones, the State further argued

that Branchini had acted in good-faith reliance on established precedent holding that

warrantless, nonconsensual blood draws were permissible pursuant to section 11-

501.2(c)(2). The State maintained that under Davis, the exclusionary rule was therefore

inapplicable.

¶ 10 On November 5, 2014, the trial court entered a written order denying the

defendant's motion to suppress. Citing Davis and Jones, the trial court held that

Branchini had properly complied with section 11-501.2(c)(2) and that "[e]ven if [section

11-501.2(c)(2)] is deemed unconstitutional," Branchini had acted in good-faith reliance

on prior precedent upholding its validity.

¶ 11 On November 18, 2014, a jury found the defendant guilty on two counts of

aggravated DUI (625 ILCS 5/11-501(a)(1), (d)(1)(C) (West 2010)). Specifically, the jury

determined that on March 3, 2011, the defendant had driven a motor vehicle while his 4 BAC was 0.08 or more, that the defendant had been involved in a vehicular accident

resulting in great bodily harm and permanent disability to another person, and that the

defendant's driving with a BAC of 0.08 or more had been the proximate cause of the

great bodily harm and permanent disability to the other person. See Illinois Pattern Jury

Instructions, Criminal, No. 23.48 (4th ed. 2000).

¶ 12 On January 12, 2015, after denying the defendant's motion for a new trial, the trial

court merged the defendant's convictions and sentenced him to serve two years in the

Illinois Department of Corrections. On January 29, 2015, the defendant filed his timely

notice of appeal.

¶ 13 DISCUSSION

¶ 14 At the outset, we note that the defendant does not argue that Branchini acted

without probable cause to arrest him for DUI or that the means employed to obtain his

blood were unreasonable. Additionally, the State concedes that the defendant's blood

was drawn without his express or implied consent and that given the instructions that the

jury received, he would not have been convicted in the absence of the evidence that he

had driven while his BAC was 0.08 or more. The only issue we must decide is whether

the trial court properly determined that Branchini had acted in good-faith reliance on

binding precedent when he obtained the samples of the defendant's blood. This is a

purely legal question that we review de novo. People v. Turnage,

(1994).

¶ 15 "The fourth amendment of the United States Constitution, applicable to the states

through the due process clause of the fourteenth amendment, guarantees to all citizens the 5 right to be free from unreasonable searches and seizures." In re Lakisha M.,

(2008). The fourth amendment thus protects an individual's personal privacy

and dignity from unwarranted intrusions by the State. Winston v. Lee,

(1985). To that end, evidence obtained in violation of fourth amendment principles is

susceptible to suppression under the judicially created "exclusionary rule." Davis,

,

. Because the "sole purpose" of the exclusionary rule is to

deter future violations of the fourth amendment, however, its applicability requires some

degree of police culpability, and "the deterrence benefits of suppression must outweigh

its heavy costs."

at ___,

. As a result, there is a well-recognized

"good-faith exception" to the rule.

¶ 16 In Davis, the United States Supreme Court applied these principles when holding

that "[e]vidence obtained during a search conducted in reasonable reliance on binding

precedent is not subject to the exclusionary rule."

at ___,

. In

People v. LeFlore,

, our supreme court adopted the reasoning in Davis

and held the same.

¶ 17 "Reasonableness under the fourth amendment generally requires a warrant

supported by probable cause." People v. Flowers,

(1997); see also

Kentucky v. King,

(2011). Nevertheless, "the warrant requirement is

subject to certain reasonable exceptions." King,

. One such exception is

the "exigent-circumstances exception" (Welsh v. Wisconsin,

(1984)),

which "applies when the exigencies of the situation make the needs of law enforcement

so compelling that [a] warrantless search is objectively reasonable" (internal quotation 6 marks omitted) (King,

). Such exigencies include the need to render

emergency assistance, the "hot pursuit of a fleeing suspect," and the need to prevent the

imminent destruction of evidence. King,

.

¶ 18 In Schmerber v. California,

(1966), after a DUI suspect

was arrested while receiving treatment at a hospital for injuries sustained in an accident

involving an automobile that he had apparently been driving two hours earlier, a sample

of his blood was drawn at the direction of a law enforcement officer without his consent

or a warrant. When later concluding that the suspect had not been subjected to an

unreasonable search and seizure, the United States Supreme Court held that although the

blood draw implicated the fourth amendment's warrant requirement, under the "special

facts" of the case, the officer's attempt to secure evidence of the suspect's BAC "was an

appropriate incident to [the suspect's] arrest."

. The Court explained:

"The 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 [citation].

We are told that the percentage of alcohol in the blood begins to diminish shortly

after drinking stops, as the body functions to eliminate it from the system.

Particularly in a case such as this, where time had to be taken to bring the accused

to a hospital and to investigate the scene of the accident, there was no time to seek

out a magistrate and secure a warrant." (Internal quotation marks omitted.)

The Court thus determined that the imminent destruction of evidence was an exigent

circumstance that justified the warrantless blood draw under the circumstances.

at 7 772; see also McNeely,

,

. The Court further noted that

"there was plainly probable cause" to arrest the suspect for DUI and that his blood had

been taken in a reasonable manner, i.e., "by a physician in a hospital environment

according to accepted medical practices." Schmerber,

.

¶ 19 As the Supreme Court of Wisconsin later observed:

"Schmerber can 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." State v. Bohling,

(Wis. 1993), abrogated by

McNeely,

,

.

See also State v. Johnson,

(Iowa 2008); State v. Shriner,

(Minn. 2008), abrogated by McNeely,

,

.

As a result, "[i]n the wake of Schmerber, jurisdictions split 'on the question whether the

natural 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.' " State v. Foster,

,

,

(quoting McNeely,

,

).

The supreme courts of Wisconsin and Minnesota, for instance, explicitly held that the 8 rapid dissipation of alcohol was a per se exigency (see State v. Netland,

(Minn. 2009); Shriner,

; State v. Faust,

,

,

; Bohling,

), while the supreme

courts in other states, such as Missouri and Iowa, disagreed and declined to interpret

Schmerber so broadly (see State v. Harris,

(Iowa 2009) (per

curiam); Johnson,

; State v. McNeely,

(Mo.

2012) (en banc) (per curiam)).

¶ 20 In McNeely, the United States Supreme Court resolved the "split of authority on

the question whether the natural dissipation of alcohol in the bloodstream establishes a

per se exigency" when it revisited Schmerber and held that "in drunk-driving

investigations, the natural dissipation of alcohol in the bloodstream does not constitute an

exigency in every case sufficient to justify conducting a blood test without a warrant."

McNeely,

, ___,

. Noting, among other things,

that the "per se rule" ignored that technological advances since 1966 now "allow for the

more expeditious processing of warrant applications, particularly in contexts like drunk-

driving investigations where the evidence offered to establish probable cause is simple,"

the Court explained that "[w]hether a warrantless blood test of a drunk-driving suspect is

reasonable must be determined case by case based on the totality of the circumstances"

and that the metabolization of alcohol in the bloodstream is but one factor to consider.

at ___, ___,

.

¶ 21 The Supreme Court issued its decision in McNeely on April 17, 2013.

at ___,

. In Armer, we recognized that McNeely is now the law of the land. 9 See Armer,

. Our research indicates that years before

the jurisdictional split that McNeely resolved was recognized in terms of explicitly

accepting or rejecting the notion that Schmerber had established a "per se rule," the

supreme courts of several states, including Illinois, had effectively adopted such a rule by

considering Schmerber in conjunction with Cupp v. Murphy,

(1973), a

case that specifically referenced Schmerber when discussing the need to preserve "highly

evanescent evidence." See State v. Cocio,

(Ariz. 1985) (en banc);

People v. Sutherland,

(Colo. 1984) (en banc); Strong v. State,

(Ga. 1973) (per curiam); People v. Todd,

(1975);

State v. Oevering,

(Minn. 1978); State v. Campbell,

(Mont. 1980); State v. Hollingsworth,

(N.C. Ct. App. 1985);

State v. Milligan,

(Or. 1988) (en banc); see also McNeely,

,

(Thomas, J., dissenting) (defending the per se rule by

analogizing Schmerber and Cupp).

¶ 22 In Todd, in consolidated cases, our supreme court affirmed the suppression of

BAC test results derived from warrantless, nonconsensual blood draws taken from

hospitalized DUI suspects at the direction of law enforcement. Todd,

.

The court affirmed on the basis that under the then-governing statute, the results were

inadmissible because the suspects had not consented to the taking of their blood.

Noting the inherent dangers posed by drunk drivers, the court described its holding as "an

unfortunate result and a cruel anomaly," explaining:

10 "Since Schmerber v. California (1966),

,

,

, it is clear that a compulsory blood test does not violate any constitutional

rights of an individual merely because he objected to such tests. Further, the

absence of a formal arrest may not taint a limited search, given probable cause and

evidence that may dissipate. (See Cupp v. Murphy (1973),

,

,

.)" Id. at 544-45.

¶ 23 In 1982, the legislature eliminated the statutory consent requirement that

precluded the supreme court from reversing the lower courts' judgments in Todd and

"then eliminated altogether the right to refuse chemical testing in 1986." Jones, 214 Ill.

2d at 196-98. Thereafter, implicitly applying the per se rule rejected in McNeely, the

appellate court consistently upheld the constitutional validity of warrantless,

nonconsensual blood draws such as the one administered in the present case. See People

v. Jones,

(2003), rev'd on other grounds,

(2005); People v. Ruppel,

(1999); People v. Giere,

(1989); see also Seiser v. City of Chicago,

(7th

Cir. 2014); People v. Carey,

(2008) (and cases cited therein).

Moreover, in Jones, when stating that in Todd, it had "endorsed the United States

Supreme Court's holding in Schmerber," our supreme court characterized Schmerber's

holding as, "[T]he taking of a blood sample without the defendant's consent or a search

warrant was a 'reasonable' search under the fourth amendment where there was probable

cause to believe the defendant was intoxicated, and the delay caused by obtaining a

search warrant might have resulted in loss of evidence of the defendant's intoxication, 11 given the natural dissipation of the alcohol in the defendant's blood." Jones, 214 Ill. 2d at

195-96. Thus, although our supreme court has never specifically stated that the natural

dissipation of alcohol in the bloodstream is a per se exigency justifying the warrantless,

nonconsensual taking of a DUI suspect's blood, it tacitly held as much in Todd and Jones.

More important for the purposes of the present appeal, however, is the Jones court's

treatment of section 11-501.2(c)(2), which went into effect in 1995 (see Pub. Act 88-632

(eff. Jan. 1, 1995)) and provides:

"Notwithstanding any ability to refuse under this Code to submit to these tests or

any ability to revoke the implied consent to these tests, if a law enforcement

officer has probable cause to believe that a motor vehicle driven by or in actual

physical control of a person under the influence of alcohol, other drug or drugs, or

intoxicating compound or compounds, or any combination thereof has caused the

death or personal injury to another, that person shall submit, upon the request of a

law enforcement officer, to a chemical test or tests of his or her blood, breath or

urine for the purpose of determining the alcohol content thereof or the presence of

any other drug or combination of both." 625 ILCS 5/11-501.2(c)(2) (West 2010).

¶ 24 In Jones, the defendant was arrested for DUI after his involvement in an

automobile accident that had not resulted in a death or personal injury to another person.

Jones, 214 Ill. 2d at 189-90. After the accident, the defendant was transported to a

hospital where "hospital personnel administered blood and urine tests at the request of the

arresting officer, but without [the] defendant's consent." Id. The appellate court

subsequently affirmed the trial court's suppression of the test results, reasoning that 12 "because section 11-501.2(c)(2) explicitly authorizes nonconsensual chemical tests in

situations involving the death or personal injury of another, it does not authorize them in

situations not involving the death or personal injury of another." Id. at 192. The supreme

court subsequently reversed the appellate court's judgment, holding that because prior to

the enactment of section 11-501.2(c)(2) "nonconsensual chemical testing of a DUI

arrestee was permissible in all DUI situations," interpreting section 11-501.2(c)(2) as

"creating a right to refuse chemical testing" would "alter[ ] the settled law of this state."

Id. at 195, 199-200. The Jones court cautioned, however:

"For purposes of clarification, our holding in this case does not give law

enforcement officers unbridled authority to order and conduct chemical tests. We

do not suggest that a DUI arrestee's lack of a right to refuse chemical testing under

section 11-501.2(c)(2) permits law enforcement officers to use physical force in

obtaining blood, urine, and breath samples." Id. at 201.

¶ 25 Turning to the present case, when Branchini arrested the defendant in March 2011,

McNeely had yet to be decided, and Jones was binding precedent holding that not only

did section 11-501.2(c)(2) "clearly" allow for warrantless, nonconsensual blood draws in

DUI cases involving the death or personal injury to another, it allowed for such draws in

all DUI cases. Id. at 194, 202. Thus, Branchini could have reasonably relied on Jones as

binding precedent authorizing the taking of the defendant's blood pursuant to section 11-

501.2(c)(2). Accordingly, pursuant to Davis, the trial court properly determined that the

good-faith exception to the exclusionary rule was applicable under the circumstances.

We note that other jurisdictions that had treated the rapid dissipation of alcohol as a per 13 se exigency justifying the warrantless drawing of a DUI suspect's blood have similarly

applied Davis in the wake of McNeely. See People v. Rossetti,

(Cal. Ct. App. 2014); State v. Lindquist,

(Minn. 2015); State v. Foster,

,

,

.

¶ 26 On appeal, the defendant argues that for the State to invoke the good-faith

exception recognized in Davis, it must demonstrate what Branchini actually "knew about

the state of the law on blood draws for DUIs." However, a police officer's subjective

awareness of the law is "irrelevant" under Davis. United States v. Martin,

(7th Cir. 2015). Rather, the pertinent inquiry is whether the conduct in question was

performed in "objectively reasonable reliance" on binding precedent. Davis,

,

. "Thus, in determining whether the good-faith exception

applies, a court must ask 'the objectively ascertainable question whether a reasonably

well trained officer would have known that the search was illegal in light of all of the

circumstances.' " LeFlore,

(quoting Herring v. United States,

(2009)).

¶ 27 Here, as indicated, Branchini could have objectively relied on Jones as binding

precedent authorizing the taking of the defendant's blood pursuant to section 11-

501.2(c)(2), even in the absence of Wilson's injuries. As noted, the only restriction Jones

placed on obtaining a DUI suspect's blood was that "physical force" not be used. Jones,

214 Ill. 2d at 201. Moreover, Branchini indicated that he had requested the samples of

the defendant's blood "[d]ue to the severity of [Wilson's] injuries" and that there were

"special laws" that allowed for such blood draws. Thus, even assuming that Branchini's 14 subjective knowledge of the law was a relevant consideration, he was aware that he had

the legal authority to obtain a sample of the defendant's blood under the circumstances,

even though he might not have been particularly aware of our supreme court's decision in

Jones.

¶ 28 On appeal, the State notes that section 11-501.2(c)(2) is "still valid today," and at

the hearing on the defendant's motion to suppress, the State suggested that as written, i.e.,

as applicable only in situations involving the death or personal injury to another, section

11-501.2(c)(2) may still be constitutional in light of McNeely. But see State v. Stavish,

(Minn. 2015) (concluding that under McNeely's totality-of-the-

circumstances approach, the loss of life "does not reduce the quantum of evidence the

State must present to prove exigent circumstances"). We need not address whether

section 11-501.2(c)(2) is facially constitutional, however. "If the case may be decided on

other grounds, the constitutionality of a statute should not be addressed." In re Barbara

H.,

(1998). Accordingly, for the purposes of the present appeal, we

presume that section 11-501.2(c)(2) is constitutional as written and that the defendant's

blood was drawn solely on the basis of the Jones court's interpretation of the statute.

Additionally, while we recognize that McNeely effectively abrogated Jones to the extent

that Jones held that the natural dissipation of alcohol in the bloodstream is a per se

exigency justifying the warrantless, nonconsensual taking of a DUI suspect's blood, "[i]t

is well settled that when our supreme court has declared law on any point, only it can

modify or overrule its previous decisions." Rosewood Care Center, Inc. v. Caterpillar,

Inc.,

(2006). We also note that the trial court's application of 15 Davis was not precluded by our supreme court's decision in People v. Krueger,

(1996), wherein the statute at issue had not previously been subjected to judicial

scrutiny. See LeFlore,

. Finally, we note that the State did not

advance a Davis argument in Armer.

¶ 29 CONCLUSION

¶ 30 For the foregoing reasons, the trial court's denial of the defendant's motion to

suppress is hereby affirmed. As the court aptly noted, even if section 11-501.2(c)(2) is

deemed unconstitutional in light of McNeely, Branchini had acted in good-faith reliance

on prior precedent upholding its validity.

¶ 31 Affirmed.

16

NO. 5-15-0048 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 11-CF-724 ) STEPHEN HARRISON, ) Honorable ) Jan V. Fiss, Defendant-Appellant. ) Judge, presiding. _______________________________________________________________________

Opinion Filed: February 18, 2016 ________________________________________________________________________

Justices: Honorable S. Gene Schwarm, P.J.

Honorable Thomas M. Welch, J., and Honorable Richard P. Goldenhersh, J., Concur ________________________________________________________________________

Attorney Paul M. Storment, III, Storment Law Offices, 424 South High Street, for Belleville, IL 62220 Appellant ________________________________________________________________________

Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County for Courthouse, 10 Public Square, Belleville, IL 62220, Patrick Delfino, Appellee Director, Stephen E. Norris, Deputy Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ________________________________________________________________________