2016 WI 10

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP1267CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Andy J. Parisi,

 Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

(Reported at 360 Wis. 2d 491, 864 N.W.2d 121)

(Ct. App. 2015 – Unpublished)

OPINION FILED: February 24, 2016

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 5, 2015

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Winnebago

JUDGE: Daniel J. Bissett

JUSTICES:

CONCURRED:

DISSENTED: A.W. BRADLEY, ABRAHAMSON, J.J., dissent. 

(Opinion Filed)

NOT PARTICIPATING: 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

by Tristan S. Breedlove, assistant state public defender, and 

oral argument by Tristan S. Breedlove.

For the plaintiff-respondent, the cause was argued by 

Thomas J. Balistreri, assistant attorney general, with whom on 

the brief was Brad D. Schimel, attorney general. 
2016 WI 10

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP1267-CR 

(L.C. No. 2013CF242)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Andy J. Parisi,

 Defendant-Appellant-Petitioner.

FILED

FEB 24, 2016

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an 

unpublished decision of the court of appeals, State v. Parisi, 

No. 2014AP1267-CR, unpublished slip op. (Wis. Ct. App. Jan. 21, 

2015) (per curiam), which affirmed the Winnebago County circuit 

court's1 judgment of conviction and denial of defendant Andy J. 

Parisi's ("Parisi") motion to suppress evidence of heroin 

possession.

¶2 The circuit court below upheld a warrantless draw of 

Parisi's blood as justified under the exigent circumstances 

 

1 The Honorable Daniel J. Bissett presided.
No. 2014AP1267-CR

2

exception to the warrant requirement of the Fourth Amendment to 

the United States Constitution and Article I, § 11 of the 

Wisconsin Constitution. The court of appeals below affirmed on 

different grounds. Relying on our decisions in State v. Foster, 

2014 WI 131, 360 Wis. 2d 12, 856 N.W.2d 847, and State v. 

Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834, the court 

of appeals determined that the good faith exception to the 

exclusionary rule applied to prevent suppression of the drugrelated evidence in this case.

¶3 We conclude that the blood draw in this case was 

constitutional because it was supported by exigent 

circumstances. We therefore need not address whether the good 

faith exception to the exclusionary rule also applies in this 

case. See State v. Tullberg, 2014 WI 134, ¶¶4-5, 359 

Wis. 2d 421, 857 N.W.2d 120 (declining to address State's 

argument that the good faith exception to the exclusionary rule 

justified warrantless blood draw where blood draw had been found 

constitutional under exigent circumstances doctrine).

I. FACTUAL BACKGROUND

¶4 On October 16, 2012, at 12:38 a.m., several officers 

were dispatched to an address in Winnebago County, Wisconsin, to 

respond to a report of a male subject who was possibly not 

breathing.2 One of the officers who responded to the call was 

Officer Kaosinu Moua ("Officer Moua") of the Oshkosh Police 

 

2 The facts in this section are taken from testimony 

provided at the July 12, 2013 suppression hearing.
No. 2014AP1267-CR

3

Department, who arrived at the residence "within five to ten 

minutes or so" after dispatch along with "a couple other 

officers."

¶5 Officer Moua testified that when he arrived at the 

residence, "one of the roommates[,] I believe one of the girls 

was outside waving us--trying to get us directed to the proper 

residence." Officer Moua entered the residence. During the 

medical call, police officers, members of the Oshkosh Fire 

Department, and the four roommates who lived at the residence in 

question were at the residence.

¶6 Inside, a male individual was lying in the living room 

on the floor on his side. There was vomit on the floor and on 

the sofa. The individual was not immediately identified by 

Officer Moua because the individual "wasn't able to talk to" 

Moua or the other officers. Eventually, the individual was 

identified as Parisi. 

¶7 Members of the fire department were "checking for 

[Parisi's] vitals and making sure he was breathing." Officer 

Benjamin Fenhouse ("Officer Fenhouse"), who arrived at the 

residence at an unspecified time, was told that Narcan had been 

administered to Parisi. Officer Fenhouse testified that he had 

seen Narcan administered "between five and ten times" in the 

course of his employment, and that Narcan is "usually 

administered for people who have overdosed on heroin[,] and it 

reverses the effects and usually brings them back to a 
No. 2014AP1267-CR

4

responsive state pretty rapidly."3 According to Officer 

Fenhouse, the Narcan "work[ed]" when administered to Parisi.

¶8 Officer Moua spoke with two of the roommates, who said 

that they did not know why Parisi was ill because they had been 

asleep. The roommates explained that Parisi had come over 

between 9:00 p.m. and 9:30 p.m. to watch "the game." "After the 

game," Parisi told his friends "that he wanted to go to the gas 

station, get something to eat and drink, so he did walk to the 

gas station and walked back," alone. After midnight, and after 

the roommates had gone to sleep, one of the roommates went to 

get a drink of water and "could hear some[body] breathing hard 

or [somebody] having problems breathing." The roommate entered 

the living room and saw Parisi. 

¶9 There were a total of five to seven officers "working 

on [the] case" that evening.4 Because at least one of the 

 

3 Narcan is the trade or brand name of the narcotic 

antagonist naxolone. 2 Robert K. Ausman and Dean E. Snyder, 

Ausman & Snyder's Medical Library: Lawyers Edition § 3:45 

(1988). "Naxolone is a narcotic antagonist indicated for the 

complete or partial reversal of narcotic depression, including 

respiratory depression, induced by narcotics such 

as . . . heroin . . . . Naxolone is also indicated for the 

diagnosis of suspected acute narcotic overdosage." Id. 

4 Counsel for Parisi asked Officer Moua on cross-examination 

whether each of six specific officers had been present at the 

residence. Officer Moua confirmed that five out of the six 

named officers were present, but could not remember whether the 

sixth named officer had also been present. Officer Moua then 

volunteered that there had also been a sergeant present at the 

residence, bringing the potential number of officers at the 

residence to seven. Yet when counsel for Parisi then asked 

Officer Moua, in summary, if a total of "possibly five to six 

officers were involved" in the case, Officer Moua responded, 

(continued)
No. 2014AP1267-CR

5

officers had had "prior contact involving drugs with" Parisi, 

there was "suspicion" that drug use had been the cause of 

Parisi's condition.

¶10 A search of the upstairs was performed. The officers 

located, in a room separate from the room in which Parisi was 

found, "a bindle of what looked to be heroin wrapped in tinfoil, 

some cut ends, and [a] marijuana pipe." Officer Moua testified 

that Parisi did not live at the residence, but that Officer Moua 

had been told by the roommates that "everybody had access to 

[the] room [where the drug-related items were found]."

¶11 Officer Moua testified that the officers were at the 

apartment investigating "probably about an hour."5 At some point 

during the investigation, Parisi was taken to the hospital by 

ambulance. Some officers continued their investigation at the 

residence after Parisi's departure. Officer Fenhouse followed 

the ambulance to the hospital in order to "investigate a heroin 

overdose and obtain . . . an evidentiary test of [Parisi's] 

 

"Sure." Officer Fenhouse similarly testified that there had 

been between five and six officers involved in the medical call.

5 On direct examination Officer Moua testified that the 

officers were at the apartment "probably within the hour." On 

cross-examination counsel for Parisi asked:

Q: And when the State asked you how long you--

the officers were on scene, you said within an hour?

A: I said probably about an hour, sure.

Q: So maybe slightly less than an hour?

A: I couldn't even remember.
No. 2014AP1267-CR

6

blood." Officer Fenhouse estimated that he was at the residence

"like 20 minutes to a half hour" before leaving with the 

ambulance. Officer Moua also followed the ambulance.

¶12 At the hospital, according to Officer Fenhouse, 

"Parisi's medical condition was[,] I guess for lack of a better 

term[,] up in the air. [Hospital staff] were tending to him and 

then it seemed things were getting better and then it would 

deteriorate again." At some point in time, Officer Fenhouse 

asked for Parisi's consent to take a blood sample, but "did not 

get [it]." Officer Fenhouse asked a phlebotomist to draw a 

sample of Parisi's blood without Parisi's consent in order "[t]o 

analyze it for evidence of a crime . . . [specifically, for] 

evidence of heroin." When asked on direct examination whether 

"there [was] something beyond administration of Narcan that 

suggested" to Officer Fenhouse that Parisi might have used 

heroin, Officer Fenhouse responded:

I was on the scene for a period of time and then I 

went to [the hospital]. I was in contact with persons 

that were still on scene, mainly officers, who 

provided me information that there was evidence of 

drug use and that led the investigation in a way that 

it could be heroin overdose.

¶13 Officer Fenhouse filled out a form specifying, among 

other things, the time that Parisi's blood was drawn. The form 

originally read that Parisi's blood was taken at "1:55 a.m.," 

but that time was crossed out and the time "3:10" was written in 

its place. Next to "3:10" were initials belonging, apparently, 

to Officer Fenhouse and the phlebotomist. Officer Fenhouse 
No. 2014AP1267-CR

7

testified that according to his report, the time on the form was 

changed because 

[Parisi's] health deteriorated or there was something 

else happening inside the room where it didn't kind of 

go as planned. That was filled out and we were 

intending on drawing [Parisi's blood] at a certain 

time, however, based on the medical needs of 

Mr. Parisi, it was obtained at a later time. 

¶14 Officer Fenhouse testified that in his experience——

which consisted of the acquisition of "about 12" search 

warrants——it takes approximately two hours to obtain a search 

warrant. Officer Fenhouse did not attempt to obtain a search 

warrant prior to the blood draw. Later testing of Parisi's 

blood at the State Crime Lab "indicated the presence of opiates 

and morphine (a metabolite of heroin)."6

II. PROCEDURAL BACKGROUND

¶15 On March 25, 2013, the State filed a criminal 

complaint against Parisi, charging him with possession of 

narcotic drugs (heroin), second and subsequent offense, contrary 

to Wis. Stat. §§ 961.41(3g)(am), 939.50(3)(i), and 961.48(1)(b) 

(2013-14).7 On June 14, 2013, Parisi filed a motion to suppress 

the evidence of drug possession taken from the draw of Parisi's 

blood as unconstitutionally obtained without a warrant and 

without consent. 

 

6 This last fact was taken from the affidavit in support of 

the criminal complaint against Parisi. 

7 All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.
No. 2014AP1267-CR

8

¶16 On July 12, 2013, a hearing on Parisi's suppression 

motion was held in Winnebago County circuit court. The State 

argued that exigent circumstances justified the blood draw at 

issue because the rapid rate of heroin dissipation in the human 

body rendered obtaining a warrant infeasible. The State based 

its assertions in part on a scientific article that summarized 

various studies on the metabolism of heroin in the human body. 

See Elisabeth J. Rook et al., Pharmacokinetics and 

Pharmacokinetic Variability of Heroin and its Metabolites: 

Review of the Literature, 1 Current Clinical Pharmacology 109 

(2006) ("Rook article"). The article was admitted without 

objection from the defense.8

¶17 The article defines heroin as "a semi-synthetic 

morphine derivative." Id. at 109. Before the circuit court, 

the State cited the article to explain that heroin breaks down 

in human blood into 6-monoacetylmorphine, which breaks down 

further into morphine. The State offered the relevant 

timeframes for the metabolism of heroin, as set forth in the 

Rook article: "When heroin is used, the heroin that's actually 

in the blood lasts just basically a few minutes, and I don't 

recall the exact numbers . . . but it's in the neighborhood of 

 

8 The defense informed the circuit court, "I guess I would 

have no objection to the [c]ourt considering the scientific 

article because I certainly think there's been some peer review 

of that."
No. 2014AP1267-CR

9

five minutes.[9] . . . 6-monoacteylmorphine was detected in 

plasma for one to three hours." The State did not dispute that 

morphine was detectable in the blood for some time thereafter, 

but argued that unlike 6-monoacetylmorphine, morphine "can be 

created by a number of different substances. It could indicate 

somebody used heroin and it's been a number of hours or it could 

indicate something like they used morphine and there are other 

prescription drugs that break down into morphine as well."

¶18 Thus, "while the presence of morphine in someone's 

blood is relevant to whether they possessed heroin, it's 

certainly not conclusive evidence." The thrust of the State's 

argument, then, was that

if it's going to be more than that one to three-hour 

range that means that the State would be losing what 

could be necessary evidence in proving possession of 

heroin. And in this case . . . we don't know the 

exact time of use . . . . And it was approximately 

two and a half hours after the dispatch when the blood 

draw actually occurred.

The State concluded by arguing for a per se rule, maintaining 

that "in basically any case where we have heroin use, it's 

creating an exigency because of the short timeframe."

¶19 Parisi did not contest any of the scientific data set 

forth by the State. Nor did he contest Officer Fenhouse's 

testimony that obtaining a warrant required approximately two 

 

9 As the State clarified on appeal, the Rook article 

indicates a window of 10 to 40 minutes. Elisabeth J. Rook et 

al., Pharmacokinetics and Pharmacokinetic Variability of Heroin 

and its Metabolites: Review of the Literature, 1 Current 

Clinical Pharmacology 111 (2006).
No. 2014AP1267-CR

10

hours. Instead, he argued that a totality-of-the-circumstances 

analysis applied under Missouri v. McNeely, 569 U.S. ___, 133 S. 

Ct. 1552 (2013), and that, under the totality of the 

circumstances, no exigent circumstances justified the 

warrantless blood draw. In particular, Parisi argued: there was 

no evidence the officers knew the scientific evidence the State 

presented; evidence of heroin's metabolites in the blood could 

be coupled with corroborating evidence to show possession of 

heroin; there were multiple officers involved with the case, so 

at least one of them could have attempted to obtain a search 

warrant; and a search warrant could have been obtained while 

Parisi was in the process of being medically stabilized. 

¶20 The circuit court denied Parisi's motion, finding that 

the warrantless blood draw was constitutional because it was 

supported by exigent circumstances. With regard to the 

elimination of heroin from the human body, the court stated: 

The study that [the State] has included . . . does 

indicate generally that heroin does dissipate fairly 

quickly from the human body. I think it's safe to say 

that it dissipates quicker than that of alcohol and 

that the half-lives are such that the breakdown causes 

a fairly quick inability to detect the heroin in the 

blood.

However, the court refused to adopt a per se rule that the 

dissipation of heroin in the blood constitutes an exigent 

circumstance in all cases. The court instead used a totalityof-the-circumstances analysis, relying on Missouri v. McNeely. 

The court concluded: 
No. 2014AP1267-CR

11

In this case, it does appear that there [were] 

exigent circumstances that were present here in 

regards to the unknown time of intake of the 

substance, the delay that took place in trying to 

determine what the defendant may or may not have 

taken, and what his medical condition was, the delays 

that were involved in regards to the treatment of him 

at the hospital setting, the time that it would take 

for obtaining the warrant, the dissipation of the 

heroin within the human body, and the speed in which 

it does that[;] so I think those are all factors in 

this particular case. And when the [c]ourt does look 

at the totality of those factors, I do think that the 

officer was justified in not pursuing a warrant in 

this case.

¶21 On September 13, 2013, Parisi pled no contest to 

possession of narcotic drugs; the State agreed to dismissal of 

the second and subsequent offense enhancer. On November 25, 

2013, the court withheld sentence and placed Parisi on probation 

for 24 months. On May 23, 2014, Parisi filed a notice of 

appeal.

¶22 On January 21, 2015, the court of appeals affirmed the 

circuit court's judgment of conviction and denial of Parisi's 

suppression motion in an unpublished decision. See State v. 

Parisi, No. 2014AP1267-CR, unpublished slip op., ¶¶1, 12 (Wis. 

Ct. App. Jan. 21, 2015) (per curiam). The court of appeals 

upheld the search as constitutional under the good faith 

exception to the exclusionary rule. Id., ¶12. 

¶23 The court of appeals explained that on the date that 

Officer Fenhouse ordered the blood drawn from Parisi, State v. 

Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), abrogated by

Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013), "was 

the law of this state." Parisi, unpublished slip op., ¶9. 
No. 2014AP1267-CR

12

Bohling, the court of appeals reasoned, "held that the 

dissipation of alcohol in a person's bloodstream, alone, 

constituted an exigent circumstance justifying a warrantless 

blood draw." Id. Although Bohling was later abrogated by 

McNeely, the court of appeals cited two of our recent cases for 

the proposition that "the good faith exception precludes 

application of the exclusionary rule where police searched a 

suspect's blood without a warrant in objectively reasonable 

reliance on Bohling." Id., ¶11 (citing State v. Kennedy, 2014 

WI 132, 359 Wis. 2d 454, 856 N.W.2d 834; State v. Foster, 2014 

WI 131, 360 Wis. 2d 12, 856 N.W.2d 847).

¶24 Finding "no legal difference between drawing blood to 

test it for alcohol or controlled drugs," the court of appeals 

concluded that the challenged evidence in Parisi's case was 

"obtained in conformity with [Bohling]" and that Kennedy and 

Foster were "controlling precedent applicable to this case." 

Id., ¶¶11-12. "Thus, regardless of whether the warrantless 

blood draw of Parisi may or may not have been retroactively 

unlawful under new United States Supreme Court precedent, the 

good faith exception precludes application of the exclusionary 

rule to exclude the evidence obtained." Id., ¶12.

¶25 On February 19, 2015, Parisi filed a petition for 

review in this court. On June 12, 2015, we granted the 

petition. 

III. STANDARD OF REVIEW

¶26 "Our review of an order granting or denying a motion 

to suppress evidence presents a question of constitutional 
No. 2014AP1267-CR

13

fact." Tullberg, 359 Wis. 2d 421, ¶27 (quoting State v. 

Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463). 

"When presented with a question of constitutional fact, this 

court engages in a two-step inquiry." Id. (quoting Robinson, 

327 Wis. 2d 421, ¶22). "We accept the circuit court's findings 

of historical fact unless they are clearly erroneous. We review 

the application of constitutional principles to those historical 

facts de novo." Foster, 360 Wis. 2d 12, ¶27 (citations 

omitted). 

¶27 "We apply this two-step inquiry when determining 

whether exigent circumstances justified a warrantless search." 

Tullberg, 359 Wis. 2d 421, ¶28.

IV. ANALYSIS

¶28 The Fourth Amendment to the United States Constitution 

and Article I, § 11 of the Wisconsin Constitution prohibit 

"unreasonable searches and seizures." U.S. Const. amend. IV; 

Wis. Const. art. 1, § 11.10 When the police draw a sample of a 

person's blood in order to test it for evidence of a crime, a 

search under the Fourth Amendment has occurred. See Tullberg, 

359 Wis. 2d 421, ¶31; State v. Faust, 2004 WI 99, ¶10, 274 

Wis. 2d 183, 682 N.W.2d 371. "[W]arrantless searches are per se 

unreasonable unless they fall within a well-recognized exception 

to the warrant requirement." Foster, 360 Wis. 2d 12, ¶32. 

 

10 "[T]his court interprets [these] two constitutional 

provisions in concert." State v. Krajewski, 2002 WI 97, ¶18 

n.9, 255 Wis. 2d 98, 648 N.W.2d 385 (citations omitted).
No. 2014AP1267-CR

14

¶29 The State argues, and the circuit court below agreed, 

that the warrantless search in this case was justified under the 

exigent circumstances exception to the warrant requirement. 

This exception "applies when the exigencies of the situation 

make the needs of law enforcement so compelling that a 

warrantless search is objectively reasonable under the Fourth 

Amendment." Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 

1558 (2013) (citation omitted). 

¶30 Application of the exigent circumstances exception 

requires probable cause and exigent circumstances. See, e.g., 

State v. Hughes, 2000 WI 24, ¶¶17-18, 233 Wis. 2d 280, 607 

N.W.2d 621 (citations omitted). See generally 44 Geo. L.J. Ann. 

Rev. Crim. Proc. 95 (2015) (citations omitted). The burden is 

on the State to establish both. Hughes, 233 Wis. 2d 280, ¶17; 

State v. Smith, 131 Wis. 2d 220, 228, 388 N.W.2d 601 (1986), 

abrogated on other grounds by State v. Felix, 2012 WI 36, 339 

Wis. 2d 670, 811 N.W.2d 775. In analogous cases involving 

warrantless blood draws of suspected drunken drivers, we 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. See, e.g., Tullberg, 359 Wis. 2d 421, ¶31. 

There is no reason these two concerns should lose their 

relevancy in scenarios not involving drunk driving, given the 

familiar refrain that "[t]he touchstone of the Fourth Amendment 

is reasonableness." Faust, 274 Wis. 2d 183, ¶32 (quoting 

Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Cf. State v. 

Payano-Roman, 2006 WI 47, ¶38, 290 Wis. 2d 380, 714 N.W.2d 548 
No. 2014AP1267-CR

15

("The Fourth Amendment neither forbids nor permits all bodily 

intrusions. Rather, the Amendment's function is to constrain 

against intrusions 'which are not justified in the 

circumstances, or which are made in an improper manner.'" 

(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).

¶31 In his petition to this court, however, Parisi does 

not allege that his blood was drawn in an unreasonable manner or 

that he offered a reasonable objection to the blood draw. Nor 

does he argue that the State lacked probable cause to conduct 

the search in question. Parisi instead contends that exigent 

circumstances did not support the drawing of his blood. Cf.

Foster, 360 Wis. 2d 12, ¶43 n.12 ("Aside from exigency, [the 

defendant] does not contest that the four requirements we set 

forth in Bohling for conducting a lawful search and seizure of a 

person's blood incident to arrest were satisfied.").11

 

11 In any event, we would conclude that such requirements 

are met in this case. First, Parisi's blood was drawn in a 

reasonable manner. Blood tests "are a commonplace in these days 

of periodic physical examination and experience with them 

teaches that the quantity of blood extracted is minimal, and 

that for most people the procedure involves virtually no risk, 

trauma, or pain." Schmerber v. California, 384 U.S. 757, 771 

(1966) (footnote omitted). Further, the draw was conducted in a 

hospital by a phlebotomist. See id. ("[T]he record shows that 

the test was performed in a reasonable manner. Petitioner's 

blood was taken by a physician in a hospital environment 

according to accepted medical practices."). 

Second, there is no evidence in the record that Parisi 

reasonably objected to the blood draw, such as "on grounds of 

fear, concern for health, or religious scruple." Id.

(continued)
No. 2014AP1267-CR

16

¶32 Although "[a] variety of circumstances may give rise 

to an exigency sufficient to justify a warrantless search," 

McNeely, 133 S. Ct. at 1558, one "well-recognized exigent 

circumstance is the threat that evidence will be lost or 

destroyed if time is taken to obtain a warrant." State v. 

Bohling, 173 Wis. 2d 529, 537-38, 494 N.W.2d 399 (1993) 

(citation omitted). 

¶33 Consequently, the State argues that, based on the 

limited knowledge possessed by the officers at the time, there 

was no time for police to obtain a warrant before performing a 

draw of Parisi's blood because Parisi's body was rapidly 

metabolizing any heroin he may have taken and because the "best 

evidence of heroin use" would therefore have been gone before a 

warrant was secured. 

¶34 In response, Parisi presents three challenges to the 

circuit court's determination that exigent circumstances existed 

 

Third, there was "a 'fair probability' that contraband or 

evidence of a crime [would] be found in" Parisi's blood. State 

v. Tullberg, 2014 WI 134, ¶33, 359 Wis. 2d 421, 857 N.W.2d 120; 

State v. Hughes, 2000 WI 24, ¶21, 233 Wis. 2d 280, 607 

N.W.2d 621. One of the roommates found Parisi having difficulty 

breathing, and the police, responding to the medical call, found 

Parisi on the floor and surrounded by vomit. Officer Fenhouse 

testified that Parisi reacted positively to the administration 

of Narcan, a drug which Officer Fenhouse knew was used to 

counteract the effects of heroin overdose. While at the 

hospital, Officer Fenhouse was told by officers still at the 

residence that "there was evidence of drug use." Police at the 

residence in fact uncovered evidence of drug use. "[U]nder the 

totality of the circumstances," Tullberg, 359 Wis. 2d 421, ¶34,

Officer Fenhouse had probable cause to believe that Parisi's 

blood contained evidence that Parisi had used heroin.
No. 2014AP1267-CR

17

in this case: (1) evidence of heroin use remains detectable in 

the human body for "many hours, or even days"; (2) the officers 

could have, but did not attempt to obtain a warrant before 

conducting the blood draw at issue; and (3) because this is not 

a drunk driving case, Parisi's Fourth Amendment protections were 

not "relaxed." 

¶35 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." Smith, 131 Wis. 2d

at 230, abrogated on other grounds by Felix, 339 Wis. 2d 670; 

see also Bohling, 173 Wis. 2d at 538 (citation omitted); 

Schmerber v. California, 384 U.S. 757, 770 (1966) (citing 

Preston v. United States, 376 U.S. 364, 367 (1964)).

A. Whether Exigent Circumstances Existed

¶36 The State has sufficiently established that an officer 

in this case, under the circumstances known to him or her at the 

time, might reasonably have believed that the delay necessary to 

obtain a warrant would have risked destruction of evidence. 

¶37 The officers in this case were confronted with a 

medical emergency in which there were several unknown facts. 

The officers did not know with certainty what Parisi had 

ingested and, once heroin was suspected, did not know when he 

had ingested it or how much he had ingested.
No. 2014AP1267-CR

18

¶38 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." The court 

rested its finding of exigent circumstances in part on "the 

dissipation of . . . heroin within the human body, and the speed 

in which it does that." Given the data in the Rook article, 

these findings were not clearly erroneous. See State v. Popke, 

2009 WI 37, ¶20, 317 Wis. 2d 118, 765 N.W.2d 569 (under clearly 

erroneous standard, "we are bound not to upset the trial court's 

findings of historical or evidentiary fact unless they are 

contrary to the great weight and clear preponderance of the 

evidence" (citation omitted)). 

¶39 Further, in Officer Fenhouse's experience, obtaining a 

warrant took approximately two hours. The circuit court 

implicitly found Officer Fenhouse's undisputed testimony 

regarding the time required to obtain a warrant credible, 

because the circuit court referenced Officer Fenhouse's 

testimony in its ruling12 and based its ruling in part on "the 

time that it would take for obtaining the warrant," while 

Officer Fenhouse provided the only testimony regarding the time 

 

12 The circuit court stated, "The officer did testify as to 

his experience in regards to trying to obtain and obtaining 

search warrants in the past."
No. 2014AP1267-CR

19

needed to obtain a warrant. See State v. Echols, 175 

Wis. 2d 653, 672, 499 N.W.2d 631 (1993) ("A trial court is not 

required to recite 'magic words' to set forth its findings of 

fact. An implicit finding of fact is sufficient when the facts 

of record support the decision of the trial court." (citations 

omitted)); see also id. at 673 ("When a trial court does not 

expressly make a finding necessary to support its legal 

conclusion, an appellate court can assume that the trial court 

made the finding in the way that supports its decision." 

(citation omitted)). This finding was also not clearly 

erroneous. See Popke, 317 Wis. 2d 118, ¶20 (citation omitted).

¶40 Finally, Parisi's health was unstable. At the 

hospital, "[hospital staff] were tending to him and then it 

seemed things were getting better and then it would deteriorate 

again." Under the circumstances, Officer Fenhouse might 

reasonably have feared that if he attempted to obtain a warrant 

before drawing Parisi's blood, Parisi's condition could again 

lapse, causing Officer Fenhouse to miss his window of 

opportunity. Cf. Tullberg, 359 Wis. 2d 421, ¶48 (deputy sheriff 

investigating drunk driver performed blood draw in part because 

hospital staff planned to perform a CT scan and because the 

deputy sheriff did not know whether the CT scan would lead to 

subsequent medical treatment). 

¶41 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——

"[t]he officer in the present case . . . might reasonably have 
No. 2014AP1267-CR

20

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.'" Schmerber, 384 U.S. 

at 770 (citation omitted). Critical evidence of heroin use in 

Parisi's body was disappearing by the minute, and had been since 

an unknown time that evening. Officer Fenhouse could reasonably 

conclude that waiting two hours for acquisition of a warrant, 

with no guarantee that Parisi would be available for a blood 

draw once a warrant was acquired, would mean loss of access to 

that evidence.

¶42 Before proceeding, we take a moment to emphasize 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. We instead resolve this case "based 

'on its own facts and circumstances.'" McNeely, 133 S. Ct. at 

1559 (citations omitted). Any number of factual variations 

might change the result in a future case: police might initially 

have more facts at their disposal, such as the type and amount 

of an ingested drug, as well as the time it was ingested; other 

jurisdictions might allow for more rapid acquisition of search 

warrants; scientific evidence on heroin dissipation may become 

clearer in the future; and so on.

B. Whether the Presence of Morphine in Parisi's Blood 

Precludes a Finding of Exigent Circumstances

¶43 Before the circuit court, Parisi did not object to 

admission of the Rook article and did not provide any scientific 

evidence of his own. Indeed, Parisi concedes on appeal, "Heroin 
No. 2014AP1267-CR

21

converts to its first metabolite, 6-[mono]acetylmorphine[,] 

within a few minutes. 6-[mono]acetylmorphine then converts to 

morphine. 6-[mono]acetylmorphine is detectable in plasma for 1-

3 hours after heroin use."13

¶44 Citing the Rook article, however, Parisi argues that 

because morphine resulting from the metabolism of heroin 

"remains in the system for many hours after heroin use," exigent 

 

13 Parisi has provided further scientific evidence for the 

first time on appeal before this court in the appendix to his 

brief. In particular, Parisi cites a scientific article which 

was not before the circuit court for the proposition that 6-

monoacetylmorphine is detectable in urine for an average of five 

hours and as much as 34.5 hours. See Alain G. Verstraete, 

Detection Times of Drugs of Abuse in Blood, Urine, and Oral 

Fluid, 26 Therapeutic Drug Monitoring 200 (2004) ("Verstraete 

article"). The passage relied upon states, "After 

administration of 3, 6, and 12 mg heroin intravenously, 6-

acetylmorphine is detectable in urine during respectively 2.3, 

2.6, and 4.5 hours. . . . In the Lübeck study, 6-

acetylmorphine . . . was detectable for 5 hours on average 

(maximum 34.5 hours) . . . in urine." Id. at 203. In contrast, 

the Rook article states, "6-monoacetylmorphine was detectable 

for 1.2-4.3 hrs in urine after intravenous injection or 

inhalation of 2.6-20 mg heroin." Rook, supra, at 111. Based on 

the evidence, then, 6-monoacetylmorphine can become undetectable 

in urine in as little as 1.2 to 2.3 hours, as opposed to the 

Rook article's indication that 6-monoacetylmorphine can become 

undetectable in blood in as little as one hour. Id. Parisi's 

article does not affect our analysis. Even assuming that an 

involuntary urine test was feasible in this case——a contention 

the State questions——the amount of time before 6-

monoacetylmorphine is potentially undetectable in urine is not 

materially different for our purposes from the amount of time 

before 6-monoacetylmorphine is potentially undetectable in 

blood.
No. 2014AP1267-CR

22

circumstances did not exist.14 Parisi points out that morphine 

was found in Parisi's blood sample, which was drawn "almost two 

and a half hours after police encountered him." He agrees that 

morphine indicates that a person used either heroin or morphine, 

but argues: 

Because the presence of drugs in blood is not 

sufficient by itself to support a conviction of 

possessing a controlled substance, any blood test 

result would be coupled with other corroborating 

evidence from the case in order to convict. State v. 

Griffin, 220 Wis. 2d 371, 381, 584 N.W.2d 127 (Ct. 

App. 1998). That other evidence in a case will inform 

which of [the] two Schedule 1 narcotics, heroin or 

morphine, the individual unlawfully consumed.

¶45 The flaws in Parisi's reasoning are two-fold. First, 

the test we use to analyze whether or not exigent circumstances 

exist is an objective one based on "the circumstances known to 

the officer at the time," Smith, 131 Wis. 2d at 230, and 

although an officer might reasonably have believed that a twohour delay would risk the destruction of evidence in this case 

because of, among other things, the rapid dissipation of heroin 

in the blood, it is not clear that an officer would have 

knowledge of the specific metabolic processes involved 

subsequent to ingestion of heroin, or the specific rates of 

each. Whether morphine was eventually found in Parisi's blood 

 

14 We do not possess, but do not require, information 

regarding precisely how long morphine remains in the human body 

after ingestion of heroin. According to the State, the Rook 

article indicates that "one quarter of the morphine [that was 

initially in the blood] can still be detected . . . about three 

to nine hours later." 
No. 2014AP1267-CR

23

is not relevant to what a police officer might reasonably have 

believed prior to conducting the blood draw. See State v. 

Jennifer Parisi, 2014 WI App 129, ¶12, 359 Wis. 2d 255, 857 

N.W.2d 472 ("The exigent circumstances exception . . . does not 

require that officers observe actual destruction of 

evidence . . . . The exception rather requires only that 

officers have a reasonable belief 'that delay in procuring a 

search warrant would risk destruction of evidence.'" (citing 

Hughes, 233 Wis. 2d 280, ¶24)). 

¶46 Second, even assuming for the sake of argument that a 

reasonable police officer knows that heroin is detectable in 

blood as morphine for several hours after ingestion, the officer 

in this case did not know what corroborating evidence of heroin 

or morphine use police would ultimately find, or what alibis 

Parisi might raise. Parisi might have a plausible defense to a 

charge based on heroin found in the residence and morphine found 

in his blood, but no defense to a charge based on heroin found 

in the residence and heroin or 6-monoacetylmorphine found in his 

blood. In other words, heroin or its first metabolite, 6-

monoacetylmorphine, remained the most probative evidence that 

Parisi had used heroin.

¶47 Parisi argues that "this Court will be making new law 

if it adopts the [S]tate's argument that no warrant is required 

when seeking one will risk the destruction of the 'best 

evidence.'" Parisi instead contends that McNeely dictates 

application of the exigent circumstances exception "when waiting 
No. 2014AP1267-CR

24

for a warrant means the only evidence of the crime may be 

destroyed."

¶48 We do not agree with Parisi's reading of McNeely. The 

McNeely court held that, "In those drunk-driving investigations 

where police officers can reasonably obtain a warrant before a 

blood sample can be drawn without significantly undermining the 

efficacy of the search, the Fourth Amendment mandates that they 

do so." McNeely, 133 S. Ct. at 1561 (emphasis added). Here, 

assuming that an officer possessed full knowledge of the manner 

in which heroin is metabolized, the officer could reasonably 

believe that waiting two hours to obtain a warrant would 

"significantly undermin[e] the efficacy" of a blood draw by 

leading to ambiguous test results; evidence of heroin or

morphine use, rather than of heroin use alone, might result if 

sufficient time has passed (this was in fact the result in this 

case). Depending on the corroborating evidence eventually 

obtained in the case, and testimony given by the defendant or 

other witnesses, the State might not be able to prove illegal 

possession of any drug. 

¶49 The McNeely court also alluded to a "best evidence" 

approach when it stated: 

While experts can work backwards from the [blood 

alcohol concentration] at the time the sample was 

taken to determine the [blood alcohol concentration] 

at the time of the alleged offense, longer intervals 

may raise questions about the accuracy of the 

calculation. For that reason, exigent circumstances 

justifying a warrantless blood sample may arise in the 

regular course of law enforcement due to delays from 

the warrant application process. 
No. 2014AP1267-CR

25

Id. at 1563. In other words, a warrantless blood sample may be 

justified even where an inferior form of evidence may be 

available. Chief Justice John Roberts, joined by Justices 

Stephen Breyer and Samuel Alito, was even more forceful:

McNeely contends that there is no compelling need 

for a warrantless blood draw, because . . . the State 

can use math and science to work backwards and 

identify a defendant's [blood alcohol concentration] 

at the time he was driving. But that's not good 

enough. We have indicated that exigent circumstances 

justify warrantless entry when drugs are about to be 

flushed down the toilet. We have not said that, 

because there could well be drug paraphernalia 

elsewhere in the home, or because a defendant's coconspirator might testify to the amount of drugs 

involved, the drugs themselves are not crucial and 

there is no compelling need for warrantless entry.

The same approach should govern here. There is a 

compelling need to search because alcohol——the nearly 

conclusive evidence of a serious crime——is dissipating 

from the bloodstream. The need is no less compelling 

because the police might be able to acquire secondbest evidence some other way.

Id. at 1571 (Roberts, C.J., concurring in part and dissenting in 

part) (footnote omitted) (citations omitted). See also State v. 

Peardot, 119 Wis. 2d 400, 404, 351 N.W.2d 172 (Ct. App. 1984) 

("Exigent circumstances existed here. The marked currency was 

the best evidence linking defendant with the sale of the LSD. 

If the police had not moved quickly, defendant could easily have 

disposed of the money in any of several ways." (emphasis 

added)). 

¶50 In sum, the fact that morphine remains in the body for 

several hours after the ingestion of heroin does not mean that 

it would be unreasonable for Officer Fenhouse to believe that 
No. 2014AP1267-CR

26

taking the time to obtain a search warrant in this case risked 

destruction of evidence of heroin use.15

C. Whether a Finding of Exigent Circumstances is Precluded 

Because this is not a Drunk-Driving Case 

¶51 Finally, Parisi notes that in both Bohling and 

McNeely, the public safety risk presented by drunk-driving was 

balanced against the defendant's privacy interest "in preventing 

an agent of the government from piercing his skin." McNeely, 

133 S. Ct. at 1565. 

¶52 In Bohling, we noted in passing, "[O]ur interpretation 

of Schmerber makes sense from a policy standpoint. It strikes a 

 

15 For all of the reasons discussed, we reject Parisi's 

arguments that a warrant could have been pursued because of (1) 

the number of officers involved in this case (five to seven 

officers) and (2) the delay that occurred while hospital staff 

stabilized Parisi. Officer Fenhouse could reasonably believe 

that asking another officer to obtain a warrant would be futile, 

given the short timeframe before evidence of heroin use 

disappeared. For instance, if officers suspect drugs are being 

flushed behind a closed door, see, e.g., Kentucky v. King, 563 

U.S. 452 (2011), the exigency is not eliminated merely because 

there are multiple officers at the scene. See United States v. 

Fiasche, 520 F.3d 694, 698 (7th Cir. 2008). 

Similarly, Officer Fenhouse had no way of knowing, at the 

hospital at 1:55 a.m., that Parisi would be unavailable for a 

blood draw until 3:10 a.m. Based on Officer Fenhouse's 

testimony, it is unlikely that a warrant process begun at 1:55 

a.m. would have been completed by 3:10 a.m. anyway. It was not 

so unreasonable as to render the blood draw unconstitutional for 

Officer Fenhouse to fail to begin the warrant process when 

Parisi's health lapsed. "[T]he calculus of reasonableness must 

embody allowance for the fact that police officers are often 

forced to make split-second judgments——in circumstances that are 

tense, uncertain, and rapidly evolving." King, 563 U.S. at 466 

(quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
No. 2014AP1267-CR

27

favorable balance between an individual's right to be free from 

unreasonable searches and Wisconsin's interest in enforcing its 

drunk driving laws. Wisconsin's interest is vital whereas the 

resulting intrusion on individual privacy is minimal." Bohling, 

173 Wis. 2d at 545. Further, we recognized that "in the context 

of driving on public highways, public safety concerns reduce a 

driver's expectation of privacy." Id. at 541.

¶53 In McNeely the Supreme Court likewise acknowledged 

both "the compelling governmental interest in combating drunk 

driving" and "the fact that people are 'accorded less privacy 

in . . . automobiles because of th[e] compelling governmental 

need for regulation.'" McNeely, 133 S. Ct. at 1565 (alteration 

in original) (quoting California v. Carney, 471 U.S. 386, 392 

(1985)). The Court also stated that "a blood test conducted in 

a medical setting by trained personnel . . . is concededly less 

intrusive than other bodily invasions we have found 

unreasonable," while adding that "any compelled intrusion into 

the human body implicates significant, constitutionally 

protected privacy interests." Id. At bottom, however, the 

Court found no reason to depart from "the traditional Fourth 

Amendment totality-of-the-circumstances analysis to determine 

whether an exigency justified a warrantless search." McNeely, 

133 S. Ct. at 1565-66. 

¶54 Here, Parisi argues that he "never operated a vehicle 

or put anyone other than himself at risk. . . . Heroin use is 

dangerous[,] but if the user does not get behind the wheel, the 

threat it poses is to the person who uses it, not to the public 
No. 2014AP1267-CR

28

at large. . . . [T]he warrant requirement should not be 

'relaxed' in [t]his case as it is in drunk driving cases."

¶55 We agree that, because this is not a case involving 

intoxicated driving, the reduced privacy interest in such cases 

does not apply. Likewise, we agree that the governmental 

interest in preventing intoxicated driving is less relevant 

because Parisi was not found driving a vehicle. But these 

considerations only carry Parisi so far. It does not follow 

that, because Parisi's privacy interests are somewhat greater in 

this case than if he had been stopped on a highway, we must 

therefore abandon our totality-of-the-circumstances analysis and 

the exigent circumstances exception to the warrant requirement. 

¶56 Our discussion of a "relaxed" warrant requirement in 

the context of driving on state highways supported our 

conclusion that Schmerber created a per se rule that dissipation 

of alcohol alone constitutes an exigency. Bohling, 173 Wis. 2d 

at 539-40. But Bohling was later abrogated by the Supreme 

Court's McNeely decision, as were the decisions of other state 

supreme courts. See Bohling, 173 Wis. 2d 529, abrogated by 

McNeely, 133 S. Ct. 1552; State v. Shriner, 751 N.W.2d 538 

(Minn. 2008), abrogated by McNeely, 133 S. Ct. 1552; State v. 

Woolery, 116 Idaho 368 (1989), abrogated by McNeely, 133 S. Ct. 

1552.

¶57 In McNeely the Court explained that without a warrant, 

"'the fact-specific nature of the reasonableness inquiry' 

demands that we evaluate each case of alleged exigency based 'on 

its own facts and circumstances.'" McNeely, 133 S. Ct. at 1559 
No. 2014AP1267-CR

29

(citations omitted). Schmerber, the Court continued, "applied 

this totality of the circumstances approach. . . . [W]e 

considered all of the facts and circumstances of the particular 

case and carefully based our holding on those specific facts." 

Id. at 1559-60.

¶58 The question Parisi essentially raises is whether the 

search at issue was "unreasonable" simply because this is not a 

drunk driving case. U.S. Const. amend. IV; Wis. Const. art. 1, 

§ 11. In effect, Parisi is asking for a per se rule of his own. 

Instead, taking our cue from McNeely, we analyze this case on 

its facts. Parisi unquestionably possessed "significant, 

constitutionally protected privacy interests" in avoiding the 

warrantless, nonconsensual blood draw that occurred in this 

case. McNeely, 133 S. Ct. at 1565. But that Parisi never used 

a car in this case does not thereby elevate his privacy 

interests to such heights as to render any warrantless blood 

draw under exigent circumstances unreasonable. Cf. PayanoRoman, 290 Wis. 2d 380, ¶38 ("The Fourth Amendment neither 

forbids nor permits all bodily intrusions. Rather, the 

Amendment's function is to constrain against intrusions 'which 

are not justified in the circumstances, or which are made in an 

improper manner.'" (quoting Winston, 470 U.S. at 760).

¶59 The warrantless blood draw at issue was justified 

under the circumstances, regardless of the presence or not of an 

automobile. As we have already determined, under the facts of 

this case, the police reasonably feared destruction of evidence 

of a crime. Further, "[t]he intrusion in the usual blood draw 
No. 2014AP1267-CR

30

is slight," State v. Krajewski, 2002 WI 97, ¶60,255 Wis. 2d 98, 

648 N.W.2d 385, and the draw in this case was performed 

reasonably, in a hospital by a phlebotomist. Finally, we would 

be remiss if we failed to recognize the State's own compelling 

interest in countering heroin use and addiction. Cf. State v. 

Peck, 143 Wis. 2d 624, 634, 422 N.W.2d 160 (1988) ("Preservation 

of the public health and safety is the obvious purpose 

underlying Wisconsin's drug laws, and we see a compelling state 

purpose in the regulation of marijuana and other controlled 

substances.")16 Adoption of Parisi's argument would lead to the 

 

16 Heroin use and addiction is a problem that has become a 

state and national epidemic. See, e.g., Jerry L. Halverson, 

Michael M. Miller, and George L. Morris, We Have a Heroin and 

Opioid Problem; Let's Fix It, Milwaukee Journal Sentinel, 

Aug. 16, 2015, http://www.jsonline.com/news/opinion/we-have-aheroin-and-opioid-problem-lets-fix-it-b99556485z1-

321917961.html; Kathleen Hennessey, Obama: U.S. Will Tackle 

'Epidemic' of Heroin, Prescription Drug Abuse, NBC New York, 

Oct. 21, 2015, http://www.nbcnewyork.com/news/nationalinternational/Obama-Prescription-Drug-Abuse-Epidemic335251301.html; Nate Beck, Former UWO Athlete Guilty of 

Homicide-By-Heroin, Oshkosh Northwestern, Dec. 17, 2015, 

http://www.thenorthwestern.com/story/news/crime/2015/12/17/forme

r-uwo-athlete-guilty-homicide--heroin/77493166/ ("Though 

attorneys sparred over the timeline of events that led to [the] 

overdose, neither disputed heroin's grip on Winnebago County."). 

From 2002 to 2013 "the rate of heroin-related overdose 

deaths [in the United States] nearly quadrupled, according to 

the Centers for Disease Control and Prevention." The Numbers 

Behind America's Heroin Epidemic: A Guide to the Drug's Spread 

and Impact, N.Y. Times, Oct. 30, 2015, 

http://www.nytimes.com/interactive/2015/10/30/us/31heroindeaths.html?_r=0. In Wisconsin, "the number of overdose deaths 

annually involving prescription painkillers and heroin now 

exceeds the number of traffic fatalities." Halverson, supra.

(continued)
No. 2014AP1267-CR

31

 

We vigorously reject any suggestion that "the threat 

[heroin] poses is to the person who uses it, not to the public 

at large." The heroin epidemic is destroying lives across the 

country, and not just those of heroin users. See, e.g., Krystle 

Kacner, "It's a Nightmare:" Menomonee Falls Father Wants to Help 

Others After Son Dies of Overdose," Fox6 News, Nov. 17, 2015, 

http://fox6now.com/2015/11/17/its-a-bloody-nightmare-menomoneefalls-father-wants-to-help-others-after-son-dies-of-overdose/. 

Kacner's article features the father of a 22-year old who died 

from a heroin overdose. According to Kacner, the father is 

"living proof that the addict's life may not be the only thing 

the drug takes. 'We got divorced, went bankrupt, foreclosure, 

lost the company. . . . It's terrible for the other children——

not only losing a brother, but going through the addiction 

process——because they don't get the attention growing up that 

they deserved.'" See also Deborah Sontag, Heroin's Small-Town 

Toll, and a Mother's Grief, N.Y. Times, Feb. 10, 2014, 

http://www.nytimes.com/2014/02/11/us/heroins-small-town-tolland-a-mothers-pain.html (discussing story of woman from Hudson, 

Wisconsin, whose 21-year-old daughter "was a heroin abuser" and 

died after overdosing on "a mix of drugs" in 2013). Federal 

data show that nearly 20 percent of those who died from heroin 

in 2010 were ages 15 to 24. Id.

The Wisconsin Legislature is working to address the heroin 

problem in our state. See, e.g., Jessie Opoien, Led by State 

Rep. John Nygren, Wisconsin Families Caught in Heroin's Grasp 

Fight Back, The Capital Times, Dec. 2, 2015, 

http://host.madison.com/ct/news/local/govt-and-politics/led-bystate-rep-john-nygren-wisconsin-families-caughtin/article_640a242f-91d6-5dd6-a8c4-ca46a14304d8.html. Wisconsin 

State Representative John Nygren, whose own daughter struggled

with heroin addiction, 

has become the Wisconsin Legislature's torchbearer for 

combating the state's heroin and opiate epidemic. In 

2014, he ushered a package of bills aimed at curbing 

heroin abuse and deaths through the Legislature with 

unanimous support. In September, he introduced a 

second package focusing on prescription painkillers. 

As the crisis has deepened, other politicians and 

affected families have gotten involved.

Id.
No. 2014AP1267-CR

32

loss of police access to critical evidence in countless 

situations in which obtaining a warrant in time is simply not 

practical, through no fault of the officers seeking the 

evidence. Cf. McNeely, 133 S. Ct. at 1561. That this case is 

distinguishable from Bohling and McNeely on the ground that 

Parisi did not operate a vehicle does not make the drawing of 

his blood automatically unreasonable. 

V. CONCLUSION

¶60 We conclude that the blood draw in this case was 

constitutional because it was supported by exigent 

circumstances. We therefore need not address whether the good 

faith exception to the exclusionary rule also applies in this 

case. See State v. Tullberg, 2014 WI 134, ¶¶4-5, 359 Wis. 2d 

421, 857 N.W.2d 120 (declining to address State's argument that 

the good faith exception to the exclusionary rule justified 

warrantless blood draw where blood draw had been found 

constitutional under exigent circumstances doctrine).

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2014AP1267-CR.awb 

1

¶61 ANN WALSH BRADLEY, J. (dissenting). The primary 

issue addressed by the majority is whether Parisi's warrantless 

blood draw is an exigent circumstance justifying an exception to 

the warrant requirement. If it is not, then the warrantless 

blood draw was a violation of the Fourth Amendment of the United 

States Constitution and the evidence obtained must be 

suppressed.

¶62 All agree that absent an emergency, search warrants 

are required for intrusions into the human body. Missouri v. 

McNeely, 133 S. Ct. 1552, 1558 (2013) (citing Schmerber v. 

California, 384 U.S. 757, 770 (1966)). 

¶63 Likewise, it is undisputed that pursuant to McNeely a 

per se rule authorizing warrantless blood draws based on 

dissipation of evidence in the bloodstream is prohibited under 

the Fourth Amendment. See id. Nevertheless, the majority 

creates a per se rule by inventing a new best evidence rule for 

every heroin case, concluding that exigent circumstances exist 

due to the rapid speed at which heroin dissipates in the blood. 

¶64 Not only does the majority opinion disregard McNeely’s 

prohibition of a per se rule based on dissipation, it also 

ignores the circumstances under which McNeely directs that the 

police must always obtain a warrant. McNeely instructs that 

"where police officers can reasonably obtain a warrant before a 

blood sample can be drawn without significantly undermining the 

efficacy of the search, the Fourth Amendment mandates that they 

do so." Id. at 1561.
No. 2014AP1267-CR.awb 

2

¶65 Contrary to the majority, I conclude that the State 

has failed to show there were exigent circumstances justifying 

an exception to the warrant requirement. During the 

approximately two and one-half hours available, at least one of 

the five to seven officers involved in the investigation could 

have and should have obtained a warrant. The warrantless blood 

draw violated Parisi's Fourth Amendment rights and the evidence 

resulting from it should be suppressed.1 Therefore, I 

respectfully dissent.

I.

¶66 The majority determines that the circuit court's 

finding of exigent circumstances based on "the dissipation of 

. . . heroin within the human body, and the speed in which it 

does that" were not clearly erroneous. Majority op. ¶38. 

According to the majority, "critical evidence of heroin use in 

Parisi’s body was disappearing by the minute, and had been since 

an unknown time that evening." Majority op. ¶41. 

 

1 Parisi asserts a violation of both the Fourth Amendment to 

the U.S. Constitution and a violation of Article I, § 11 of the 

Wisconsin Constitution. When we refer to the Fourth Amendment 

in this discussion, we intend the discussion to be equally 

applicable to Article I, § 11 of the Wisconsin Constitution. 

"Generally, we have interpreted provisions of the Wisconsin 

Constitution consistent with the United States Supreme Court's 

interpretation of their counterparts in the federal 

constitution. However, on occasion, we have interpreted a 

provision in the Wisconsin Constitution more broadly than the 

United States Supreme Court has interpreted a parallel provision 

in the United States Constitution." State v. Arias, 2008 WI 84, 

¶19, 311 Wis. 2d 358, 752 N.W.2d 748 (citations omitted). 
No. 2014AP1267-CR.awb 

3

¶67 Repeatedly, the majority focuses on dissipation. See, 

e.g., majority op. ¶45 ("a two-hour delay would risk the 

destruction of evidence in this case because of, among other 

things, the rapid dissipation of heroin in the blood"); see also

majority op. ¶48 ("waiting two hours to obtain a warrant would 

'significantly undermin[e] the efficacy' of a blood draw by 

leading to ambiguous test results; evidence of heroin or 

morphine use, rather than heroin use alone, might result if 

sufficient time has passed"); majority op. ¶50 ("the fact that 

morphine remains in the body for several hours after the 

ingestion of heroin does not mean that it would be unreasonable 

for Officer Fenhouse to believe that taking the time to obtain a 

search warrant in this case risked destruction of evidence of 

heroin use"). 

¶68 In asserting that the rapid dissipation of heroin is 

an exigent circumstance, the majority relies on scientific 

literature provided by the State. See Elisabeth J. Rook et al., 

Pharmacokinetics and Pharmacokinetic Variability of Heroin and 

its Metabolites: Review of the Literature, 1 Current Clinical 

Pharmacology 109, 111 (2006). Of particular import is the 

scientific evidence that "[h]eroin converts to its first 

metabolite, 6-[mono]acetylmorphine[,] within a few minutes. 6-

[mono]acetylmorphine then converts to morphine. 6-

[mono]acetylmorphine is detectable in plasma for 1-3 hours after 

heroin use." Majority op. ¶43. According to the majority, 

heroin or its first metabolite, 6-monoacetylmorphine, are the 
No. 2014AP1267-CR.awb 

4

most probative evidence of heroin use and therefore the best 

evidence. Majority op. ¶46. 

¶69 The majority concedes that morphine is evidence of 

heroin use that remains in the blood for hours after heroin and 

6-monoacetylmorphine dissipate. See, e.g., majority op. ¶50. 

Nevertheless, it rejects this evidence as not being sufficiently 

probative.2 Consequently, the majority creates a best evidence 

rule in heroin cases. 

¶70 Oddly, the majority ends up arguing that the very 

evidence of morphine the State wishes to preserve in the 

suppression motion is really not good enough because it is less 

probative than heroin or 6-monoacetylmorphine. Majority op. 

¶46. It contends, "Parisi might have a plausible defense to a 

charge based on heroin found in the residence and morphine found 

in his blood, but no defense to a charge based on heroin found 

in the residence and heroin or 6-monoacetylmorphine found in his 

blood." Majority op. ¶46. 

II.

 

2 The majority goes to such lengths to minimize the 

evidentiary value of morphine in the blood that it does not even 

bother to determine how long morphine is detectable after heroin 

use. According to the majority: "We do not possess, but do not 

require, information regarding precisely how long morphine 

remains in the human body after ingestion of heroin." Majority 

op. ¶44 n.14.

The majority is incorrect. At oral argument, Parisi's 

counsel explained that according to the Rook article supplied by 

the State, "the metabolites of heroin stay in the system for 12, 

could be even 24 hours..."
No. 2014AP1267-CR.awb 

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¶71 In our prior decisions, this court properly recognized 

that McNeely "changed the landscape of warrantless blood draws 

in Wisconsin." State v. Tullberg, 2014 WI 134, ¶42, 359 Wis. 2d 

421, 857 N.W.2d 120; see also State v. Kennedy, 2014 WI 132, 

¶29, 359 Wis. 2d 454, 856 N.W.2d 834 ("in 2013, the United 

States Supreme Court issued its decision in McNeely, effectively 

abrogating our holding in Bohling that the rapid dissipation of 

alcohol alone constitutes an exigent circumstance sufficient for 

law enforcement officers to order a warrantless investigatory 

blood draw.").3 In Kennedy, this court concluded that under 

McNeely, "the Fourth Amendment does not allow such per se rules 

in the context of warrantless investigatory blood draws." 359 

Wis. 2d 454, ¶29 (citing McNeely, 133 S. Ct. at 1561). 

¶72 Despite this court’s prior adherence to McNeely, the

cornerstone of the majority’s opinion rests on its repeated 

assertion that the rapid dissipation of heroin in the blood 

 

3 Bohling makes clear that it is specific to the drunk 

driving context. It stated that "a warrantless blood sample 

taken at the direction of a law enforcement officer is 

permissible under the following circumstances: (1) the blood 

draw is taken to obtain evidence of intoxication from a person 

lawfully arrested for a drunk-driving related violation or 

crime, (2) there is a clear indication that the blood draw will 

produce evidence of intoxication, (3) the method used to take 

the blood sample is a reasonable one and performed in a 

reasonable manner, and (4) the arrestee presents no reasonable 

objection to the blood draw." State v. Bohling, 173 Wis. 2d 

529, 533-34, 494 N.W.2d 399 (1993) (emphasis added) abrogated by 

Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

The majority opinion fails to accurately state these 

requirements. It omits the first factor, which provides an 

essential distinction between Bohling and this case. See 

majority op. ¶31 & n.11. 
No. 2014AP1267-CR.awb 

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risks the destruction of evidence. See, e.g., majority op. 

¶¶40-45. Yet, the majority admonishes 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." Majority Op. ¶42. 

¶73 Contrary to the above admonition, the author of the

majority opinion got it right at oral argument. The State's 

argument, which the majority now adopts, is really "Bohling for 

heroin": 

Justice Ziegler: Ok, but it has never been the law 

that just because evidence is really good, you don't 

need a warrant. That's almost what you are saying and 

you are losing me on that.

Counsel for the State: ... What I am saying is that 

because this really good evidence, this really 

probative evidence dissipates so quickly, at least in 

the case of heroin, and the public defender brought up 

some other drugs like marijuana and things like that, 

this is a whole different animal. I agree if this is 

a marijuana case, we would be done. We would be done 

because marijuana being a natural substance–cocaine 

being a natural substance-it doesn't break down. 

Heroin is a not natural substance–it's a synthetic and 

it does break down. That is why you need to get the 

evidence quickly. And that is why you have exigent 

circumstances because you need to get it quickly.

Justice Ziegler: So to be clear, you are basically 

asking us to revive Bohling in terms of heroin cases 

or substances that are not natural.

... [W]hat I really hear you saying is that in heroin 

cases there is an exigency because it dissipates so 

quickly. That's Bohling for heroin, isn't it?

¶74 The majority now asserts that "[w]e instead resolve 

this case 'based on its own facts and circumstances.'" Majority 

op. ¶42. Yet, all of the facts and circumstances the majority 
No. 2014AP1267-CR.awb 

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discusses relate only to dissipation: the type and amount of an 

ingested drug, the time it was ingested, the time it takes to 

get a warrant in relation to dissipation, and scientific 

evidence on the rapid dissipation of heroin. Id. Its best 

evidence rule places the focus on facts and circumstances 

relating only to dissipation. By inventing a best evidence rule 

for every heroin case and concluding that exigent circumstances 

exist because of the rapid dissipation of heroin, the majority 

creates a per se rule for heroin cases.

¶75 If the majority is correct that heroin is in the blood 

for only a few minutes and 6-monoacetylmorphine is present in 

the blood for only one to three hours before metabolizing into 

morphine, this would be the circumstance in every case.4 Even if 

the scientific evidence regarding the rate of dissipation 

changed, it would change for every case. 

¶76 Likewise, the time it takes to obtain a warrant will 

always cause some delay in every case. In this case, Officer 

Fenhouse testified that that it takes approximately two hours to 

obtain a search warrant. Majority op. ¶14. However, McNeely

sounds a note of caution, explaining that consideration of the 

time it takes to obtain a warrant "might well diminish the 

incentive for jurisdictions to pursue progressive approaches to 

warrant acquisition that preserve the protections afforded by 

 

4 The majority opinion dismisses the scientific articles 

Parisi submitted and instead relies on a solo article submitted 

by the State. See majority op. ¶43 n.13. 
No. 2014AP1267-CR.awb 

8

the warrant while meeting the legitimate interests of law 

enforcement." McNeely, 133 S. Ct. at 1563 (citations omitted).

¶77 Underlying the majority's conclusion that the rate of 

dissipation of heroin in the blood justifies an exception to the 

warrant requirement is the majority's newly minted best evidence 

rule for heroin cases. According to the majority, "the officer 

could reasonably believe that waiting two hours to obtain a 

warrant would 'significantly undermin[e] the efficacy' of a 

blood draw by leading to ambiguous test results; evidence of 

heroin or morphine use, rather than heroin use alone, might 

result if sufficient time has passed." Majority op. ¶48.

¶78 The majority errs in its creation of a best evidence 

rule for heroin cases. It contradicts well-established law when 

it contends that a blood draw showing "heroin or its first 

metabolite, 6-monoacetylmorphine, remained the most probative 

evidence that Parisi had used heroin."5 Majority Op. ¶46. 

"Neither Wisconsin law nor federal law recognizes a 'best 

evidence rule' that established a hierarchy of evidence. In 

effect, all evidence is created equal." 7 Daniel D. Blinka, 

Wisconsin Practice Series: Wisconsin Evidence § 1001.1 at 928 

 

5 The majority fails to adequately explain its singular 

focus of needing to find heroin——not morphine——in the blood. 

Parisi was charged with Possession of a Schedule I or II 

narcotic drug. Wis. Stat. § 961.41(3g)(am) provides that: "If a 

person possesses or attempts to possess a controlled substance 

included in schedule I or II which is a narcotic drug... the 

person is guilty of a Class I felony." Even if the police had 

only been able to convict Parisi of possession of morphine, both 

heroin and morphine carry the same criminal penalty. See Wis. 

Stat. §§ 961.14(3)(k) and 961.16(2)(a)10.
No. 2014AP1267-CR.awb 

9

(3rd ed. 2008) (explaining the "myth of the best evidence 

rule"). 

¶79 Even if there were a best evidence rule, evidence of 

drugs in the bloodstream alone is not enough to support a 

possession charge. Here, Parisi was charged with possession of 

a schedule I or II narcotic drug. In Wisconsin, "the mere 

presence of drugs in a person’s system is insufficient to prove 

that the drugs are knowingly possessed by the person or that the 

drugs are within the person’s control." State v. Griffin, 220 

Wis. 2d 371, 381, 584 N.W.2d 127 (1998). Evidence of drugs in 

the bloodstream is "circumstantial evidence of prior possession" 

and must be "combined with other corroborating evidence of 

sufficient probative value" in order to prove possession. Id. 

¶80 The majority’s reasoning is flawed because even if the 

police had been able to detect heroin or its first metabolite 6-

monoacetylmorphine in the bloodstream, they still would need 

corroborating evidence to convict Parisi of heroin possession. 

In this case, police found "a bindle of what looked to be heroin 

wrapped in tinfoil, some cut ends, and [a] marijuana pipe" at 

the scene of the overdose. Majority op. ¶10. Additionally, 

Parisi was given Narcan before he was transported to the 

hospital, which Officer Fenhouse knew was "usually administered 

for people who have overdosed on heroin." Majority op. ¶7. 

Thus, the heroin found in the apartment where Parisi overdosed 

and the fact that he was treated with Narcan present key 

corroborating evidence. 
No. 2014AP1267-CR.awb 

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¶81 The majority’s reliance on McNeely for support of a 

best evidence rule is misplaced. The term "best evidence" does 

not appear in the McNeely majority opinion. Additionally, there 

are distinctions between the presence of alcohol in the 

bloodstream and the presence of heroin. 

¶82 Evidence of heroin or 6-monoacetylmorphine in the 

bloodstream is less probative than evidence of alcohol in the 

bloodstream because a BAC level alone is enough to obtain a 

drunk driving conviction. In contrast, evidence of drug use in 

the blood stream requires corroborating evidence for a 

possession conviction. Moreover, the amount of alcohol in the 

blood is relevant to a conviction, but the amount of heroin in 

the blood is not. Unlike a BAC level, the police need find only 

a trace of heroin or its metabolites in the bloodstream. 

¶83 In State v. Jones the Nevada Supreme Court articulated 

this distinction. It determined that the dissipation of cocaine 

in the defendant’s bloodstream was not an exigent circumstance 

that justified a departure from the normal procedure of 

obtaining a warrant. 895 P.2d 643, 644 (1995). The Jones court 

explained that evidence of alcohol and drugs in the blood 

differ. Id. That analysis is applicable here: "a conviction 

for driving under the influence requires a specific minimum 

concentration of blood alcohol, whereas a conviction for being 

under the influence of a controlled substance requires only a 

trace amount of the substance or its metabolites." Id.

¶84 The majority also misunderstands State v. Peardot, 119 

Wis. 2d 400, 351 N.W.2d 172 (1984), when it cites to that case 
No. 2014AP1267-CR.awb 

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as support for the adoption of a best evidence rule. The term 

"best" was used merely as an adjective to describe the evidence. 

There is no discussion in Peardot supporting the adoption of a 

best evidence approach. 

¶85 Finally, the majority's insistence that evidence of 

morphine in the bloodstream is less probative evidence than 

heroin or 6-monoacetylmorphine ignores the facts of this case. 

The warrantless blood draw performed on Parisi revealed evidence 

of morphine in his bloodstream, not heroin or 6-

monoacetylmorphine. It is this very evidence of morphine in 

Parisi's bloodstream that the State seeks to use and Parisi 

seeks to suppress.

III.

¶86 Not only did McNeely reject a per se rule based on 

dissipation, it also set forth circumstances in which the police 

must obtain a warrant without exception. 133 S. Ct. at 1561. 

McNeely instructs that "where police officers can reasonably 

obtain a warrant before a blood sample can be drawn without 

significantly undermining the efficacy of the search, the Fourth 

Amendment mandates that they do so." Id.; see also Tullberg, 

359 Wis. 2d 421, ¶42. 

¶87 In a footnote, the majority rejects Parisi's arguments 

that a warrant should have been pursued because of the number of 

officers involved in the case. Majority op. ¶50 n.15. It 

advances that "Officer Fenhouse could reasonably believe that 

asking another officer to obtain a warrant would be futile, 
No. 2014AP1267-CR.awb 

12

given the short timeframe before evidence of heroin use 

disappeared." Id. 

¶88 However, the McNeely court explained that in "a 

situation in which the warrant process will not significantly 

increase the delay before the blood test is conducted because an 

officer can take steps to secure a warrant while the suspect is 

being transported to a medical facility by another 

officer . . . there would be no plausible justification for an 

exception to the warrant requirement." Id. at 1561. That is 

exactly the circumstance here, yet the majority's decision 

directly contravenes McNeely.

¶89 Under McNeely, there is no plausible justification for 

the majority's decision. It is undisputed that there were a 

total of five to seven officers working on Parisi's case. See

majority op. ¶9. Officer Fenhouse and Officer Moua both 

followed Parisi's ambulance to the hospital. Majority op. ¶11. 

Any of the five to seven officers working on the case could have 

applied for a warrant while Officer Fenhouse followed Parisi to 

the hospital. 

¶90 In addition, there was no reason for delay in 

obtaining a warrant given that the officers had probable cause 

as soon as they arrived at the scene. As referenced above, 

Parisi was given Narcan before he was transported to the 

hospital, which Officer Fenhouse knew was "usually administered 

for people who have overdosed on heroin." Majority op. ¶7. The 

officers at the scene also found "a bindle of what looked to be 
No. 2014AP1267-CR.awb 

13

heroin wrapped in tinfoil, some cut ends, and [a] marijuana 

pipe." Majority op. ¶10.

¶91 There is also no explanation for the delay in 

obtaining a warrant once Officer Fenhouse arrived at the 

hospital. Although Officer Fenhouse intended to have Parisi's 

blood drawn immediately, Parisi was initially deemed to be too 

unstable for the procedure. During the two hours that Officer 

Fenhouse waited at the hospital before Parisi's blood could be 

drawn, there was nothing that prevented him from obtaining a 

warrant.

¶92 After McNeely, this court has allowed only one 

exception to the warrant requirement for blood draws based on 

exigent circumstances. Tullberg, 359 Wis. 2d 421, ¶30. The 

majority contends that Tullberg is an analogous case involving 

warrantless blood draws. Majority op. ¶¶30, 40. It is not.

¶93 At the outset, the Tullberg court noted that the 

investigating officer "did not improperly delay in obtaining a 

warrant. He did not have probable cause to believe that 

Tullberg operated the motor vehicle while under the influence of 

an intoxicant until nearly three hours after the accident. If 

anything, Tullberg's actions, rather than the deputy's, 

necessitated the warrantless blood draw." 359 Wis. 2d 421, ¶44.

¶94 In contrast to the facts of this case, only one deputy 

was initially dispatched to the chaotic scene of the fatal 

collision in Tullberg. Id., ¶¶9-11. Additionally, Tullberg was 

not at the scene of the collision and the investigating deputy 

did not know he was the driver. Id., ¶¶8-10. When he was 
No. 2014AP1267-CR.awb 

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finally interviewed at the hospital, Tullberg told the deputy 

that he was a passenger in the vehicle. Id., ¶12. It was not 

until nearly three hours after the collision when the 

investigation uncovered evidence that helped identify Tullberg 

as the driver responsible for the fatal collision. Id., ¶¶15-

16.

¶95 Given the extraordinary facts and circumstances of 

that case, the Tullberg court explained that the deputy, when 

"confronted with such an accident scene and obstruction of his 

investigation, conducted himself reasonably." Id., ¶47. Under 

McNeely, and as it is applied in Tullberg, an exception to the 

warrant requirement for a blood draw is permissible only when 

circumstances prevent an officer from timely obtaining a 

warrant. McNeely, 133 S. Ct. at 1561; Tullberg, 359 Wis. 2d 

421, ¶42. Here, however, the majority's analysis focuses only 

on facts and circumstances relating to dissipation because there 

were no facts and circumstances preventing at least one of the 

five to seven officers from timely obtaining a warrant.

¶96 In its effort to excuse the multiple officers' 

inexplicable failure to obtain a warrant, the majority conflates 

dissipation in the bloodstream with cases involving the imminent 

destruction of physical evidence. See majority op. ¶50 n.15. 

Relying on destruction of evidence cases, the majority asserts 

that "if officers suspect drugs are being flushed behind a 

closed door, [] the exigency is not eliminated merely because 

there are multiple officers at the scene." Id. (citing Kentucky 

v. King, 563 U.S. 452 (2001); United States v. Fiasche, 520 F.3d 
No. 2014AP1267-CR.awb 

15

694, 698 (7th Cir. 2008)). The majority then analogizes Officer 

Fenhouse’s failure to obtain a warrant at the hospital to 

destruction of evidence cases where "split—second judgments-in 

circumstances that are tense, uncertain, and rapidly evolving." 

Id. (citing King, 563 U.S. at 466 (quoting Graham v. Connor, 490 

U.S. 386, 396-97 (1989)).

¶97 Such reliance on destruction of evidence cases is 

unpersuasive, because "[t]he context of blood testing is 

different in critical respects from other destruction-ofevidence cases in which the police are truly confronted with a 

'now or never' situation." McNeely, 133 S. Ct. at 1561 (citing 

Roaden v. Kentucky, 413 U.S. 496, 505 (1973)). Dissipation of a 

substance in the blood differs from circumstances "in which the 

suspect has control over easily disposable evidence." Id. 

¶98 It is quite a stretch to compare the apparent 

availability of five to seven officers including a police 

officer sitting in a hospital waiting room for two hours, with a 

drug raid where officers hear evidence being flushed away. 

Likewise, the five to seven officers at the scene of the 

overdose knew that Parisi was not about to imminently destroy 

evidence. The police certainly did not have to break through 

the door on a moment's notice because Parisi's friends met the 

officers outside to help direct them to the proper location. 

Majority op. ¶5. When the police entered the apartment, Parisi 

was laying unresponsive on the living room floor in his own 

vomit. Majority op. ¶6. Unlike making a split-second decision 

to preserve evidence, the steady dissipation of heroin in the 
No. 2014AP1267-CR.awb 

16

blood is just not the kind of emergency that justifies foregoing 

a warrant.

¶99 I determine that under the facts and circumstances of 

this case, one of the five to seven officers could have secured 

a warrant in the two and one-half hours before Parisi's blood 

was drawn without significantly undermining the efficacy of the 

search. Officers were dispatched to the scene at 12:38 a.m. and 

arrived five to ten minutes after dispatch. Majority op. ¶4. 

Shortly thereafter, Narcan, the antidote for heroin, was 

administered. Majority op. ¶7. The blood draw did not occur 

until 3:10 a.m. Majority op. ¶13.

¶100 The State has the burden of proving the existence of 

exigent circumstances. State v. Richter, 2000 WI 58, ¶29, 235 

Wis. 2d 524, 612 N.W.2d 29. It has utterly failed to do so 

here. Even if Officer Fenhouse's failure to seek a warrant is 

excusable——and it is not——there is a complete dearth of 

information as to why none of the available five to seven 

officers failed to seek a warrant.

¶101 Contrary to the majority, I conclude that there were 

no exigent circumstances justifying an exception to the warrant 

requirement. As a result, the warrantless blood draw violated 

Parisi's Fourth Amendment rights. Accordingly, I respectfully 

dissent.

¶102 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON, J. joins this dissent.
No. 2014AP1267-CR.awb 

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