IN THE DISTRICT COURT OF APP EAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED STATE OF FLORIDA, Appellant/Cross-Appellee,

v. Case No. 5D14-1654 WADE F. LILES,

Appellee/Cross-Appellant. ________________________________/ Opinion filed April 8, 2016

A ppeal from the Circuit Court for Orange County, Michael Murphy, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, A ssistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee. William R. Ponall and Michael J. Snure, of Snure & Ponall, P.A., Winter Park, for Appellee/Cross-Appellant.

_______________________________________________________________ _______ STATE OF FLORIDA, Appellant,

v. Case No. 5D15-405 JOHN NATHAN WILLIS,

Appellee. ________________________________/2 A ppeal from the Circuit Court for Orange County, Timothy R. Shea, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, A ssistant Attorney General, Daytona Beach, for Appellee. James S. Purdy, Public Defender, and Jeri Delgado, Nancy Ryan and Anne Moorman Reeves, Assistant Public Defenders, Daytona Beach, and Aaron D. Delgado, of Damore, Delgado, Romanik & Rawlins, Daytona Beach, for A ppellee.

ORFINGER, J. The State of Florida appeals two orders suppressing the results of warrantless

blood draws taken from Wade F. Liles and John Nathan Willis dur ing drunk driving investigations involving separate traffic crash fatalities. 1 In both cases, the trial courts found that, pursuant to the United States Supreme Court's holdi ng in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the blood draw results were in admissible because the blood was obtained without a warrant, consent, or any other rec ognized exception to the warrant requirement. The State argues that section 316.1933(1) (a), Florida Statutes (2011), is a general exception to the warrant requirement that applies even after McNeely. We disagree, but reverse based on the good-faith exce ption set forth in United States v. Leon, 468 U.S. 897 (1984). Wade Liles and John Willis were involved in separate fatal traf fic crashes in 2011 and 2012. While investigating these traffic fatalities, the in vestigating officers saw

1 We have consolidated these cases for purposes of disposition o nly.3 indications that Liles and Willis may have been under the influ ence of alcohol when the crashes occurred and requested blood draws pursuant to section 316.1933(1)(a), Florida Statutes (2011). Both Liles and Willis initially refus ed. However, they ultimately complied with the warrantless blood draws after being told that law enforcement would forcibly take their blood, if necessary. After Liles and Willi s were arrested and charged, both filed motions to suppress the results of the warrantless b lood draws. Both trial courts granted the motions, finding that McNeely either require d a warrant or exigent circumstances, and that the Leon good-faith exception to the ex clusionary rule did not apply. The review of a trial court's ruling on a motion to suppress is a mixed question of law and fact that uses a two-step approach. We defer to the tr ial court's findings of fact, provided that they are supported by competent, substantial evid ence, but review de novo a trial court's application of law to the historical facts . E.g., Delhall v. State, 95 So. 3d 134, 150 (Fla. 2012); Connor v. State, 803 So. 2d 598, 605 ( Fla. 2001); Ferguson v. State, 41 Fla. L. Weekly D62, D62 (Fla. 5th DCA Dec. 31, 2015). The Fourth Amendment protects against unreasonable searches and seizures. Amend. IV, U.S. Const. A blood draw conducted at the direction of the police is a

search and seizure under the Fourth Amendment. Schmerber v. Ca lifornia, 384 U.S. 757, 767 (1966); State v. Geiss, 70 So. 3d 642, 646 (Fla. 5th D CA 2011). To comply with the Fourth Amendment, law enforcement officers must obtain a warrant or consent for a blood draw, or there must be some other exception to the warrant requirement. See Kilburn v. State, 54 So. 3d 625, 627 (Fla. 1st DCA 2011). When, as here, no warrant is obtained, “[t]he state has the burden to prove that an exception to the warrant4 requirement applies.” Id. To satisfy that burden, the State a rgues that the warrantless

searches in these cases were reasonable under either of two exc eptions: consent or exigent circumstances.

Consent

A search conducted without a war rant issued upon probable cause is per se unreasonable under the Fourth Amendment, subject only to a few well-established exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). One of the wellestablished exceptions to the requirements of both a warrant an d probable cause is a search conducted pursuant to cons ent. Davis v. United States, 328 U.S. 582, 593-94 (1946). The State argues that the warrantless blood draws here should be upheld under the consent exception to the warrant requirement. The State concedes that Liles and Willis did not give actual co nsent to the blood draws. However, it argues that both blood samples were properl y drawn on the authority found in section 316.1933(1)(a), Florida Statutes (20 11), the mandatory blooddraw provision of Florida’s implied consent statutory scheme, 2 which provides as

follows:

2 This Court and other Florida courts have consistently recogniz ed that section 316.1933 is part of the trilogy of statutes comprising the impl ied consent statutory scheme. See, e.g., State v. Kleiber, 175 So. 3d 319, 321 (Fla. 5th DCA 2015); State v. Murray, 51 So. 3d 593, 595 n.1 (Fla. 5th DCA 2011); Kurecka v. State, 67 So. 3d 1052, 1060 (Fla. 4th DCA 2010); State, Dep’t of Highway Safety & Moto r Vehicles v. Boesch, 979 So. 2d 1024, 1026 n.1 (Fla. 3d DCA 2008); Bruch v. State, 9 54 So. 2d 1242, 1244 (Fla. 4th DCA 2007). Under this statutory scheme, section 316. 1932 provides that any person who drives a motor vehicl e is deemed to have given conse nt to blood alcohol testing if the driver is lawfully arrested on suspicion of a dr unk driving offense. § 316.1932, Fla. Stat. (2011). Section 316.1933, Florida Statute s (2011), requires a police officer to obtain a driver’s blood when the officer has probable cause to believe an impaired driver has caused death or serious injury to a huma n being and to use reasonable force if necessary. Finally, section 316.1934, Flor ida Statutes (2011), sets5 If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful arrest of the person. In Williams v. State, 167 So. 3d 483, 490-91 (Fla. 5th DCA 2015 ), review granted, No. SC15-1417, 2015 WL 9594290 (Fla. Dec. 30, 2015), t his Court recognized that statutory implied consent was not equivalent to Fourth Ame ndment consent, explaining that valid consent has long been recognized as a “je alously and carefully drawn” exception to the warrant requirement and for a search ba sed upon consent to be valid, it must be freely and voluntarily given and cannot be th e product of coercion. Further, statutory implied consent laws do “not constitute a pe r se exception to the warrant requirement.” Id. at 491; see also State v. Fierro, 85 3 N.W.2d 235, 237 (S.D. 2014) (indicating that implied-consent statute did not constitu te stand-alone exception to warrant requirement). Based on Williams, even if we agree with the State that Liles and Willis impliedly consented to the blood draws by driving, they explicitly revoked that consent when they refused to submit to the blood draws. Becaus e Liles and Willis did

forth various legal presumptions associated with different bloo d alcohol levels and the testing methods. The mandate found in section 316.1933 is a di rective to law enforcement to perform the test. See State v. Serrago, 875 So. 2d 815, 818 (Fla. 2d DCA 2004) (citing State v. Webb, 753 So. 2d 145 (Fla. 3d DCA 20 00)).6 not consent to the blood draws, we conclude that the warrantles s blood searches were not authorized by the consent exception. Exigency The State next contends that exigent circumstances exists to j ustify the warrantless blood draws. This exception to the warrant require ment “applies when the exigencies of the situation make the needs of law enforcement s o compelling that a warrantless search is objectively reasonable under the Fourth A mendment.” McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King, 563 U.S. 452, 460 (2011)). Applying that exception, the United States Supreme Court upheld the constitut ionality of a warrantless blood draw in Schmerber when the officer reasonably believed th at the delay involved in securing a warrant would result in the dissipation of alcohol i n a driver’s blood. 384 U.S. at 772. Forty-seven years later, in McNeely, the Supreme Court clarified Schmerber, holding that the natural metabolization of alcohol in the blood stream does not create a per se exigency justifying warrantless, nonconsensual blood tes ting in all DUI cases, though it is a relevant consideration in determining if exigent circumstances exist. 133 S. Ct. at 1568. Hence, “[a]fter McNeely, law enforcement offic ers [are] no longer categorically permitted to obtain a suspect’s blood sample with out a warrant simply because the alcohol [is] leaving the suspect’s blood stream.” Commonwealth v. Duncan, No. 2013-SC-000742-DG, 2015 WL 2266474, at *5 (Ky. May 14, 2015). In drunk driving investigations, the Fourth Amendment mandates that officers obtain a warrant unless excused by an exception to the warrant requirement. McNeely, 133 S. Ct. at 1561. The McNeely Court observed that a warrantl ess search in exigent circumstances is reasonable when “there is compelling need for official action and no7 time to secure a warrant.” Id. at 1559 (quoting Michigan v. Ty ler, 436 U.S. 499, 509 (1978)). However, there is no general justification for applyi ng the exigent circumstances exception when “officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the effic acy of the search.” Id. at

1561. 3 Here, as both trial courts found, the State failed to present sufficient evidence that exigent circumstances existed to support the warrantless b lood draws under the totality of the circumstances in either case. Indeed, the Stat e made no effort to do so, as the blood draws were based solely on the officers’ reliance on section 316.1933(1). See McNeely, 133 S. Ct. at 1567 (explaining because state had r elied on per se approach, “the arresting officer did not identify any other fac tors that would suggest he faced an emergency or unusual delay in securing a warrant”). We decline to adopt the State’s argument that McNeely does not apply in these cases and that the Schmerber rule is as broad as previously bel ieved. After McNeely, law enforcement must obtain a warrant or later show that exigen t circumstances prevented them from doing so. Following McNeely, we must read section 316.1933, Florida Statutes, as a directive to law enforcement to obtain b lood samples in serious and deadly crashes when probable cause exists to suggest impair ed driving. To comply with McNeely, the statute must assume the blood draw will be ob tained with a warrant, absent consent or proof of exigent circumstances. Cf. State v. Won, No. SCWC-12-

3 The Court reiterated that t he question of the reasonableness o f a warrantless search should be answered on a case-by-case basis considering t he totality of the circumstances. McNeely, 133 S. Ct. at 1563. McNeely identifie d certain facts that establish whether an exigent circumstance exists, including: na tural dissipation of alcohol from the body, the time to seek out a magistrate to rev iew a warrant, a DUI involving a crash where an investigation must be conducted, and the availability of electronic or telephonic warrants. Id. at 1560-62.8 0000858, 2015 WL 10384497 (Haw. Nov. 25, 2015) (discussing McNe ely, and stating that pursuant to statute, warrantless blood alcohol test may be required from driver involved in collision resulting in injury or death so long as: (1) police have probable

cause to believe that driver has committed DUI offense and that blood sample will evidence that offense; (2) exigent circumstances are present; a nd (3) sample is obtained in reasonable manner). Good Faith and the Exclusionary Rule Although we conclude that neither the consent nor exigent circu mstances exceptions applies to these cases, we nonetheless reverse the s uppression of the blood draws based on the police officers’ good-faith reliance on sect ion 316.1933. The exclusionary rule is a judicially-created remedy adopted to pro tect Fourth Amendment rights by deterring illegal searches and seizures. Davis v. Un ited States, 131 S. Ct. 2419, 2426 (2011). It is intended to deter police misconduct, not to remedy the prior invasion of a defendant's constitutional rights. Montgomery v. State, 69 So. 3d 1023, 1033 (Fla. 5th DCA 2011). Because the primary purpose of the e xclusionary rule is to “deter future unlawful police conduct,” Stone v. Powell, 428 U. S. 465, 484 (1976), the rule has not been applied in certain circumstances, such as whe n an officer acts in objectively reasonable reliance on a subsequently invalidated s tatute, Illinois v. Krull, 480 U.S. 340, 355 (1987). Applying the objective standard of reasonableness mandated by K rull to the facts presented here, we conclude that, before McNeely, it was reason able for the officers to have a good-faith belief in the constitutional validity of a wa rrantless blood draw authorized by section 316.1933(1)(a). See, e.g., State v. Bend er, 382 So. 2d 697, 6989 (Fla. 1980) (“There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established.”); S tate v. McInnis, 581 So. 2d 1370, 1373 (Fla. 5th DCA 1991) (recognizing no constitut ional right not to have blood drawn for testing by brute force and against suspect’s wi ll); see also State v. Langsford, 816 So. 2d 136, 138-39 (Fla. 4th DCA 2002) (holding forcible blood

extraction from defendant does not violate Fourth Amendment whe n defendant is under arrest for DUI provided there is probable cause to arrest defen dant for DUI, and blood is extracted in reasonable manner by medical personnel, pursuant t o medically-approved procedures).

Exclusion of the blood in these two cases would have no deterre nt effect on future police misconduct. See United States v. Calandra, 414 U .S. 338, 347 (1974) (recognizing that exclusionary rule’s primary purpose is to det er future unlawful police conduct, not repair it, and thus, not designed to safeguard per sonal constitutional right of party aggrieved); United States v. Master, 614 F.3d 236, 243 (6th Cir. 2010) (noting that Supreme Court's recent jur isprudence weighed more toward p reserving evidence for use in obtaining convictions, even if illegally seized, tha n toward excluding evidence in order to deter police misc onduct unless officers engaged in deliberate, reckless, or grossly negligent conduct); Brown v. State, 24 So. 3d 671, 681 (Fla. 5th DCA 2009) (“To apply the exclusionary rule in th is case cannot possibly deter police because they did exactly what they were trained to do based on what we (judges) told them was appropriate.”). Instead, applying the exclusionary rule in thi s case would deprive the

State of the benefit of evidence obtained as a result of the of ficers’ good-faith conduct. Leon, 468 U.S. at 907-08 (“Particularly when law enforcement of ficers have acted in10 objective good faith . . ., the magnitude of the benefit confer red on such guilty defendants [by the exclusionary rule] offends basic concepts of the criminal justice system.”). Accordingly, although we conclude that Liles and Willis both su ffered a Fourth Amendment violation, based on the good-faith exception, the tri al courts should not have suppressed the results of warrantless blood draws taken be fore the issuance of McNeely. 4 See, e.g., People v. Harrison, No. 5–15–0048, 2016 WL 683829 (Ill. App. Ct. Feb. 18, 2016) (holding that good-faith exception applied to pr eclude suppression of blood draw results because at time of warrantless, nonconsensua l blood draw, McNeely had yet to be decided and binding precedent allowed for such dr aws in all DUI cases); State v. Lindquist, 869 N.W.2d 863, 877-78 (Minn. 2015) (holdin g that results of defendant’s blood test were admissible under good-faith excepti on, where officer relied on and complied with binding appellate precedent, which was lat er abrogated, that allowed warrantless blood draw when there was probable cause to believe that

defendant was intoxicated when she caused motor vehicle acciden t); Byars v. State, 336 P.3d 939, 947-48 (Nev. 2014) (holding that admission of blo od draw evidence was not erroneous because, pre-McNeel y, officer had reasonable good -faith belief in constitutional validity of warrantless blood draw); State v. Fo ster, 856 N.W.2d 847, 859- 60 (Wis. 2014) (holding that good-faith exception to exclusiona ry rule applied to

4 Liles’s cross-appeal, challeng ing whether there was probable c ause for the warrantless blood draw pursuant to section 316.1933(1)(a), is w ithout merit. See Dep’t of Highway Safety & Motor Vehicles v. Rose, 105 So. 3d 22, 24 ( Fla. 2d DCA 2012) (recognizing that determination of probable cause to arrest for DUI is based on several factors, including odor of alcohol on driver’s breath as well a s defendant’s slurred speech, lack of balance or dexte rity, flushed face, bloodshot e yes, admissions, and poor performance on field sobriety exercises).11 evidence obtained as result of warrantless, nonconsensual blood draw following arrest of defendant on suspicion of operating vehicle while under infl uence of intoxicant since police officers conducting blood draw acted in objectively reas onable belief that their conduct did not violate Fourth Amendment; at time of draw, Supr eme Court had not yet announced McNeely rule); accord State v. Taylor, 79 So. 3d 876, 878 (Fla. 4th DCA 2012) (holding that good-faith exception applied to police offi cer's search of defendant's vehicle where search occurred prior to issuance of Supreme Cour t's decision that made such search unlawful); Montgomery, 69 So. 3d at 1033 (holding t hat, although defendant was stopped based on unconstitutional noise ordinance , good-faith exception applied to drug evidence recovered because ordinance was not he ld unconstitutional until after stop was made and officer's reliance on statute was objectively reasonable; exclusion of drugs found in defendant's car would have had no d eterrent effect on future police misconduct and would have deprived state of benefit of e vidence obtained as result of officer's good-faith conduct).

REVERSED AND REMANDED.

TORPY and EDWARDS, JJ., concur.