State v. Engesser4/23/2003
es Supreme Court's seminal decision in Schmerber v. California, 384 US 757, 86 SCt 1826, 16 LEd2d 908 (1966). State v. Hanson, 1999 SD 9, , 588 NW2d 885, 891. In Schmerber, the Court narrowly limited its holding to the facts of the case. 384 US at 772, 86 SCt at 1836, 16 LEd2d at 920. Under the Schmerber standard, we have held that law enforcement may seize a blood sample only if it is taken (1) incident to a lawful arrest; (2) by a reliable and accepted method for obtaining the sample; (3) in a reasonable, medically approved manner; and (4) where there is probable cause to believe the evidence sought exists. Hanson, 1999 SD 9, , 588 NW2d at 891.
[ .] Here, there is no dispute about the second and third factors. The questions are whether the Fourth Amendment was violated when the draw was taken without an arrest and whether the officer had probable cause to seize the blood evidence. We begin by examining whether the officer had probable cause.
[ .] The trial court concluded that the officer had probable cause, relying on the following circumstances: emergency room, late night, on a weekend, three hours . . . post accident, one almost incoherent suspect who smells strongly of alcohol, one suspect dead as a result of a two vehicle, high speed fatality accident on a public highway resulting from an unsuccessful passing maneuver, suspect one alive, taken directly from the scene to the ER via ambulance, any alcohol in suspect one's blood is dissipating, tick, tick, tick[.]
[ .] The defendant argues that probable cause did not exist because the trooper himself did not believe he had probable cause and the defendant was not placed under arrest at the time. He further contends that no one had seen him driving and the information available to Fox at the time (per his initial report) was that Finley owned the vehicle and that she had been the driver.
[ .] Probable cause is a question of law; the trial court must measure it against an objective standard. State v. Lamont, 2001 SD 92, , 631 NW2d 603, 610 (citations omitted). Fox's subjective beliefs or ideas about who was driving or whether he had probable cause are individual factors to be considered in the totality of circumstances. The conditions justifying an officer's actions need not be the circumstances forming the officer's state of mind at the time the action is taken. Scott v. United States, 436 US 128, 138, 98 SCt 1717, 1723, 56 LEd2d 168, 178 (1978). "[A]s long as the circumstances, viewed objectively, justify [the] action," probable cause may be found. Id. Here, Engesser was found outside the driver's side door, Finley was inside the vehicle, and the passenger door could not be opened. In addition, Engesser's breath smelled of an alcoholic beverage. Engesser has shown no error in the trial court's determination that the objective circumstances amounted to probable cause to believe that a crime may have been committed and that the blood test would uncover relevant evidence of the crime.
[ .] The next question is whether the blood draw was "incident to" arrest or, more to the point, whether a formal arrest is necessary in all circumstances. As a threshold matter, we have never held that a decision to make an arrest must come before a blood sample is taken. In fact, we have specifically found that there is no such requirement. Nguyen, 1997 SD 47 at , 563 NW2d at 125; see also Rawlings v. Kentucky, 448 US 98, 110-11, 100 SCt 2556, 2564-65, 65 LEd2d 633, 645-46 (1980). Nonetheless, a blood draw done seven months before an arrest is not "incident to" that arrest.
[ .] Schmerber was undeniably couched in terms of a search incident to arrest. The Court stated that its holding was based solely on the specific facts
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