State v. Hoerle, 297 Neb. 840

Background

Jared S. Hoerle was arrested after a motorcycle wreck; a preliminary breath test suggested impairment and an officer had hospital staff draw Hoerle’s blood after transporting him for medical evaluation.
At arrest the officer read the postarrest chemical test advisory stating refusal to submit to the chemical test was a separate crime; Hoerle cooperated and the blood was drawn without a warrant.
Trial proceeded; parties stipulated the blood alcohol concentration was .195 and a jury convicted Hoerle of DUI with an enhancement for BAC over .15 and prior convictions.
The day after trial, the U.S. Supreme Court decided Birchfield v. North Dakota, holding warrantless blood draws are not permissible as searches incident to arrest and expressing concern about consent given after advisories that refusal is criminal.
Hoerle moved for a new trial arguing admission of the warrantless blood-test result was error under Birchfield; the district court denied the motion.
On appeal the Nebraska Supreme Court considered whether the good-faith exception to the exclusionary rule applied to pre-Birchfield warrantless blood draws and whether consent must be deemed involuntary as a matter of law when given after an incorrect criminal-refusal advisory.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether blood-test evidence obtained without a warrant but after an advisory that refusal is a separate crime must be excluded after Birchfield	Hoerle: Birchfield rendered such warrantless blood draws unconstitutional and evidence obtained should be excluded; consent was coerced by criminal-refusal warning	State: Birchfield does not automatically invalidate preexisting practice; officer reasonably relied on statute and advisory so evidence should not be suppressed under the good-faith exception	The court held Birchfield did not categorically invalidate consent given after an incorrect criminal-refusal advisory and applied the good-faith exception to pre-Birchfield warrantless blood draws, affirming denial of a new trial
Whether consent given after an incorrect advisement that refusal is a crime is per se involuntary	Hoerle: consent was coerced and therefore involuntary as a matter of law	State: voluntariness must be judged on the totality of circumstances; not categorically involuntary	Court held voluntariness is a totality-of-the-circumstances inquiry and not per se invalid when preceded by an incorrect advisory
Whether suppression would serve the exclusionary rule’s deterrent purpose where officer relied on statute not yet declared unconstitutional	Hoerle: suppression necessary to vindicate Fourth Amendment rights	State: exclusion would not deter objectively reasonable reliance on an unchallenged statute; good-faith exception applies	Court held suppression would not deter reasonable reliance and applied the good-faith exception
Standard of review for applying the good-faith exception on appeal	Hoerle: (implicit) district court erred in denying new trial	State: legal question allows de novo review	Court treated good-faith exception as a question of law and reviewed independently, affirming district court

Key Cases Cited

Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (warrantless breath tests lawful as incident to arrest; warrantless blood tests not; raised voluntariness concerns when refusal is criminalized)
Heien v. North Carolina, 135 S. Ct. 530 (U.S. 2014) (an officer’s reasonable mistake of law can render police conduct reasonable under the Fourth Amendment)
Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357 (U.S. 1998) (the exclusionary rule need not extend to noncriminal proceedings where its deterrent effect is limited)
United States v. Leon, 468 U.S. 897 (U.S. 1984) (establishing the good-faith exception to the exclusionary rule)
Illinois v. Krull, 480 U.S. 340 (U.S. 1987) (applying good-faith rationale when officers rely on statute later found invalid)