State v. Jessica M. Randall

2019 WI 80

SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1518-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Jessica M. Randall,
Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 383 Wis. 2d 602,918 N.W.2d 128
(2018 – unpublished)

OPINION FILED: July 2, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 18, 2019

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Nicholas McNamara

JUSTICES:
CONCURRED: ROGGENSACK, C.J. concurs, joined by ZIEGLER, J.
and DALLET, J. (opinion filed).
DISSENTED: A.W. BRADLEY, J. dissents (opinion filed).
NOT PARTICIPATING: ABRAHAMSON, J. withdrew from participation.

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs
filed by Michael C. Sanders, assistant attorney general, with
Brad D. Schimel, former attorney general, on the initial brief
and Joshua L. Kaul, attorney general, on the reply brief. There
was an oral argument by Michael C. Sanders.

For the defendant-respondent, there was a brief filed by
Adam M. Welch and Tracey Wood & Associates, Madison. There was
an oral argument by Adam M. Welch.
 2019 WI 80
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1518-CR
(L.C. No. 2016CT1061)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant-Petitioner,
FILED
v.
JUL 2, 2019
Jessica M. Randall,
Sheila T. Reiff
Defendant-Respondent. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.

¶1 DANIEL KELLY, J. A police officer arrested Jessica
M. Randall for operating a motor vehicle while under the
influence of an intoxicant. Ms. Randall gave the officer
permission to take a sample of her blood for the purpose of

determining its alcohol concentration. But before the Wisconsin
State Laboratory of Hygiene could test it, she sent a letter
revoking the consent she had previously given. The letter also
demanded the immediate return or destruction of her blood
sample. This, she says, made the subsequent test of her blood
 No. 2017AP1518-CR

sample a violation of her constitutional right to be free of
unreasonable searches and seizures. We do not agree, and so we
reverse the decision of the court of appeals.1
I. BACKGROUND
¶2 After arresting Ms. Randall for operating a motor
vehicle while under the influence of an intoxicant, the police
read her a document entitled "Informing the Accused" (the
"Form").2 The Form, in pertinent part, asks: "Will you submit
to an evidentiary chemical test of your blood?" Ms. Randall
consented, and the officer marked the Form accordingly. An hour
later, a medical professional withdrew a sample of her blood.
¶3 Two days later (and before her blood sample was

tested), Ms. Randall (through her counsel) sent a letter to the
Wisconsin State Laboratory of Hygiene (the "Laboratory")

1
This is a review of an unpublished opinion of the court of
appeals, State v. Randall, No. 2017AP1518-CR, unpublished slip
op. (Wis. Ct. App. June 14, 2018), which affirmed the Dane
County Circuit Court, the Honorable Nicholas McNamara,
presiding.

A majority of the court agrees with the mandate in this
matter, but not the reasoning. This is the lead opinion; other
members of the court will express their reasoning in separate
opinions.
2
"[T]he Informing the Accused form is mandated by Wis.
Stat. § 343.305(4), and informs the driver that he or she has
been arrested for drunk driving; that law enforcement wants to
take a sample of his or her breath, blood or urine to determine
the alcohol concentration in the driver's system; that refusal
to submit to the test will result in negative consequences; and,
the driver may take additional tests after completing the first
test." State v. VanLaarhoven, 2001 WI App 275, ¶8 n.3, 248
Wis. 2d 881, 637 N.W.2d 411.

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 No. 2017AP1518-CR

"revok[ing] any previous consent that she may have provided to
the collection and analysis of her blood, assert[ing] her right
to privacy in her blood, and demand[ing] that no analysis be run
without a specific authorization . . . ." The letter further
said Ms. Randall "does not consent to any person or entity
retaining possession of her blood sample, and therefore demands
that it be returned to her or destroyed immediately."
¶4 The Laboratory responded to Ms. Randall's letter with
one of its own, in which it advised that it required
authorization from the entity submitting the specimen (i.e., the
Fitchburg Police Department) to release the requested sample.
It did not, however, address the issue of consent. The

Laboratory then proceeded to test the specimen, which revealed a
blood-alcohol level of 0.210 grams of ethanol per 100
milliliters of her blood. It was unlawful for Ms. Randall to
operate a motor vehicle with a blood-alcohol level of 0.08 or
more.
¶5 The Dane County District Attorney's Office charged Ms.

Randall with operating a motor vehicle while intoxicated (in
violation of Wis. Stat § 346.63(1)(a) (2017-18)),3 and operating
a motor vehicle with a prohibited alcohol concentration (in
violation of § 346.63(1)(b)), both as a third offense. Ms.
Randall filed two motions to suppress the results of the blood
test. In one, she argued that the consent she gave before the

3
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.

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 No. 2017AP1518-CR

blood draw was not free, intelligent, unequivocal, and specific.
The circuit court ruled against her, and she did not pursue that
issue in the court of appeals or here. In the other motion, she
argued that the blood test comprised an unlawful search under
the Fourth Amendment because she had revoked her consent before
the Laboratory conducted the test. The circuit court agreed,
concluding that Ms. Randall's revocation of consent left the
State with no constitutionally sufficient basis for discovering
the amount of alcohol in her blood sample. The State appealed
the circuit court's decision granting the motion to suppress.
¶6 Based on the rationale of State v. VanLaarhoven, 2001

WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, and State v.

Wantland, 2014 WI 58, 355 Wis. 2d 135, 848 N.W.2d 810, the court
of appeals affirmed, reasoning that the Laboratory
unconstitutionally tested Ms. Randall's blood. State v.
Randall, No. 2017AP1518-CR, ¶13, unpublished slip op. (Wis. Ct.
App. June 14, 2018). We granted the State's petition for
review, and now reverse the decision of the court of appeals and
remand this cause to the circuit court for further proceedings
consistent with this opinion.
II. STANDARD OF REVIEW
¶7 Review of an order granting a motion to suppress
evidence presents a question of constitutional fact. State v.
Delap, 2018 WI 64, ¶26, 382 Wis. 2d 92, 913 N.W.2d 175 (quoting
State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786
N.W.2d 463). In considering such questions, we uphold a circuit
court's findings of historical fact unless they are clearly
4
 No. 2017AP1518-CR

erroneous. State v. Iverson, 2015 WI 101, ¶18, 365 Wis. 2d 302,

871 N.W.2d 661 (quoting Robinson, 327 Wis. 2d 302, ¶22). But we
apply the relevant constitutional principles to those facts de
novo. State v. Hogan, 2015 WI 76, ¶32, 364 Wis. 2d 167, 868
N.W.2d 124 (citing State v. Martwick, 2000 WI 5, ¶18, 231
Wis. 2d 801, 604 N.W.2d 552).
III. ANALYSIS
¶8 Ms. Randall asks us to declare that, when a suspect
consents to a blood test for the purpose of determining the
amount of alcohol it contains, she may prevent the State from
obtaining that information by withdrawing her consent subsequent
to the blood draw but before the laboratory conducts the test.

The facts of the case, so far as they are relevant to this
issue, are uncontested. Therefore, our analysis focuses on how
the Fourth Amendment of the United States Constitution, and
Article 1, § 11 of the Wisconsin Constitution, apply to them.
¶9 We begin where one must always begin in assessing
constitutional claims——with the text of the documents. The
Fourth Amendment guarantees the following:

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
U.S. Const. amend. IV. The Wisconsin Constitution uses almost

identical language:

5
 No. 2017AP1518-CR

The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported
by oath or affirmation, and particularly describing
the place to be searched and the persons or things to
be seized.
Wis. Const. art. 1, § 11. Because of the near equivalence of
the language, we generally understand Article 1, § 11 of the
Wisconsin Constitution to provide the same constitutional
protections as the Fourth Amendment of the United States
Constitution. State v. Kramer, 2009 WI 14, ¶18, 315
Wis. 2d 414, 759 N.W.2d 598; see also State v. Dearborn, 2010
WI 84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97. Consequently, when
we refer to the Fourth Amendment's requirements, we should be

understood as referring to the requirements of Art. 1, § 11 of
the Wisconsin Constitution as well.
¶10 The Fourth Amendment's reference point with respect to
searches and seizures is reasonableness. Brigham City, Utah v.
Stuart, 547 U.S. 398, 403 (2006) ("[T]he ultimate touchstone of
the Fourth Amendment is 'reasonableness[.]'"). The general rule
is that searches and seizures conducted without a warrant are
not reasonable. Riley v. California, 573 U.S. 373, 382 (2014)

("In the absence of a warrant, a search is reasonable only if it
falls within a specific exception to the warrant requirement.").
One of the exceptions to the warrant rule is that an
individual's consent to the search satisfies the constitutional
"reasonableness" requirement. "It is well established that a
search is reasonable when the subject consents . . . ."
Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016);

6
 No. 2017AP1518-CR

Thompson v. State, 83 Wis. 2d 134, 139, 265 N.W.2d 467 (1978)

("Some of the exceptions [to the constitutional warrant
requirement] are consent to search . . . ."); Wantland, 355
Wis. 2d 135, ¶20 ("'[A] search conducted pursuant to a valid
consent is constitutionally permissible.'") (quoting Schneckloth
v. Bustamonte, 412 U.S. 218, 222 (1973)). If a search is
premised on an individual's consent, it must cease immediately
upon revocation of that consent. "One who consents to a search
'may of course delimit as [she] chooses the scope of the search
to which [she] consents.'" State v. Matejka, 2001 WI 5, ¶37,
241 Wis. 2d 52, 621 N.W.2d 891 (quoting Florida v. Jimeno, 500
U.S. 248, 252 (1991)).

¶11 The court of appeals and the parties each offer us a
different paradigm within which to consider the application of
these principles to the Laboratory's test of Ms. Randall's blood
sample. For her part, Ms. Randall says her encounter with the
police resulted in not one, but two discrete searches. The
first occurred when a medical technician drew a sample of her
blood. The second occurred when the Laboratory tested the
sample to determine its alcohol concentration. She argues that
both searches must respect the constitutional mandate that she
be free of unreasonable searches and seizures. Ms. Randall
acknowledges that her consent (as documented on the Form) made
the blood draw unobjectionable. But she maintains that her
withdrawal of consent made the second search——the Laboratory's
analysis of her blood sample——unconstitutional.

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 No. 2017AP1518-CR

¶12 The State's paradigm allows for only one search. It
says the search started and ended with the medical technician's
acquisition of Ms. Randall's blood sample. The subsequent
analysis was not a search or seizure, the State says, so there
was no Fourth Amendment basis for objecting to the analysis.
Consequently, because Ms. Randall did not withdraw her consent
until after completion of the search, the State says her
revocation was ineffective on the general ground that one cannot
revoke consent to something that has already happened. See,

e.g., United States v. Mitchell, 82 F.3d 146, 151 (7th Cir.
1996) ("[W]hen a suspect does not withdraw [her] valid consent
to a search before the illegal weapon or substance is

discovered, the consent remains valid and the seized illegal
item is admissible.").
¶13 The court of appeals' paradigm is, in one sense, a
portmanteau of the ones offered by the parties. It said there
was only one search, but its parameters were more expansive than
either of the parties recognized. It understood the search to
have been one continuous event that commenced with the blood
draw and ended with the Laboratory's analysis. Therefore, the
court of appeals said, the Laboratory received Ms. Randall's
withdrawal of consent while the search was yet underway.
Because the State acknowledged it had no justification for the
search other than Ms. Randall's consent, the court of appeals'
reasoning required the Laboratory to refrain from testing her
blood sample immediately upon receiving her letter.
Consequently, because the Laboratory's analysis was not
8
 No. 2017AP1518-CR

supported by a warrant or any of the exceptions to the warrant
requirement, the court of appeals concluded that the test was an
unreasonable search. We will address the paradigms advanced by
Ms. Randall and the court of appeals to assess their fidelity to
constitutional principles, starting with Ms. Randall's offering.
A. Two Searches
¶14 Ms. Randall says she was subjected to two searches and
that the State must demonstrate a constitutional justification
for each one. If we agree with that premise, she says, then we
must also conclude the actual analysis of her blood was
unconstitutional because she had revoked her consent and the
State offered no other basis for satisfying the Fourth

Amendment's "reasonableness" requirement. But we do not reach
that conclusion because, as explained below, we do not accept
her proposition that a blood draw and test involve two searches.
¶15 Ms. Randall begins her argument with an examination of
the State's invasions when it set out to discover her blood-
alcohol level. She says such proceedings implicate two privacy

interests. The first is the obvious——a needle's intrusion to
retrieve a sample of blood. The second privacy interest relates
to the information contained within her blood sample. She finds
support for these dual privacy interests in Skinner v. Ry. Labor
Execs.' Ass'n, 489 U.S. 602, 616 (1989).4 There, the Court said

4
The dissent believes we (and, apparently, Ms. Randall)
erred right here in the beginning of our analysis by confusing
"searches" with "seizures":

(continued)
9
 No. 2017AP1518-CR

The lead opinion initially missteps by failing to
ascribe independent constitutional significance to the
testing of Randall's blood, conflating the lawful
"seizure" of Randall's blood with the "search"
conducted through chemical testing. As a result, it
collapses the seizure and search into a single
constitutional event. Such an error runs counter to
the United States Supreme Court's decision in Skinner
v. Ry. Labor Execs.' Ass’n, 489 U.S. 602, 616 (1989).

Dissent, ¶93. This is an odd proposition to ascribe to Skinner,
inasmuch as Skinner unequivocally contradicts the dissent on
this very point. Skinner says the "seizure" occurs when the
suspect is restrained, and the "search" occurs when the State
obtains the blood sample:

The initial detention necessary to procure the
evidence may be a seizure of the person, if the
detention amounts to a meaningful interference with
his freedom of movement. Obtaining and examining the
evidence may also be a search, if doing so infringes
an expectation of privacy that society is prepared to
recognize as reasonable[.]

Skinner, 489 U.S. at 616 (emphasis added and internal citations
omitted). The Court was really quite clear that obtaining a
blood sample is a search: "We have long recognized that a
'compelled intrusio[n] into the body for blood to be analyzed
for alcohol content' must be deemed a Fourth Amendment search."
Id. at 603 (alteration in original, emphasis added, and quoted
source omitted).

(continued)
10
 No. 2017AP1518-CR

"it is obvious that this physical intrusion, penetrating beneath
the skin, infringes an expectation of privacy that society is
prepared to recognize as reasonable. The ensuing chemical
analysis of the sample to obtain physiological data is a further
invasion of the tested employee's privacy interests." Id. Ms.

Randall points out that this is not the only time the Supreme
Court has taken note of an individual's privacy interest in the
information contained in one's blood. In Birchfield, the Court
observed that "a blood test, unlike a breath test, places in the
hands of law enforcement authorities a sample that can be
preserved and from which it is possible to extract information
beyond a simple BAC reading." 136 S. Ct. at 2178.

Consequently, "[e]ven if the law enforcement agency is precluded
from testing the blood for any purpose other than to measure
BAC, the potential remains and may result in anxiety for the
person tested." Id. So Ms. Randall concludes that courts have
already noted that society is prepared to recognize a legitimate

Nonetheless, the dissent insists that our analysis must
proceed on the erroneous belief that obtaining a blood sample is
a seizure, not a search. It says "[t]he lead opinion arrives at
its flawed conclusion by conflating the 'seizure' of Randall's
blood, which was accomplished lawfully, with the 'search'
conducted through chemical testing. As a result, it collapses
the seizure and search into a single constitutional event. This
flawed construct permeates and compromises its analysis."
Dissent, ¶80; see also id., ¶98 ("The distinction between the
initial seizure and the analysis of the seized material is a key
one, yet the majority treats the two discrete events as one
continuous 'search.'"). The dissent cites no authority for
these contra-Skinner propositions, and so we will not address
them further.

11
 No. 2017AP1518-CR

expectation of privacy in the information contained in one's
blood.5
¶16 Ms. Randall notes that, by definition, a governmental
invasion of a person's legitimate expectation of privacy is a
"search" for Fourth Amendment purposes. "A 'search' occurs when
an expectation of privacy that society is prepared to consider
reasonable is infringed." United States v. Jacobsen, 466

U.S. 109, 113 (1984) (footnote omitted). Every such search, of
course, must have a constitutional justification. But as both
Skinner and Birchfield demonstrate, the Court's analytical
approach proceeds with the understanding there is only one
search, even though the government is both: (1) obtaining a

biological specimen; and (2) testing the specimen for the
presence of alcohol. Thus, the Skinner Court referred to a
blood draw and test as involving a single search: "We have long
recognized that a 'compelled intrusio[n] into the body for blood
to be analyzed for alcohol content' must be deemed a Fourth
Amendment search." Skinner, 489 U.S. at 616 (alteration in
original; quoted source omitted). Although the Court recognized

5 Justice Ann Walsh Bradley points out, correctly, that
society is not only prepared to recognize a legitimate
expectation of privacy in one's medical information, it has
actually codified it. Dissent, ¶101. For example, the Health
Insurance Portability and Accountability Act ("HIPAA") created
significant safeguards protecting the confidentiality of health
records. Wisconsin has done so as well. See Wis. Stat.
§ 146.82. Although neither of these statutory provisions
control the disposition of this matter, they do tell us that any
analysis that does not account for the privacy interests they
reflect is necessarily incomplete.

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 No. 2017AP1518-CR

in this sentence both the acquisition of the sample and the
subsequent analysis, the entirety of the Court's reasoning
depended on there having been just one search. If the
biological specimen testing regimen in Skinner involved an

invasion of two distinct privacy interests, the Court would have
been duty-bound to assess the constitutional fidelity of each
search separately. It did not. Instead, it focused exclusively
on the acquisition of the sample to be tested. After the Court
satisfied itself that the government had a constitutionally-
sufficient basis for obtaining the biological specimens, it
declared the testing regime sound.6
¶17 Similarly, Birchfield does not support Ms. Randall's
assertion that a blood draw and subsequent test involve two
searches. One need only consider the Court's disparate
treatment of the blood draw and the subsequent test to see that
it did not treat the latter as a separate search. The Court
explicitly called out a blood draw and administration of a
breath test as searches: "The [Fourth] Amendment thus prohibits
'unreasonable searches,' and our cases establish that the taking
of a blood sample or the administration of a breath test is a
search." Birchfield, 136 S. Ct. at 2173. Nowhere, however, did

6 The Court's grammar also signaled it understood itself to
be addressing a single search. It said "a Fourth Amendment
search" occurs when there is a "'compelled intrusio[n] into the
body for blood to be analyzed for alcohol content . . . .'"
Skinner, 489 U.S. at 616 (alteration in original; emphasis
added).

13
 No. 2017AP1518-CR

the Court so much as hint that the ensuing test of the blood
sample (or the breath collected for the breath test) might be a
search. Indeed, even when Birchfield referred to the test, it

is apparent from the context that it actually meant the blood
draw. Id. at 2184 (emphasis added) ("A blood test also requires
less driver participation than a breath test. In order for a
technician to take a blood sample, all that is needed is for the
subject to remain still, either voluntarily or by being
immobilized."). So nothing in the Court's analysis, from its
premises to its conclusion, suggests the actual testing of the
blood sample was a search. Indeed, the Court treated the
discovery of the defendant's blood-alcohol level as a

constitutional non-event.
¶18 Although Skinner and Birchfield lie at the foundation
of Ms. Randall's argument, it is impossible to escape the
significant tension between her position and those authorities.
If a blood draw and subsequent analysis constitute two searches,
then Skinner and Birchfield erred in failing to independently
assess the constitutionality of each one. But if this brace of
cases correctly treats only one of these events as a search,
then there is something amiss with Ms. Randall's argument. For
the following reasons, we conclude that Ms. Randall's conclusion
cannot follow from her premises.
¶19 In the ordinary course of events, an individual enjoys
both of the privacy interests identified by Ms. Randall——the
right to be free from a non-consensual blood draw and the right
to keep private the information contained in one's blood. If
14
 No. 2017AP1518-CR

the State wants to invade those privacy interests, it must do so
consistently with the Fourth Amendment's requirements. But the
circumstances that gave rise to the testing of Ms. Randall's
blood sample were anything but ordinary. She had been arrested
for operating a vehicle while under the influence of an
intoxicant. The evidence of that offense, and the
instrumentality by which she committed it——the alcohol she had
imbibed——was hidden in her blood.
¶20 This, then, is the nature of the privacy interest she
claims today: She says that, notwithstanding a
constitutionally-compliant search (the blood draw), she
nonetheless had a legitimate privacy interest in shielding from

the State the very evidence for which it was authorized to
search. This has never been the law, and her argument fails to
account for the age-old principle that an arrest reduces the
suspect's privacy interests. "The search incident to arrest
exception rests not only on the heightened government interests
at stake in a volatile arrest situation, but also on an

arrestee's reduced privacy interests upon being taken into
police custody." Riley, 573 U.S. at 391. We are mindful of
Riley's admonition that "[t]he fact that an arrestee has
diminished privacy interests does not mean that the Fourth
Amendment falls out of the picture entirely. Not every search
'is acceptable solely because a person is in custody.'" Id. at
392 (quoted source omitted). Consequently, we must now examine

15
 No. 2017AP1518-CR

the principles that justify incidental searches and determine
how they might apply to Ms. Randall's situation.7
¶21 The reduction in an arrestee's privacy interests
applies specifically to the instrumentalities, evidence, and
fruits of crime for which the suspect has been arrested. State

v. Stevens, 26 Wis. 2d 451, 458, 132 N.W.2d 502 (1965) ("Within
such scope of the search, instruments, evidence, and fruits of
the crime for which the defendant was arrested may be searched
for and seized."); Chimel v. California, 395 U.S. 752, 762–63
(1969), abrogation on other grounds recognized by Davis v.
United States, 564 U.S. 229 (2011) ("When an arrest is
made, . . . it is entirely reasonable for the arresting officer

to search for and seize any evidence on the arrestee's person in
order to prevent its concealment or destruction."); Agnello v.
United States, 269 U.S. 20, 30 (1925) ("The right without a

7 The concurrence is concerned that we do not account for
the fact that this case involves an arrest for intoxicated
driving while Riley (and the other cases on which we rely)
involve arrests for different crimes:

[T]he quotes must be understood in the context in
which they were made. That is, policies that
permitted a search, or set aside evidence obtained,
are apparent from the context in which the search
occurred. However, here, the lead opinion transplants
quotes into an entirely new context without any
recognition that the context impacts the meaning of
the words chosen.

Concurrence, ¶72. We respectfully disagree. Literally the
entire remaining balance of this opinion is dedicated to teasing
out the principles that are transportable from one context to
another, and explaining why they apply in both contexts.

16
 No. 2017AP1518-CR

search warrant contemporaneously to search persons lawfully
arrested while committing crime and to search the place where
the arrest is made in order to find and seize things connected
with the crime as its fruits or as the means by which it was
committed, as well as weapons and other things to effect an
escape from custody is not to be doubted."); Carroll v. United

States, 267 U.S. 132, 158 (1925) ("When a man is legally
arrested for an offense, whatever is found upon his person or in
his control which it is unlawful for him to have and which may
be used to prove the offense may be seized and held as evidence
in the prosecution.").8
¶22 This principle predates both the Wisconsin and United

States Constitutions and still obtains today. Over a century
ago, the United States Supreme Court observed that "the right on

8 The concurrence suggests that the amount of time between
the search and testing of Ms. Randall's blood has some
significance to the incidental search doctrine: "Here, the
objected-to search to determine the alcohol concentration of
Randall's blood sample occurred nine days after her arrest.
Therefore, safety of an officer or preservation of evidence of a
crime which undergird the cases cited by the lead opinion are
not relevant concerns." Concurrence, ¶71. But the lapse of
time has nothing to do with this analysis. It is the
relationship between the arrest and the evidence found in the
incidental search that matters. So long as the scope of the
search remains within proper boundaries, a person has no
protectable privacy interest in the fruits and instrumentalities
of crime the search may reveal. Nor does that privacy interest
grow back over time. Whether the State tested Ms. Randall's
blood the next day or the next year, her privacy interest in the
amount of alcohol it contained would be precisely the same——
zero. And it is zero because the alcohol in her blood was the
instrumentality of her crime, and her arrest eviscerated her
privacy interest in how much was there.

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 No. 2017AP1518-CR

the part of the government . . . to search the person of the
accused when legally arrested, to discover and seize the fruits
or evidences of crime" has been "uniformly maintained in many
cases." Weeks v. United States, 232 U.S. 383, 392 (1914)

(overruled on other grounds by Mapp v. Ohio, 367 U.S. 643
(1961), and overruled in part by Elkins v. United States, 364
U.S. 206 (1960)). In fact, it said this right has "always
[been] recognized under English and American law . . . ."
Weeks, 232 U.S. at 392 (emphasis added). We, too, recognize
this ancient precept. "A custodial arrest of a suspect based on
probable cause is a reasonable intrusion under the Fourth
Amendment; that intrusion being lawful, a search incident to the

arrest requires no additional justification." State v. Sykes,
2005 WI 48, ¶14, 279 Wis. 2d 742, 695 N.W.2d 277 (quoting State
v. Fry, 131 Wis. 2d 153, 169, 388 N.W.2d 565 (1986), overruled
on other grounds by Dearborn, 327 Wis. 2d 252 (quoting United
States v. Robinson, 414 U.S. 218, 235 (1973))).9

9 The concurrence says this is an incorrect statement of the
law but does not say why. Concurrence, ¶73. If it is
incorrect, we should overrule it. But then we would have to
explain why the United States Supreme Court also got this wrong
when it said the exact same thing in 1973 (See United States v.
Robinson, 414 U.S. 218 (1973)) and again in 2014 when it quoted
itself (Riley v. California, 573 U.S. 373, 384 (2014)), and why
we made the same mistake when we repeated this quote in 1986
(State v. Fry, 131 Wis. 2d 153, 169, 388 N.W.2d 565 (1986)). We
would also have to give an account of our statements to the same
effect in 2006 and 2010. State v. Dearborn, 2010 WI 84, ¶27,
327 Wis. 2d 252, 786 N.W.2d 97 ("[A] search incident to a lawful
arrest may be justified when it is 'reasonable to believe
evidence relevant to the crime of arrest might be found in the
vehicle.'") (quoted source omitted); State v. Payano-Roman, 2006
(continued)
18
 No. 2017AP1518-CR

¶23 If an arrestee may prevent the State from knowing the
amount of alcohol in her blood, then all of these cases are
wrong and some additional justification is necessary to conduct

a blood test. But none of the search-incident-to-arrest cases
cited above recognized an arrestee's right to keep the
instrumentalities and evidence of crime secret from the police.
And Ms. Randall offers no authority to support such a
proposition.
¶24 Additionally, if we were to accept Ms. Randall's
argument, we would need to explain why a person's privacy
interest in her alcohol concentration level varies depending on
the type of search the State performs. Birchfield addressed
itself to two possible means by which the State may discover the
concentration of alcohol in a suspect's blood stream——a breath
test and a blood test. The first, it said, could be performed
as a categorical matter as a search incident to arrest.
Birchfield, 136 S. Ct. at 2184. The impact of that statement on
Ms. Randall's argument cannot be overstated. A breath test
involves a search (obtaining a sample of the suspect's alveolar
breath) from which the State may discover the information Ms.
Randall says she may keep to herself (her blood-alcohol level).
Id. at 2176-77. Having obtained the breath sample, Ms.
Randall's logic would require the State to obtain a warrant (or

WI 47, ¶31, 290 Wis. 2d 380, 714 N.W.2d 548 ("A lawful arrest
gives rise to heightened concerns that may justify a warrantless
search, including the need to discover and preserve evidence.").

19
 No. 2017AP1518-CR

satisfy one of the exceptions to the warrant requirement) before
reading the results of the test. But nothing in the Court's
analysis could support such a conclusion. To the contrary, it
establishes that, upon arrest for intoxicated driving, the
suspect loses any privacy interest she may have previously had
in her blood-alcohol level. And that allows the State to know
this information upon no greater showing than a good arrest. It
is, of course, certainly true that the State must comply with
constitutional requirements in obtaining the sample to be
tested, which is why the Court distinguished between breath and
blood tests. Id. at 2185 ("Because breath tests are

significantly less intrusive than blood tests and in most cases

amply serve law enforcement interests, we conclude that a breath
test, but not a blood test, may be administered as a search
incident to a lawful arrest for drunk driving."). But that
distinction does not, and cannot, affect whether a suspect has a
privacy interest in the amount of alcohol in her blood.
¶25 The extent of an arrestee's privacy interest in the
amount of alcohol in her blood is not contingent on the method
the State uses to obtain that information. Logic would not
allow us to conclude that an arrestee has a privacy interest in
her blood-alcohol level when the State performs a blood draw,
but not when it performs a breath test. The method by which an
arrestee is searched does not affect the individual's privacy
interest in the datum the search reveals. The arrestee is
either entitled to keep that information secret, or she is not.
Birchfield teaches us that she is not.
20
 No. 2017AP1518-CR

¶26 This is in keeping with the general principle that an
individual has a reduced privacy interest after arrest, Riley,

573 U.S. at 391, which allows the State to seize the
instrumentalities, evidence, or fruits of crime discovered on
the arrestee's person without any separate constitutional
justification.

The right without a search warrant
contemporaneously to search persons lawfully arrested
while committing crime and to search the place where
the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means
by which it was committed, as well as weapons and
other things to effect an escape from custody is not
to be doubted.
Agnello, 269 U.S. at 30.10
B. One Continuing Search

10
Other jurisdictions have also concluded that an arrestee
has no privacy interest in her blood-alcohol concentration
level. See, e.g., People v. Woodward, 909 N.W.2d 299, 305
(Mich. Ct. App. 2017) ("[W]e conclude that society is not
prepared to recognize a reasonable expectation of privacy in the
alcohol content of a blood sample voluntarily given by a
defendant to the police for the purposes of blood alcohol
analysis."); State v. Fawcett, 877 N.W.2d 555, 561 (Minn. Ct.
App. 2016) ("Once a blood sample has been lawfully removed from
a person's body, a person loses an expectation of privacy in the
blood sample, and a subsequent chemical analysis of the blood
sample is, therefore, not a distinct Fourth Amendment event.");
State v. Loveland, 696 N.W.2d 164, 166 (S.D. 2005) ("Once a
urine sample is properly seized, the individual that provided
the sample has no legitimate or reasonable expectation that the
presence of illegal substances in that sample will remain
private."); State v. Hauge, 79 P.3d. 131, 144-45 (Haw. 2003)
("Any legitimate expectation of privacy that the [defendant] had
in [her] blood disappeared when the blood was validly seized.")
(quoted source omitted).

21
 No. 2017AP1518-CR

¶27 Ms. Randall also agrees with the court of appeals'
paradigm in which the blood draw and subsequent test are
understood to comprise a single, continuing search. Under this
construct, the constitutional justification for obtaining the
blood sample must persist until the Laboratory completes its
test. If the justification fails at any point during that time,
so the reasoning goes, the State may not thereafter possess or
examine the blood sample for the presence of alcohol. Ms.
Randall likens her situation to an individual who grants
government agents permission to search her home, but then
revokes consent before they are done. The search, she says,
must be "terminated instantly upon [the individual's] revocation

of consent . . . ." Painter v. Robertson, 185 F.3d 557, 567

(6th Cir. 1999). Because the State lost the only justification
it had for possessing her blood sample when she revoked her
consent, Ms. Randall says, her specimen thereupon became
unavailable for testing.
¶28 The court of appeals adopted this reasoning. It said
"this court [referring to its opinion in VanLaarhoven11] set the
beginning and end points of a search of a person’s blood,
specifically ruling that the taking and testing of blood
comprise one continuous search under the Fourth Amendment."
Randall, No. 2017AP1518-CR, unpublished slip op., ¶11. Based on
that understanding, it concluded that

11 248 Wis. 2d 881.

22
 No. 2017AP1518-CR

the search of Randall's blood, which comprised both
the taking and testing of the blood, had not yet been
completed at the time when the officials at the state
laboratory possessed Randall's blood but had not yet
tested Randall's blood; therefore, before the blood
was tested Randall had the right to withdraw her
consent to the continuation of that search.
Id., ¶13. We cannot agree with the court of appeals' analysis

because its "one continuous search," id., ¶11, paradigm is
unalterably in conflict with Schmerber v. California, 384
U.S. 757 (1966).
¶29 We first note that the court of appeals'
characterization of the VanLaarhoven holding is insufficiently
precise. What VanLaarhoven actually says is "the examination of
evidence seized pursuant to the warrant requirement or an

exception to the warrant requirement is an essential part of the
seizure and does not require a judicially authorized warrant."
248 Wis. 2d 881, ¶16. It then said that a defendant may not
"parse the lawful seizure of a blood sample into multiple
components, each to be given independent significance for
purposes of the warrant requirement." Id. In reaching its
conclusion, VanLaarhoven relied on the following observations in

United States v. Snyder:

It seems clear, however, that Schmerber viewed the
seizure and separate search of the blood as a single
event for fourth amendment purposes. . . . The
[Schmerber] Court therefore necessarily viewed the
right to seize the blood as encompassing the right to
conduct a blood-alcohol test at some later time.
852 F.2d 471, 473-74 (9th Cir. 1988). These statements do not
necessarily establish that taking and testing a blood sample
comprise a single continuous search. Both the VanLaarhoven and

23
 No. 2017AP1518-CR

Snyder courts were responding to a defendant's attempt to confer

constitutional significance on the blood test by separating it
from the search by which the State obtained the specimen. Both
courts concluded that defendants cannot multiply the number of
constitutionally-significant events by slicing up the timeline
and demanding a separate justification for each segment. But
just because a blood draw and test do not present multiple such
events does not mean the single constitutionally-significant
event must necessarily commence with the blood draw and end with
the test. The VanLaarhoven court could also be understood as
asserting that the one event in need of a constitutional
justification is the blood draw, not the test. Its reliance on

Schmerber and Snyder suggest this is the proper understanding.
¶30 Schmerber establishes that it is not possible to
consider a blood draw and test as part of a single continuing
search in need of non-lapsing constitutional justification. The
Schmerber Court considered the "exigent circumstances" exception
to the warrant requirement in the context of a non-consensual
blood test conducted subsequent to arrest for intoxicated
driving. 384 U.S. at 770. Like Birchfield, the Court
concentrated exclusively on whether acquisition of the blood
sample was consistent with the Fourth Amendment. That is, it
did not inquire into whether the justification for taking the
sample still obtained when the State tested it. This is
especially important to our analysis here because, of course,

24
 No. 2017AP1518-CR

the exigency that justifies a non-consensual blood draw never

persists beyond the point the State acquires the sample.12 If
the court of appeals is correct, this means that whenever the
State's only basis for obtaining the blood sample is an "exigent
circumstance," it never has a Fourth Amendment justification for
the subsequent test. Therefore, if the blood draw and
subsequent test comprise one continuous search, then all such
tests must be unconstitutional——according to the court of
appeals' analysis——because the justification for obtaining the
blood sample lapses immediately after the blood draw.
¶31 But the Schmerber court saw no constitutional
violation when the State tests a sample of blood obtained under

exigent circumstances. It is possible the Court's holding
reflects an understanding that a blood draw and test do not
comprise one continuous search. It is also possible the Court's
analysis represents a failure to accurately perceive "the
beginning and end points of a search of a person's blood[.]"
Randall, No. 2017AP1518-CR, unpublished slip op., ¶11. We

12
One element of the exigency analysis is the body's
constant metabolization of alcohol in the blood stream, a
process that will continue until it is all eliminated. Once the
blood is withdrawn, however, the metabolization process stops,
which means the amount of alcohol in the blood sample will
thereafter remain. United States v. Snyder, 852 F.2d 471, 473
(9th Cir. 1988) ("Removal of blood from a defendant's blood
stream eliminates immediately the danger that evidence of blood-
alcohol content will be lost."). As this case itself
demonstrates, the Laboratory tested the blood sample several
days after it was acquired with no apparent diminution in its
ability to determine the amount of alcohol therein.

25
 No. 2017AP1518-CR

conclude the first is the more reasonable conclusion. We are
not the only ones to do so. See, e.g., Synder, 852 F.2d at 474

("[S]o long as blood is extracted incident to a valid arrest
based on probable cause to believe that the suspect was driving
under the influence of alcohol, the subsequent performance of a
blood-alcohol test has no independent significance for fourth
amendment purposes, regardless of how promptly the test is
conducted."). In fact, we are aware of no court (other than the
circuit court and court of appeals in this case) to have ever
concluded otherwise.
¶32 The lesson we must draw from Schmerber is obvious.
The constitutional basis for obtaining the blood sample both

there and here was evanescent. The exigency supporting the
blood draw in Schmerber vanished just as surely (if more
quickly) than Ms. Randall's consent here. In both cases, the
authorities tested the samples in the absence of the
circumstances that made the blood draws compliant with the
Fourth Amendment. With respect to the question before us today,
there is no constitutionally significant distinction to be drawn
with Schmerber. Therefore, if the State of California may test
Mr. Schmerber's blood sample when the justification for
obtaining it had passed, then the State of Wisconsin may test
Ms. Randall's blood sample upon the same rationale. And the
rationale is that a blood draw and test do not represent a
single continuous search. What Schmerber concluded implicitly,
Johnson v. Quander, stated explicitly: "[A] 'search' is

26
 No. 2017AP1518-CR

completed upon the drawing of the blood . . . ." 440 F.3d 489,
500 (D.C. Cir. 2006). We agree.
C. Of Smart Phones and Blood Samples
¶33 Ms. Randall argues that her circumstances are
analogous to those at issue in Riley and require suppression of

the blood test results for the same reason the Supreme Court
suppressed the information discovered in a smart phone.
Although there are some similarities between the two situations,
they do not suggest that Riley should govern our conclusion.
There, the police arrested Mr. Riley after discovering concealed
weapons under the hood of his car. The search incident to his
arrest produced a smart phone, which the police proceeded to

peruse for useful information. After describing the
multitudinous types and amounts of information a smart phone can
contain, the Court observed that searching such a device could
reveal more information about the suspect than an exhaustive
search of the owner's entire house. Riley, 573 U.S. at 396-97.
Something similar might be said with respect to the information
contained in Ms. Randall's blood——and, in fact, she did. She
made the entirely reasonable observation that there resides in
her blood "genetic information about ancestry, family
connections, medical conditions, [and] pregnancy."
¶34 The similarities between a smart phone and a blood
sample in terms of the amount of information they each contain,
and the personal nature of that information, are such that we
must pay particular attention to what the Supreme Court said
about the State's access to it. The Fourth Amendment analysis
27
 No. 2017AP1518-CR

turns, as Riley recognized, on whether there are principles that

can effectively limit the incidental search to that which has an
appropriate connection to the arrest. Here, there are two. The
first relates to the type of information the State may collect
from the blood sample. When a government agent conducts a
search pursuant to an individual's consent, the scope of the
search may not exceed the individual's authorization. "One who
consents to a search 'may of course delimit as [she] chooses the
scope of the search to which [she] consents.'" Matejka, 241
Wis. 2d 52, ¶37 (quoting Jimeno, 500 U.S. at 252). The
"Informing the Accused" form indicates that Ms. Randall
consented to a blood test "to determine the concentration of

alcohol or drugs in [her] system." Therefore, the State may
test the blood sample only for the concentration of alcohol or
drugs.
¶35 The second principle relates to the testing mechanism
and its ability to focus on only the sought-after information.
Perusing the contents of a smart phone, the Riley court
concluded, would be reminiscent of "the reviled 'general
warrants' and 'writs of assistance' of the colonial era, which
allowed British officers to rummage through homes in an
unrestrained search for evidence of criminal activity." Riley,
573 U.S. at 403. The Court recognized that there were no
practical methods by which the police could limit themselves to
reviewing only the information to which an incidental search
justifies access. Consequently, such searches may not be
conducted without a warrant. But here is where Ms. Randall's
28
 No. 2017AP1518-CR

situation diverges from Riley. Although her blood contains a

wealth of personal information, the tests undertaken by the
State reveal only information directly related to the purpose
for her arrest, to wit, the presence and concentration of
alcohol or other prohibited drugs. If the State could not
ascertain that data without also learning genetic information
about her ancestry, family connections, medical conditions, or
pregnancy, our conclusion would be different. However, nothing
in the record suggests that the State's tests result in such
generalized rummaging. Therefore, Riley does not suggest that
Ms. Randall retains any privacy interest in the amount of
alcohol in her blood, so long as the State lawfully obtained the

blood sample.
*
¶36 The authorities support the conclusion we reach today,
but logic compels it. Ms. Randall's argument depends on the
proposition that she had a privacy interest in the
instrumentalities and evidence of crime for which the police
were authorized to search. Without such a privacy interest, of
course, there can be no search capable of implicating the Fourth
Amendment. But if Ms. Randall is right, an entire branch of
Fourth Amendment jurisprudence (searches incident to arrest)
would come to naught. A hidden bag of white powder discovered
on a suspect arrested for possession of drugs, or a secreted gun
found on an individual arrested for a shooting death, would each
be subject to the arrestee's privacy interest. Without a
constitutional justification separate and apart from the one
29
 No. 2017AP1518-CR

warranting arrest, Ms. Randall's position would prevent the
State from chemically testing the suspected drugs or
fingerprinting the gun. That is to say, having discovered the
very thing for which it was authorized to search, the State
could do nothing with it unless it thereafter obtained a warrant
for its examination and use. The Riley court recognized that

searches incident to arrest are justified by the arrestee's
reduced expectation of privacy. And Birchfield confirms that
this principle applies in the specific context of intoxicated
driving. Upon her arrest, Ms. Randall's reduced expectation of
privacy meant that she could not keep the presence and
concentration of alcohol in her blood secret from the police.

So the only relevant question is whether the method by which the
State obtained the non-private evidence satisfied the Fourth
Amendment's requirements. Ms. Randall's consent to the blood
draw satisfied those requirements, and that left the State free
to test the blood sample for the non-private information.
¶37 The concurrence reaches the same conclusion, but in an
uncomfortably abbreviated fashion. It is uncomfortable because
it lacks any justification for the conclusion that an individual
does not have a privacy interest in the alcohol concentration in
her blood. It simply says there is no such interest. The
abbreviation is also troubling because it contains no limiting
principles circumscribing this lack of a privacy interest. So,
for example, nothing in the concurrence would prohibit the State
from testing a non-arrestee's blood sample for the presence of
alcohol or drugs for no weightier reason than curiosity (so long
30
 No. 2017AP1518-CR

as it did not violate the constitution in obtaining the sample).
And what of blood samples drawn by non-State actors, such as
hospitals? If the concurrence's uncabined conclusion is
correct, what prevents the State from randomly requesting
alcohol and drug concentration tests on blood samples drawn for
medical purposes? Certainly nothing in the concurrence would
prohibit this. And what about the rest of the treasure trove of
information we all carry around with us in our blood? What, in
the concurrence's view, protects all of that from the State's
curious eyes? The concurrence cursorily says its holding is
limited to searches consequent upon arrest for intoxicated
driving: "This opinion is confined to blood samples that have

been drawn for purposes of alcohol or drug testing subsequent to
arrest for driving while intoxicated. It does not address
privacy interests that might otherwise attach to testing for
other purposes." Concurrence, ¶42 n.1. But not a single
sentence in the concurrence explains why the arrest for
intoxicated driving has anything to do with Ms. Randall's loss

of her privacy interest in the amount of alcohol in her system.
If there is a link between the two, the concurrence has not said
what it is. This is not "intellectually unfortunate and
intentionally misleading," as the concurrence claims.
Concurrence, ¶75. It is a simple recognition that the reasoning
offered by the concurrence has no bounds, even if the specific
conclusion addresses just an arrest for intoxicated driving.13

13 The concurrence's conclusion ties the suspect's privacy
(continued)
31
 No. 2017AP1518-CR

¶38 We believe a person has a privacy interest in the
information contained in her blood, including the concentration
of alcohol or other drugs, until something happens to limit or
eliminate that interest. For the reasons explained above, Ms.
Randall lost her privacy interest in the alcohol and drug
concentration in her blood when she was arrested for intoxicated
driving. The concurrence, for some unexplained reason, says she

interests to the arrest for intoxicated driving, but nothing in
its reasoning does. See, e.g., concurrence, ¶55 ("[T]here is no
reasonable expectation of privacy in the alcohol concentration
of a blood sample that has been voluntarily submitted to police
for a blood alcohol testing. The blood sample is seized evidence
that will be tested to determine whether a crime was
committed."); id., ¶60 ("Just as there was no separate
reasonable expectation of privacy in the content of the
undeveloped film [in State v. Petrone, 161 Wis. 2d 530, 468
N.W.2d 676 (1991)], there was no separate reasonable expectation
of privacy in the alcohol concentration of blood that was
voluntarily submitted to the State for testing to determine its
alcohol concentration."); concurrence, ¶61 ("Numerous federal
and state courts that have addressed this issue have reached the
same result, concluding that an individual has no reasonable
expectation of privacy in the alcohol concentration of blood
that a state has properly seized."); id., ¶63 ("Therefore,
contrary to the decision of the court of appeals herein, there
is no reasonable expectation of privacy in the alcohol
concentration of blood that has been lawfully seized. It is
merely evidence to be tested in order to determine whether the
operator of a motor vehicle had a prohibited alcohol
concentration."); id. ("Therefore, just as the State may analyze
a lawfully seized white powdery substance to determine whether
the substance is cocaine, United States v. Jacobsen, 466 U.S.
109, 125-26 (1984), so, too, may the State test a lawfully
seized blood sample to determine its alcohol concentration. In
neither case, does a Fourth Amendment reasonable expectation of
privacy affect such testing.").

32
 No. 2017AP1518-CR

never had such an interest. That is an assertion too broad, too
unbounded, to be accepted.
IV. CONCLUSION
¶39 We conclude that the State performed only one search
when it obtained a sample of Ms. Randall's blood and
subsequently analyzed it for the presence of alcohol or other
prohibited drugs. That single search ended when the State
completed the blood draw.14 We further conclude that, although
the State must comply with the Fourth Amendment in obtaining a
suspect's blood sample, a defendant arrested for intoxicated

14
The concurrence's author says she does not join this
opinion because it:

loses its constitutional thread in its concern for
whether the drawing and testing of the blood sample
should be analyzed as one search or two. In
actuality, it does not matter. What matters is
whether there is a legally protectable privacy
interest in the alcohol concentration of a blood
sample constitutionally obtained from the operator of
a vehicle after arrest for driving while intoxicated.

Concurrence, ¶64 (footnote omitted). This is really just two
ways of saying the same thing. If the suspect has no protected
privacy interest, there can be no search within the meaning of
the Fourth Amendment. But if there is a protected privacy
interest, and the State invades it, there has been a Fourth
Amendment search. So when we inquired into whether Ms. Randall
was subject to one search or two, we were necessarily inquiring
into whether the State invaded a protected privacy interest when
it tested her blood sample for the presence of alcohol. There
was only one search because we concluded the State did not
invade a protected privacy interest when it tested Ms. Randall's
blood sample for the presence of alcohol, a conclusion shared by
the concurrence. Therefore, if we "lost the constitutional
thread," then so did the concurrence.

33
 No. 2017AP1518-CR

driving has no privacy interest in the amount of alcohol in that
sample. Where there is no privacy interest, there can be no
constitutionally-significant search. Therefore, the State did
not perform a search on Ms. Randall's blood sample (within the
meaning of the Fourth Amendment) when it tested the sample for
the presence of alcohol. As a result, Ms. Randall's consent to
the test in this case was not necessary. For these reasons, we
reverse the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
¶40 SHIRLEY S. ABRAHAMSON, J., withdrew from participation

prior to oral argument.

34
 No. 2017AP1518-CR.pdr

¶41 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). The
issue presented by this review is whether a defendant-driver of
a vehicle who consented to a blood draw after her arrest for
driving while under the influence of alcohol contrary to Wis.
Stat. § 346.63(1) can prevent testing of the blood sample for
alcohol concentration by "revoking" her consent and invoking the
Fourth Amendment's protections against unreasonable searches and
seizures.
¶42 I conclude that a defendant who has been arrested for

driving while under the influence of alcohol has no reasonable
expectation of privacy in the alcohol concentration of the blood
sample that has been lawfully seized.1 Therefore, the subsequent
testing of the blood sample to determine its alcohol
concentration initiates no Fourth Amendment protections through
which a defendant may prevent testing the blood sample by
"revoking" consent after the blood has been drawn. Accordingly,
I respectfully concur in the result reached by the lead opinion,

although I do not join that opinion.
I. BACKGROUND
¶43 The lead opinion ably sets out the background for this
controversy, so I will relate only what is helpful in
understanding my discussion that follows. On October 29, 2016,
Jessica M. Randall was arrested for operating a motor vehicle

1 This opinion is confined to blood samples that have been
drawn for purposes of alcohol or drug testing subsequent to
arrest for driving while intoxicated. It does not address
privacy interests that might otherwise attach to testing for
other purposes.

1
 No. 2017AP1518-CR.pdr

while intoxicated, as a third offense. The arresting officer
read Randall the Informing the Accused form as required by Wis.
Stat. § 343.305(4), and Randall consented to an evidentiary test
of her blood for alcohol and drugs.2 A sample of Randall's blood
was drawn without incident by a trained medical professional.
The sample was sealed, marked, and brought to the Wisconsin
State Laboratory of Hygiene (the laboratory) for analysis.
¶44 Before the laboratory had analyzed the alcohol
concentration of Randall's blood sample, Randall's attorney sent

a letter to the laboratory. The letter stated:

It is my understanding that as of this date a
blood sample belonging to Jessica M. Randall has been
received but has not yet been analyzed. Jessica M.
Randall hereby revokes any previous consent that she
may have provided to the collection and analysis of
her blood, asserts her right to privacy in her blood,
and demands that no analysis be run without specific
authorization by a neutral and detached magistrate
upon a showing of probable cause and specifying the
goal of analysis. State v. Wantland, 255 Wis. 2d 135,
152, 848 N.W.2d 810 (2014), Katz v. United States, 389
U.S. 347, 360-61 (1967). Further, Jessica M. Randall
hereby advises the Wisconsin State Laboratory of
Hygiene that she does not consent to any person or
entity retaining possession of her blood sample, and
therefore demands that it be returned to her or
destroyed immediately.

2 Wisconsin Stat. § 343.305(4) provides in relevant part:

You have . . . been arrested for an offense that
involves driving or operating a motor vehicle while
under the influence of alcohol or drugs . . . .

This law enforcement agency now wants to test one
or more samples of your breath, blood or urine to
determine the concentration of alcohol or drugs in
your system.

2
 No. 2017AP1518-CR.pdr

A copy of this letter is directed to the Dane
County District Attorney's Office. We request that
you consult with that office prior to any analysis of
the blood sample.
¶45 The blood sample was not returned to Randall. On
November 7, 2016, the laboratory tested the blood sample, which
showed that Randall had a blood alcohol level of .210. She was
charged with Operating a Motor Vehicle While Intoxicated and
Operating With Prohibited Alcohol Concentration, both as third
offenses. Wis. Stat. § 346.63(1)(a) and (b).
¶46 Randall moved to suppress the results of the blood
test. She argued that through her attorney's letter, she had
clearly and unequivocally withdrawn her consent to test her
blood for alcohol concentration. She asserted that because
consent was the only lawful basis for the State to retain her
blood and "search" it for blood alcohol concentration, the State
was required to return the sample without testing it once she
revoked her consent. The circuit court agreed, and issued an
order granting Randall's motion to suppress the blood test
results.3 In an unpublished one-judge opinion, the court of
appeals affirmed. State v. Randall, No. 2017AP1518-CR,

unpublished slip op. (Wis. Ct. App. June 14, 2018).
II. DISCUSSION
A. Standard of Review
¶47 "When we review a decision on a motion to suppress
evidence, we uphold a circuit court's findings of historical

3 The Honorable Nicholas J. McNamara of Dane County Circuit
Court presided.

3
 No. 2017AP1518-CR.pdr

fact unless they are clearly erroneous." State v. Blatterman,

2015 WI 46, ¶16, 362 Wis. 2d 138, 864 N.W.2d 26 (citations
omitted). "[H]owever, the application of Fourth Amendment
principles to the facts found presents a question of law that we
review independently." State v. Brereton, 2013 WI 17, ¶17, 345
Wis. 2d 563, 826 N.W.2d 369 (citations omitted).
B. Searches and Seizures
1. General principles
¶48 The Fourth Amendment to the United States Constitution

provides:

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the person or things to be seized.
U.S. Const. amend. IV. Article 1, Section 11 of the Wisconsin
Constitution "is substantively identical, and we normally
interpret it coextensively with the United States Supreme

Court's interpretation of the Fourth Amendment." State v.
Floyd, 2017 WI 78, ¶19, 377 Wis. 2d 394, 898 N.W.2d 560
(citations omitted).4
¶49 It is helpful to define a "search" and to distinguish
it from a "seizure." "A seizure deprives an individual of
'dominion over his or her person or property,' whereas a search

4
When I refer to the Fourth Amendment, I include Article I,
Section 11 of the Wisconsin Constitution as its provisions
provide a similar framework in which to discuss Randall's
contentions.

4
 No. 2017AP1518-CR.pdr

occurs 'when an expectation of privacy that society is prepared
to consider reasonable is infringed.'" Brereton, 345

Wis. 2d 563, ¶23, (citations omitted). For example, police
might search a home pursuant to a valid warrant, and seize
evidence of criminal activity found during the search.
"[S]eizures generally are considered less intrusive than
searches," because "a seizure affects only the person's
possessory interests," whereas "a search affects a person's
privacy interests." Id. (citations omitted).

¶50 Not all searches initiate Fourth Amendment
protections. Id., ¶31. A Fourth Amendment search occurs
when: (1) the government violates an individual's subjective
expectation of privacy, and (2) society recognizes the
individual's expectation of privacy as reasonable. Kyllo v.
United States, 533 U.S. 27, 33 (2001); State v. Tate, 2014 WI
89, ¶19, 357 Wis. 2d 172, 849 N.W.2d 798.
¶51 "The touchstone of the Fourth Amendment is

reasonableness." State v. Tullberg, 2014 WI 134, ¶29, 359
Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S.
248, 250 (1991)). For this reason, "[t]he Fourth Amendment does
not proscribe all state-initiated searches and seizures; it
merely proscribes those which are unreasonable." See, e.g.,
Tullberg, 359 Wis. 2d 421, ¶29; Jimeno, 500 U.S. at 250. A
search conducted without a judicially-authorized warrant is
considered to be unreasonable, and therefore prohibited by the
Fourth Amendment, unless it falls within one of the
"'specifically established and well-delineated' exceptions to

5
 No. 2017AP1518-CR.pdr

the warrant requirement." State v. Hogan, 2015 WI 76, ¶55, 364

Wis. 2d 167, 868 N.W.2d 124 (citations omitted).
¶52 Consent to search is a specifically established and
well-delineated exception to the warrant requirement. See id.
"The United States Supreme Court has 'long approved consensual
searches because it is no doubt reasonable for the police to
conduct a search once they have been permitted to do so.'"
State v. Wantland, 2014 WI 58, ¶20, 355 Wis. 2d 135, 848
N.W.2d 810 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973)). For this reason, a warrantless search conducted with a
person's consent is constitutional. Wantland, 355 Wis. 2d 135,
¶20; Schneckloth, 412 U.S. at 219.
¶53 A person who has voluntarily consented to a search
within the scope of the Fourth Amendment may withdraw that
consent at any time during the search by an unequivocal act or
statement. See, e.g., Wantland, 355 Wis. 2d 135, ¶33. When
consent to search has been withdrawn, the search must stop

unless and until some other lawful basis for the search exists.
However, an individual may revoke consent only while a search is
being conducted. Consent cannot be retroactively "revoked"
after the search has been completed. See id., ¶¶20-21.
2. Blood sample taking and testing
¶54 The act of drawing blood from one who has been
arrested for driving while intoxicated is a search within the
meaning of the Fourth Amendment. The United States Supreme
Court has long recognized that "any compelled intrusion into the
human body implicates significant, constitutionally protected

6
 No. 2017AP1518-CR.pdr

privacy interests." Missouri v. McNeely, 569 U.S. 141, 159

(2013). The act of drawing blood requires the government to
violate "a motorist's privacy interest in preventing an agent of
the government from piercing his skin." Id. Because a
reasonable expectation of privacy must be violated to draw
blood, a blood draw is a Fourth Amendment search. Id. It is
also, simultaneously, a seizure of evidence, i.e. that person's
blood. State v. Perryman, 365 P.3d 628, 631-32
(Or. Ct. App. 2015).

¶55 However, once the search of the motorist's body has
been conducted by lawfully drawing a blood sample, the
subsequent testing of the evidence seized to determine its
alcohol concentration has no further Fourth Amendment
implications. This is so because there is no reasonable
expectation of privacy in the alcohol concentration of a blood
sample that has been voluntarily submitted to police for a blood
alcohol testing. The blood sample is seized evidence that will

be tested to determine whether a crime was committed.
¶56 As the court of appeals has explained, determining the
blood alcohol concentration of lawfully seized blood is the
"examination of evidence seized pursuant to the warrant
requirement or an exception to the warrant requirement" and
"does not require a judicially authorized warrant." State v.
Riedel, 2003 WI App 18, ¶16, 259 Wis. 2d 921, 656 N.W.2d 789;
see also State v. VanLaarhoven, 2001 WI App 275, ¶17, 248
Wis. 2d 881, 637 N.W.2d 411 (concluding that chemical testing of

7
 No. 2017AP1518-CR.pdr

lawfully seized blood sample is not "a separate event for
warrant requirement purposes").
¶57 The court of appeals' decision in State v. Sumnicht,

No. 2017AP280-CR, unpublished slip op. (WI App Dec. 20, 2017),
contains instructive reasoning. In Sumnicht, which involved
substantially the same factual history as Randall presents, the
court of appeals relied on our decision in State v. Petrone, 161
Wis. 2d 530, 468 N.W.2d 676 (1991) and held that the defendant
could not revoke her consent after the blood had been drawn.

Sumnicht, No. 2017AP280-CR, ¶22.

¶58 In Petrone, police searched a suspect's home pursuant
to a valid warrant and seized rolls of film believed to contain
illicit photographs of minors. Petrone, 161 Wis. 2d at 538.
Police developed the film, which resulted in the defendant being
convicted of three counts of sexual exploitation of children.
Id. at 538-39. Petrone sought to suppress the photos on the
grounds that the police did not have a separate search warrant

to develop the film after seizing it. See id. at 544.
¶59 We rejected Petrone's contention that the development
of the film constituted a second Fourth Amendment search for
which a separate warrant was needed. Id. at 545. In doing so,
we said:

Developing the film is simply a method of
examining a lawfully seized object. Law enforcement
officers may employ various methods to examine objects
lawfully seized in the execution of a warrant. For
example, blood stains or substances gathered in a
lawful search may be subjected to laboratory
analysis . . . . The defendant surely could not have
objected had the deputies used a magnifying glass to
examine lawfully seized documents or had enlarged a
8
 No. 2017AP1518-CR.pdr

lawfully seized photograph in order to examine the
photograph in greater detail. Developing the film
made the information on the film accessible, just as
laboratory tests expose what is already present in a
substance but not visible with the naked eye.
Developing the film did not constitute, as the
defendant asserts, a separate, subsequent unauthorized
search having an intrusive impact on the defendant's
rights wholly independent of the execution of the
search warrant. The deputies simply used
technological aids to assist them in determining
whether items within the scope of the warrant were in
fact evidence of the crime alleged.
Id.

¶60 The court of appeals in Sumnicht employed our decision
in Petrone and concluded that when the State analyzed the
defendant's blood to determine its alcohol concentration, it was
merely examining lawfully seized evidence rather than infringing
on a separate reasonable expectation of privacy. Sumnicht,
No. 2017AP280-CR, ¶22. Just as there was no separate reasonable
expectation of privacy in the content of the undeveloped film,
there was no separate reasonable expectation of privacy in the
alcohol concentration of blood that was voluntarily submitted to
the State for testing to determine its alcohol concentration.
¶61 Numerous federal and state courts that have addressed
this issue have reached the same result, concluding that an
individual has no reasonable expectation of privacy in the
alcohol concentration of blood that a state has properly seized.
See, e.g., Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010)
("[A] 'search' is completed upon the drawing of the
blood . . . . Therefore, once Jones had sufficient grounds to
draw blood from Dodd after he was arrested for driving while
intoxicated, the subsequent testing of that blood had 'no

9
 No. 2017AP1518-CR.pdr

independent significance for [F]ourth [A]mendment purposes.'")
(citations omitted); United States v. Snyder, 852 F.2d 471, 474

(9th Cir. 1988) (holding that when blood is validly seized
"based on probable cause to believe that the suspect was driving
under the influence of alcohol, the subsequent performance of a
blood-alcohol test has no independent significance for [F]ourth
[A]mendment purposes"); Harrison v. Comm'r of Pub. Safety, 781
N.W.2d 918, 921 (Minn. Ct. App. 2010) ("[W]hen the state has
lawfully obtained a sample of a person's blood under the

implied-consent law, specifically for the purpose of determining
alcohol concentration, the person has lost any legitimate
expectation of privacy in the alcohol concentration derived from
analysis of the sample."); People v. Woodard, 909 N.W.2d 299,

305 (Mich. Ct. App. 2017) ("[S]ociety is not prepared to
recognize a reasonable expectation of privacy in the alcohol
content of a blood sample voluntarily given by a defendant to
the police for the purposes of blood alcohol analysis.").

¶62 In reaching the opposite conclusion in the matter now
before us, the court of appeals misconstrued VanLaarhoven as
holding that the testing of a person's blood is a continuation
of the Fourth Amendment search of the person begun by the blood
draw. In VanLaarhoven, the defendant voluntarily consented to a
blood draw and was convicted of operating a motor vehicle while
intoxicated after an analysis of his blood revealed a blood
alcohol concentration of 0.173%. VanLaarhoven, 248 Wis. 2d 881,
¶2. VanLaarhoven moved to suppress the results of the blood
test because the State did not obtain a warrant to test his

10
 No. 2017AP1518-CR.pdr

blood after the blood draw. Id., ¶3. The court of appeals in

VanLaarhoven rejected the defendant's argument that "the
chemical analysis of his blood sample is a separate event for
warrant requirement purposes" and held that the blood draw
encompassed the right to analyze the alcohol concentration of
the blood. Id., ¶17.
¶63 The court of appeals in this case erroneously asserted
that VanLaarhoven "specifically rul[ed] that the taking and
testing of blood comprise one continuous search under the Fourth

Amendment." Randall, No. 2017AP1518-CR, ¶11. However, the

court of appeals in VanLaarhoven actually held to the contrary.
VanLaarhoven explained:

[T]he examination of evidence seized pursuant to the
warrant requirement or an exception to the warrant
requirement is an essential part of the seizure and
does not require a judicially authorized warrant.
Both decisions refuse to permit a defendant to parse
the lawful seizure of a blood sample into multiple
components, each to be given independent significance
for purposes of the warrant requirement.
VanLaarhoven, 248 Wis. 2d 881, ¶16 (citing Petrone, 161 Wis. 2d

at 538 and Snyder, 852 F.2d at 472). Therefore, contrary to the
decision of the court of appeals herein, there is no reasonable
expectation of privacy in the alcohol concentration of blood
that has been lawfully seized. It is merely evidence to be
tested in order to determine whether the operator of a motor
vehicle had a prohibited alcohol concentration. Therefore, just
as the State may analyze a lawfully seized white powdery
substance to determine whether the substance is cocaine, United

States v. Jacobsen, 466 U.S. 109, 125-26 (1984), so, too, may

11
 No. 2017AP1518-CR.pdr

the State test a lawfully seized blood sample to determine its
alcohol concentration. In neither case, does a Fourth Amendment
reasonable expectation of privacy affect such testing.
C. Lead opinion
¶64 While I agree with parts of the lead opinion, I do not
join it. In my view, the opinion loses its constitutional
thread in its concern for whether the drawing and testing of the
blood sample should be analyzed as one search or two.5 In
actuality, it does not matter. What matters is whether there is

a legally protectable privacy interest in the alcohol
concentration of a blood sample constitutionally obtained from
the operator of a vehicle after arrest for driving while
intoxicated.
¶65 The Fourth Amendment proscribes only unreasonable
searches and seizures. Jimeno, 500 U.S. at 250. A Fourth

Amendment search occurs when a person's subjective expectation
of privacy is infringed and society recognizes that expectation

of privacy as reasonable under the circumstances. Kyllo, 533
U.S. at 33; Brereton, 345 Wis. 2d 563, ¶23; Tate, 357 Wis. 2d
172, ¶19.
¶66 Accordingly, the question that we must answer is
whether determining the alcohol concentration of lawfully seized
blood from one arrested for operating while intoxicated violates
a reasonable expectation of privacy. As explained more

5
Lead op., Section A "Two Searches" (¶¶14–19) and Section B
"One Continuing Search" (¶¶27–31).

12
 No. 2017AP1518-CR.pdr

completely above, I have concluded that it does not.6 Therefore,
regardless of whether the testing of the blood sample is
characterized as part of one search or as a second search, the
testing has no Fourth Amendment implications under the facts of
this case. Kyllo, 533 U.S. at 33; Brereton, 345 Wis. 2d 563,

¶¶32–34; Riedel, 259 Wis. 2d 921, ¶16.
¶67 I also part company with the lead opinion's overly
broad application of the search incident to arrest exception to
the warrant requirement.7 No party argued this theory to us,

either in briefs or during oral argument.
¶68 Promoting officer safety and preserving evidence are
the policies that underlie the search incident to arrest
exception to the warrant requirement. Chimel v. California, 395

U.S. 752, 762-63 (1969) (explaining that upon arrest, it is
reasonable to search the person of a suspect, and the area in
his immediate control, to remove any weapons that may endanger

6
My conclusion is bolstered by Wis. Stat. § 343.305, which
specifically authorizes law enforcement to request a blood draw
upon arresting a driver for operating under the influence, or
upon having "reason to believe" the driver has been operating
under the influence. § 343.305(3)(a) & (am). When an officer
requests a blood draw, the driver may refuse. See § 343.305(4)
& (9). However, refusal of a blood draw carries consequences,
including revocation of the driver's operating privilege.
§ 343.305(9).

Here, consistent with Wis. Stat. § 343.305, the arresting
officer requested a blood draw to test for alcohol and drugs and
read Randall the requisite information under § 343.305(4).
Randall had the opportunity to revoke consent prior to the blood
draw, but she chose not to do so.
7 Lead op., ¶¶20–23.

13
 No. 2017AP1518-CR.pdr

officer safety and to prevent concealment or destruction of
evidence of a crime).
¶69 The lead opinion's quotation from Riley v. California,

573 U.S. 373 (2014), seems to drive its expansive conclusion.
The lead opinion quotes Riley as deciding that, "[t]he search
incident to arrest exception rests not only on the heightened
government interests at stake in a volatile arrest situation,
but also on an arrestee's reduced privacy interests upon being
taken into police custody."8 Id. at 391. The quoted language is

used to build the lead opinion's conclusion that an arrest is
sufficient to overcome an individual's privacy interests.
However, the question we decide herein is much more nuanced than
the lead opinion recognizes.9
¶70 For example, a more careful reading and an
understanding of the policies that underlie the Riley opinion
demonstrate the lead opinion's erroneous use of the quote it
chose from page 391. Riley also explains that "[n]ot every

search 'is acceptable solely because a person is in custody.'"
Id. at 392 (citing Maryland v. King, 569 U.S. 435, 463 (2013)
(concluding that when "privacy-related concerns are weighty
enough [] the search may require a warrant, notwithstanding the
diminished expectations of privacy of the arrestee"). Riley
involved a lawful search of Riley's person, but an unlawful

8 Lead op., ¶20.
9 Lead op., ¶26.

14
 No. 2017AP1518-CR.pdr

search of a cell phone taken from him at the time of his arrest.
Riley, 573 U.S. at 386.

¶71 Furthermore, the cases relied on by the lead opinion
involve searches for evidence or weapons on the arrestee's
person or within the area from which the suspect may gain
control of a weapon at the time of defendants' arrests.10 Here,
the objected-to search to determine the alcohol concentration of
Randall's blood sample occurred nine days after her arrest.
Therefore, safety of an officer or preservation of evidence of a

crime which undergird the cases cited by the lead opinion are
not relevant concerns.
¶72 Accordingly, while I agree that quotes from well
recognized opinions can be very helpful, the quotes must be
understood in the context in which they were made. That is,
policies that permitted a search, or set aside evidence
obtained, are apparent from the context in which the search
occurred. However, here, the lead opinion transplants quotes

into an entirely new context without any recognition that the
context impacts the meaning of the words chosen. See e.g.,
State v. Stevens, 26 Wis. 2d 451, 457-58, 132 N.W.2d 502 (1969)
(explaining that because the purse of a defendant arrested for
disorderly conduct was properly in custody of the police, police
were permitted to seize what was in plain sight sticking out of
her purse); Chimel, 395 U.S. at 762 (explaining that warrantless
search of Chimel's entire house incident to his arrest was

10 Lead op., ¶¶20–23, n.7.

15
 No. 2017AP1518-CR.pdr

illegal because it went well beyond a search for weapons on or
near the arrestee that could have affected law enforcement's
safety); Agnello v. United States, 269 U.S. 20, 32-33 (1925)

(concluding that a warrantless search of home for narcotics
incident to arrest was illegal because the search occurred at a
location different from the arrest); Carroll v. United States,
267 U.S. 132, 153-55 (1925) (concluding that during prohibition,
seizure of liquor in car of transport based on probable cause to
believe it contained liquor did not violate the Fourth

Amendment's prohibition on unreasonable searches). The
examination of Randall's blood sample for its alcohol
concentration has nothing to do with evidence of the type or
location described in the above cases.

¶73 In addition, the lead opinion's assertion that "[w]e,
too, recognize this ancient precept[:] 'A custodial arrest of a
suspect based on probable cause is a reasonable intrusion under

the Fourth Amendment; that intrusion being lawful, a search
incident to the arrest requires no additional justification'"11
is an erroneous statement of law because the Wisconsin Supreme
Court has never held that "a search incident to the arrest
requires no additional justification" in a context similar to
that herein presented.

¶74 For its far reaching contention, the lead opinion
cites State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d

11 Lead op., ¶22.

16
 No. 2017AP1518-CR.pdr

277. However, Sykes actually decided whether a search of Sykes'

wallet conducted prior to arrest was lawful so long as there
were grounds to support probable cause to arrest before the
search, even if the crime charged was not the crime for which
probable cause existed before the arrest. Id., ¶¶23, 24. Sykes
has nothing to do with whether Randall has a privacy interest in
the alcohol concentration of her blood under the circumstances
presented herein.

¶75 And finally, rather than trying to meet the conclusion
of this concurrence with reasoned argument, the lead opinion
repeatedly and purposefully misstates my conclusion that a
defendant who has been arrested for driving while under the
influence of alcohol has no reasonable expectation of privacy in
the alcohol concentration of the blood sample that has been
lawfully seized. This tactic is intellectually unfortunate and
intentionally misleading to the reader.

III. CONCLUSION
¶76 I conclude that a defendant who has been arrested for
driving while under the influence of alcohol has no reasonable
expectation of privacy in the alcohol concentration of the blood
sample that has been lawfully seized. Therefore, the subsequent
testing of the blood sample to determine its alcohol
concentration initiates no Fourth Amendment protections through
which a defendant may prevent testing the blood sample by
"revoking" consent after the blood has been drawn. Accordingly,
I respectfully concur in the result reached by the lead opinion,
although I do not join that opinion.
17
 No. 2017AP1518-CR.pdr

¶77 I am authorized to state that Justices ANNETTE
KINGSLAND ZIEGLER and REBECCA FRANK DALLET join this
concurrence.

18
 No. 2017AP1518-CR.awb

¶78 ANN WALSH BRADLEY, J. (dissenting). Without a
warrant or a constitutional exception to the warrant
requirement, a majority of this court1 countenances the search of
a person's blood by the government. Although set forth in two
separate opinions, a majority of the court indicates that this
is okay. I call it an unconstitutional violation of the Fourth
Amendment.
¶79 According to the lead opinion,2 once Randall consented
to the draw of her blood, she forever gave up her right to

object to the government analyzing her blood. In reaching its
conclusion, the lead opinion3 erroneously ascribes no independent
constitutional significance to the chemical testing of blood
seized by law enforcement.
¶80 The lead opinion arrives at its flawed conclusion by
conflating the "seizure" of Randall's blood, which was
accomplished lawfully, with the "search" conducted through
chemical testing. As a result, it collapses the seizure and

1 Justice Kelly's lead opinion and Chief Justice
Roggensack's concurrence both uphold the warrantless testing of
Randall's blood.
2 Although I address the lead opinion, the concurrence
suffers from substantially the same infirmities.
3 The only reference to "lead opinions" in our Internal
Operating Procedures (IOPs) states that if during the process of
circulating and revising opinions, "the opinion originally
circulated as the majority opinion does not garner the vote of a
majority of the court, it shall be referred to in separate
writings as the 'lead opinion.'" IOP III(G)(4). For further
discussion of our procedure regarding lead opinions, see Koss
Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385 Wis. 2d 261, 922
N.W.2d 20 (Ann Walsh Bradley, J., concurring).

1
 No. 2017AP1518-CR.awb

search into a single constitutional event. This flawed
construct permeates and compromises its analysis.
¶81 Turning a blind eye to everyday realities, the lead
opinion compounds its errors by discounting in this post-HIPAA4
era, society's reasonable expectation of privacy in the contents
of a person's blood. Ultimately, it minimizes the significant
privacy interest previously identified by the United States
Supreme Court.
¶82 Because I conclude that a person does not lose the

reasonable expectation of privacy in the contents of one's own
blood after it is seized by law enforcement, the results of the
blood test conducted in defiance of Randall's withdrawal of
consent must be suppressed.
¶83 Accordingly, I respectfully dissent.
I
¶84 Randall was arrested for operating a motor vehicle
while under the influence of an intoxicant. Lead op., ¶2. She

consented to a draw of her blood, and a medical professional
completed the blood draw. Id.

¶85 However, after the blood was drawn but before the
blood was tested, Randall's counsel sent a letter to the State
Crime Lab indicating that Randall no longer consented to the

4 "HIPAA" refers to the Health Insurance Portability and
Accounting Act of 1996. State v. Straehler, 2008 WI App 14, ¶1
n.1, 307 Wis. 2d 360, 745 N.W.2d 431 (citing Pub. L. No. 104-
191, 110 Stat. 1936; 42 U.S.C. § 1320d-6 (2006)). Among other
provisions, it sets forth penalties for the wrongful disclosure
of individually identifiable health information. 42 U.S.C.
§ 1320d-6.

2
 No. 2017AP1518-CR.awb

testing of her blood. Id., ¶3. Specifically, the letter

detailed that Randall "hereby revokes any previous consent that
she may have provided to the collection and analysis of her
blood, asserts her right to privacy in her blood, and demands
that no analysis be run without specific authorization by a
neutral and detached magistrate upon a showing of probable cause
and specifying the goal of analysis." She further indicated
that "she does not consent to any person or entity retaining
possession of her blood sample, and therefore demands that it be

returned to her or destroyed immediately."
¶86 Despite Randall's withdrawal of consent, the Crime Lab
tested and analyzed the blood anyway. Lead op., ¶4. After the
test revealed a blood alcohol level of .210 grams of ethanol per
100 milliliters of blood, the State sought to use the blood
evidence at trial. Id., ¶¶4-5.

¶87 Randall moved to suppress the blood evidence, arguing
that she clearly and unequivocally withdrew her consent for the

blood to be tested. She contended that absent consent, no other
exception to the warrant requirement applied, necessitating
suppression of the evidence.
¶88 Agreeing with Randall and suppressing the blood
evidence, the circuit court analogized the blood at issue to a
cell phone in the context of Riley v. California, 573 U.S. 373
(2014). It opined, "[w]e are exactly in the situation of the
Supreme Court case Riley . . . where the State was in possession
of an item that they believed contained evidentiary information
that, with probable cause, would show that a crime had been

3
 No. 2017AP1518-CR.awb

committed or was being committed; and, therefore, were justified
in seeking and obtaining a warrant to have the phone searched.
That's what we have."
¶89 The circuit court ultimately determined that "as a
matter of constitutional law, the defendant . . . did withdraw
her consent for the search prior to the blood being
tested. . . . She retained the right to withdraw that consent.
For the State to be allowed to use that evidence at trial over
her lack of consent or to have those test results used

without . . . a warrant, and without a constitutional exception
to a warrant, violates the Fourth Amendment."
¶90 In the circuit court's view, Randall was not, however,
entitled to have the blood returned to her or destroyed: "She
cannot withdraw her consent to have the blood taken from her.
That was done and over with."
¶91 The State appealed and the court of appeals affirmed,
but on different grounds than those relied upon by the circuit

court. Rather than using the analogy to Riley, the court of

appeals determined that although "the taking and testing of the
blood, together, comprise a single search to which
constitutional protections attach . . . the search had not yet
been completed when Randall withdrew her consent before the
blood was tested and, therefore Randall retained her right to
withdraw her consent to continuation of that search . . . ."
State v. Randall, No. 2017AP1518-CR, unpublished slip op., ¶2
(Wis. Ct. App. June 14, 2018) (citing State v. VanLaarhoven,

4
 No. 2017AP1518-CR.awb

2001 WI App 275, ¶16, 248 Wis. 2d 881, 637 N.W.2d 411; State v.

Wantland, 2014 WI 58, ¶¶33-34, 355 Wis. 2d 135, 848 N.W.2d 810).
¶92 Now reversing the court of appeals, the lead opinion
concludes that "the State performed only one search when it
obtained a sample of Ms. Randall's blood and subsequently
analyzed it for the presence of alcohol or other prohibited
drugs. That single search ended when the State completed the
blood draw." Lead op., ¶39. Further, it determines that "a
defendant arrested for intoxicated driving has no privacy

interest in the amount of alcohol in that sample. Where there
is no privacy interest, there can be no constitutionally-
significant search." Id.

II
¶93 The lead opinion initially missteps by failing to
ascribe independent constitutional significance to the testing
of Randall's blood, conflating the lawful "seizure" of Randall's
blood with the "search" conducted through chemical testing. As

a result, it collapses the seizure and search into a single
constitutional event. Such an error runs counter to the United
States Supreme Court's decision in Skinner v. Ry. Labor Execs.'
Ass'n, 489 U.S. 602, 616 (1989).
¶94 In Skinner, the Supreme Court explained that "[o]ur
precedents teach that where, as here, the Government seeks to
obtain physical evidence from a person, the Fourth Amendment may
be relevant at several levels." Id. Beyond the initial seizure
of evidence, "[t]he ensuing chemical analysis of the sample to

5
 No. 2017AP1518-CR.awb

obtain physiological data is a further invasion of [a
person's] privacy interests." Id.

¶95 Mere months ago, the Texas court of criminal appeals5
addressed a similar issue. In State v. Martinez, the court
determined that "the Supreme Court considers the analysis of
biological samples, such as blood, as a search infringing upon
privacy interests subject to the Fourth Amendment." 570 S.W.3d
278, 290 (Tex. Crim. App. 2019). It founded this conclusion on
"Skinner's characterization that chemical analysis was a

'further' invasion of privacy interests and that collection and
testing were 'intrusions' (plural) that constituted 'searches'
(plural)." Id. (citing Skinner, 489 U.S. at 616-617).
¶96 Yet, the lead opinion gives short shrift to the
passages from Skinner that clearly demonstrate that the Court
considered the "collection" and "testing" as separate intrusions
for Fourth Amendment purposes. The testing is a "further
invasion of . . . privacy interests." Skinner, 489 U.S. at 616

(emphasis added).
¶97 The lead opinion instead misreads grammatically a
single sentence of the opinion and apparently relies on the
Skinner Court's use of the singular definite article "a" to
assert that "[t]he Court's grammar also signaled it understood
itself to be addressing a single search." Lead op., ¶16 n.6.
Such a singular focus fails to see the forest for the trees.

5The Texas court of criminal appeals is the court of last
resort in Texas in criminal matters, and its decisions are
appealable to the United States Supreme Court.

6
 No. 2017AP1518-CR.awb

¶98 Further elucidating the lead opinion's error is the
United States Supreme Court's very premise in Riley: "whether

the police may, without a warrant, search digital information on
a cell phone seized from an individual who has been arrested."
573 U.S. at 378 (emphasis added). The distinction between the
initial seizure and the analysis of the seized material is a key
one, yet the majority treats the two discrete events as one
continuous "search." See lead op., ¶39.
¶99 Contrary to the lead opinion's assertion, the testing

of a person's blood is an independent "search." Whether a
"search" occurs for purposes of the Fourth Amendment turns on
whether the government violates a subjective expectation of
privacy that society recognizes as reasonable. State v.

Brereton, 2013 WI 17, ¶34, 345 Wis. 2d 563, 826 N.W.2d 369
(citations omitted).
¶100 Under the facts we address here, Randall expressed her
subjective expectation of privacy in the contents of her blood

by way of her letter to the State Crime Lab. The next question
in the analysis is whether society recognizes such an
expectation as reasonable. It is plain to me that it does.6
¶101 One need look no further than "the existence of
federal and state privacy laws governing the disclosure and

6
Like the lead opinion, Chief Justice Roggensack's
concurrence determines that "there is no reasonable expectation
of privacy in the alcohol concentration of blood that has been
lawfully seized." Chief Justice Roggensack's concurrence, ¶63.
I disagree with the concurrence for the same reasons I disagree
with the lead opinion.

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transmission of health information, such as HIPAA" as reflective
of a societal view that health information is private.
Martinez, 570 S.W.3d at 291. It is an everyday reality for

people to call a health care provider seeking a loved one's
medical test results and to be denied access based on privacy
concerns codified in state and federal law. See Wis. Stat.
§ 146.82; 42 U.S.C. § 1230d-6. This omnipresent practice
informs society's reasonable expectation of privacy in blood
test results.

¶102 That society recognizes such an expectation as
reasonable is further illustrated by the United States Supreme
Court's opinions in Riley, 573 U.S. 373, and Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016). In Riley, the Supreme Court
determined that a warrant is required to search digital
information on a cell phone seized from an arrested person. It
reasoned:

Modern cell phones are not just another technological
convenience. With all they contain and all they may
reveal, they hold for many Americans 'the privacies of
life[.]' The fact that technology now allows an
individual to carry such information in his hand does
not make the information any less worthy of the
protection for which the Founders fought. Our answer
to the question of what police must do before
searching a cell phone seized incident to an arrest is
accordingly simple——get a warrant.

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Id. at 403 (internal citation omitted).7

¶103 At the forefront of the Riley Court's decision were
the strong privacy interests inherent in the personal
information contained on a cell phone. See id. at 393. It
wrote:

The United States asserts that a search of all data
stored on a cell phone is 'materially
indistinguishable' from searches of these sorts of
physical items. That is like saying a ride on
horseback is materially indistinguishable from a
flight to the moon. Both are ways of getting from
point A to point B, but little else justifies lumping
them together. Modern cell phones, as a category,
implicate privacy concerns far beyond those implicated
by the search of a cigarette pack, a wallet, or a
purse. A conclusion that inspecting the contents of
an arrestee's pockets works no substantial additional
intrusion on privacy beyond the arrest itself may make
sense as applied to physical items, but any extension
of that reasoning to digital data has to rest on its
own bottom.
Id. (internal citation omitted).
¶104 In my view, the privacy concerns regarding the data on
a cell phone apply equally to data that can be gathered from a
person's blood. Indeed, the Riley court observed concerns

regarding medical information on cell phones as a key part of
its rationale in requiring a warrant to search a phone's

7The Riley court's analysis was founded on whether the
search incident to arrest exception applied, but the decision's
principles are applicable outside of that context. See Riley v.
California, 573 U.S. 373, 401-02 (2014). Indeed, the Court
emphasized that an exception to the warrant requirement is
necessary to justify a warrantless search of cell phone data.
Id. at 402. Such an assertion further supports the conclusion
that searching the lawfully seized phone was an independent
Fourth Amendment event.

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contents. Id. at 395-96 ("An Internet search and browsing

history, for example, can be found on an Internet-enabled phone
and could reveal an individual's private interests or concerns——
perhaps a search for certain symptoms of disease, coupled with
frequent visits to WebMD."). The amount of information that can
potentially be gleaned from a person's blood is significant and
goes beyond mere blood alcohol content.8 See Birchfield, 136
S. Ct. at 2178.
¶105 Downplaying this concern, the lead opinion asserts

that "[a]lthough her blood contains a wealth of personal
information, the tests undertaken by the State reveal only
information directly related to the purpose for her arrest, to
wit, the presence and concentration of alcohol or other
prohibited drugs." Lead op., ¶35. However, the United States
Supreme Court in Birchfield found it of concern that a blood

test "places in the hands of law enforcement authorities a
sample that can be preserved and from which it is possible to

extract information beyond a simple BAC reading. Even if the
law enforcement agency is precluded from testing the blood for
any purpose other than to measure BAC, the potential remains and
may result in anxiety for the person tested." Birchfield, 136
S. Ct. at 2178.

8
For example, a blood sample contains "private medical
facts," including HIV status and whether a person is "epileptic,
pregnant, or diabetic." Skinner v. Ry. Labor Execs.' Ass'n, 489
U.S. 602, 617 (1989).

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¶106 This consideration is amplified by the fact that a
person does not know what information a blood test may reveal,
and it could even reveal information not previously known. See

Kelly Lowenberg, Applying the Fourth Amendment When DNA
Collected for One Purpose is Tested for Another, 79 U. Cin. L.
Rev. 1289, 1311 (2011). The majority does not assuage this
concern.
¶107 In sum, there exists a reasonable expectation of
privacy in the contents of a person's blood regardless of the

purpose for which testing is sought. Such an expectation does
not disappear after the blood has been seized.
¶108 Under the facts of this case, suppression is
appropriate because testing was completed without a warrant and
absent any exception to the warrant requirement.9 After Randall
withdrew her consent for the blood to be searched, there existed

9 Such a conclusion does not necessarily mean that Randall
is entitled to the return or destruction of a blood sample that
was legally seized. The blood sample was properly seized under
an exception to the warrant requirement——consent. As the Riley
court wrote, "Both [defendants] concede that officers could have
seized and secured their cell phones to prevent destruction of
evidence while seeking a warrant. . . . That is a sensible
concession." Riley, 573 U.S. at 388 (citations omitted).
Similarly here, the police can seize and secure the blood
pursuant to Randall's given consent. In other words, the
initial seizure was accomplished pursuant to a valid exception
to the warrant requirement and was thus constitutionally
permissible.

I agree with the circuit court that "[w]e've got a vial of
blood or two vials of blood that an officer, I would expect, has
probable cause to believe contains information about a crime;
and now, because there is not consent, could ask for a warrant
to have that blood searched."

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no independent legal justification on which to base a
warrantless test.
¶109 For the foregoing reasons, I respectfully dissent.

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