2017 WI 73
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1261-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Navdeep S. Brar,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 564, 884 N.W.2d 535
(2016 – Unpublished)
OPINION FILED: July 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 12, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: John W. Markson
JUSTICES:
CONCURRED: R.G. BRADLEY, J. concurs (opinion filed).
KELLY, J. concurs, joined Part I by R.G.
BRADLEY, J. (opinion filed).
DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Tracey A. Wood, Sarah M. Schmeiser, and Tracey Wood &
Associates, Madison, and an oral argument by Sarah M. Schmeiser.
For the plaintiff-respondent, there was a brief by David H.
Perlman, assistant attorney general, and Brad D. Schimel,
attorney general, and an oral argument by David H. Perlman.
2017 WI 73
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1261-CR
(L.C. No. 2014CT776)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JUL 6, 2017
Diane M. Fremgen
Navdeep S. Brar, Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review an
unpublished decision of the court of appeals1 affirming the
conviction of Navdeep Brar (Brar) for operating while
intoxicated, third offense in violation of Wis. Stat.
§ 346.63(1)(a) (2014-15)2 and an order of the circuit court
denying Brar's motion to suppress the results of a blood test.3
1
State v. Brar, No. 2015AP1261-CR, unpublished slip op.
(Wis. Ct. App. July 7, 2016).
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
The Honorable John W. Markson of Dane County presided.
No. 2015AP1261-CR
¶2 Brar moved to suppress the results of a blood test on
the grounds that it was an unconstitutional search.
Specifically, he argued that he did not consent to having his
blood drawn, and therefore, the officer was required to obtain a
warrant. The circuit court denied Brar's motion and found that
Brar had consented. On appeal, Brar argues that, even if he had
consented, his consent was not given voluntarily.
¶3 We conclude that the circuit court's finding that Brar
consented to the blood draw was not clearly erroneous.
Additionally, we conclude that Brar's consent was voluntary.
Accordingly, we affirm the decision of the court of appeals.
I. BACKGROUND
¶4 A City of Middleton police officer stopped Brar for
driving over the speed limit. During the stop, the officer
conducted field sobriety tests, which Brar failed. Brar then
submitted to a preliminary breath test and blew a .19. As a
result, Brar was arrested.4
¶5 After arresting Brar, the officer transported him to
the police department, where the officer read Brar the
"informing the accused form." While being read the form, Brar
repeatedly interrupted the officer with questions or comments
related to the form. As part of "informing the accused"
process, the officer asked Brar to submit to a chemical
evidentiary test. The precise words Brar said in response are
4
Brar does not contest the validity of the initial stop or
his subsequent arrest.
2
No. 2015AP1261-CR
disputed. However, the officer thought Brar provided an
affirmative response, and therefore believed that Brar agreed to
submit to a blood draw.
¶6 After agreeing to submit to an evidentiary test, Brar
asked several questions. One of these questions was what kind
of test would be conducted, and the officer responded he would
conduct a blood draw. Brar then asked the officer if he needed
a warrant to conduct a blood draw. In response to this
question, the officer shook his head as if to respond no,
indicating that he did not need a warrant.
¶7 Brar was taken to a hospital where his blood was
drawn. The test results showed that Brar's blood alcohol
content was .186, well above the legal limit to operate a
vehicle. Brar was charged with operating while intoxicated,
third offense in violation of Wis. Stat. § 346.63(1)(a) and
operating a motor vehicle with a prohibited alcohol
concentration in violation of § 346.63(1)(b).
¶8 Brar moved to suppress the results of the blood test.
The circuit court held a hearing to determine whether Brar had
consented to the blood draw.
¶9 At the hearing, the officer testified that Brar
responded "of course" in response to the question "Will you
submit to an evidentiary chemical test of your blood?"
According to the officer, Brar then gave "a statement similar to
he didn't want to have his license revocated." As a result, the
officer believed that Brar had consented to the blood draw.
3
No. 2015AP1261-CR
Moreover, the officer testified that Brar did not resist or
hesitate to give blood once he was transported to the hospital.
¶10 The circuit court found that Brar had consented to a
blood draw. The circuit court relied on the testimony of the
officer, which the court found credible. And, the circuit court
stated that nothing in the audiovisual recording was
inconsistent with the officer's testimony; specifically, that
the circuit court heard Brar say "of course," which corroborated
the officer's testimony. For these reasons, the circuit court
denied Brar's motion to suppress.5 After the circuit court
denied the motion, Brar entered a no contest plea to operating
while intoxicated, third offense in violation of Wis. Stat.
§ 346.63(1)(a).
¶11 The court of appeals affirmed the circuit court's
denial of Brar's motion to suppress. First, the court
determined that the circuit court's finding that Brar consented
to have his blood drawn was not clearly erroneous. Next, the
court concluded that Brar's consent was voluntary. The court
reasoned that the officer was correct in shaking his head no to
indicate he did not need a warrant because Brar had already
consented.
5
Brar moved for reconsideration of the circuit court's
denial of his motion to suppress after having the audiovisual
recording of his interaction with the officer transcribed. Brar
noted that the individual who transcribed the recording did not
hear Brar say the words "of course." The circuit court
concluded that Brar did not meet the criteria for a motion for
reconsideration, and therefore denied the motion.
4
No. 2015AP1261-CR
¶12 This court granted Brar's petition for review, and we
affirm the court of appeals.
II. DISCUSSION
A. Standard of Review
¶13 "Whether a defendant has consented to a search is
initially a question of historic fact." State v. Johnson, 2007
WI 32, ¶56, 299 Wis. 2d 675, 729 N.W.2d 182 (Roggensack, J.,
dissenting) (citation omitted). "We will uphold a circuit
court's finding of historic fact unless it is clearly
erroneous." Id. (citing State v. Sykes, 2005 WI 48, ¶12, 279
Wis. 2d 742, 695 N.W.2d 277). Next, we "independently apply the
constitutional principles to the facts as found to determine
whether the standard of voluntariness has been met." State v.
Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998).
¶14 In the present case, we apply this two-step test to
determine if Brar voluntarily consented to a blood draw.
B. Fourth Amendment, General Principles
¶15 "The Fourth Amendment to the United States
Constitution and Article I, Section 11 of the Wisconsin
Constitution protect '[[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.'"6 State v. Tullberg, 2014 WI 134, ¶29,
359 Wis. 2d 421, 857 N.W.2d 120 (quoting State v. Robinson, 2010
6
"Historically, we have interpreted Article I, Section 11
of the Wisconsin Constitution in accord with the Supreme Court's
interpretation of the Fourth Amendment." State v. Arias, 2008
WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748.
5
No. 2015AP1261-CR
WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463). "The Fourth
Amendment does not proscribe all state-initiated searches and
seizures; it merely proscribes those which are unreasonable."
Florida v. Jimeno, 500 U.S. 248, 251 (1991) (citing Illinois v.
Rodriguez, 497 U.S. 177 (1990)).
¶16 "A warrantless search is presumptively unreasonable."
Tullberg, 359 Wis. 2d 421, ¶30 (quoting State v. Henderson, 2001
WI 97, ¶19, 245 Wis. 2d 345, 629 N.W.2d 613). "But there are
certain 'specifically established and well-delineated'
exceptions to the Fourth Amendment's warrant requirement."7
State v. Williams, 2002 WI 94, ¶18, 255 Wis. 2d 1, 646
N.W.2d 834 (citing Katz v. United States, 389 U.S. 347, 357
(1967)). "One well-established exception to the warrant
requirement of the Fourth Amendment is a search conducted
pursuant to consent." Phillips, 218 Wis. 2d at 196. And, "it
is no doubt reasonable for the police to conduct a search once
they have been permitted to do so." Jimeno, 500 U.S. at 250-51
(citing Schneckloth v. Bustamonte, 412 U.S. 281, 219 (1973).
¶17 It is well-established that consent "may be in the
form of words, gesture, or conduct." Phillips, 218 Wis. 2d 180,
¶24; see also State v. Tomlinson, 2002 WI 91, ¶37, 254
Wis. 2d 502, 648 N.W.2d 367; United States v. Hylton, 349 F.3d
781, 786 (4th Cir. 2003) ("Consent may be inferred from actions
7
"'[T]he taking of a blood sample . . . is a search' under
the Fourth Amendment." State v. Kozel, 2017 WI 3, ¶40, 373
Wis. 2d 1, 889 N.W.2d 423.
6
No. 2015AP1261-CR
as well as words."). Through conduct, an individual may
impliedly consent to be searched. United States v. Lakoskey,
462 F.3d 965, 973 (8th Cir. 2006), as amended on reh'g (Oct. 31,
2006) ("Voluntary consent may be. . . implied."); United States
v. Wilson, 914 F. Supp. 2d 550, 558 (S.D.N.Y. 2012) ("Consent
may be granted either explicitly or implicitly." (citation
omitted)); see also Morgan v. United States, 323 F.3d 776, 781
(9th Cir. 2003) (reasoning, "a warrantless search of a person
seeking to enter a military base may be deemed reasonable based
on the implied consent of the person searched"); State v.
Hanson, 34 P.3d 1, 5 (Haw. 2001), as amended (Nov. 7, 2001)
("[E]ven in the absence of an express indication, implied
consent to an airport security search may be imputed from posted
notices.").
¶18 Consistent with these principles, "consent to a search
need not be express but may be fairly inferred from context."
Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016).
Therefore, "a search may be lawful even if the person giving
consent does not recite the talismanic phrase: 'You have my
permission to search.'" United States v. Buettner-Janusch, 646
F.2d 759, 764 (2d Cir. 1981).
¶19 Prior cases from the court of appeals could be read as
casting doubt on the maxim that a person may consent through
conduct or by implication. For example, the court of appeals in
Padley reasoned that consent that arises under Wisconsin's
implied consent law is different from consent that is sufficient
in and of itself under the Fourth Amendment. State v. Padley,
7
No. 2015AP1261-CR
2014 WI App 65, ¶25, 354 Wis. 2d 545, 849 N.W.2d 867.
Specifically, the court reasoned that "actual consent to a blood
draw is not 'implied consent,' but rather a possible result of
requiring the driver to choose whether to consent under the
implied consent law." Id. This reasoning implies a distinction
between implied consent and consent that is sufficient under the
Fourth Amendment. Such a distinction is incorrect as a matter
of law.8
¶20 Stated more fully, and contrary to the court of
appeals' reasoning in Padley, consent can manifest itself in a
number of ways, including through conduct. Cf. Florida v.
Jardines, 133 S. Ct. 1409, 1415-16 (2013); Marshall v. Barlow's,
Inc., 436 U.S. 307, 313 (1978). The use of the word "implied"
in the idiom "implied consent" is merely descriptive of the way
in which an individual gives consent. It is no less sufficient
consent than consent given by other means.
¶21 An individual's consent given by virtue of driving on
Wisconsin's roads, often referred to as implied consent, is one
incarnation of consent by conduct. Wis. Stat. § 343.305(2) (An
8
Of course, other constitutional rights may involve
different considerations. For example, the United States
Supreme Court reasoned: "There is a vast difference between
those rights that protect a fair criminal trial and the rights
guaranteed under the Fourth Amendment. Nothing, either in the
purposes behind requiring a 'knowing' and 'intelligent' waiver
of trial rights, or in the practical application of such a
requirement suggests that it ought to be extended to the
constitutional guarantee against unreasonable searches and
seizures." Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973).
8
No. 2015AP1261-CR
individual who "drives or operates a motor vehicle upon the
public highways of this state . . . is deemed to have given
consent to one or more tests of his or her breath, blood or
urine."). "By reason of the implied consent law, a
driver . . . consents to submit to the prescribed chemical
tests."9 State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828
(1980); see also State v. Reitter, 227 Wis. 2d 213, 225, 595
N.W.2d 646 (1999) ("The implied consent law provides that
Wisconsin drivers are deemed to have given implied consent to
chemical testing as a condition of receiving the operating
privilege."). And, as a plurality of the Supreme Court
explained in Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013),
"all 50 States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense."
The "consent" to which this court in Neitzel and the Supreme
9
Our previous cases discussing implied consent clearly
establish that an individual has already consented at the time
an officer reads a driver the Informing the Accused form. See,
e.g., State v. Neitzel, 95 Wis. 2d 191, 203, 289 N.W.2d 828
(1980) ("The entire tenor of the implied consent law
is . . . that consent has already been given and cannot be
withdrawn without the imposition of the legislatively imposed
sanction of mandatory suspension."). "The specific objective of
Wis. Stat. § 343.305(4) within the implied consent statutory
scheme is to 'advise the accused about the nature of the
driver's implied consent.'" State v. Piddington, 2001 WI 24,
¶17, 241 Wis. 2d 754, 623 N.W.2d 528 (quoting State v. Reitter,
227 Wis. 2d 213, 225, 595 N.W.2d 646 (1999)).
9
No. 2015AP1261-CR
Court in McNeely refer is consent sufficient under the Fourth
Amendment——not some amorphous, lesser form of consent. See,
e.g., People v. Hyde, 393 P.3d 962, 968 (Colo. 2017) ("Hyde's
statutory consent also satisfied the consent exception to the
Fourth Amendment warrant requirement. This conclusion flows
from recent Supreme Court precedent.").
¶22 Furthermore, the Supreme Court's assertion that an
individual's consent to a search under the Fourth Amendment "may
be fairly inferred from context" was given with specific
reference to an implied consent law. Birchfield, 136 S. Ct. at
2185 (reasoning, "consent to a search need not be express but
may be fairly inferred from context. . . . Our prior opinions
have referred approvingly to the general concept of implied-
consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply."). Of course,
the "context" to which the Supreme Court was referring was an
individual driving on the roads of a state that had enacted an
implied consent law.
¶23 Therefore, lest there be any doubt, consent by conduct
or implication is constitutionally sufficient consent under the
Fourth Amendment.10 We reject the notion that implied consent is
a lesser form of consent. Implied consent is not a second-tier
form of consent; it is well-established that consent under the
10
We do not address if there always must be an opportunity
to withdraw consent before a blood draw is undertaken such as is
currently provided in Wis. Stat. § 343.305(3).
10
No. 2015AP1261-CR
Fourth Amendment can be implied through an individual's
conduct.11
¶24 When we are asked to affirm a finding that consent was
given, whether express or implied, we also must determine
whether the consent was voluntary. See generally United States
v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976) ("Once the
existence of a consent by conduct is determined, its
voluntariness must be examined."). Only voluntarily given
consent will pass constitutional muster. Schneckloth, 412 U.S.
at 222. "Consent is not voluntary if the state proves 'no more
than acquiescence to a claim of lawful authority,'" State v.
Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430 (quoting
Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)), or if
the consent was the product of duress or coercion by law
enforcement. Schneckloth, 412 U.S. at 227.
¶25 There is no single fact, the absence or presence of
which, determines whether consent was voluntarily given. Id. at
226. Rather, in order to determine whether consent was
voluntarily given, the totality of the circumstances of each
individual case must be examined. Id. at 233. In examining the
totality of the circumstances, "we look at the circumstances
11
In the present case, Brar was conscious when he was read
the Informing the Accused form. And, under Wisconsin's implied
consent law, conscious drivers are statutorily given an
opportunity to withdraw consent. However, individuals that
choose to withdraw their consent are subject to penalties for
withdrawing consent. Wis. Stat. § 343.305(9) & (10).
11
No. 2015AP1261-CR
surrounding the consent and the characteristics of the
defendant."12 Artic, 327 Wis. 2d 392, ¶33 (citing Phillips, 218
Wis. 2d at 197-98). Even in implied consent cases, we consider
the totality of the circumstances at the time of the blood draw
to determine if an individual's previously-given consent
continues to be voluntary at that time.
¶26 The State has the burden of proving that the consent
was freely and voluntarily given. Schneckloth, 412 U.S. at 222.
However, the State need not demonstrate that consent was given
knowingly or intelligently. See id. at 241 ("Nothing, either in
the purposes behind requiring a 'knowing' and 'intelligent'
waiver of trial rights, or in the practical application of such
a requirement suggests that it ought to be extended to the
constitutional guarantee against unreasonable searches and
12
As we explained in State v. Artic, 2010 WI 83, 327
Wis. 2d 392, 786 N.W.2d 430, we consider numerous factors to
determine whether an individual voluntarily consented:
(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant
to persuade him to consent; (2) whether the police
threatened or physically intimidated the defendant or
"punished" him by the deprivation of something like
food or sleep; (3) whether the conditions attending
the request to search were congenial, non-threatening,
and cooperative, or the opposite; (4) how the
defendant responded to the request to search; (5) what
characteristics the defendant had as to age,
intelligence, education, physical and emotional
condition, and prior experience with the police; and
(6) whether the police informed the defendant that he
could refuse consent.
Id., ¶33.
12
No. 2015AP1261-CR
seizures."); see also id. at 235 ("Our cases do not reflect an
uncritical demand for a knowing and intelligent waiver in every
situation where a person has failed to invoke a constitutional
protection.").
¶27 Contrary to Supreme Court precedent, decisions from
the court of appeals have required the State to prove consent
was given knowingly and intelligently. See, e.g., Padley, 354
Wis. 2d 545, ¶64 (reasoning there must be "clear and positive
evidence the search was the result of a free, intelligent,
unequivocal and specific consent" (internal quotations
omitted)); State v. Giebel, 2006 WI App 239, ¶12, 297 Wis. 2d
446, 724 N.W.2d 402; see also Neitzel, 95 Wis. 2d at 201. The
Supreme Court in Schneckloth rejected precisely this
requirement. As we interpret our constitution consistent with
the Fourth Amendment, we withdraw any language from these cases
that requires that consent to a search be given knowingly or
intelligently.
C. Application to Brar
¶28 In the present case, we must determine whether Brar
consented, and if he did, whether his consent was voluntary.
¶29 First, Brar consented under Wisconsin's implied
consent law. He availed himself of the roads of Wisconsin, and
as a result, he consented through his conduct to a blood draw.
Wisconsin Stat. § 343.305(2) (an individual who "drives or
operates a motor vehicle upon the public highways of this
state . . . is deemed to have given consent to one or more tests
of his or her breath, blood or urine."). Any analysis of a
13
No. 2015AP1261-CR
driver's consent under Wisconsin's implied consent law must
begin with this presumption.
¶30 Aside from Brar's consent under the implied consent
law, the circuit court found that Brar consented by his
responses to the officer's questions.13 The circuit court
discussed an audiovisual recording of the officer's interaction
with Brar as well as the officer's testimony. The evidence
supports the circuit court's finding, and we conclude it was not
clearly erroneous.
¶31 The officer testified that Brar responded "of course"
in response to the question "Will you submit to an evidentiary
chemical test of your blood?" According to the officer, Brar
then gave "a statement similar to he didn’t want to have his
license revocated." As a result, the officer believed Brar
affirmatively agreed to the blood draw.
¶32 The circuit court found the officer's "testimony to be
credible, that Mr. Brar said, when asked more than once, the
officer said I need to know, I need you to answer yes or no,
will you submit to the test? Mr. Brar said, of course, he would
submit. And the officer said that Mr. Brar said, because he
didn't want to have his license revoked, or words to that
effect." A circuit court's finding of fact that is based on the
credibility of a witness is a persuasive factor in assessing
whether the finding is clearly erroneous. See Wis. Stat.
13
The circuit court stated: "I do find as a matter of fact
that Mr. Brar did give consent."
14
No. 2015AP1261-CR
§ 805.17(2) ("Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses."). And, we have no reason to question the veracity
of the officer's testimony in the present case.
¶33 Moreover, the circuit court found, and we agree, that
the audiovisual recording of the interaction corroborates the
testimony of the officer. Nothing in the recording rebuts the
officer's testimony as to Brar's statements. Indeed, the
officer's testimony that Brar said "of course" and then
something to the effect of "I do not want my license revoked" is
supported by the recording.
¶34 Accordingly, Brar first consented through his conduct;
specifically, he consented by driving on the roads of Wisconsin.
The circuit court found he later re-affirmed his consent when he
was given the statutory opportunity to withdraw consent at the
officer's reading of the Informing the Accused form to him.
Based on the officer's testimony as corroborated by the
recording of the officer's interaction with Brar, the circuit
court's finding that Brar consented was not clearly erroneous.
¶35 Having concluded that Brar consented, we must
determine whether his consent was voluntary. We conclude that
Brar voluntarily, albeit impliedly, consented when he chose to
drive on Wisconsin roads. And, his subsequent statement to the
officer, re-affirming his previously-given consent was likewise
voluntary. Brar does not argue otherwise; in essence, he
15
No. 2015AP1261-CR
contends that the voluntariness of his consent dissipated
sometime after he had already consented.
¶36 After consenting to the blood draw, Brar asked the
officer if he needed to obtain a warrant to draw his blood. The
officer shook his head no in response. However, the officer's
response did not vitiate the voluntariness of Brar's consent.
¶37 After all, the officer did not need a warrant because
Brar already had consented. And, the officer was not obligated
to explain further than he did; for example, an individual need
not be informed of the opportunity to withdraw consent under
Wis. Stat. § 343.305(3) in order for consent to be voluntary.
See Schneckloth, 412 U.S. at 229 (reasoning, that requiring the
State to "affirmatively prove that the subject of the search
knew that he had a right to refuse consent, would, in practice,
create serious doubt whether consent searches could continue to
be conducted"). Even if the import of Brar's question was
unclear to the officer, "an officer need not clarify whether an
ambiguous statement is meant to withdraw otherwise valid consent
to search." See State v. Wantland, 2014 WI 58, ¶47, 355 Wis. 2d
135, 848 N.W.2d 810. Accordingly, the officer accurately
responded to Brar's question and had no obligation to supply
Brar with further information.
¶38 However, even if the officer's response to Brar's
questions were unclear, it was insufficient to vitiate Brar's
previously-given and subsequently re-affirmed voluntary consent.
The voluntariness of consent is examined under the totality of
the circumstances. And, the context in which Brar asked whether
16
No. 2015AP1261-CR
the officer needed a warrant suggests that Brar voluntarily
consented despite the arguably unclear nature of the officer's
response. Brar's question about a warrant was not an isolated
question; Brar asked the officer numerous questions throughout
the encounter, many of which pertained to aspects of the
Informing the Accused form. He also repeatedly lamented his
guilt. In the context of his interaction with the officer,
Brar's one question about the necessity of a warrant was
insufficient to render his consent involuntary.
¶39 Moreover, Brar was informed of his opportunity to
withdraw consent to a blood draw when the officer read him the
Informing the Accused form. The officer asked him to provide a
yes or no answer to the question of whether he would consent to
a chemical evidentiary test. Earlier, the officer had explained
the consequences of refusing a blood draw to Brar. As a result,
Brar knew that he had the option of refusing a blood draw, yet
he did not refuse. See United States v. Mendenhall, 446 U.S.
544, 559 (1980) (reasoning, "[because] the officers themselves
informed the respondent that she was free to withhold her
consent substantially lessened the probability that their
conduct could reasonably have appeared to her to be coercive").
And, at no point did Brar as much as suggest an unwillingness to
have his blood drawn.
¶40 Finally, Brar did not merely acquiesce to being
searched. The cases in which courts have concluded consent was
involuntary based on an individual's "mere acquiescence" are of
no relevance to this case. "[A]cquiescence causes Fourth
17
No. 2015AP1261-CR
Amendment problems when the acquiescence is made to claimed
lawful authority to search, when no such lawful authority
exists." Johnson, 299 Wis. 2d 675, ¶69 (Roggensack, J.,
dissenting) (citing Bumper, 391 U.S. at 548-49). Brar asked the
officer a straightforward question: whether the officer needed
a warrant to conduct a blood draw. The officer, at that point,
answered the question accurately; he did not need a warrant
because Brar had consented. In contrast to the cases in which
courts have concluded an individual merely acquiesced to a
search, the officer here did not assert that he would conduct a
blood draw with or without Brar's consent. See Bumper, 391 U.S.
at 548 ("The issue thus presented is whether a search can be
justified as lawful on the basis of consent when that 'consent'
has been given only after the official conducting the search has
asserted that he possesses a warrant.").
¶41 In sum, Brar's "will was [not] overborne" by the
officer. See Schneckloth, 412 U.S. at 226. After examining the
totality of the circumstances, we conclude that Brar voluntarily
consented to a blood draw.
III. CONCLUSION
¶42 In light of the foregoing, we conclude that the
circuit court's finding that Brar consented to the blood draw
was not clearly erroneous. Additionally, we conclude that
Brar's consent was voluntary. Accordingly, we affirm the
decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
18
No. 2015AP1261-CR.rgb
¶43 REBECCA GRASSL BRADLEY, J. (concurring). I concur
with the court's mandate to affirm the decision of the court of
appeals, and I join Part I of Justice Daniel Kelly's
concurrence.
1
No. 2015AP1261-CR.dk
¶44 DANIEL KELLY, J. (concurring). I join the court's
mandate and the opinion to the extent it discusses Mr. Brar's
express consent to the blood test while he was present in the
police station. I cannot join any part of the court's
discussion of implied consent because it misunderstands how our
implied consent law functions, it says "consent" implied by law
is something voluntarily given when such a thing is impossible,
it introduces a destructive new doctrine that reduces
constitutional guarantees to a matter of legislative grace, and
it fails to properly distinguish between (a) express consent,
(b) consent implied by conduct, and (c) "consent" implied by
law. And all of this was entirely gratuitous——as the court's
own opinion demonstrates, implied consent need have no part in
our resolution of the case. Because this last point describes
where the court's opinion should have ended, I will begin there.
I
¶45 There was no need to march into the minefield of
"consent" implied by law.1 Mr. Brar asked us to review his
conviction for two reasons. First, he says he did not give
express consent to chemical testing of his blood. And second,
he says he only acquiesced to the blood test because Officer
Michael Wood said he did not need a warrant to obtain a blood
1
When speaking of the implied consent provided by Wis.
Stat. § 343.305(2), I will refer to "'consent' implied by law."
I do this to distinguish it from consent implied by conduct.
And I put "consent" in quotes because, as I discuss infra,
"consent" implied by law is not actually consent at all, and is
incapable of authorizing a law enforcement officer to perform a
blood test.
1
No. 2015AP1261-CR.dk
sample. The presenting questions, therefore, called for us to
review what Mr. Brar said and——if it amounted to express
consent——determine whether his consent was voluntary. State v.
Artic, 2010 WI 83, ¶30, 327 Wis. 2d 392, 786 N.W.2d 430 ("To
determine if the consent exception is satisfied, we review,
first, whether consent was given in fact by words, gestures, or
conduct; and, second whether the consent given was voluntary.").
¶46 We are not considering Mr. Brar's interaction with
Officer Wood in the first instance, of course. We are reviewing
the circuit court's findings of fact, which we leave undisturbed
unless they are clearly erroneous. Phelps v. Physicians Ins.
Co. of Wis., Inc., 2009 WI 74, ¶34, 319 Wis. 2d 1, 768
N.W.2d 615. According to the circuit court, Officer Wood asked
Mr. Brar whether he would submit to an evidentiary chemical test
of his blood. The record reflects that Mr. Brar said "of
course," and that he didn't want to lose his driving privileges.
Our review revealed nothing clearly erroneous about the circuit
court's findings, and so we accepted that Mr. Brar expressly
consented to a blood test.
¶47 We promptly, and properly, dispatched Mr. Brar's
argument that his consent was not voluntary. According to Mr.
Brar, when Officer Wood told him he did not need a warrant to
conduct the blood test, he made a misrepresentation of law
sufficient to negate the voluntariness of his consent. But
Officer Wood's statement came after Mr. Brar's consent, which
made his statement correct——he didn't need a warrant because Mr.
Brar had consented to the search. See Artic, 327 Wis. 2d 392,
2
No. 2015AP1261-CR.dk
¶29 (One well-established exception to the warrant requirement
is a search conducted pursuant to consent.). Thus, there was no
misrepresentation to cast doubt on the voluntariness of Mr.
Brar's consent. Mr. Brar did not argue his consent was
involuntary for any other reason, so we properly concluded his
consent was constitutionally valid.
¶48 That should have been the end of our opinion.
Traditionally, when the presenting questions resolve the matter,
we declare our treatment of the case complete at that point.
See Black v. City of Milwaukee, 2016 WI 47, ¶39 n.24, 369
Wis. 2d 272, 882 N.W.2d 333, cert. denied sub nom. Milwaukee
Police Ass'n v. City of Milwaukee, 137 S. Ct. 538 (2016) ("We do
not address these issues because they are not necessary to
resolve this case"); see also State v. Cain, 2012 WI 68, ¶37
n.11, 342 Wis. 2d 1, 816 N.W.2d 177 ("[A]n appellate court
should decide cases on the narrowest possible grounds." (quoting
Md. Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326
Wis.2d 300, 786 N.W.2d 15)); Hull v. State Farm Mut. Auto. Ins.
Co., 222 Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a
general rule, when our resolution of one issue disposes of a
case, we will not address additional issues."). Experience has
taught us it is usually wise to leave peripheral questions to a
future case in which they return as dispositive issues. There
are good reasons to honor that experience. The process of
reasoning from premises to conclusion imposes a rigorous
discipline on our research, deliberation, and analysis that is
absent when we opine on matters beyond those necessary to our
3
No. 2015AP1261-CR.dk
judgment. The court's opinion validates the wisdom of our
tradition.
II
¶49 Not only did we boldly march into the "implied
consent" minefield, we did it blindfolded. Our implied consent
statute, Wis. Stat. § 343.305 (2013-14),2 is not a model of
clarity. That should have driven us to a searching, wide-eyed
perusal of the statute's language to help us through this
fraught territory. Instead, with the benefit of just three
cursory sentences addressing the statute's terms, we announced
that it provides a real-life, constitutionally-sufficient,
consent to a blood test: "Brar consented under Wisconsin's
implied consent law. He availed himself of the roads of
Wisconsin, and as a result, he consented through his conduct to
a blood draw." Majority op., ¶29. That, however, is not what
the statute does.
¶50 The question the court answered, but did not analyze,
is whether "implied consent" actually authorizes a law
enforcement officer to obtain a sample of a driver's blood. To
discover whether it does, we must consider three of the
statute's functional components. The first addresses itself to
its eponymous subject——"consent" implied by law (I will call
this the "Implied Consent Component"). Wis. Stat. § 343.305(2).
The second component governs a law enforcement officer's request
for a blood test (the "Test Authorization Component"). Wis.
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
4
No. 2015AP1261-CR.dk
Stat. § 343.305(3)-(4).3 The third covers the consequences for
refusing an officer's request for a test (the "Penalty
Component"). Wis. Stat. § 343.305(9)-(10). With but one
exception that is not relevant here, there is no operational
connection between the Implied Consent Component and the Test
Authorization Component.4
¶51 By its own terms, the Implied Consent Component
isolates itself from the authorization the State must obtain to
collect a sample of the driver's blood. In relevant part, it
says this:
Implied Consent. Any person who . . . drives or
operates a motor vehicle upon the public highways of
this state . . . is deemed to have given consent to
one or more tests of his or her breath, blood or
urine, for the purpose of determining the presence or
quantity in his or her blood or breath, of
alcohol . . . when requested to do so by a law
enforcement officer under sub. (3) (a) or (am) or when
required to do so under sub. (3) (ar) or (b). Any
such tests shall be administered upon the request of a
law enforcement officer.
Wis. Stat. § 343.305(2) (emphases added). This provision
creates the "implied consent," but it simultaneously forecasts
its operational independence from the Test Authorization
3
The statute also provides for tests of a driver's breath
or urine. But because a blood test is at issue in this case, I
will refer only to that type of test.
4
There is a connection between the Implied Consent
Component and Test Authorization Component when the driver is
unconscious. Wis. Stat. § 343.304(3)(b). That exception
presents issues distinct from those presented by conscious
drivers. Because Mr. Brar was conscious, I do not address the
exception here.
5
No. 2015AP1261-CR.dk
Component: Operating a motor vehicle gives rise to "deemed"
consent, but the actual blood test must be requested by the law
enforcement officer.5
¶52 What the Implied Consent Component forecasts, the Test
Authorization Component makes explicit——the officer must ask the
driver for permission to conduct a blood test: "Upon arrest of
a person for [operating while intoxicated] . . . a law
enforcement officer may request the person to provide one or
more samples of his or her breath, blood or urine for the
purpose specified under sub. (2)." Wis. Stat. § 343.305(3)(a)
(emphasis added). When an officer asks a driver for permission
to conduct a test, he must recite a very specific warning. The
provision introducing the warning echoes the fact that he is
asking permission——not telling: "At the time that a chemical
test specimen is requested under sub. (3) (a), (am), or (ar),
the law enforcement officer shall read the following to the
person from whom the test specimen is requested . . . ." Wis.
Stat. § 343.305(4) (emphases added). The statutorily-mandated
warning confirms the officer is asking permission, and the
driver may say "no" to the officer's request:
You have either been arrested for an offense that
involves driving or operating a motor vehicle while
under the influence of alcohol or drugs, or both, or
you are the operator of a vehicle that was involved in
an accident that caused the death of, great bodily
harm to, or substantial bodily harm to a person, or
you are suspected of driving or being on duty time
5
This subsection also provides for a "required" test when the operator is unconscious.
But that is part of the exception I mentioned above. See supra n.4.
6
No. 2015AP1261-CR.dk
with respect to a commercial motor vehicle after
consuming an intoxicating beverage.
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. If any test shows more alcohol in your
system than the law permits while driving, your
operating privilege will be suspended. If you refuse
to take any test that this agency requests, your
operating privilege will be revoked and you will be
subject to other penalties. The test results or the
fact that you refused testing can be used against you
in court.
If you take all the requested tests, you may choose to
take further tests. You may take the alternative test
that this law enforcement agency provides free of
charge. You also may have a test conducted by a
qualified person of your choice at your expense. You,
however, will have to make your own arrangements for
that test.
If you have a commercial driver license or were
operating a commercial motor vehicle, other
consequences may result from positive test results or
from refusing testing, such as being placed out of
service or disqualified.
Wis. Stat. § 343.305(4) (emphases added).
¶53 I'm not going to pretend the meaning of "request" is
an open question. We are all fluent English-speakers here, and
we know it means what it so obviously does——it is a question, a
seeking of an answer. And when the request is for a blood
sample, we know the officer is asking permission to take it. I
suppose someone might say the statute's repeated admonition that
the officer must seek permission to take a sample is a tip of
the hat to good manners. I trust the government's agents make
every effort to be polite in their interactions with Wisconsin's
residents, so this would be a frivolous mandate to write into a
statute. Absent any textual hints that the repeated "request"
7
No. 2015AP1261-CR.dk
requirement is more about etiquette than a mandate to ask
permission, we shouldn't read it that way. See State ex rel.
Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 ([S]tatutory interpretation 'begins
with the language of the statute. If the meaning of the statute
is plain, we ordinarily stop the inquiry.'" (quoting Seider v.
O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659)).
¶54 So what does that mean for "implied consent"? It is
axiomatic that if one must ask for something, then one doesn't
yet have it. If the statute's "implied consent" really is equal
to a driver's voluntarily and freely given consent (as the court
claims), then all of this "request" business is so much
doubletalk. If the court is right, then there is no need to ask
because the law says we may act as though the driver already
said "yes." So Wis. Stat. § 343.305(3)(a) would read: "Upon
arrest of a person for [operating while intoxicated] . . . a law
enforcement officer may request tell the person to provide one
or more samples of his or her breath, blood or urine for the
purpose specified under sub. (2)." And § 343.305(4) would have
to read: "At the time that a driver is told to provide a
chemical test specimen is requested under sub. (3) (a), (am), or
(ar), the law enforcement officer shall read the following to
the person told to provide a from whom the test specimen is
requested . . . ." The warning required by § 343.305(4) would
need to be similarly amended to remove the "request" language,
as well as the confirmation that the subject can tell the
officer "no." But the officer does have to ask permission, and
8
No. 2015AP1261-CR.dk
the driver may indeed refuse his request. And that means
"implied consent" and the consent actually necessary to obtain
the blood sample are quite obviously not the same thing, and do
not serve the same function.
¶55 "Implied consent" does, however, have a purpose. And
that purpose is to juke the Fourth Amendment. We know that
taking a blood sample in the absence of a warrant or exigent
circumstances is an unconstitutional search. Birchfield v.
North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173 (2016) ("The
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."). So, contrary to
what our opinion says today, the legislature cannot simply
authorize police officers to take blood samples without asking
permission.6 Thus, "implied consent" cannot be the same thing as
consent given pursuant to a police officer's request. And
indeed it is not.
¶56 "Implied consent" has an entirely different function.
It is part of a mechanism designed to obtain indirectly what it
6
Birchfield arose in the context of an implied consent
statute (actually, several implied consent statutes, inasmuch as
this opinion addressed defendants from multiple states). See
Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173
(2016). So if the legislatively-provided consent was sufficient
to authorize a blood test, the Court would not have spent any
time determining whether such tests are appropriate under the
"search incident to arrest" exception to the Fourth Amendment.
It would have simply noted the existence of an implied consent
statute and called it a day. But it didn't, so apparently the
United States Supreme Court is not willing to trim the Fourth
Amendment's protections as aggressively as we are.
9
No. 2015AP1261-CR.dk
cannot (and does not) create directly——consent to a blood test.
The Implied Consent Component works in tandem with the Penalty
Component to cajole drivers into giving the real consent
required by the Test Authorization Component. The Penalty
Component punishes a driver by revoking his operating privileges
if he refuses an officer's request for a blood sample. Wis.
Stat. § 343.305(9)-(10). But that smacks of punishing someone
for the exercise of his constitutional right to be free of
unreasonable searches, upon which we generally frown. Harman v.
Forssenius, 380 U.S. 528, 540 (1965) ("It has long been
established that a State may not impose a penalty upon those who
exercise a right guaranteed by the Constitution.").
¶57 It is this consideration that, finally, explains why
the Implied Consent Component exists and where it slips into
place. The idea appears to be that if the driver's Fourth
Amendment rights have been legislatively waived, there can be no
punishment consequent upon the exercise of a constitutional
right because it has already been relinquished, courtesy of Wis.
Stat. § 343.305(2). Thus, when a driver refuses to provide a
blood sample, he is not being punished for exercising a
constitutional right, but for refusing a statutorily-authorized
request for needed evidence. This Rube Goldberg-like
convolution may or may not be sufficient to make it past the
Fourth Amendment, but the purpose of my concurrence is not to
analyze this contraption's fidelity to the Constitution. My
purpose here is only to describe how the statute functions, and
10
No. 2015AP1261-CR.dk
explain why "implied consent" has nothing to do with the consent
necessary to obtain a blood sample.
¶58 In sum, the court's opinion misstates how Wis. Stat.
§ 343.305 operates. "Implied consent" does not authorize an
officer to take a blood sample. It only provides (questionable)
cover for punishing a driver who refuses to authorize a blood
test. To actually perform the test, the officer has to ask the
driver's permission. And if the driver says "no," the "implied
consent" provision does not step in to countermand his answer.
So the court erred by imputing to this statutorily-deemed
"consent" the power to authorize a blood test. It then built on
that error by claiming this non-operational "consent" is
constitutionally valid because it is given freely and
voluntarily.
III
¶59 It is a metaphysical impossibility for a driver to
freely and voluntarily give "consent" implied by law. This is
necessarily so because "consent" implied by law isn't given by
the driver. If it is given by anyone, it is given by the
legislature through the legal fiction of "deeming": "Any person
who . . . drives or operates a motor vehicle upon the public
highways of this state . . . is deemed to have given
consent . . . ." Wis. Stat. § 343.305(2). One only "deems"
when the thing deemed did not really happen, but you intend to
act as though it did. So it makes no sense to ask if the driver
freely and voluntarily gave something he manifestly did not give
in the first place.
11
No. 2015AP1261-CR.dk
¶60 And yet, the court asks anyway: "When we are asked to
affirm a finding that consent was given, whether express or
implied, we also must determine whether the consent was
voluntary." Majority op., ¶24 (emphasis added). It is true
that a person's consent to a search is constitutionally valid
only if he gives it freely and voluntarily.7 However, even as
the court asserts that express consent and "consent" implied by
law are constitutionally fungible, its analysis proves its
thesis is indefensible. A brief exploration of how we assay the
voluntariness of a person's consent illustrates the
meaninglessness of this standard in the context of "consent"
implied by law.
¶61 We analyze a wealth of factors in determining whether
an expression of consent meets the voluntariness standard.
Majority op., ¶¶24-26. We ask, for example, whether the police
used deception, or trickery, or misrepresentations to produce
the consent. Artic, 327 Wis. 2d 392, ¶33. We explore whether
the authorities threatened the defendant. Id. Or intimidated
him. Id. Or used food or sleep as leverage to prize out his
consent. Id. We ask whether the officer and the circumstances
were "congenial, non-threatening, and cooperative." Id. We
want to know how the defendant responded to the search request.
Id. We factor into our analysis the person's age. Id. And
intelligence. Id. And education. Id. And his physical and
7
See State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786
N.W.2d 430 ("The State bears the burden of proving that consent
was given freely and voluntarily.").
12
No. 2015AP1261-CR.dk
emotional condition. Id. And whether he had prior experience
with law enforcement. Id. And whether the police told him he
need not consent. Id. This is, in full, an exhaustive inquiry
into virtually every conceivable circumstance that could
possibly have some bearing on whether the defendant's consent
was the product of the State's influence, as opposed to the
defendant's own will.
¶62 And still we are not done. A defendant may have said
"yes," and he may have actually submitted to the search, but we
still worry that his words and his conduct might not really
reflect a free and voluntary expression of his will. So we say
that just because a person acquiesces to a search doesn't mean
that he was really consenting. "Consent is not voluntary if the
state proves 'no more than acquiescence to a claim of lawful
authority.'" Id., ¶32 (quoting Bumper v. North Carolina, 391
U.S. 543, 548-49 (1968)).
¶63 Now we are almost done determining whether a person's
express consent is enough to waive his Fourth Amendment rights.
To ward against inadvertent waivers, we burden the State with
the obligation to prove the consent was voluntarily and freely
given. Id. All told, then, we test the sufficiency of express
consent with a searching inquiry into everything that could have
made the consent anything less than a product of the driver's
uninhibited will, we disregard a person's actual submission to
the search if it was nothing more than acquiescence to a claim
of lawful authority, and we make it the State's responsibility
to prove the driver gave his consent freely and voluntarily. So
13
No. 2015AP1261-CR.dk
much for express consent; now it's time to look at the factors
we use to determine whether an instance of "consent" implied by
law meets this standard.
¶64 For "consent" implied by law, we ask whether the
driver drove his car.
¶65 And that's it. If the court is right about "consent"
implied by law, then we have no interest in what the driver
said, thought, experienced, felt, or saw. Nor do we need
consider whether the driver acquiesced to a police officer's
claim of lawful authority. We aren't interested in any personal
detail about the driver, such as his age, intelligence,
circumstances, or emotional state. The only thing we want to
know is whether he was in the driver's seat. And that's exactly
what the court said: "We conclude that Brar voluntarily, albeit
impliedly, consented when he chose to drive on Wisconsin roads."
¶66 That single sentence comprises the entirety of the
court's voluntariness analysis as it relates to "consent"
implied by law. In truth, that's about as much as it could
possibly have said because we really aren't interested in the
driver at all when it comes to this type of consent. The driver
is irrelevant to the question because he isn't the one who
provided the consent——it was the legislature. If the driver
drove, the consent inquiry ends before it begins because the
legislature provided it 48 years ago when it adopted Wis. Stat.
§ 343.305. There is a vast chasm separating express consent
from "consent" implied by law, as this brief diversion into the
voluntariness standard illustrates. In reality, they have
14
No. 2015AP1261-CR.dk
literally nothing in common. Which is understandable because,
as discussed above, they perform entirely different functions.
IV
¶67 The most likely reason the court fell into error is
that it tangled up the concepts of express consent (that is,
spoken or written consent), consent implied by conduct, and
"consent" implied by law. If we could untie this knot and
consider the nature and function of each concept independently
of the others, I believe the errors would correct themselves.
¶68 The first step to untying a knot is carefully
observing how it came to be. I begin, therefore, by identifying
each time the court confounded the different types of consent.
The knot began with the threads of express consent and "consent"
implied by law, which the court started weaving together in its
discussion of State v. Padley, 2014 WI App 65, 354 Wis. 2d 545,
849 N.W.2d 867. See Majority op., ¶¶19-20. Rejecting the court
of appeals' proper attempt to keep the threads separate, the
court twisted them together into one: "This reasoning implies a
distinction between implied consent and consent that is
sufficient under the Fourth Amendment. Such a distinction is
incorrect as a matter of law." Majority op., ¶19 ("Statement
1"). Still responding to Padley, the court then introduced the
thread of consent implied by conduct into the growing knot:
"Stated more fully, and contrary to the court of appeals'
reasoning in Padley, consent can manifest itself in a number of
ways, including through conduct." Majority op., ¶20 ("Statement
2"). Express consent, of course, is something personal to the
15
No. 2015AP1261-CR.dk
driver (as opposed to something "deemed" by the legislature), so
the court's next step was to infuse the personal "granting"
element of express consent into each of the other threads: "The
use of the word 'implied' in the idiom 'implied consent' is
merely descriptive of the way in which an individual gives
consent. It is no less sufficient consent than consent given by
other means." Id. ("Statement 3"). It then subsumed "consent"
implied by law into consent implied by conduct by making the
former just a particular manifestation of the latter: "An
individual's consent given by virtue of driving on Wisconsin's
roads, often referred to as implied consent, is one incarnation
of consent by conduct." Id., ¶21 ("Statement 4"). Finally, it
pointed to the knot and declared it was all one, and the one was
sufficient to waive Fourth Amendment protections:
Therefore, lest there be any doubt, consent by conduct
or implication is constitutionally sufficient consent
under the Fourth Amendment. We reject the notion that
implied consent is a lesser form of consent. Implied
consent is not a second-tier form of consent; it is
well-established that consent under the Fourth
Amendment can be implied through an individual's
conduct.
Id., ¶23 ("Statement 5"). But it is not all one.
¶69 The second step to the untying project is
disentangling express consent from "consent" implied by law. I
have already done most of the foundational work (supra), and it
appears this is the loosest strand in the weave. I will pull
first on Statement 3: "The use of the word 'implied' in the
idiom 'implied consent' is merely descriptive of the way in
which an individual gives consent. It is no less sufficient
16
No. 2015AP1261-CR.dk
consent than consent given by other means." The premise of this
statement is that, whether we are considering express consent or
"consent" implied by law, it is the driver giving consent.
That, however, is not true——between the two, only the first
comes from the driver. Which is why we pay such fastidious
attention to him and the circumstances of his interaction with
the police officer when we assay the voluntariness of his
consent. But with "consent" implied by law, we give scant
thought to the driver (as the court itself demonstrated) because
he isn't the one who gives the consent; it is the legislature.
So it is categorically untrue that "the word 'implied' in the
idiom 'implied consent' is merely descriptive of the way in
which an individual gives consent." The word "implied" is
important because it tells us it is the legislature, not the
individual, who is giving consent.
¶70 With that correction, express consent is almost free
from the court's knot. It is held there only by the court's
rebuke in Statement 1: Padley's "reasoning implies a
distinction between implied consent and consent that is
sufficient under the Fourth Amendment. Such a distinction is
incorrect as a matter of law." The implied consent statute
actually makes Padley's distinction explicit. As described
above, the Implied Consent Component will never result in
authorization to perform a blood test on a conscious individual
because there is no operational connection between it and the
Test Authorization Component. A police officer must ask a
driver's permission to conduct a blood test; the statute's
17
No. 2015AP1261-CR.dk
"implied consent" cannot supply that authorization, nor was it
designed to do so. Thus, the court's statement that the
"distinction is incorrect as a matter of law" is itself
incorrect as a matter of law. And with that, express consent is
free of the knot.
¶71 The third step in untying the knot is separating
consent implied by conduct from "consent" implied by law. The
court's discussion bounced between the two as if they were the
same thing. They are not. Consent implied by conduct is a
recognition of how people interact with each other in real life.
Sometimes an action, or a gesture, or a circumstance, is
sufficiently expressive of a person's will that we can derive
from that conduct definite and certain information. And when
that information conveys consent to a search, we accept it for
its intended meaning, so long as it meets the voluntariness
standard. These principles are apparent from the very cases the
court cited while muddling the two concepts. I will address
enough of them to demonstrate there is a real and critical
difference between the concepts.
¶72 The court referred to State v. Tomlinson, in which we
considered whether officers had received consent to enter a
person's home. 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367.
Two police officers approached the back door and knocked. A
teenage girl answered, and the police informed her they were
searching for the defendant and requested permission to enter.
She then "turned to enter the house upon the officer's request
to enter." Id., ¶37. We noted that the defendant "was present
18
No. 2015AP1261-CR.dk
and apparently said nothing when this occurred." Id. We
concluded that this conduct "could reasonably have been
interpreted as an invitation to follow her inside." Id. That
is, we carefully examined the conduct of the girl and the
defendant to deduce what information it was conveying to the
officers standing at the door. Because the conduct sufficiently
conveyed a message of consent to the officers' entry, we gave it
that effect and confirmed the search's constitutionality.
¶73 The court also cited United States v. Lakoskey, 462
F.3d 965 (8th Cir. 2006), as amended on reh'g (Oct. 31, 2006),
which provides a counterfactual illustration of consent implied
by conduct. There, a postal inspector was suspicious of a
package, and so delivered it personally to the addressee. Id.
at 968. The inspector met Mr. Lakoskey just outside the front
door, and handed him the package. Id. When the inspector asked
to see what was in the package, Mr. Lakoskey refused and walked
inside the house. Id. After repeated requests, Mr. Lakoskey
finally said he would open the package, but then turned so the
inspector could not see it. Id. at 969. At that point, the
inspector entered the house, Mr. Lakoskey opened the envelope,
and incriminating evidence was disclosed. Id. The question
before the court was whether Mr. Lakoskey's actions could
reasonably convey the message "you may enter my home" to the
inspector. The district court said yes. Id. at 971. The Eight
Circuit disagreed. While recognizing that consent to a search
can be implied from conduct, the court observed that "there is
no indication in the record that he [Thomas Lakoskey] invited
19
No. 2015AP1261-CR.dk
[Inspector] Hirose's entry, came outside to tell Hirose to
follow him, left his door open, or motioned for Hirose to come
in, implying that Hirose should follow him." Id. at 974. So
the court concluded that "the finding of the district court that
Thomas [Lakoskey]'s actions constituted implied consent for
Hirose to enter his home was clearly erroneous." Id.
¶74 The court also relied on Morgan v. United States, 323
F.3d 776, 778 (9th Cir. 2003), which held that "a warrantless
search of a person seeking to enter a military base may be
deemed reasonable based on the implied consent of the person
searched." The Morgan court relied heavily on a Fourth Circuit
case, which described how a person's conduct in such
circumstances can convey the message "I consent to being
searched":
[T]he validity of [the defendant's] search [did not]
turn on whether he gave his express consent to search
as a condition of entering the base. Consent is
implied by the totality of all the circumstances. The
barbed-wire fence, the security guards at the gate,
the sign warning of the possibility of search, and a
civilian's common-sense awareness of the nature of a
military base—all these circumstances combine to
puncture any reasonable expectations of privacy for a
civilian who enters a closed military base.
Id., 781-82. (quoting United States v. Jenkins, 986 F.2d 76, 79
(4th Cir. 1993)).
¶75 Handing over one's luggage to be put through an x-ray
scanner at an airport is also conduct conveying consent to a
search, according to State v. Hanson, 34 P.3d 1, 5 (Haw. 2001),
as amended (Nov. 7, 2001) ("Plainly, the surrender of one's
effects at airport security checkpoints is to allow inspection
20
No. 2015AP1261-CR.dk
of such effects for contents that may pose a danger to those on
the aircraft."). And when an officer asks to search a bedroom,
the meaning of the defendant's resulting conduct cannot be
mistaken when he "opened the door to and walked into his
bedroom, retrieved a small baggie of marijuana, handed the
baggie to the agents, and pointed out a number of drug
paraphernalia items." State v. Phillips, 218 Wis. 2d 180, 197,
577 N.W.2d 794 (1998). We concluded the obvious: "The
defendant's conduct provides a sufficient basis on which to find
that the defendant consented to the search of his bedroom." Id.
The court relied on both of these cases, too, and yet still did
not perceive the difference between consent implied by conduct
and "consent" implied by law.
¶76 There is a commonality to each of these cases, and
indeed to all cases that find consent in a person's conduct:
the information-conveying dynamic inherent to a game of
Charades. When a defendant is supposed to have manifested his
consent to a search by his conduct, we carefully watch as the
State recreates the interaction between the officer and
defendant. If the defendant's conduct in response to the
request conveys the message "I agree to be searched," we give it
that effect. There is no "deeming" involved. Just as in a game
of Charades, we are trying to understand the actual, real-life
information the person is conveying through his conduct at that
moment.
¶77 And that unties the rest of the court's knot. In
Statement 4 the court said "consent" implied by law is just a
21
No. 2015AP1261-CR.dk
type of consent implied by conduct: "An individual's consent
given by virtue of driving on Wisconsin's roads, often referred
to as implied consent, is one incarnation of consent by
conduct." If that is true, then there should be enough
information bundled up in the act of "driving on Wisconsin's
roads" for us to deduce an expression of the driver's will from
that conduct.
¶78 Except there is not. There are a million things we
might imagine driving a car might mean, very few that we can
discern with any certainty, and none that say anything about
consent to a search. We might conclude from observing a driver
on the interstate that he is traveling from point A to point B.
But even that simple inference is entirely speculative. Maybe
he's out for a Sunday drive and he's travelling from Point A
back to Point A. If he's traveling quickly we might infer he is
in a hurry to get to his destination. But then again, maybe he
just likes to drive fast. One could multiply examples without
end, but in the end it would just emphasize what we already
know. And that is that there are only two things we can
confidently say that driving a car on Wisconsin's roads means:
The driver is driving his car, and he is in Wisconsin. In a
thousand attempts in a thousand games of Charades, no contestant
will ever guess that driving a car in Wisconsin means "I consent
to a blood test." It does no good to say the driver expresses
such consent because the statute says he does. If one must
resort to the statute books to discover the meaning of the
driver's conduct, then the conduct has utterly failed to convey
22
No. 2015AP1261-CR.dk
that meaning. Which is not at all surprising because the
statute does not purport to describe the meaning of driving on
Wisconsin's roads, only its consequences.
¶79 Thus, neither the driver's conduct nor the statute can
make driving in Wisconsin mean "I consent to a blood test." And
that necessarily means that "consent" implied by law is not "one
incarnation of consent by conduct." It then follows that
Statement 2——in which the court said consent can be derived from
conduct——is true as a standalone description of the law, but
irrelevant because this is not a "consent implied by conduct"
case. Most of Statement 5 is true but irrelevant for the same
reason——to the extent it says consent implied by conduct can be
constitutionally sufficient, it is saying something inapplicable
to this case.
¶80 Untying the knot isolates the court's error. In
Statement 5, the court said "lest there be any doubt, consent
by . . . implication is constitutionally sufficient consent
under the Fourth Amendment." But without any support from the
text of the statute, or the "consent by conduct" or "express
consent" lines of cases, the statement is just ipse dixit. It
is so because we say it is. And that contributes to an even
more significant problem.
V
¶81 When the court says "consent" implied by law is just
as constitutionally effective as express consent, it is saying
something terribly chilling. It is saying the legislature may
decide when the people of Wisconsin must surrender their
23
No. 2015AP1261-CR.dk
constitutional rights. The court recognized that conducting a
blood test constitutes a search within the meaning of the Fourth
Amendment. It also recognized that such searches require a
warrant or a legitimate exception to the Fourth Amendment. And
it further recognized that the exceptions usually will not
apply.8 The court dispensed with all of this, and announced that
blood tests are always available when there is probable cause to
believe someone was driving in Wisconsin while intoxicated. The
scythe sharp enough to cut through all of these limitations
turned out to be really quite simple, but no less surprising for
that. The legislature simply had to declare that the people of
Wisconsin had agreed to it.
¶82 If this is right, the Birchfield and McNeely9 courts
should probably feel a little sheepish for all the attention
they paid to the constitutional niceties. Especially the
Birchfield court, which lauded implied consent laws, but somehow
missed our insight that they dispense with both the warrant
requirement and the need to consider the known exceptions to the
Fourth Amendment. "Consent" implied by law, our court says
today, is no "second-tier form of consent." It is
"constitutionally sufficient consent under the Fourth
Amendment." The legislature need only say the people of
8
I am quite sure the court recognizes the limitations. It
cited both McNeely and Birchfield, which together place
substantial restrictions on when an officer may conduct a blood
test without a warrant or consent.
9
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013).
24
No. 2015AP1261-CR.dk
Wisconsin waive their Fourth Amendment rights by driving, and
immediately it is so.
¶83 A constitutional doctrine of this magnitude deserves
considerably more attention than today's opinion gives it. One
aspect of a more rigorous consideration would include developing
and describing some limiting principles. Today the court says
the legislature properly suspended Wisconsinites' Fourth
Amendment rights when they go for a drive. What of their Sixth
Amendment rights? Perhaps the legislature might decide it would
be easier to get convictions if they also suspend the right to
the effective assistance of counsel. According to our opinion
today, the legislature could simply declare that driving in
Wisconsin waives that right, too. Or the right not to
incriminate oneself. Or the right to a jury. What principle,
exactly, would prevent any of this?
¶84 Nor is there anything about this new doctrine that
necessarily limits it to the context of obtaining blood tests
from intoxicated drivers. There are certain parts of the State
that experience a disproportionate amount of crime. Perhaps the
legislature might decide police need greater access to homes and
other buildings in such areas. It could, according to our
opinion today, adopt an "implied consent" statute in which
recording a property deed comprises consent to a search of one's
property when the police have probable cause to believe the
owner has been involved in a crime. It takes very little
imagination to see how this new doctrine could eat its way
through all of our constitutional rights.
25
No. 2015AP1261-CR.dk
¶85 I understand the importance of pursuing intoxicated
drivers. But we are deforming our Constitution. By conferring
on the legislature the authority to create consent where none
exists, we are reducing constitutional rights to matters of
legislative grace. For all of these reasons, I join the court's
mandate, but only so much of the opinion as discusses express
consent.
¶86 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins part I of this concurrence.
26
No. 2015AP1261-CR.ssa
¶87 SHIRLEY S. ABRAHAMSON, J. (dissenting).1 The legal
principle underlying this drunk-driving case is that a blood
draw is a search under the Fourth Amendment.2
1
The first opinion, authored by Chief Justice Patience D.
Roggensack, is a lead opinion. The opinion is referred to as a
lead opinion because it states the mandate agreed to by the
majority of the justices but represents the reasoning of less
than a majority of the participating justices.
Only Justice Annette K. Ziegler and Justice Michael J.
Gableman join the lead opinion.
Writing in concurrence, Justice Rebecca G. Bradley concurs
with the mandate and joins Part I of Justice Daniel Kelly's
concurrence. Justice Daniel Kelly joins the "court's mandate
and the opinion to the extent it discusses Mr. Brar's express
consent to the blood test while he was present in the police
station," but does not "join any part of the court's discussion
of implied consent . . . ." Justice Kelly's opinion, ¶1.
Thus five justices agree with the mandate set forth in the
lead opinion; the mandate is that the decision of the court of
appeals is affirmed.
Disagreeing with the mandate and the reasoning of the lead
opinion, I write in dissent, joined by Justice Ann Walsh
Bradley.
As Justice Ann Walsh Bradley recently explained in State v.
Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann
Walsh Bradley, J., dissenting), although "the term 'lead'
opinion . . . is undefined in our Internal Operating Procedures,
its use here is consistent with past description. We have said
'that a lead opinion is one that states (and agrees with) the
mandate of a majority of the justices, but represents the
reasoning of less than a majority of the participating
justices.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371
Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ.,
concurring in part and dissenting in part) (citing Hoffer
Props., LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874
N.W.2d 533)).
2
Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016);
Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 616–17 (1989);
Schmerber v. California, 384 U.S. 757, 767–68 (1966).
1
No. 2015AP1261-CR.ssa
¶88 The lead opinion presents two questions of law that
this court decides independently of the circuit court and court
of appeals but benefiting from the analyses of those courts.
¶89 First, does a driver's "implied consent" under the
Wisconsin Implied Consent Law constitute, by itself, voluntary
and free consent to a warrantless blood draw for purposes of the
Fourth Amendment? See Wis. Stat. § 343.305 (2015-16)
(attached).3
¶90 Second, is the circuit court's finding of consent in
fact supported by the record, and, if so, has the State met its
burden of proving by clear and convincing evidence that the
defendant, Navdeep S. Brar, voluntarily and freely consented to
the warrantless blood draw?
¶91 I conclude that the lead opinion errs in deciding both
issues.
¶92 In responding to the first question, which it need not
address, the lead opinion proffers a muddled interpretation of
the Implied Consent Law that violates the federal and state
constitutional protections against unreasonable searches. The
State asserts that the Fourth Amendment is irrelevant to a blood
draw undertaken to determine whether the driver is intoxicated.
¶93 The lead opinion and the State engage in an unsound
analysis of the text of the Wisconsin Implied Consent Law and
relevant case law, including State v. Padley, 2014 WI App 65,
3
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated. The 2015-16
version of § 343.305 is the same as the 2013-14 version.
2
No. 2015AP1261-CR.ssa
354 Wis. 2d 545, 849 N.W.2d 867, Missouri v. McNeely, 133 S. Ct.
1552 (2013), and Birchfield v. North Dakota, 136 S. Ct. 2160
(2016).
¶94 In contrast to the lead opinion's and the State's
positions, I conclude that neither a driver's obtaining a
Wisconsin operators license nor a driver's operating a motor
vehicle in Wisconsin is a manifestation of actual consent to a
later search of the driver's person by a blood draw. In order
for a law enforcement officer to draw blood from a driver
without a warrant, a valid exception to the Fourth Amendment
must apply at the time of the blood draw, such as the driver's
free and voluntary consent or the existence of exigent
circumstances. My position is consistent with recent decisions
3
No. 2015AP1261-CR.ssa
of other state courts involving implied consent laws and
conscious drivers.4
¶95 The instant case and the Wisconsin Implied Consent Law
should be compared with a very recent (April 2017) Colorado
case, People v. Hyde, 393 P.3d 962 (Colo. 2017). Hyde holds
4
See, e.g., State v. Butler, 302 P.3d 609, 613 (Ariz. 2013)
(holding that "independent of" the implied consent law, "the
Fourth Amendment requires an arrestee's consent to be voluntary
to justify a warrantless blood draw."); People v. Mason, 214
Cal. Rptr. 3d 685, 702 (Cal. Super. Ct. 2016) ("To recap, we
have concluded that advance 'deemed' consent under the implied
consent law cannot be considered actual Fourth Amendment
consent."); Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015)
("Here, the trial court erred when it concluded that
'Defendant's statutory implied consent exempted the blood draw
from the warrant requirement . . . .'"); Williams v. State, 771
S.E.2d 373, 377 (Ga. 2015) (collecting cases) ("cases seem to
indicate . . . that mere compliance with statutory implied
consent requirements does not, per se, equate to actual, and
therefore voluntary, consent on the part of the suspect so as to
be an exception to the constitutional mandate of a warrant");
State v. Halseth, 339 P.3d 368, 371 (Idaho 2014) ("[W]e hold
that an implied consent statute . . . does not justify a
warrantless blood draw from a driver who refuses to
consent . . . or objects to the blood draw . . . . Consent to a
search must be voluntary."); State v. Wulff, 337 P.3d 575, 581
(Idaho 2014) (same); Byars v. State, 336 P.3d 939, 946 (Nev.
2014) ("The implied consent provision . . . does not allow a
driver to withdraw consent, thus a driver's so-called consent
cannot be considered voluntary. Accordingly, we conclude that
[the implied consent provision] is unconstitutional."); State v.
Fierro, 853 N.W.2d 235, 243 (S.D. 2014) (ruling that a Fourth
Amendment totality of the circumstances analysis must be
performed to determine whether consent to a blood draw taken
pursuant to state implied consent law was voluntary); Aviles v.
State, 443 S.W.3d 291, 294 (Tex. Ct. App. 2014) (holding that
implied consent and blood draw statutes are not permissible
exceptions to the warrant requirement and stating that to hold
otherwise "flies in the face of McNeely's repeated mandate that
courts must consider the totality of the circumstances of each
case").
4
No. 2015AP1261-CR.ssa
that the driver's "statutory consent [under the Colorado
statute] satisfied the consent exception to the Fourth Amendment
warrant requirement." Hyde, 393 ¶.3d at 968.
¶96 Hyde is based on facts very different from the facts
in the instant case. The Colorado Expressed Consent Statute
governing Hyde is very different from the Wisconsin Implied
Consent Law with regard to the facts of the Hyde case.
¶97 The different fact is that the driver in Hyde was
unconscious when the blood was drawn.
¶98 The difference between the Colorado and Wisconsin laws
is that with regard to an unconscious driver, the Colorado law
provides: "An unconscious driver, on the other hand, 'shall be
tested to determine the alcohol or drug content of the person's
blood.' [Colo. Rev. Stat.] § 42-4-1301.1(8) [2016]. In other
words, under the Expressed Consent Statute, the police need not
wait until a drunk-driving suspect returns to consciousness, in
order to afford that suspect an opportunity to refuse."5
¶99 In contrast, under Wisconsin's Implied Consent Law,
unconscious drivers are "presumed not to have withdrawn
consent," but Wisconsin law enforcement officers are not
directed to conduct a blood draw on an unconscious driver. The
5
People v. Hyde, 393 P.3d 962, 966 (Colo. 2017).
With regard to a conscious driver the Colorado Expressed
Consent Statute is, according to the Colorado Supreme Court,
similar in language and effect to implied consent laws in other
states with regard to conscious drivers, even though the statute
is phrased in terms of expressed consent. Hyde, 393 P.3d at 966
n.1.
5
No. 2015AP1261-CR.ssa
Wisconsin Implied Consent Law (in contrast with the Colorado
law) states that a blood draw "may be administered to the
[unconscious] person." See Wis. Stat. § 343.305(3)(b) ("[a]
person who is unconscious or otherwise not capable of
withdrawing consent is presumed not to have withdrawn
consent . . . ."). Compare State v. Howes, 2017 WI 18, 373
Wis. 2d 468, 893 N.W.2d 812 (lead opinion) (upholding a
warrantless blood draw of an unconscious driver based on exigent
circumstances rather than the Implied Consent Law).
¶100 In addition to these factual and statutory
differences, Hyde is unavailing because Hyde's reasoning relies
on unpersuasive readings of Missouri v. McNeely, 133 S. Ct. 1552
(2013), and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).
¶101 Indeed, Hyde has already been rejected by one state
supreme court. In North Carolina v. Romano, No. 199PA16, 2017
WL 2492782 (N.C. June 9, 2017), the North Carolina Supreme Court
was faced with the question whether drawing blood from an
unconscious driver on the basis of only the implied consent law,
without a warrant or exigent circumstances, and violated the
Fourth Amendment.
¶102 The Romano court analyzed Hyde, McNeely and
Birchfield. It disagreed with the Hyde court. It declared the
blood draw unconstitutional: "Treating [the unconscious driver
provision of the implied consent law] as an irrevocable rule of
implied consent does not comport with the consent exception to
the warrant requirement because such treatment does not require
an analysis of the voluntariness of consent based on the
6
No. 2015AP1261-CR.ssa
totality of the circumstances."6 The Romano court interprets
McNeely and Birchfield substantially the same as I do and as do
other state courts.
¶103 In responding to the second question, I conclude the
lead opinion again errs. The circuit court's finding of consent
in fact is not supported by the record, and even if it is, the
State has failed to meet its burden of proving by clear and
convincing evidence that the defendant voluntarily and freely
consented to the warrantless blood draw in the instant case.
¶104 Because the lead opinion errs as a matter of law and
whittles away constitutional protections for the defendant and
all of us, I dissent.
I
¶105 The lead opinion interprets the Wisconsin Implied
Consent Law to mean that driving in Wisconsin amounts to
voluntary and free consent to a blood draw. According to the
lead opinion, the statutory "implied consent" given previously
equates to actual consent at the time of the blood draw. In the
lead opinion's view, the Implied Consent Law, standing alone,
provides "consent sufficient under the Fourth Amendment——not
some amorphous, lesser form of consent." Lead op., ¶21.
6
North Carolina v. Romano, No. 199PA16, 2017 WL 2492782, at
*8 (N.C. June 9, 2017).
The Romano court cites cases from two other states agreeing
with its conclusion that the statutory implied consent does not
satisfy the consent exception to the Fourth Amendment with
regard to an unconscious driver. See State v. Havatone, 389
P.3d 1251, 1253, 1255 (Ariz. 2017); Bailey v. State, 790
S.E.2d 98, 103 & n.42 (Ga. App. 2016).
7
No. 2015AP1261-CR.ssa
¶106 The lead opinion concludes: "Brar consented [to the
blood draw] under Wisconsin's implied consent law. He availed
himself of the roads of Wisconsin, and as a result, he consented
through his conduct to a blood draw." Lead op., ¶29.
¶107 The lead opinion recognizes, however, that conscious
drivers are statutorily given an opportunity to withdraw
consent, lead op., ¶23 n.11, but does not address whether an
opportunity to withdraw consent must always be given before a
blood draw is taken. Lead op., ¶23 n.10.7 Oddly, and
inconsistently with the rest of its analysis, the lead opinion
also recognizes that "[e]ven in implied consent cases, we
consider the totality of the circumstances at the time of the
blood draw to determine if an individual's previously-given
consent continues to be voluntary at that time." Lead op., ¶25
(emphasis added).
¶108 The State takes a position similar to the lead
opinion's. The State asserts that the Fourth Amendment is
7
The law is clear, in my opinion, that inherent in the
requirement of voluntary consent is the right of a person to
withdraw consent. See, e.g., United States v. Dyer, 784
F.2d 812, 816 (7th Cir. 1986) ("a person may limit or withdraw
his [or her] consent to a search, and the police must honor such
limitations."); Burton v. United States, 657 A.2d 741, 746 (D.C.
1994) (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991) and
Dyer to conclude: "We think these authorities compel the
conclusion that when the basis for a warrantless search is
consent, consent may be withdrawn any time prior to completion
of the search, and we so hold."); 4 Wayne R. LaFave et al.,
Search & Seizure: A Treatise on the Fourth Amendment § 8.1(c)
at 58 (5th ed. 2012) ("consent usually may be withdrawn or
limited at any time prior to the completion of the search")
(footnotes omitted).
8
No. 2015AP1261-CR.ssa
irrelevant to a blood test requested under the Implied Consent
Law. The State argues that when a driver is stopped and is read
the Informing the Accused Form, which the legislature requires a
law enforcement officer to read verbatim to a driver, the State
is not soliciting Fourth Amendment consent to a blood draw.8 The
State's position is that the question at the Form stage is not
whether the driver consents to the test, "but rather whether the
subject will submit to the test he previously agreed to take, or
recant his consent and face the adverse consequences of a
refusal."9
¶109 According to the State, when a driver is stopped and a
law enforcement officer employs the Implied Consent Law to take
a warrantless blood draw, the Fourth Amendment is not involved:
This is not Fourth Amendment consent terrain; it is
the statutory world of implied consent, a world the
subject has entered though his own behavior. The
injection of Fourth Amendment consent principles into
the Form phase of the implied consent statute
contradicts Wisconsin and U.S. Supreme Court cases
dealing with the law and would severely undermine the
statute's critical role in combating the national
problem of drunken driving.10
8
The State notes that, under its interpretation of the
Implied Consent Law, whether consent to the blood draw is deemed
to occur when a driver applies for an operating license or when
a driver operates a vehicle is not material. In either case,
says the State, the driver has given consent to the blood draw
under the Implied Consent Law before the driver is pulled over
on suspicion of drunk driving.
9
Brief of Plaintiff-Respondent (State) at 7.
10
Brief of Plaintiff-Respondent (State) at 8-9.
9
No. 2015AP1261-CR.ssa
¶110 The State contends that Fourth Amendment
constitutional rights come into play at the Informing the
Accused stage only after the driver refuses to allow a blood
draw and the State seeks a warrant for the blood draw or asserts
that a Fourth Amendment exception applies, such as exigent
circumstances.
¶111 I disagree with the interpretations of the Informed
Consent Law proffered by the lead opinion and the State.
¶112 The lead opinion's and the State's interpretation of
the Implied Consent law contravenes the text of the Law. By its
plain terms, the Law does not treat the driver as having
actually consented to a blood draw. By its plain terms, the Law
does not empower law enforcement officers to draw a blood sample
when the vehicle is stopped. Rather, the Law directs a law
enforcement officer to inform the driver that a request is being
made for a test, that the driver may refuse to take the test,
and that the driver will face civil legal consequences upon
refusal to take the test.
¶113 The text of the Informing the Accused Form, which the
Law requires to be read to the driver verbatim, advises the
driver that he or she may refuse to give a blood sample but that
a refusal has consequences, including revocation of operating
privileges and use of evidence of the refusal against the driver
in court. Wis. Stat. § 343.305(4). If the Implied Consent Law
furnishes actual consent to a blood draw, why would the
legislature require officers to inform drivers when they are
10
No. 2015AP1261-CR.ssa
stopped that the officer is requesting a test and that the
driver may refuse the requested test?
¶114 I conclude that in the context of the Wisconsin
Implied Consent Law, the conduct that equates to consent valid
under the United States and Wisconsin constitutions is the
driver's agreeing to submit to the test after being read the
Informing the Accused Form. Were it otherwise, there would be
no need to read the Form or request a test.
¶115 I conclude that the court of appeals interpreted the
Implied Consent Law correctly in State v. Padley, 2014 WI App
65, 354 Wis. 2d 545, 849 N.W.2d 867: The "implied consent"
given by drivers on Wisconsin highways pursuant to the Implied
Consent Law does not equate to "actual consent" under the Fourth
Amendment. Padley, 354 Wis. 2d 545, ¶¶38-39.
¶116 The Padley court concluded that a driver's actual
consent occurs after the driver has heard the Informing the
Accused Form, weighed his or her options (including the refusal
penalties), and decided whether to give or decline actual
consent. Padley, 354 Wis. 2d 545, ¶39. The Implied Consent Law
gives a driver a choice whether to give or decline to give
actual consent when confronted with a request by a law
enforcement officer for a blood draw:
[T]he implied consent law is explicitly designed to
allow the driver, and not the police officer, to make
the choice as to whether the driver will give or
decline to give actual consent to a blood draw when
put to the choice between consent or automatic
sanctions. Framed in the terms of "implied consent, "
choosing the "yes" option affirms the driver's implied
consent and constitutes actual consent for the blood
draw. Choosing the "no" option acts to withdraw the
11
No. 2015AP1261-CR.ssa
driver's implied consent and establishes that the
driver does not give actual consent. Withdrawing
consent by choosing the "no" option is an unlawful
action, in that it is penalized by "refusal violation"
sanctions, even though it is a choice the driver can
make.
Padley, 354 Wis. 2d 545, ¶39.
¶117 Both the lead opinion and the State suggest that
Padley is incorrect as a matter of law, but neither advocates
expressly overruling the case.11 Padley is binding precedent.
Wis. Stat. § 752.41. The lead opinion should abide by Padley,
overturn it, or distinguish it. Instead, the lead opinion
11
The defendant asserts that the State has forfeited the
issues whether the Fourth Amendment applies to the "Form" stage
of implied consent cases and whether Padley was wrongly decided.
The defendant argues that at no point in this litigation did the
State assert this position until its brief in this court. See
Reply Brief of Defendant-Appellant-Petitioner at 4; Wis. Stat.
§ (Rule) 809.62; State v. Denny, 2017 WI 17, ¶117, 373
Wis. 2d 390, 891 N.W.2d 144 (Abrahamson, J., dissenting);
Michael Heffernan, Appellate Practice and Procedure in Wisconsin
§ 23.8 (7th ed. 2016) ("Failure to raise an issue in the
petition for review is deemed a waiver of any claim that the
supreme court should consider the issue.").
In the court of appeals, the State took the position that
Padley was correctly decided by relying on it. See Plaintiff-
Respondent's (State of Wisconsin) Court of Appeals Brief at 3
("'Consent' is not to be confused with Wisconsin's 'implied
consent' statute, a law which gives law enforcement the
authority to require drivers to choose between consenting to a
blood draw or refusing and facing penalties enacted by the
legislature.") (citing Padley, 354 Wis. 2d 545, ¶¶27, 33).
In this court, the State asserts that Padley's view of the
Implied Consent Law is not correct and that when the Implied
Consent Law is in play, it "is not Fourth Amendment consent
terrain; it is the statutory world of implied consent, a world
the subject has entered through his own behavior." Brief of
Plaintiff-Respondent (State of Wisconsin) at 8.
12
No. 2015AP1261-CR.ssa
swipes at Padley with clawless paws, unnecessarily leaving
Padley and the Implied Consent Law in a state of uncertainty.
¶118 In addition to not adhering to the text of the
Wisconsin Implied Consent Law or Padley, the lead opinion does
not, in my opinion, pay acute attention to the United States
Supreme Court's recent drunk-driving cases.12
12
The lead opinion's reliance on pre-McNeely and pre-
Birchfield Wisconsin drunk-driving cases (such as State v.
Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980), and State v.
Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528), is
dubious for several reasons.
Recent United States Supreme Court cases significantly
changed the constitutional landscape of drunk-driving. See
State v. Tullberg, 2014 WI 134, ¶42, 359 Wis. 2d 421, 857
N.W.2d 120, cert. denied, 135 S. Ct. 2327 (2015) (McNeely
"changed the landscape of warrantless blood draws in
Wisconsin . . . .").
The statutes at issue in those cases are not the same as
the statute involved in this instant case, and the lead opinion
fails to explain why these cases should control its analysis.
The language from these cases upon which the lead opinion
relies is taken out of context.
The issue addressed in Neitzel was whether the accused had
a right to confer with counsel before deciding to take or refuse
to take a chemical test for intoxication. The court held that
Neitzel did not have the right to confer with counsel. The
issue in the case did not involve implied consent as such.
(continued)
13
No. 2015AP1261-CR.ssa
¶119 The United States Supreme Court has not questioned the
constitutionality of implied consent laws imposing civil
consequences. Indeed it has confirmed their constitutionality.13
The United States Supreme Court has not, however, directly
decided that the consent exception to the Fourth Amendment is
satisfied solely by implied consent under a state implied
consent law. The Court also has not explicitly decided that
state implied consent laws do not provide actual consent
satisfying the Fourth Amendment. In my opinion, this latter
proposition is implicit in the Court's recent drunk-driving
cases. As Professor LaFave has observed: "Consent in any
meaningful sense cannot be said to exist merely because a person
In Piddington, the issue was whether the accused, who was
profoundly deaf since birth, fully understood the information he
was given orally by the law enforcement officer pursuant to the
Implied Consent Law. The circuit court ruled that the State had
not met its burden to show that the accused understood the
information he was given. The supreme court ruled that whether
the accused actually comprehended the warnings is not a required
part of the inquiry. According to the supreme court, the test
is whether the law enforcement officer's attempts to communicate
with the accused were reasonable under all of the circumstances.
The court did not address whether the accused voluntarily and
freely consented to a blood draw.
13
See Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013)
("States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense.");
Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016) ("Our
prior opinions have referred approvingly to the general concept
of implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to
comply . . . and nothing we say here should be read to cast
doubt on them.").
14
No. 2015AP1261-CR.ssa
(a) knows that an official intrusion into his privacy is
contemplated if he does a certain thing, and then (b) proceeds
to do that thing."14
¶120 In Missouri v. McNeely, 133 S. Ct. 1552 (2013) and
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), the Court
did not expressly address the issue of implied consent stemming
from implied consent laws. But the Court's reasoning derived
from Schmerber v. California, 377 U.S. 757 (1966), is directly
applicable to the issue of consent.
¶121 In McNeely, 133 S. Ct. at 1566, the driver refused to
consent to a blood draw. The Court recognized that valid Fourth
Amendment consent had to be obtained before blood was validly
drawn under the Fourth Amendment, unless an exception other than
consent was in play.
¶122 The McNeely court (in a plurality opinion) explained:
"Whether a warrantless blood test of a drunk-driving suspect is
reasonable must be determined case by case based on the totality
of the circumstances." McNeely, 133 S. Ct. at 1563.15 This
emphasis on totality of circumstances suggests a broader reading
of McNeely than limiting McNeely to exigent circumstances.
14
4 Wayne R. LaFave et al., Search & Seizure: A Treatise
on the Fourth Amendment, § 8.2(l) at 164-65 (5th ed. 2012).
15
The Supreme Court of Georgia has explained: "To hold
that the legislature could nonetheless pass laws stating that a
person 'impliedly' consents to searches under certain
circumstances where a search would otherwise be unlawful would
be to condone an unconstitutional bypassing of the Fourth
Amendment." Cooper v. State, 587 S.E.2d 605, 612 (Ga. 2003)
(quoting Hannoy v. State, 789 N.E.2d 977, 987 (Ind. App. 2003)).
15
No. 2015AP1261-CR.ssa
¶123 Shortly after the McNeely decision, the United States
Supreme Court vacated a Texas judgment upholding a forced blood
draw based solely on consent derived from the Texas implied
consent statute and remanded the matter to the state court for
further consideration in light of McNeely. Aviles v. Texas, 134
S. Ct. 902, 902 (2014), vacating 385 S.W.3d 110 (Tex. Ct. App.
2012). Aviles suggests that McNeely should be read broadly to
apply to all warrantless blood draws and that the Texas implied
consent statute was not a per se exception to the Fourth
Amendment justifying warrantless blood draws. The Texas court
so interpreted the United States Supreme Court decision on
remand.16
¶124 Birchfield echoes McNeely and Aviles. The Birchfield
Court noted that "[o]ur prior opinions have referred approvingly
to the general concept of implied-consent laws that impose civil
penalties and evidentiary consequences on motorists who refuse
to comply." Birchfield, 136 S. Ct. at 2185. The Court
characterized implied consent laws as laws "to induce motorists
to submit to BAC testing." 136 S. Ct. at 2180. The Birchfield
Court explained that implied consent laws "provide[] that
cooperation with BAC testing [is] a condition of the privilege
of driving on state roads and that the privilege [will] be
16
Aviles v. State, 443 S.W.3d 291, 294 (Tex. Ct. App. 2014)
(holding that implied consent and blood draw statutes are not
permissible exceptions to the warrant requirement and stating
that to hold otherwise "flies in the face of McNeely's repeated
mandate that courts must consider the totality of the
circumstances of each case").
16
No. 2015AP1261-CR.ssa
rescinded if a suspected drunk driver refuse[s] to honor that
condition." Birchfield, 136 S. Ct. at 2169.
¶125 One of the petitioners in Birchfield, Michael Beylund,
complied with a law enforcement officer's demand for a blood
sample under North Dakota's implied consent law, which imposed
criminal penalties on a driver for refusal to submit to a blood
test.17 Birchfield, 136 S. Ct. at 2172. Although Beylund
submitted to the blood draw, the Birchfield court did not rely
on "implied consent" derived from the implied consent law or
acquiescence to uphold the constitutionality of the blood draw.
Rather, the Court remanded the case to the North Dakota state
court to determine whether Beylund's submission to the blood
draw under the totality of the circumstances was voluntary
consent to the search under the Fourth Amendment when he was
erroneously told that the law required his submission to the
blood draw and that the State could compel a blood test.
Birchfield, 136 S. Ct. at 2186.
¶126 Considering the text of the Wisconsin Implied Consent
Law, Padley, the United States Supreme Court language in McNeely
and Birchfield, the remand of Aviles, and the required totality
of circumstances analysis to determine voluntary consent (which
I discuss further below), I conclude that neither a Wisconsin
17
The Birchfield Court noted that "[t]here must be some
limit to the consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on public
roads," and "conclude[d] that motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a
criminal offense." Birchfield, 136 S. Ct. at 2185-86.
17
No. 2015AP1261-CR.ssa
driver's license nor the operation of a motor vehicle in
Wisconsin is a manifestation of actual consent to a later search
of the driver's person by means of a blood draw. To draw blood
without a warrant or an exception to the Fourth Amendment, the
driver's valid consent under the Fourth Amendment must be
obtained at the time of the blood draw.
II
¶127 Whether the defendant consented in fact to the blood
draw and whether the consent was voluntarily and freely given
under the Fourth Amendment and the Wisconsin constitution are
questions of law that this court decides independently.
¶128 I disagree with the lead opinion's analyses and
conclusions of law.
¶129 Consent in fact is a question of historical fact.
This court will uphold a circuit court's finding of fact "if it
is not contrary to the great weight and clear preponderance of
the evidence." State v. Artic, 2010 WI 83, ¶30, 327
Wis. 2d 392, 786 N.W.2d 430.18 This court, however,
independently applies constitutional principles to these facts.19
18
State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786
N.W.2d 463 ("When presented with a question of constitutional
fact, this court engages in a two-step inquiry. First, we
review the circuit court's findings of historical fact under a
deferential standard, upholding them unless they are clearly
erroneous. Second, we independently apply constitutional
principles to those facts.") (internal citations omitted).
19
State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733
N.W.2d 634 (citing State v. Martwick, 2000 WI 5, ¶16, 231
Wis. 2d 801, 604 N.W.2d 552).
18
No. 2015AP1261-CR.ssa
¶130 In the instant case, the record includes an
audiovisual recording of the exchange during which the
defendant's alleged consent took place. Just as when a case and
its factual issues are contained solely in written, documentary
evidence, I can independently analyze the audiovisual evidence
and need not give special deference to the circuit court's
findings regarding factual issues, such as consent in fact.20
20
In such circumstances, the trial court's factual findings
do not carry the same weight because the "trial court's
customary opportunity to evaluate the demeanor and thus the
credibility of the witnesses . . . plays only a restricted role
. . . . " Pullman-Standard v. Swint, 456 U.S. 273, 301-02
(1982) (Marshall, J., dissenting) (quoting United States v. Gen.
Motors Corp., 384 U.S. 127, 141 (1966) and citing Jennings v.
Gen. Med. Corp., 604 F.2d 1300, 1305 (10th Cir. 1979)); Hague v.
Liberty Mut. Ins. Co., 571 F.2d 262, 264 (5th Cir. 1978)
("Because the case was submitted to the district court in the
form of documents and transcripts, [the] burden of showing that
the district court's findings of fact were 'clearly erroneous'
is somewhat lessened.").
(continued)
19
No. 2015AP1261-CR.ssa
¶131 The audiovisual recording undermines the circuit
court's finding of consent in fact and the lead opinion's
discussion. The defendant did utter the words "of course," but
they are associated with his comment that "I don't want my
license to be taken. This is a complicated question."
¶132 Although the lead opinion finds that "[n]othing in the
recording rebuts the officer's testimony as to Brar's
statements," lead op., ¶33, the audiovisual recording does
conflict with the officer's testimony describing the "of course"
comment. The lead opinion's affirmation of consent in fact
based on the recording is rebutted by the audiovisual recording.
The recording does not support the finding that the defendant
consented in fact.
Accord Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶27,
241 Wis. 2d 804, 623 N.W.2d 751 ("This court and the circuit
court are equally able to read the written record."); State ex
rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977)
(same); Vogt, Inc. v. Int'l Bhd. of Teamsters, 270 Wis. 315, 71
N.W.2d 359 (1955), on reargument, 270 Wis. 321b, 321i, 74
N.W.2d 749 (1956) ("[The reason for the clearly erroneous
standard is that the] appellate court must give weight to the
findings of a trial court made in a contested matter upon oral
testimony where the trial judge is in a position to pass on the
credibility of the witnesses and the weight to be given to their
testimony. He has full opportunity to observe the demeanor of
the witnesses and judge their veracity——the appellate court does
not. The reason for the rule disappears, however, when the
appeal is presented upon no more than pleadings and affidavits,
as is the case here."); Cohn v. Town of Randall, 2001 WI App
176, ¶7, 247 Wis. 2d 118, 633 N.W.2d 674 ("We are in just as
good a position as the trial court to make factual inferences
based on documentary evidence and we need not defer to the trial
court's findings."); Racine Educ. Ass'n v. Bd. of Educ., 145
Wis. 2d 518, 521, 427 N.W.2d 414 (Ct. App. 1988) (same); Pfeifer
v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 571 n.1, 360
N.W.2d 65 (Ct. App. 1984) (same).
20
No. 2015AP1261-CR.ssa
¶133 Rather, the audiovisual recording suggests, in my
opinion, that the defendant was "stalling" to avoid taking the
test. The law enforcement officer should have treated the
defendant's conduct as a refusal to allow the blood test.21
¶134 In sum, based upon the audiovisual recording, I
conclude that the defendant did not consent in fact to the blood
draw.
¶135 Even if the defendant consented in fact, the question
becomes whether the consent was freely and voluntarily given,
that is, whether the consent was constitutionally valid.
¶136 The lead opinion delves into what constitutes
voluntary consent, attempting to redefine the Fourth Amendment
consent standard. The lead opinion withdraws "any
language . . . [in the cases] that requires that consent to a
search be given knowingly and intelligently." Lead op., ¶27.
Thus, the lead opinion overrules a number of unnamed cases,
including Gautreaux v. State, 52 Wis. 2d 489, 492, 190
N.W.2d 542 (1971), a longstanding precedent.
¶137 More than forty years ago in Gautreaux, the Wisconsin
Supreme Court stated the following regarding a defendant's
consent to a constitutionally protected search: "[T]he state
21
See State v. Rydeski, 214 Wis. 2d 101, 107, 571
N.W.2d 417 (Ct. App. 1997) (driver's conduct in insisting on
using the restroom after agreeing to take the test in order to
stall qualified as a "refusal"); Village of Elkhart Lake v.
Borzyskowski, 123 Wis. 2d 185, 191, 366 N.W.2d 506 (Ct. App.
1985) (driver who, while not verbally refusing to take
breathalyzer test, engaged in conduct which effectively
prevented officer from obtaining accurate breath sample refused
to take the test).
21
No. 2015AP1261-CR.ssa
has the burden of proving by clear and positive evidence the
search was the result of a free, intelligent, unequivocal and
specific consent . . . ." Gautreaux v. State, 52 Wis. 2d 489,
492, 190 N.W.2d 542 (1971) (emphasis added).22 Gautreaux has not
been overruled.
¶138 Why does the lead opinion attempt to overrule
Gautreaux now? Because, according to the lead opinion, "we
interpret our constitution consistent with the Fourth
Amendment," and the United States Supreme Court has said that
"[n]othing, either in the purposes behind requiring a 'knowing'
and 'intelligent' waiver of trial rights, or in the practical
application of such a requirement suggests that it ought to be
extended to the constitutional guarantee against unreasonable
searches and seizures." Lead op., ¶¶19 n.8, 27 (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973)).
¶139 This reasoning is unsound. First, this court need not
(and does not always) interpret Article I, Section 11 of the
Wisconsin Constitution in tandem with the Fourth Amendment to
the United States Constitution. See, e.g., State v. Dubose,
2005 WI 126, ¶41, 285 Wis. 2d 143, 699 N.W.2d 582; State v.
Eason, 2001 WI 98, ¶60, 245 Wis. 2d 206, 629 N.W.2d 625.
¶140 Second, it seems to me that the substance of the
"knowing" and "intelligent" standard, even if not precisely the
same as used in the waiver of constitutional trial rights
22
Citing Holt v. State, 17 Wis. 2d 468, 117 N.W.2d 626
(1962); United States v. Callahan, 439 F.2d 852 (2d Cir. 1971);
United States v. Berkowitz, 429 F.2d 921 (1st Cir. 1970).
22
No. 2015AP1261-CR.ssa
discussed in Schneckloth, 412 U.S. at 141,23 is implicitly
required by the totality of the circumstances test that the
United States Supreme Court and this court have adopted to
determine the voluntariness of consent under the federal and
state constitutions.
¶141 The United States Supreme Court in Schneckloth, upon
which the lead opinion relies, recognized that "knowing" and
"intelligent" play a role in determining whether valid consent
was given under the Fourth Amendment. The Schneckloth Court
stated:
The traditional definition of voluntariness we accept
today [for Fourth Amendment purposes] has always taken
into account evidence of minimal schooling, low
intelligence, and the lack of any effective warnings
to a person of his rights; and the voluntariness of
any statement taken under those conditions has been
carefully scrutinized to determine whether it was in
fact voluntarily given.
Schneckloth, 412 U.S. at 248.
¶142 The factors listed in the Wisconsin cases to be
considered in determining voluntary consent under the Fourth
Amendment and the Wisconsin Constitution are similar and also
23
In Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973),
the United States Supreme Court declared:
There is a vast difference between those rights that
protect a fair criminal trial and the rights
guaranteed under the Fourth Amendment. Nothing,
either in the purposes of behind requiring a "knowing"
and "intelligent" waiver of trial rights, or in the
practical application of such a requirement suggests
that it ought to be extended to the constitutional
guarantee against unreasonable searches and seizures.
23
No. 2015AP1261-CR.ssa
imply that a defendant's consent must be knowing and
intelligent. See State v. Artic, 2010 WI 83, ¶¶28-33, 327
Wis. 2d 392, 786 N.W.2d 430.
¶143 The Artic case sets forth the following non-exclusive
list of factors to be considered in the totality of the
circumstances to determine whether consent was freely and
voluntarily given:
(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant
to persuade him to consent; (2) whether the police
threatened or physically intimidated the defendant or
"punished" him by the deprivation of something like
food or sleep; (3) whether the conditions attending
the request to search were congenial, non-threatening,
and cooperative, or the opposite; (4) how the
defendant responded to the request to search; (5) what
characteristics the defendant had as to age,
intelligence, education, physical and emotional
condition, and prior experience with the police; and
(6) whether the police informed the defendant that he
could refuse consent.
State v. Artic, 2010 WI 83, ¶33, 327 Wis. 2d 392, 786 N.W.2d 430
(citing State v. Phillips, 218 Wis. 2d 180, 198-203, 577
N.W.2d 794 (1998) (emphasis added).
¶144 Indeed, the statement in Padley 354 Wis. 2d 545, ¶64,
that consent requires a showing that a "search was the result of
a free, intelligent, unequivocal and specific consent without
any duress or coercion, actual or implied" seems to be a
24
No. 2015AP1261-CR.ssa
shorthand form for the factors that this court has set forth in
Artic.24
¶145 With regard to the defendant's consent in the instant
case, it was obtained by the officer's giving the defendant
misinformation, namely that the officer did not need a warrant
to draw blood.25 Advising the defendant, through words or
conduct, that a warrant was not required for a blood draw was
either an express or implied "unlawful assertion of police
authority" to take a blood draw without a warrant.26 Moreover,
the first factor identified in Artic, "whether the police used
deception, trickery, or misrepresentation in their dialogue with
24
State v. Padley, 354 Wis. 2d 545, ¶64 (quoting State v.
Johnson, 177 Wis. 2d 224, 233, 501 N.W.2d 876 (Wis. Ct. App.
1993) (quoting Gautreaux, 52 Wis. 2d at 492)); accord State v.
Giebel, 2006 WI App 239, ¶18, 297 Wis. 2d 446, 724 N.W.2d 402
("Orderly submission to law enforcement officers who, in effect,
incorrectly represent that they have the authority to search and
seize property, is not knowing, intelligent and voluntary
consent under the Fourth Amendment.") (Emphasis added.).
25
See State v. Giebel, 2006 WI App 239, ¶18, 297
Wis. 2d 446, 724 N.W.2d 402 (citing United States v. Elliot, 210
F. Supp. 357, 360 (D. Mass. 1962) ("Orderly submission to law
enforcement officers who, in effect, incorrectly represent that
they have authority to search and seize property is not knowing,
intelligent and voluntary consent under the Fourth Amendment.").
26
State v. Johnson, 2007 WI 32, ¶16, 299 Wis. 2d 675, 729
N.W.2d 182 (citing Johnson v. United States, 333 U.S. 10, 12-13
(1948); United States v. Morales, 171 F.3d 978, 982-83 (5th Cir.
1999); United States v. Pena-Saiz, 161 F.3d 1175, 1177 (8th Cir.
1998); United States v. Baro, 15 F.3d 563, 566-67 (6th Cir.
1994); State v. Wuest, 190 Wis. 251, 255, 208 N.W. 899 (1926);
State v. Johnson, 177 Wis. 2d 224, 228, 234, 501 N.W.2d 876 (Ct.
App. 1993)).
25
No. 2015AP1261-CR.ssa
the defendant to persuade him to consent," is pertinent in the
instant case.27
¶146 I conclude that the defendant did not consent in fact
and that if he did, the consent was not the result of "an
essentially free and unconstrained choice," Schneckloth, 412
U.S. at 225, 227, but merely his acquiescence to an unlawful
assertion of police authority. The officer erroneously advised
the defendant that blood could be drawn without a warrant. See
lead op., ¶6. Accordingly, I conclude that the results of the
warrantless blood draw should be suppressed.
¶147 For the reasons set forth, I dissent.
¶148 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
27
State v. Artic, 2010 WI 83, ¶33, 327 Wis. 2d 392, 786
N.W.2d 430. See also Bumper v. North Carolina, 391 U.S. 543,
548 (1968); State v. Rodgers, 119 Wis. 2d 102, 349 N.W.2d 453
(1984) ("Acquiescence to an unlawful assertion of police
authority is not equivalent to consent.").
See also Birchfield, 136 S. Ct. at 2187 (remanding
Beylund's case to the state courts to determine whether
submission to a blood draw after the arresting officer
erroneously advised the accused that he was subject to criminal
penalties if he refused to allow the blood draw).
26
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27
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28
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29
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30
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31
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32
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33
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1
State v. Navdeep S. Brar
Court: Wisconsin Supreme Court
Date filed: 2017-07-06
Citations: 376 Wis. 2d 685, 2017 WI 73, 898 N.W.2d 499, 2017 WL 2876142, 2017 Wisc. LEXIS 395
Copy CitationsCombined Opinion