State v. Brar

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Justia Opinion Summary

The circuit court’s finding that Defendant consented to a blood draw was not clearly erroneous, and Defendant’s consent was voluntary.

Defendant was convicted of operating while intoxicated, third offense. Defendant appealed the denial of his motion to suppress the results of a blood test, arguing that it was an unconstitutional search because he did not consent to having his blood drawn. The court of appeals affirmed. The Supreme Court affirmed, holding that, under the totality of the circumstances, Defendant voluntarily consented to the blood draw. The dissent argued 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.

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2017 WI 73 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP1261-CR 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 REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis. 2d 564, 884 N.W.2d 535 (2016 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: July 6, 2017 April 12, 2017 Circuit Dane John W. Markson R.G. BRADLEY, J. concurs (opinion filed). KELLY, J. concurs, joined Part I by R.G. BRADLEY, J. (opinion filed). ABRAHAMSON, J. dissents, joined by A.W. BRADLEY J. (opinion filed). DISSENTED: 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 JUL 6, 2017 v. Diane M. Fremgen Clerk of Supreme Court Navdeep S. Brar, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 PATIENCE unpublished decision conviction of intoxicated, § 346.63(1)(a) DRAKE of Navdeep third ROGGENSACK, the Brar offense (2014-15)2 court and of (Brar) in an C.J. violation order We appeals1 for of Affirmed. review an affirming the operating while of Stat. the Wis. 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. ¶2 the 2015AP1261-CR Brar moved to suppress the results of a blood test on 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 Additionally, the we blood draw conclude was that not Brar's clearly consent erroneous. was voluntary. Accordingly, we affirm the decision of the court of appeals. I. ¶4 BACKGROUND 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 the After arresting Brar, the officer transported him to police department, where "informing the accused form." the officer read Brar the While being read the form, Brar repeatedly interrupted the officer with questions or comments related process, to the the form. officer evidentiary test. As asked part Brar of to "informing submit to the accused" a chemical 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. disputed. However, the officer thought Brar 2015AP1261-CR 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. a warrant Brar then asked the officer if he needed to a the question, conduct blood officer shook draw. his In head as response if to to respond this no, indicating that he did not need a warrant. ¶7 Brar drawn. The content was vehicle. third was test .186, taken to results well a hospital showed above that the where his Brar's legal limit blood blood to was alcohol operate a Brar was charged with operating while intoxicated, offense operating in a violation motor of Wis. with vehicle Stat. a § 346.63(1)(a) prohibited and 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. stated that nothing in the And, the circuit court 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. denied Brar's motion For these reasons, the circuit court suppress.5 to 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 denial The of court Brar's of appeals motion to affirmed suppress. the circuit First, the court's 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. ¶12 2015AP1261-CR 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 initially a question of historic fact." to a search is State v. Johnson, 2007 WI 32, ¶56, 299 Wis. 2d 675, 729 N.W.2d 182 (Roggensack, J., dissenting) court's (citation finding erroneous." of omitted). "We historic uphold unless fact will it a is circuit clearly 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 Constitution Fourth and Amendment Article I, to Section the 11 of United the States 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. WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463). 2015AP1261-CR "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). certain 'specifically exceptions State v. to the Fourth Williams, N.W.2d 834 (citing (1967)). "One requirement of established 2002 and Amendment's WI 94, "But there are well-delineated' requirement."7 warrant ¶18, 255 Wis. 2d 1, 646 Katz v. United States, 389 U.S. 347, 357 well-established the Fourth pursuant to consent." exception Amendment is a to the warrant search conducted 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." ¶24; see also State v. Tomlinson, Phillips, 218 Wis. 2d 180, 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. as well as words."). Through conduct, impliedly consent to be searched. an 2015AP1261-CR individual may 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: permission to search.'" 'You have my 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. Padley reasoned that For example, the court of appeals in consent that arises under Wisconsin's implied consent law is different from consent that is sufficient in and of itself under the Fourth Amendment. 7 State v. Padley, No. 2014 WI App 65, ¶25, 354 Wis. 2d 545, 849 2015AP1261-CR 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. 8 Wis. Stat. § 343.305(2) (An 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. individual who public 2015AP1261-CR "drives or operates a motor vehicle upon the 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 driver . . . consents tests."9 to of the submit implied to the consent prescribed law, a chemical 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 privilege."). as And, a condition as a of receiving plurality of the the operating 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" reference to an implied consent law. was given with specific 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 impliedconsent 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. Fourth Amendment can be implied through an 2015AP1261-CR individual's conduct.11 ¶24 given, When we are asked to affirm a finding that consent was whether express or implied, whether the consent was voluntary. v. Griffin, existence 530 of voluntariness F.2d a 739, consent must be 743 by we must determine See generally United States (7th Cir. conduct examined."). is Only consent will pass constitutional muster. at 222. also 1976) ("Once determined, voluntarily the its given Schneckloth, 412 U.S. "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 enforcement. ¶25 was the product of duress or coercion law Schneckloth, 412 U.S. at 227. There is no single fact, the absence or presence of which, determines whether consent was voluntarily given. 226. by Rather, in order to determine whether Id. at 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. surrounding the defendant."12 consent and the 2015AP1261-CR characteristics of the 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. the purposes behind See id. at 241 ("Nothing, either in requiring a 'knowing' and 'intelligent' waiver of trial rights, or in the practical application of such a requirement constitutional suggests that guarantee it ought against to be extended unreasonable to searches 12 the and 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 unequivocal search and was the specific result of consent" a free, (internal intelligent, 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. Supreme Court requirement. in Schneckloth rejected precisely The this 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, consent law. Brar consented under Wisconsin's implied He availed himself of the roads of Wisconsin, and as a result, he consented through his conduct to a blood draw. Wisconsin operates Stat. a § motor 343.305(2) vehicle (an upon individual the public who "drives highways of or this state . . . is deemed to have given consent to one or more tests of his or her breath, blood or urine."). 13 Any analysis of a No. driver's consent under Wisconsin's implied 2015AP1261-CR consent law must begin with this presumption. ¶30 law, Aside from Brar's consent under the implied consent the responses circuit court to officer's the found that Brar questions.13 consented The by circuit his 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? submit. didn't Mr. Brar said, of course, he would And the officer said that Mr. Brar said, because he want effect." to have his license revoked, or words to that 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 13 The circuit court stated: that Mr. Brar did give consent." 14 erroneous. See Wis. Stat. "I do find as a matter of fact 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. officer's testimony officer's testimony as Nothing in the recording rebuts the to that Brar's Brar statements. said "of Indeed, course" and the 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, determine whether his consent was voluntary. we must 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 15 otherwise; in essence, he No. contends that the voluntariness of his 2015AP1261-CR 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. officer shook his head no in response. The 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." 135, 848 See State v. Wantland, 2014 WI 58, ¶47, 355 Wis. 2d 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. the officer needed a warrant suggests that 2015AP1261-CR 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 Informing the Accused form. guilt. Brar's pertained to aspects of the He also repeatedly lamented his In the context of his interaction with the officer, 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 consent the respondent substantially that she lessened was the free to withhold probability that her 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 searched. Finally, Brar did not merely acquiesce to being 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 17 causes Fourth No. Amendment lawful problems authority exists." when to the acquiescence search, Johnson, 299 when no is 2015AP1261-CR made to claimed such ¶69 Wis. 2d 675, lawful (Roggensack, dissenting) (citing Bumper, 391 U.S. at 548-49). authority J., 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. courts have concluded an In contrast to the cases in which 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 officer. sum, Brar's "will was [not] See Schneckloth, 412 U.S. at 226. overborne" by the After examining the totality of the circumstances, we conclude that Brar voluntarily consented to a blood draw. III. ¶42 In light of the CONCLUSION foregoing, we conclude that the circuit court's finding that Brar consented to the blood draw was not Brar's clearly consent erroneous. was Additionally, voluntary. we Accordingly, conclude that we affirm of appeals the decision of the court of appeals. By the Court.—The decision affirmed. 18 of the court is No. ¶43 REBECCA GRASSL BRADLEY, J. 2015AP1261-CR.rgb (concurring). I concur with the court's mandate to affirm the decision of the court of appeals, and I join Part I concurrence. 1 of Justice Daniel Kelly's No. ¶44 DANIEL KELLY, J. (concurring). 2015AP1261-CR.dk 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 "consent" implied by law.1 conviction for two reasons. to march into the minefield of Mr. Brar asked us to review his 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. sample. review 2015AP1261-CR.dk The presenting questions, therefore, called for us to 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 Officer Wood in the first instance, of course. interaction with We are reviewing the circuit court's findings of fact, which we leave undisturbed unless they are clearly erroneous. Phelps v. Physicians Ins. Co. ¶34, of Wis., N.W.2d 615. Inc., 2009 WI 74, 319 Wis. 2d 1, 768 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 argument that his consent was not voluntary. Mr. Brar's 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 sufficient to negate the voluntariness of his consent. law 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. 2 See Artic, 327 Wis. 2d 392, No. 2015AP1261-CR.dk ¶29 (One well-established exception to the warrant requirement is a search conducted pursuant to consent.). misrepresentation Brar's to consent. cast Mr. doubt Brar on did the not Thus, there was no voluntariness argue Mr. consent his of 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. Wis. 2d 272, City 882 of Milwaukee, N.W.2d 333, 2016 cert. WI 47, denied sub ¶39 n.24, nom. 369 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. are good reasoning reasons from to honor premises that to experience. conclusion The imposes There process a of rigorous discipline on our research, deliberation, and analysis that is absent when we opine on matters beyond those necessary to our 3 No. judgment. The court's opinion validates the 2015AP1261-CR.dk wisdom of our tradition. II ¶49 Not only did we boldly march consent" minefield, we did it blindfolded. statute, clarity. perusal Wis. Stat. (2013-14),2 § 343.305 into the "implied Our implied consent is not a model of That should have driven us to a searching, wide-eyed of the statute's fraught territory. language to help us through this Instead, with the benefit of just three cursory sentences addressing the statute's terms, we announced that it provides a real-life, consent to a blood test: implied consent law. He constitutionally-sufficient, "Brar consented under Wisconsin's 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 is The question the court answered, but did not analyze, whether "implied consent" actually authorizes a enforcement officer to obtain a sample of a driver's blood. discover whether it does, we statute's functional components. must consider three of law To the 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"). 2 Wis. 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 request an Component"). officer's Wis. Stat. for a test § 343.305(9)-(10). (the "Penalty 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. Component: 2015AP1261-CR.dk 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: a person for [operating while "Upon arrest of intoxicated] . . . a law enforcement officer may request the person to provide one or more samples of his or her breath, purpose specified under sub. (2)." (emphasis added). blood or urine for the Wis. Stat. § 343.305(3)(a) 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 . . . ." Stat. § 343.305(4) (emphases added). warning confirms the officer is Wis. The statutorily-mandated asking permission, and 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 the No. with respect to a commercial motor consuming an intoxicating beverage. 2015AP1261-CR.dk vehicle after 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 operating a commercial consequences may result from from refusing testing, such service or disqualified. driver license or were motor vehicle, other positive test results or as being placed out of 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. requirement is more about etiquette than permission, we shouldn't read it that way. Kalal v. Cir. Ct. for Dane Cty., 2004 a 2015AP1261-CR.dk mandate to ask See State ex rel. 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 doubletalk. all of this "request" business is so much 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)." to read: And § 343.305(4) would have "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 officer "no." the confirmation that the subject can tell the But the officer does have to ask permission, and 8 No. the driver may indeed refuse his request. 2015AP1261-CR.dk 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. that purpose is to juke the Fourth Amendment. And 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 administration of a breath test is a search."). what our opinion says today, the legislature or the So, contrary to cannot simply authorize police officers to take blood samples without asking permission.6 consent Thus, "implied consent" cannot be the same thing as 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 required to by cajole the drivers Test into giving Authorization the real consent 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 constitutional the exercise of his right to be unreasonable searches, upon which we generally frown. Forssenius, 380 U.S. 528, 540 (1965) ("It has free of Harman v. 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). blood sample, he Thus, when a driver refuses to provide a 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. that error by claiming constitutionally valid this because It then built on non-operational it is given "consent" is 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 consent . . . ." state . . . is deemed Wis. Stat. § 343.305(2). to have given 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. ¶60 And yet, the court asks anyway: 2015AP1261-CR.dk "When we are asked to affirm a finding that consent was given, whether express implied, we voluntary." also must determine whether the consent Majority op., ¶24 (emphasis added). or was 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 thesis is indefensible. voluntariness of a fungible, its analysis proves its A brief exploration of how we assay the person's consent illustrates the meaninglessness of this standard in the context of "consent" implied by law. ¶61 an We analyze a wealth of factors in determining whether expression of consent Majority op., ¶¶24-26. meets the voluntariness standard. We ask, for example, whether the police used deception, or trickery, or misrepresentations to produce the consent. Artic, 327 Wis. 2d 392, ¶33. the authorities threatened the defendant. him. Id. consent. We explore whether Id. Or intimidated Or used food or sleep as leverage to prize out his 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. intelligence. Id. And education. 7 Id. Id. And And his physical and 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. emotional condition. Id. with law enforcement. need not consent. into virtually Id. Id. every 2015AP1261-CR.dk And whether he had prior experience And whether the police told him he This is, in full, an exhaustive inquiry 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. 13 So 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. detail about the driver, We aren't interested in any personal such as circumstances, or emotional state. his age, The only thing we want to know is whether he was in the driver's seat. what the court said: intelligence, And that's exactly "We conclude that Brar voluntarily, albeit impliedly, consented when he chose to drive on Wisconsin roads." ¶66 court's That single voluntariness implied by law. sentence comprises analysis as it the entirety relates to of the "consent" 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. is irrelevant to the question because he isn't provided the consent——it was the legislature. The driver the one who 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. 14 In reality, they have No. literally nothing in common. 2015AP1261-CR.dk 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 law. consent implied by conduct, and 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 observing how it came to be. untying a knot is carefully 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: distinction between implied "This reasoning implies a consent sufficient under the Fourth Amendment. incorrect as a matter of law." 1"). and consent that is Such a distinction is Majority op., ¶19 ("Statement 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." 2"). Majority op., ¶20 ("Statement 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"). ¶69 The second But it is not all one. step to the untying project disentangling express consent from "consent" implied by law. is I have already done most of the foundational work (supra), and it appears this is the loosest strand in the weave. first on Statement 3: I will pull "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 16 no less sufficient No. consent than consent given by other means." 2015AP1261-CR.dk 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 consent. officer But with when we "consent" assay the implied voluntariness by law, we of give his 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. rebuke in distinction Statement between It is held there only by the court's 1: Padley's implied consent "reasoning and sufficient under the Fourth Amendment. incorrect as a matter of law." actually above, makes the Padley's Implied consent that a is Such a distinction is The implied consent statute distinction Consent implies explicit. Component will As never described result in authorization to perform a blood test on a conscious individual because there is no operational connection between it and the Test Authorization driver's permission Component. to A conduct 17 police officer a blood test; must the ask a statute's No. 2015AP1261-CR.dk "implied consent" cannot supply that authorization, nor was it designed to do "distinction is so. Thus, incorrect the as incorrect as a matter of law. a court's matter statement of law" that is the itself 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. enough of them to demonstrate there is a I will address real and critical difference between the concepts. ¶72 The court referred to State v. Tomlinson, in which we considered whether person's home. officers had received consent to enter a 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. and apparently concluded said that nothing this when conduct this "could 2015AP1261-CR.dk occurred." reasonably Id. have been Id. That interpreted as an invitation to follow her inside." is, we carefully examined the conduct of the We 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 package, and so delivered it personally to the addressee. at 968. of a Id. 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. before the court was whether Mr. Id. Lakoskey's The question actions could reasonably convey the message "you may enter my home" to the inspector. The district court said yes. Circuit disagreed. Id. at 971. The Eight 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. [Inspector] Hirose's entry, came outside to 2015AP1261-CR.dk 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 Hirose to enter his home was clearly erroneous." ¶74 consent for Id. 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." case, The Morgan court relied heavily on a Fourth Circuit which circumstances described can how convey the a person's message "I conduct consent in to such 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."). the meaning of And when an officer asks to search a bedroom, the mistaken when bedroom, retrieved baggie to he the defendant's "opened a 577 N.W.2d 794 small agents, paraphernalia items." the resulting door baggie and to of pointed conduct and a be into his handed the walked marijuana, out cannot number of drug State v. Phillips, 218 Wis. 2d 180, 197, (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 Charades. dynamic inherent to a game of When a defendant is supposed to have manifested his consent to a search by his conduct, we carefully watch as the State recreates defendant. If the the interaction defendant's between conduct in the officer response to and 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. type of consent implied by conduct: 2015AP1261-CR.dk "An individual's consent given by virtue of driving on Wisconsin's roads, often referred to as implied conduct." consent, that If is true, is one incarnation then there of consent should be by 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. just likes to drive fast. But then again, maybe he 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. resort to the statute books to discover the If one must meaning of the driver's conduct, then the conduct has utterly failed to convey 22 No. that meaning. Which is not at all surprising 2015AP1261-CR.dk 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 under the Fourth Amendment." sufficient consent 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. is so because we say it is. It 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 Wisconsin when the people of 23 must surrender their No. constitutional rights. 2015AP1261-CR.dk 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 not further apply.8 recognized that the exceptions usually will 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. If this is right, the Birchfield and McNeely9 courts ¶82 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. today, is no "Consent" implied by law, our court says "second-tier "constitutionally sufficient Amendment." legislature form The of consent need only consent." under say It the the is Fourth 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. the legislature properly suspended Today the court says Wisconsinites' Amendment rights when they go for a drive. Amendment rights? Fourth What of their Sixth 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, declare the Wisconsin legislature waives could that incriminate oneself. simply right, too. Or that the Or the right to a jury. driving right not in to 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 opinion today, in such adopt an areas. It "implied could, consent" according statute to in our 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 imagination been to involved see how in this a crime. new doctrine through all of our constitutional rights. 25 It takes could very eat little its way No. ¶85 drivers. 2015AP1261-CR.dk I understand the importance of pursuing intoxicated But we are deforming our Constitution. By conferring on the legislature the authority to create consent where none exists, we are reducing legislative grace. constitutional rights to matters of 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. ¶87 SHIRLEY S. ABRAHAMSON, J. 2015AP1261-CR.ssa (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 Gableman join the lead opinion. and Justice Michael J. 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. ¶88 2015AP1261-CR.ssa 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 positions, contrast I to conclude the that lead opinion's neither a and driver's the State'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. for a law enforcement officer to draw blood from In order 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 circumstances. consent or the existence of exigent My position is consistent with recent decisions 3 No. of other state courts involving implied 2015AP1261-CR.ssa 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). 4 Hyde holds 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. that the driver's "statutory consent [under 2015AP1261-CR.ssa the Colorado statute] satisfied the consent exception to the Fourth Amendment warrant requirement." ¶96 Hyde, 393 ¶.3d at 968. Hyde is based on facts very different from the facts in the instant case. governing Hyde is The Colorado Expressed Consent Statute 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 consent," drivers Wisconsin "presumed law not enforcement to have officers withdrawn are not directed to conduct a blood draw on an unconscious driver. The 5 but are 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 [unconscious] person who a person." is withdrawing blood See consent . . . ."). 893 is "may Wis. unconscious consent Wis. 2d 468, draw or Stat. administered not to § 343.305(3)(b) otherwise presumed Compare be not to ("[a] capable have the of withdrawn State v. Howes, 2017 WI 18, 373 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 Birchfield. Romano court analyzed Hyde, It disagreed with the Hyde court. blood draw unconstitutional: McNeely and It declared the "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 6 of consent based on the No. totality of the circumstances."6 2015AP1261-CR.ssa 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 Consent Law lead to opinion mean that interprets driving in the Wisconsin Wisconsin voluntary and free consent to a blood draw. Implied amounts to 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 some amorphous, lesser form of consent." Fourth Amendment——not 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. ¶106 The lead opinion concludes: 2015AP1261-CR.ssa "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., n.10.7 ¶23 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 opinion's. State The takes State a position asserts 7 that similar the Fourth to the lead Amendment is 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 10 Brief of Plaintiff-Respondent (State) at 7. Brief of Plaintiff-Respondent (State) at 8-9. 9 No. ¶110 The constitutional State rights contends come that into play 2015AP1261-CR.ssa Fourth at the Amendment 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 having terms, the Law does not treat actually consented to a blood draw. the driver as 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). furnishes actual consent to a If the Implied Consent Law blood draw, why would the legislature require officers to inform drivers when they are 10 No. stopped that the officer is requesting a test 2015AP1261-CR.ssa 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), consent. and decided whether to Padley, 354 Wis. 2d 545, ¶39. give or decline actual 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 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 law 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 Wis. Stat. § 752.41. overturn it, or Padley is binding precedent. The lead opinion should abide by Padley, 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 PlaintiffRespondent'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. swipes at Padley with clawless paws, 2015AP1261-CR.ssa 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 Birchfield Wisconsin drunk-driving cases (such as Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980), and Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d dubious for several reasons. and preState v. State v. 528), is 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 United implied consent laws imposing civil Indeed it has confirmed their constitutionality.13 consequences. The of States Supreme Court has not, however, directly decided that the consent exception to the Fourth Amendment is satisfied solely consent law. state by implied consent a state implied The Court also has not explicitly decided that implied consent laws do satisfying the Fourth Amendment. proposition is cases. Professor As under implicit in LaFave the has not provide actual consent In my opinion, this latter Court's recent observed: drunk-driving "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. (a) knows that an official intrusion into 2015AP1261-CR.ssa 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 Amendment justifying warrantless blood draws. so interpreted the United States Supreme to the Fourth The Texas court 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." Court explained that 136 S. Ct. at 2180. implied consent laws The Birchfield "provide[] that cooperation with BAC testing [is] a condition of the privilege of driving on state roads and 16 that the privilege [will] be 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. driver's license nor the operation of a 2015AP1261-CR.ssa 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." Wis. 2d 392, 786 State v. Artic, N.W.2d 430.18 2010 This WI 83, court, ¶30, 327 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, N.W.2d 634 (citing State v. Martwick, 2000 WI 5, ¶16, Wis. 2d 801, 604 N.W.2d 552). 18 733 231 No. ¶130 In audiovisual the instant recording of case, the the record exchange defendant's alleged consent took place. 2015AP1261-CR.ssa during includes which an the 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. ¶131 The court's finding discussion. they audiovisual are of recording consent in 2015AP1261-CR.ssa undermines fact and the the lead circuit opinion's The defendant did utter the words "of course," but associated license to be taken. with his comment that "I don't want my This is a complicated question." ¶132 Although the lead opinion finds that "[n]othing in the recording rebuts statements," lead the officer's op., ¶33, the testimony audiovisual as to recording Brar's 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. ¶133 Rather, the audiovisual recording 2015AP1261-CR.ssa 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 consent to a constitutionally protected search: 21 a defendant's "[T]he state 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 constitution our 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. 2005 WI 126, ¶41, 285 See, e.g., State v. Dubose, 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 22 constitutional trial rights 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. discussed in Schneckloth, 412 U.S. at 141,23 2015AP1261-CR.ssa 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 considered in factors listed determining in the voluntary Wisconsin consent cases under the to be 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. imply that a intelligent. defendant's See State v. consent Artic, must 2010 WI 2015AP1261-CR.ssa be knowing and 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 circumstances to to be considered determine in whether the consent totality was of the 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 24 or implied" seems to be a 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 authority" to take a blood draw without a warrant.26 of police 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 essentially free and consent was not the unconstrained choice," result of "an 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. lead op., ¶6. See 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 No. 27 2015AP1261-CR.ssa No. 28 2015AP1261-CR.ssa No. 29 2015AP1261-CR.ssa No. 30 2015AP1261-CR.ssa No. 31 2015AP1261-CR.ssa No. 32 2015AP1261-CR.ssa No. 33 2015AP1261-CR.ssa No. 1 2015AP1261-CR.ssa