On Point: 1. Consent

Birchfield v. North Dakota, USSC No. 14-1468, 2016 WL 3434398 (June 23, 2016), reversing State v. Birchfield, 858 N.W.2d 302 (N.D. 2015); vacating and remanding State v. Beylund, 861 N.W.2d 172 (N.D. 2015); and affirming State v. Bernard, 844 N.W.2d 41 (Minn. 2014); Scotusblog pages: Birchfield, Beylund, Bernard (include links to briefs and commentary)

Three years ago, in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court rejected a bright-line rule that police may always conduct a warrantless alcohol test on a motorist they have probable cause to believe is driving drunk, pursuant to the exigent circumstances exception. In these three cases, the Court adopts a bright-line rule that the police may always conduct a warrantless alcohol test on a motorist they have arrested for driving drunk, pursuant to the search incident to arrest exception. But they can only Conduct a test of the motorist’s breath, and not the motorist’s blood. Make sense?

State v. David W. Howes, 2014AP1870-CR, 1/28/16, District 4; certification granted 4/7/16, reversed, 2017 WI 18; case activity (including briefs)

Issue:

This appeal presents a single recurring issue: whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment to the United States Constitution. More specifically, the issue is whether the “implied consent,” deemed to have occurred before a defendant is a suspect, is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement.

State v. Bradley A. Anderson, 2015AP1573-CR, 12/23/15, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Anderson’s consent to a blood draw after his OWI arrest was not vitiated by being told that, if he refused the blood draw, his driving privileges would be revoked and the officer would get a warrant for a blood draw. In addition, the circuit court properly found that Anderson didn’t later withdraw his consent to the blood draw.

State v. Charles Ray Stewart, 2014AP276-CR, District 1, 12/22/15 (not recommended for publication); case activity (including briefs)

The warrantless search for and seizure of evidence from Stewart’s apartment was lawful because, after Stewart allowed police to enter the apartment and was arrested, the community caretaker doctrine allowed police to remain in the apartment to assure Stewart’s dog was cared for, and the office could seize evidence discovered in plain view.

The Court granted certiorari and consolidated three cases presenting identical questions in different factual permutations:

Question presented (Birchfield v. North Dakota); (Beylund v. Levi); (Bernard v. Minnesota):

Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

United States v. Bodie B. Witzlib, 7th Circuit Court of Appeals No. 15-1115, 8/7/15

The search of the basement of the home Witzlib was living in with his grandmother was valid because the area was shared and not Witzlib’s private space. Nor was the consent affected by the fact that after Witzlib answered the officers’ knock on the front door they asked him to come out of the house onto the driveway and, after he refused consent to search, they went back to ask for his grandmother’s consent to search.

State v. Patrick Hogan, 2015 WI 76, 7/10/2015, affirming a court of appeals per curiam decision, 2013AP430-CR, majority opinion by Prosser; concurrence by Ziegler, dissent by Bradley (joined by Abrahamson); case activity (including briefs)

Sixteen seconds. It takes longer than that just to find your keys, get into your car, buckle up and start your engine. Keep that in mind as you read on. SCOW found that a traffic stop (due to a seatbelt violation) was unconstitutionally extended to perform field sobriety tests, but then upheld the subsequent vehicle search based on consent given 16 seconds after law enforcement told Hogan he was “free to leave.” SCOW saw no need to perform an attenuation analysis.

State v. David M. Wagner, 2014AP842-CR, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Wagner voluntarily consented to a search of his person, and was not merely “[a]cquiesc[ing] to an unlawful assertion of police authority,” State v. Johnson, 2007 WI 32, 16, 299 Wis. 2d 675, 729 N.W.2d 182, when he agreed to the search on the heels of the officer’s assertion of authority to search Wagner’s car.

State v. Derik J. Wantland, 2014 WI 58, 7/11/14, affirming a published court of appeals decision; majority opinion by Justice Ziegler; case activity

A four-justice majority of the supreme court holds that a police officer lawfully searched a briefcase found in a vehicle during a traffic stop because the driver consented to a search of the car and the passenger did not unequivocally withdraw the consent given by the driver. Three dissenting judges take a very different view, concluding that under the totality of the circumstances, a reasonable officer should have realized that Wantland was withdrawing consent to a search of the briefcase.

State v. Megan A. Padley, 2014 WI App 65; case activity

The implied consent statute that allows an officer to ask for a driver for a blood sample when the officer lacks probable cause to arrest for OWI but has “reason to believe” the driver committed a traffic violation, § 343.305(3)(ar)2., is not facially unconstitutional. In addition, Padley’s consent to the blood draw in this case was voluntary. Finally, the police had the requisite “reason to believe” that Padley had committed a traffic violation and, thus, the deputy could rely on § 343.305(3)(ar)2. to put to her the choice of consent to a blood draw or automatic penalties.