State v. Brar

Decision Date06 July 2017
Docket NumberNo. 2015AP1261-CR,2015AP1261-CR
Citation898 N.W.2d 499,2017 WI 73,376 Wis.2d 685
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Navdeep S. BRAR, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

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.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 We review an unpublished decision of the court of appeals1 affirming the conviction of Navdeep Brar (Brar) for operating while intoxicated, third offense in violation of Wis. Stat. § 346.63(1)(a) (2013-14)2 and an order of the circuit court denying Brar's motion to suppress the results of a blood test.3

¶2 Brar moved to suppress the results of a blood test on the grounds that it was an unconstitutional search. Specifically, he argued that he did not consent to having his blood drawn, and therefore, the officer was required to obtain a warrant. The circuit court denied Brar's motion and found that Brar had consented. On appeal, Brar argues that, even if he had consented, his consent was not given voluntarily.

¶3 We conclude that the circuit court's finding that Brar consented to the blood draw was not clearly erroneous. Additionally, we conclude that Brar's consent was voluntary. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶4 A City of Middleton police officer stopped Brar for driving over the speed limit. During the stop, the officer conducted field sobriety tests, which Brar failed. Brar then submitted to a preliminary breath test and blew a .19. As a result, Brar was arrested.4

¶5 After arresting Brar, the officer transported him to the police department, where the officer read Brar the "informing the accused form." While being read the form, Brar repeatedly interrupted the officer with questions or comments related to the form. As part of "informing the accused" process, the officer asked Brar to submit to a chemical evidentiary test. The precise words Brar said in response are disputed. However, the officer thought Brar provided an affirmative response, and therefore believed that Brar agreed to submit to a blood draw.

¶6 After agreeing to submit to an evidentiary test, Brar asked several questions. One of these questions was what kind of test would be conducted, and the officer responded he would conduct a blood draw. Brar then asked the officer if he needed a warrant to conduct a blood draw. In response to this question, the officer shook his head as if to respond no, indicating that he did not need a warrant.

¶7 Brar was taken to a hospital where his blood was drawn. The test results showed that Brar's blood alcohol content was .186, well above the legal limit to operate a vehicle. Brar was charged with operating while intoxicated, third offense in violation of Wis. Stat. § 346.63(1)(a) and operating a motor vehicle with a prohibited alcohol concentration in violation of § 346.63(1)(b).

¶8 Brar moved to suppress the results of the blood test. The circuit court held a hearing to determine whether Brar had consented to the blood draw.

¶9 At the hearing, the officer testified that Brar responded "of course" in response to the question "Will you submit to an evidentiary chemical test of your blood?" According to the officer, Brar then gave "a statement similar to he didn't want to have his license revocated." As a result, the officer believed that Brar had consented to the blood draw. Moreover, the officer testified that Brar did not resist or hesitate to give blood once he was transported to the hospital.

¶10 The circuit court found that Brar had consented to a blood draw. The circuit court relied on the testimony of the officer, which the court found credible. And, the circuit court stated that nothing in the audiovisual recording was inconsistent with the officer's testimony; specifically, that the circuit court heard Brar say "of course," which corroborated the officer's testimony. For these reasons, the circuit court denied Brar's motion to suppress.5 After the circuit court denied the motion, Brar entered a no contest plea to operating while intoxicated, third offense in violation of Wis. Stat. § 346.63(1)(a).

¶11 The court of appeals affirmed the circuit court's denial of Brar's motion to suppress. First, the court determined that the circuit court's finding that Brar consented to have his blood drawn was not clearly erroneous. Next, the court concluded that Brar's consent was voluntary. The court reasoned that the officer was correct in shaking his head no to indicate he did not need a warrant because Brar had already consented.

¶12 This court granted Brar's petition for review, and we affirm the court of appeals.

II. DISCUSSION
A. Standard of Review

¶13 "Whether a defendant has consented to a search is initially a question of historic fact."

State v. Johnson , 2007 WI 32, ¶ 56, 299 Wis.2d 675, 729 N.W.2d 182 (Roggensack, J., dissenting) (citation omitted). "We will uphold a circuit court's finding of historic fact unless it is clearly erroneous." Id. (citing State v. Sykes , 2005 WI 48, ¶ 12, 279 Wis.2d 742, 695 N.W.2d 277 ). Next, we "independently apply the constitutional principles to the facts as found to determine whether the standard of voluntariness has been met." State v. Phillips , 218 Wis.2d 180, 195, 577 N.W.2d 794 (1998).

¶14 In the present case, we apply this two-step test to determine if Brar voluntarily consented to a blood draw.

B. Fourth Amendment, General Principles

¶15 "The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' "6 State v. Tullberg , 2014 WI 134, ¶ 29, 359 Wis.2d 421, 857 N.W.2d 120 (quoting State v. Robinson , 2010 WI 80, ¶ 24, 327 Wis.2d 302, 786 N.W.2d 463 ). "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno , 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (citing Illinois v. Rodriguez , 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ).

¶16 "A warrantless search is presumptively unreasonable." Tullberg , 359 Wis.2d 421, ¶ 30 (quoting State v. Henderson , 2001 WI 97, ¶ 19, 245 Wis.2d 345, 629 N.W.2d 613 ). "But there are certain 'specifically established and well-delineated' exceptions to the Fourth Amendment's warrant requirement."7 State v. Williams , 2002 WI 94, ¶ 18, 255 Wis.2d 1, 646 N.W.2d 834 (citing Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). "One well-established exception to the warrant requirement of the Fourth Amendment is a search conducted pursuant to consent." Phillips , 218 Wis.2d at 196, 577 N.W.2d 794. 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, 111 S.Ct. 1801 (citing Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ).

¶17 It is well-established that consent "may be in the form of words, gesture, or conduct." Phillips , 218 Wis.2d 180, ¶ 24 ; see also State v. Tomlinson , 2002 WI 91, ¶ 37, 254 Wis.2d 502, 648 N.W.2d 367 ; United States v. Hylton , 349 F.3d 781, 786 (4th Cir. 2003) ("Consent may be inferred from actions as well as words."). Through conduct, an individual may impliedly consent to be searched. United States v. Lakoskey , 462 F.3d 965, 973 (8th Cir. 2006), as amended on reh'g (Oct. 31, 2006) ("Voluntary consent may be ... implied."); United States v. Wilson , 914 F.Supp.2d 550, 558 (S.D.N.Y. 2012) ("Consent may be granted either explicitly or implicitly." (citation omitted)); see also Morgan v. United States , 323 F.3d 776, 781 (9th Cir. 2003) (reasoning, "a warrantless search of a person seeking to enter a military base may be deemed reasonable based on the implied consent of the person searched"); State v. Hanson , 97 Hawai'i 71, 34 P.3d 1, 5 (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 , ––– U.S. ––––, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560 (2016). Therefore, "a search may be lawful even if the person giving consent does not recite the talismanic phrase: 'You have my permission to search.' "

United States v. Buettner-Janusch , 646 F.2d 759, 764 (2d Cir. 1981).

¶19 Prior cases from the court of appeals could be read as casting doubt on the maxim that a person may consent through conduct or by implication. For example, the court of appeals in Padley reasoned that consent that arises under Wisconsin's implied consent law is different from consent that is sufficient in and of itself under the Fourth Amendment. State v. Padley , 2014 WI App 65, ¶ 25, 354 Wis.2d 545, 849 N.W.2d 867. Specifically, the court reasoned that "actual consent to a blood draw is not 'implied consent,' but rather a possible result of requiring the driver to choose whether to consent under the implied consent law." Id. This reasoning implies a distinction between implied consent and consent that is sufficient under the Fourth Amendment. Such a distinction is incorrect as a matter of law.8

¶20 Stated more fully, and contrary to the court of appeals' reasoning in Padley , consent can manifest itself in a number of ways, including through conduct. Cf. Florida v. Jardines , 569 U.S. 1, 133 S.Ct. 1409, 1415-16, 185 L.Ed.2d 495 (2013) ; Marshall v. Barlow's, Inc. , 436 U.S. 307, 313, 98 S.Ct....

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