State v. Randall

• Decision Date: 14 June 2018
• Docket Number: Appeal No. 2017AP1518-CR
• Parties: STATE OF WISCONSIN, PLAINTIFF-APPELLANT, v. JESSICA M. RANDALL, DEFENDANT-RESPONDENT.
• Court: Wisconsin Court of Appeals

STATE OF WISCONSIN, PLAINTIFF-APPELLANT, v. JESSICA M. RANDALL, DEFENDANT-RESPONDENT.

Appeal No. 2017AP1518-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

June 14, 2018

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Cir. Ct. No. 2016CT1061

APPEAL from an order of the circuit court for Dane County: NICHOLAS McNAMARA, Judge. Affirmed.

¶1 KLOPPENBURG, J.¹ The State of Wisconsin appeals the circuit court's decision and order granting Jessica Randall's motion to suppress the results of a blood test. The circuit court granted Randall's motion to suppressbecause: under the applicable law, Randall had the right to withdraw her consent to the blood test after her blood was taken but before it was tested, so long as she clearly and unequivocally withdrew her consent; Randall did clearly and unequivocally withdraw her consent; and, therefore, the State's subsequent blood testing was without a lawful basis and its use as evidence would violate Randall's Fourth Amendment rights.

¶2 On appeal, the State does not dispute that Randall's attempt to withdraw her consent was clear and unequivocal. Rather, the State argues that Randall no longer had the right to withdraw her consent and that Randall's withdrawal attempt came too late because, as a matter of law, an individual can only withdraw his or her consent to a blood test before the blood is taken, not after. Based on the applicable law, I disagree. The circuit court properly suppressed the blood test results because: (1) the taking and testing of the blood, together, comprise a single search to which constitutional protections attach, see State v. VanLaarhoven, 2001 WI App 275, ¶16, 248 Wis. 2d 881, 637 N.W.2d 411; and (2) the search had not yet been completed when Randall withdrew her consent before the blood was tested and, therefore, Randall retained her right to withdraw her consent to continuation of that search, see State v. Wantland, 2014 WI 58, ¶33-34, 355 Wis. 2d 135, 848 N.W.2d 810. Accordingly, I affirm the decision of the circuit court.

BACKGROUND

¶3 On October 29, 2016, Randall was arrested for operating a vehicle while under the influence of an intoxicant. The arresting officer read Randall the"Informing the Accused"² form and Randall answered "yes" when asked if she would submit to an evidentiary blood test. Randall was taken to a hospital and her blood was taken consistent with the procedures set forth in WIS. STAT. § 343.305.

¶4 On October 31, 2016, Randall's counsel sent a letter to the Wisconsin State Laboratory of Hygiene stating,

It is my understanding that as of this date a blood sample belonging to [Randall] has been received but has not yet been analyzed. [Randall] hereby revokes any previous consent that she may have provided to the collection and analysis of her blood, asserts her right to privacy in her blood, and demands that no analysis be run without specific authorization by a neutral and detached magistrate upon a showing of probable cause and specifying the goal of analysis.

¶5 On November 4, 2016, the laboratory acknowledged receipt of Randall's letter and on November 7, 2016, the laboratory tested Randall's blood. The State charged Randall with operating a motor vehicle while under the influence of an intoxicant and operating with a prohibited alcohol concentration, both as a third offense.

¶6 Randall moved the circuit court to suppress the results of the blood test on the ground that she withdrew her consent to the search of her blood beforethe blood was tested and, therefore, the State's testing of her blood after her withdrawal of consent was without a lawful basis.³

¶7 The circuit court held a hearing on Randall's motion. The court ruled, "as a matter of constitutional law, the defendant ... did withdraw her consent for the search prior to the blood being tested. I believe she has that right. She retained the right to withdraw that consent." Because Randall retained the right to withdraw her consent and exercised that right, the court concluded that the State's subsequent testing of Randall's blood was without a lawful basis and the use of those test results would violate Randall's constitutional rights. The State appeals.

DISCUSSION

¶8 At issue is whether the circuit court erred in granting Randall's motion to suppress the results of the blood test on the grounds that use of the test results at trial would violate her rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.⁴ In reviewing a motion to suppress, this court upholds the circuit court's findings of fact unless they are clearly erroneous and independently applies constitutional principles to those facts. Wantland, 355 Wis. 2d 135, ¶¶18-19; see WIS. STAT. § 805.17(2).

¶9 The Fourth Amendment forbids unreasonable searches and seizures. State v. Boggess, 115 Wis. 2d 443, 448-49, 340 N.W.2d 516 (1983). Warrantless searches are presumptively unreasonable, subject to certain carefully delineated exceptions. Id. at 449. "One well-established exception to the warrant requirement of the Fourth Amendment is a search conducted pursuant to consent." State v. Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998); see also State v. Brar, 2017 WI 73, ¶16, 376 Wis. 2d 685, 898 N.W.2d 499. A person who voluntarily consents to a search may subsequently limit or withdraw consent if that limitation or withdrawal is expressed with clear and unequivocal intent. See Wantland, 355 Wis. 2d 135, ¶¶33-34.

¶10 Here, it is undisputed that Randall voluntarily consented to have her blood taken and tested, her blood was taken, and before the blood was tested she clearly and unequivocally withdrew her consent to the search of her blood. The narrow issue on appeal is whether Randall had the right to withdraw her consent to the search after her blood was taken but before it was tested. As I explain, I conclude that under the applicable law Randall had the right to withdraw her consent before the blood was tested and, therefore, the State was without a lawful basis under the Fourth Amendment to test her blood. My conclusion is based on the rulings in VanLaarhoven, 248 Wis. 2d 881, and Wantland, 355 Wis. 2d 135. I then address and reject the State's arguments to the contrary.

I. Randall had the right to withdraw her consent to the search of her blood

before the blood was tested

¶11 In VanLaarhoven, this court set the beginning and end points of a search of a person's blood, specifically ruling that the taking and testing of blood comprise one continuous search under the Fourth Amendment. 248 Wis. 2d 881, ¶¶8, 13, 16-17. In VanLaarhoven, police arrested VanLaarhoven for operating avehicle while intoxicated, VanLaarhoven consented to a chemical blood test, and his blood was taken and tested. Id., ¶2. VanLaarhoven moved to suppress the results of the blood test, arguing that although the taking of his blood was lawful, the testing of his blood was "a separate search necessitating a warrant." Id., ¶¶3-4, 9. This court rejected his argument, reasoning that testing of blood lawfully taken pursuant to a "warrant requirement or an exception to the warrant requirement is an essential part of the [search]" and that defendants may not "parse the lawful [search] of a blood sample into multiple components, each to be given independent significance for purposes of the warrant requirement." Id., ¶16 (emphasis added). This court concluded that by consenting after having been read the Informing the Accused form, VanLaarhoven "consented to a taking of a sample of his blood and the chemical analysis of that sample." Id., ¶8. Thus, VanLaarhoven teaches us that there is one continuous search that begins with the taking of blood and continues through the testing of that blood. See also State v. Riedel, 2003 WI App 18, ¶16, 259 Wis. 2d 921, 656 N.W.2d 789 (2002) (holding, in a case in which the driver's blood was taken pursuant to the exigent circumstances exception to the warrant requirement, that no additional warrant was required to test the blood lawfully taken).

¶12 The principle that a person has a right to withdraw consent to a search before the search is completed stems from our supreme court's decision in Wantland, 355 Wis. 2d 135. In Wantland, the court considered whether Wantland withdrew the driver's consent to the search of a vehicle in which Wantland was a passenger when the officer observed a briefcase in the back hatch of the vehicle and Wantland asked the officer, "Got a warrant for that?" Id., ¶¶2-5. The court ruled that Wantland did not "effectively withdraw the driver's consent" because his question to the officer was ambiguous. Id., ¶¶5, 42-44.While Wantland could have withdrawn consent to the continuation of the search of the vehicle before the officer removed the briefcase, his ambiguous question to the officer did not effectuate such withdrawal. Id. The court contrasted Wantland's ambiguous question to the officer with the following "[u]nequivocal acts or statements sufficient to constitute withdrawal" of consent: "slamming shut the trunk of a car during a search, grabbing back the item to be searched from the officer, and shouting 'No wait' before a search could be completed." Id., ¶34 (emphasis added) (citing United States v. Flores, 48 F.3d 467, 468 (10^th Cir. 1995); United States v. Ho, 94 F.3d 932, 934 (5^th Cir. 1996); United States v. Fuentes, 105 F.3d 487, 489 (9^th Cir. 1997). Thus, Wantland teaches us that so long as a search has not yet been completed, an individual has the right to withdraw consent to continuation of the search through unequivocal actions or statements.

¶13 Based on VanLaarhoven and Wantland, I conclude that while no additional authority is needed to continue a lawful search...