In the

Supreme Court of the United States

GERALD P. MITCHELL, PETITIONER

v.

STATE OF WISCONSIN

 

BRIEF FOR THE PETITIONER

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourth Amendment to the United States Con­stitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be vio­lated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particu­larly describing the place to be searched, and the per­sons or things to be seized."

Wisconsin Stat. § 343.305(2) provides: "(2) Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in § 346.61, 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, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, 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. The law enforcement agency by which the officer is employed shall be prepared to ad­minister, either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3)(a), (am), or (ar), and may designate which of the tests shall be admin­istered first."

Wisconsin Stat. § 343.305(3)(b) provides: "A person who is unconscious or otherwise not capable of with­drawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforce­ment officer has probable cause to believe that the per­son has violated § 346.63 (1), (2m) or (5) or a local or­dinance in conformity therewith, or § 346.63 (2) or (6) or 940.25, or § 940.09 where the offense involved the use of a vehicle, or detects any presence of alcohol, con­trolled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated § 346.63 (7), one or more samples specified in par. (a) or (am) may be administered to the person."

STATEMENT OF THE CASE

Without seeking a warrant, police caused petitioner Gerald Mitchell's blood to be drawn while he was unconscious following his arrest on suspicion of drunk driving. The State conceded that no exigent circumstances prevented it from obtaining a warrant. Rather, it maintained that no warrant was required pursuant to Wisconsin's implied-consent law, Wis. Stat. § 343.305, which authorizes the police to draw blood from an unconscious person if they have probable cause to suspect drunk driving. That provision, it contended, establishes that any person who chooses to drive on Wisconsin's roads consents to submit to a blood draw while unconscious.

In recent years, this Court has twice rejected efforts to create new, categorical exceptions to the warrant requirement in the context of drunk-driving arrests. In Missouri v. McNeely (2013), the Court held that the natural dissipation of alcohol from the blood stream does not constitute per se exigent circumstances that justify the warrantless drawing of blood from an individual suspected of drunk driving. And in Birchfield v. North Dakota (2016), the Court held that a blood draw is not a reasonable search incident to arrest. The State now seeks yet again to create a categorical exception to the warrant requirement, this time for blood draws from unconscious drunk-driving suspects. And it seeks to do so in an unprecedented manner­ by writing consent into law where no actual consent exists in fact. The Fourth Amendment does not permit this end run around the warrant requirement.

A. Factual Background

In May of 2013 in Sheboygan, Wisconsin, petitioner Gerald Mitchell's neighbor called the police and reported that petitioner's sister had called him and said that petitioner was planning to take his own life. The neighbor found petitioner in the stairwell of his apartment building. He seemed intoxicated and agitated, and the neighbor watched him get into a van and drive off. At his trial, petitioner would testify that, on that day, he was depressed and had decided to kill himself. To that end, he had mixed a half-liter of vodka with Mountain Dew, and brought that and about 40 pills to the shore of Lake Michigan. There, he took the pills and drank.

Police quickly located petitioner walking near the lake; his van was found parked nearby. He was belligerent and was having trouble staying upright. The officers gave him a roadside breath test (using a device of limited accuracy whose results are inadmissible by state statute), which showed a blood-alcohol concentration ("BAC") of .24. Then they loaded him into a squad car and took him to the police department. There, he was placed in a holding cell, where at some point he ''began to close his eyes and sort of fall asleep or perhaps pass out," though he "would wake up with stimulation." Because petitioner was "so intoxicated * * * or having some type of a medical concern" and police "didn't feel that a breath test would be appropriate," they decided to take him to the hospital for a blood draw. By the time they arrived at the hospital, approximately an hour after his arrest, he was unresponsive and could not be roused.

An officer read Wisconsin's statutorily mandated "Informing the Accused" form aloud in petitioner's presence, though petitioner remained unconscious. The officer then directed hospital personnel to take petitioner's blood for testing. The blood was drawn about an hour and a half after petitioner's arrest. Testing showed a BAC of .222.

B. Procedural Background

Petitioner was charged with operating while intoxicated and with a prohibited blood alcohol concentration. He moved to suppress the blood test results on the ground that his blood was taken without a warrant or exigent circumstances. The State agreed there was no exigency, but argued that, under Wisconsin's implied-consent statute, petitioner had consented to the test simply by driving on state roads, and had not withdrawn his consent. The trial court upheld the search, relying on the implied-consent statute. The State introduced the test results at petitioner's jury trial, and he was convicted of both counts.

Petitioner appealed the suppression decision, and the court of appeals certified the case to the Supreme Court of Wisconsin on a single issue: "whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin's implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment." The court of appeals explained that while this Court has "referred approvingly of the general concept of implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, * * * it has yet to decide whether the 'implied consent' that flows from a statutory scheme constitutes actual Fourth Amendment consent." It observed that some state courts have "concluded that statutory implied consent satisfies the Fourth Amendment" while others "have reasoned that such implied consent is a legal fiction that does not take into account the totality of the circumstances as required by" this Court, and so cannot sustain a warrantless search.  

The Supreme Court of Wisconsin accepted certifica­tion. The court ultimately upheld the search by a 5-2 vote, but there was no majority for any rationale. A three-justice plurality concluded that the search was constitutional on the basis of the implied-consent stat­ute. First, the plurality invoked Wis. Stat. §§ 343.305(2) & (3)(a), which provide that anyone who drives on the public highways is "deemed to have given consent" to a blood test upon arrest on suspicion of, among other things, drunk driving. It posited that, "in the context of significant, well-publicized laws de­signed to curb drunken driving," a driver's consent to Wisconsin's warrantless blood draw regime is "com­plete at the moment the driver begins to operate a ve­hicle upon Wisconsin roadways.

Second, because petitioner was unconscious at the time of the blood draw, the plurality relied on Wis. Stat. § 343.305(3)(b), which provides that "a person who is unconscious or otherwise not capable of with­drawing consent is presumed not to have withdrawn consent" to a warrantless blood draw. Although the plurality recognized that, "of course, consent volun­tarily-given before a blood draw may be withdrawn," it concluded that, by drinking sufficient alco­hol to render himself unconscious, petitioner "forfeited all opportunity to withdraw the consent to search that he had given."

Two justices, in a concurring opinion, also concluded that the search was constitutional, but not on the basis of consent. The concurring justices found that "legis­lative consent cannot satisfy the mandates of our State and Federal Constitutions." Nonetheless, they voted to uphold the constitutionality of the blood draw as a reasonable search incident to arrest - a ra­tionale not advanced in the State's brief. They rea­soned that, unlike Birchfield, where the arrestees were conscious and could have submitted to a breath test, no less-intrusive option was available to the offic­ers who arrested petitioner, and the warrantless search was therefore reasonable.

Two justices dissented. Noting that a blood draw is a "particularly intrusive search" that "invades the in­terior of the human body and implicates interests in human dignity and privacy," the dissenting justices found that "consent provided solely by way of an im­plied consent statute is constitutionally untenable."

This Court granted petitioner's petition for certio­rari.

SUMMARY OF THE ARGUMENT

A blood draw is a "compelled physical intrusion" that "implicates an individual's 'most personal and deep-rooted expectations of privacy.'" Missouri v. McNeely (2013). This Court's precedents firmly establish that the State must obtain a warrant before it may undertake this physical intrusion, unless a recognized exception to the warrant requirement applies. The State here sought to rely on the voluntary-consent exception. But rather than relying on actual consent in fact, which, under this Court's precedents, must be inferred from the "totality of all the surrounding circumstances," Schneckloth v. Bustamante (1973), it relied on consent "deemed" by law. The State, and a plurality of the Wisconsin Supreme Court, asserted that pursuant to Wisconsin's implied-consent statute, petitioner's decision to drive on state roads constituted consent to a blood test while unconscious.

This legislatively deemed consent is irreconcilable with the requirements of the Fourth Amendment. The necessary implication of the Wisconsin Supreme Court's decision is that a State could simply provide by law that commonplace conduct that millions of people engage in every day - walking down public streets at certain times of day, for instance, or using a cell phone - constitutes consent to a search or seizure. This Court should not countenance that end run around the Fourth Amendment's bedrock warrant requirement. Nor can the blood draw that occurred here be justified as a condition on receipt of a government benefit or, as two justices of the Wisconsin Supreme Court held, as a search incident to arrest.

I. This Court's precedents establish that consent to a search under the Fourth Amendment must be "freely and voluntarily given." Bumper v. North Carolina (1968). Whether an individual gave valid consent is "to be determined from the total­ity of all the circumstances," and the State bears the ''burden of proving that the consent was, in fact, freely and voluntarily given." Moreover, an essential feature of voluntary consent is that it may be limited or withdrawn at will. See Flor­ida v. Jimeno (1991).

All 50 states maintain what are known as "implied­ consent" laws. Those laws generally provide that a driver consents to BAC testing if arrested for drunk driving, and they impose administrative or evidentiary penalties for refusal to consent to testing at the scene. In that way, these statutes regulate the incentives op­erating on a driver who is stopped on suspicion of drunk driving and asked to consent to BAC testing. In Birchfield v. North Dakota, this Court held that an implied-consent statute that im­posed criminal penalties on the refusal to consent at the scene (rather than merely civil consequences) was unduly severe - in other words, coercive - and there­fore unreasonable under the Fourth Amendment. Thus, a driver's consent to a blood test upon his arrest must be voluntary under the totality of the circum­stances. This conclusion is consistent with that of the majority of states to consider the matter; they have overwhelmingly held that implied-consent statutes cannot themselves supply constitutionally sufficient consent, but instead simply incentivize cooperation with law enforcement and thus provide encourage­ment to consent at the scene.

Here, though, the State argued that Wisconsin's im­plied-consent statute relieves it of the burden to demonstrate, by the totality of the circumstances, that petitioner gave actual, voluntary consent to the blood draw. A plurality of the Wisconsin Supreme Court agreed, holding that the implied-consent statute "deems" every motorist on Wisconsin's highways to have consented to a blood draw upon arrest on suspi­cion of drunk driving. Because petitioner was uncon­scious, the State further relied on the provision of the implied-consent statute that provides that uncon­scious individuals are "presumed" not to have with­drawn their consent to warrantless blood testing. The plurality accepted the State's theory, holding that, simply by his act of driving, petitioner could be deemed to have consented to have his blood drawn while he was unconscious.

This contention cannot be squared with this Court's approach to voluntariness in the Fourth Amendment context. The Court has repeatedly held that the exist­ence of voluntary consent is a question of fact that the State bears the burden to prove in light of "all the sur­rounding circumstances." The State made no effort to meet this burden, and it would have been unable to do so. By definition, petitioner was unable to give voluntary consent because he was unconscious and unable to exercise volition. But that incontrovertible fact was rendered irrelevant by the State's implied-consent statutes - as were various other circumstances that would have been relevant to the consent inquiry. The State thus purported to re­lieve itself of the burden of making the showing re­quired by this Court's precedents regarding voluntary consent to search. This Court should not permit the State to bypass the Fourth Amendment's warrant re­quirement by legislatively deeming consent to be pre­sent in every case.

II. Nor may the State impose warrantless blood draws while unconscious as a condition of the privilege of driving. Such a condition would be unreasonable in light of the balance of interests involved. A blood test is a significant bodily intrusion that "infringes an ex­pectation of privacy that society is prepared to recog­nize as reasonable." Skinner v. Railway Labor Execu­tives' Ass'n, (1989). The severity of this intrusion is not diminished, and may even be ex­acerbated, when performed on an unconscious person. On the other side of the ledger, requiring a warrant to draw blood from unconscious drivers poses little risk of impeding the State's ability to obtain BAC evidence. Advances in warrant procedures and technologies have significantly reduced the time and burden of se­curing a warrant. At the same time, obtaining a blood sample necessarily entails some delay, as the suspect usually must be transported to an appropriate facility. Thus, the State will often be able to secure a warrant within the time it takes to initiate the blood draw. And, if the circumstances are such that obtaining a warrant is not feasible, the State will be able to invoke the exigent circumstances exception. Thus, the bal­ance of interests tilts strongly in favor of the individ­ual's privacy interest in being free from warrantless blood draws.

III. Finally, the State argued for the first time in its opposition to certiorari that the blood draw could be justified as a reasonable search incident to arrest, for which no warrant was required. This Court rejected that argument in Birchfield. It recognized that a blood test may be called for where the suspect is unconscious and therefore unable to submit to a breath test, but it concluded that there was "no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a war­rant if need be." In any event, the same balancing test that demonstrates that war­rantless blood draws while unconscious are an unrea­sonable condition of the privilege of driving also demonstrates that they are not a reasonable search in­cident to arrest.

 

CONCLUSION

In short, this Court should reject the State’s effort to create a new per se exception to the warrant requirement for blood tests of unconscious motorists suspected of drunk driving. Absent a showing of actual obstacles to a warranted search in a particular case— that is, absent exigency — the proper procedure for obtaining a blood draw is “simple — get a warrant.”

 

For the foregoing reasons, the judgment of the Wisconsin Supreme Court should be reversed.