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State v. Randall

Supreme Court of Wisconsin

July 2, 2019

State of Wisconsin, Plaintiff-Appellant-Petitioner,
v.
Jessica M. Randall, Defendant-Respondent.

          SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 18, 2019

          REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 383 Wis.2d 602, 918 N.W.2d 128 (2018 - unpublished

          Circuit Court: Dane County: L.C. No. 2016CT1061 Nicholas McNamara Judge:

          For the plaintiff-appellant-petitioner, there were briefs filed by Michael C. Sanders, assistant attorney general, with Brad D. Schimel, former attorney general, on the initial brief and Joshua L. Kaul, attorney general, on the reply brief. There was an oral argument by Michael C. Sanders.

          For the defendant-respondent, there was a brief filed by Adam M. Welch and Tracey Wood & Associates, Madison. There was an oral argument by Adam M. Welch.

          DANIEL KELLY, J.

         ¶1 A police officer arrested Jessica M. Randall for operating a motor vehicle while under the influence of an intoxicant. Ms. Randall gave the officer permission to take a sample of her blood for the purpose of determining its alcohol concentration. But before the Wisconsin State Laboratory of Hygiene could test it, she sent a letter revoking the consent she had previously given. The letter also demanded the immediate return or destruction of her blood sample. This, she says, made the subsequent test of her blood sample a violation of her constitutional right to be free of unreasonable searches and seizures. We do not agree, and so we reverse the decision of the court of appeals.[1]

         I. BACKGROUND

         ¶2 After arresting Ms. Randall for operating a motor vehicle while under the influence of an intoxicant, the police read her a document entitled "Informing the Accused" (the "Form").[2] The Form, in pertinent part, asks: "Will you submit to an evidentiary chemical test of your blood?" Ms. Randall consented, and the officer marked the Form accordingly. An hour later, a medical professional withdrew a sample of her blood.

         ¶3 Two days later (and before her blood sample was tested), Ms. Randall (through her counsel) sent a letter to the Wisconsin State Laboratory of Hygiene (the "Laboratory") "revok[ing] any previous consent that she may have provided to the collection and analysis of her blood, assert[ing] her right to privacy in her blood, and demand[ing] that no analysis be run without a specific authorization . . . ." The letter further said Ms. Randall "does not consent to any person or entity retaining possession of her blood sample, and therefore demands that it be returned to her or destroyed immediately."

         ¶4 The Laboratory responded to Ms. Randall's letter with one of its own, in which it advised that it required authorization from the entity submitting the specimen (i.e., the Fitchburg Police Department) to release the requested sample. It did not, however, address the issue of consent. The Laboratory then proceeded to test the specimen, which revealed a blood-alcohol level of 0.210 grams of ethanol per 100 milliliters of her blood. It was unlawful for Ms. Randall to operate a motor vehicle with a blood-alcohol level of 0.08 or more.

         ¶5 The Dane County District Attorney's Office charged Ms. Randall with operating a motor vehicle while intoxicated (in violation of Wis. Stat § 346.63(1) (a) (2017-18)), [3] and operating a motor vehicle with a prohibited alcohol concentration (in violation of § 346.63(1) (b)), both as a third offense. Ms. Randall filed two motions to suppress the results of the blood test. In one, she argued that the consent she gave before the blood draw was not free, intelligent, unequivocal, and specific. The circuit court ruled against her, and she did not pursue that issue in the court of appeals or here. In the other motion, she argued that the blood test comprised an unlawful search under the Fourth Amendment because she had revoked her consent before the Laboratory conducted the test. The circuit court agreed, concluding that Ms. Randall's revocation of consent left the State with no constitutionally sufficient basis for discovering the amount of alcohol in her blood sample. The State appealed the circuit court's decision granting the motion to suppress.

         ¶6 Based on the rationale of State v. VanLaarhoven, 2001 WI.App. 275, 248 Wis.2d 881, 637 N.W.2d 411');">637 N.W.2d 411, and State v. Wantland, 2014 WI 58, 355 Wis.2d 135, 848 N.W.2d 810, the court of appeals affirmed, reasoning that the Laboratory unconstitutionally tested Ms. Randall's blood. State v. Randall, No. 2017AP1518-CR, ¶I3, unpublished slip op. (Wis. Ct. App. June 14, 2018) . We granted the State's petition for review, and now reverse the decision of the court of appeals and remand this cause to the circuit court for further proceedings consistent with this opinion.

         II. STANDARD OF REVIEW

         ¶7 Review of an order granting a motion to suppress evidence presents a question of constitutional fact. State v. Delap, 2018 WI 64, ¶26, 382 Wis.2d 92, 913 N.W.2d 175 (quoting State v. Robinson, 2010 WI 80, ¶22, 327 Wis.2d 302, 786 N.W.2d 463). In considering such questions, we uphold a circuit court's findings of historical fact unless they are clearly erroneous. State v. Iverson, 2015 WI 101, ¶18, 365 Wis.2d 302, 871 N.W.2d 661 (quoting Robinson, 327 Wis.2d 302, ¶22) . But we apply the relevant constitutional principles to those facts de novo. State v. Hogan, 2015 WI 76, ¶32, 364 Wis.2d 167, 868 N.W.2d 124 (citing State v. Martwick, 2000 WI 5, ¶18, 231 Wis.2d 801, 604 N.W.2d 552).

         III. ANALYSIS

         ¶8 Ms. Randall asks us to declare that, when a suspect consents to a blood test for the purpose of determining the amount of alcohol it contains, she may prevent the State from obtaining that information by withdrawing her consent subsequent to the blood draw but before the laboratory conducts the test. The facts of the case, so far as they are relevant to this issue, are uncontested. Therefore, our analysis focuses on how the Fourth Amendment of the United States Constitution, and Article 1, § 11 of the Wisconsin Constitution, apply to them.

         ¶9 We begin where one must always begin in assessing constitutional claims-with the text of the documents. The Fourth Amendment guarantees the following:

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.

U.S. Const, amend. IV. The Wisconsin Constitution uses almost identical language:

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 warrant 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.

Wis. Const, art. 1, § 11. Because of the near equivalence of the language, we generally understand Article 1, § 11 of the Wisconsin Constitution to provide the same constitutional protections as the Fourth Amendment of the United States Constitution. State v. Kramer, 2009 WI 14, ¶18, 315 Wis.2d 414, 759 N.W.2d 598; see also State v. Dearborn, 2010 WI 84, ¶14, 327 Wis.2d 252, 786 N.W.2d 97');">786 N.W.2d 97. Consequently, when we refer to the Fourth Amendment's requirements, we should be understood as referring to the requirements of Art. 1, § 11 of the Wisconsin Constitution as well.

         ¶10 The Fourth Amendment's reference point with respect to searches and seizures is reasonableness. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) ("[T]he ultimate touchstone of the Fourth Amendment is 'reasonableness[.] '") . The general rule is that searches and seizures conducted without a warrant are not reasonable. Riley v. California, 573 U.S. 373, 382 (2014) ("In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement."). One of the exceptions to the warrant rule is that an individual's consent to the search satisfies the constitutional "reasonableness" requirement. "It is well established that a search is reasonable when the subject consents . . . ." Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016); Thompson v. State, 83 Wis.2d 134, 139, 265 N.W.2d 467 (1978) ("Some of the exceptions [to the constitutional warrant requirement] are consent to search . . . ."); Wantland, 355 Wis.2d 135, ¶20 ("' [A] search conducted pursuant to a valid consent is constitutionally permissible.'") (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). If a search is premised on an individual's consent, it must cease immediately upon revocation of that consent. "One who consents to a search 'may of course delimit as [she] chooses the scope of the search to which [she] consents.'" State v. Matejka, 2001 WI 5, ¶37, 241 Wis.2d 52, 621 N.W.2d 891 (quoting Florida v. Jimeno, 500 U.S. 248, 252 (1991)) .

         ¶11 The court of appeals and the parties each offer us a different paradigm within which to consider the application of these principles to the Laboratory's test of Ms. Randall's blood sample. For her part, Ms. Randall says her encounter with the police resulted in not one, but two discrete searches. The first occurred when a medical technician drew a sample of her blood. The second occurred when the Laboratory tested the sample to determine its alcohol concentration. She argues that both searches must respect the constitutional mandate that she be free of unreasonable searches and seizures. Ms. Randall acknowledges that her consent (as documented on the Form) made the blood draw unobjectionable. But she maintains that her withdrawal of consent made the second search-the Laboratory's analysis of her blood sample-unconstitutional.

         ¶12 The State's paradigm allows for only one search. It says the search started and ended with the medical technician's acquisition of Ms. Randall's blood sample. The subsequent analysis was not a search or seizure, the State says, so there was no Fourth Amendment basis for objecting to the analysis. Consequently, because Ms. Randall did not withdraw her consent until after completion of the search, the State says her revocation was ineffective on the general ground that one cannot revoke consent to something that has already happened. See, e.g., United States v. Mitchell, 82 F.3d 146, 151 (7th Cir. 1996) ("[W]hen a suspect does not withdraw [her] valid consent to a search before the illegal weapon or substance is discovered, the consent remains valid and the seized illegal item is admissible.").

         ¶13 The court of appeals' paradigm is, in one sense, a portmanteau of the ones offered by the parties. It said there was only one search, but its parameters were more expansive than either of the parties recognized. It understood the search to have been one continuous event that commenced with the blood draw and ended with the Laboratory's analysis. Therefore, the court of appeals said, the Laboratory received Ms. Randall's withdrawal of consent while the search was yet underway. Because the State acknowledged it had no justification for the search other than Ms. Randall's consent, the court of appeals' reasoning required the Laboratory to refrain from testing her blood sample immediately upon receiving her letter. Consequently, because the Laboratory's analysis was not supported by a warrant or any of the exceptions to the warrant requirement, the court of appeals concluded that the test was an unreasonable search. We will address the paradigms advanced by Ms. Randall and the court of appeals to assess their fidelity to constitutional principles, starting with Ms. Randall's offering.

         A. Two Searches

         ¶14 Ms. Randall says she was subjected to two searches and that the State must demonstrate a constitutional justification for each one. If we agree with that premise, she says, then we must also conclude the actual analysis of her blood was unconstitutional because she had revoked her consent and the State offered no other basis for satisfying the Fourth Amendment's "reasonableness" requirement. But we do not reach that conclusion because, as explained below, we do not accept her proposition that a blood draw and test involve two searches.

         ¶15 Ms. Randall begins her argument with an examination of the State's invasions when it set out to discover her blood-alcohol level. She says such proceedings implicate two privacy interests. The first is the obvious-a needle's intrusion to retrieve a sample of blood. The second privacy interest relates to the information contained within her blood sample. She finds support for these dual privacy interests in Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 616 (1989) .[4] There, the Court said "it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee's privacy interests." Id. Ms. Randall points out that this is not the only time the Supreme Court has taken note of an individual's privacy interest in the information contained in one's blood. In Birchfield, the Court observed that "a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading." 136 S.Ct. at 2178. Consequently, "[e]ven if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested." Id. So Ms. Randall concludes that courts have already noted that society is prepared to recognize a legitimate expectation of privacy in the information contained in one's blood.[5]

         ¶16 Ms. Randall notes that, by definition, a governmental invasion of a person's legitimate expectation of privacy is a "search" for Fourth Amendment purposes. "A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113 (1984) (footnote omitted) . Every such search, of course, must have a constitutional justification. But as both Skinner and Birchfield demonstrate, the Court's analytical approach proceeds with the understanding there is only one search, even though the government is both: (1) obtaining a biological specimen; and (2) testing the specimen for the presence of alcohol. Thus, the Skinner Court referred to a blood draw and test as involving a single search: "We have long recognized that a 'compelled intrusio[n] into the body for blood to be analyzed for alcohol content' must be deemed a Fourth Amendment search." Skinner, 489 U.S. at 616 (alteration in original; quoted source omitted) . Although the Court recognized in this sentence both the acquisition of the sample and the subsequent analysis, the entirety of the Court's reasoning depended on there having been just one search. If the biological specimen testing regimen in Skinner involved an invasion of two distinct privacy interests, the Court would have been duty-bound to assess the constitutional fidelity of each search separately. It did not. Instead, it focused exclusively on the acquisition of the sample to be tested. After the Court satisfied itself that the government had a constitutionally-sufficient basis for obtaining the biological specimens, it declared the testing regime sound.[6]

         ¶17 Similarly, Birchfield does not support Ms. Randall's assertion that a blood draw and subsequent test involve two searches. One need only consider the Court's disparate treatment of the blood draw and the subsequent test to see that it did not treat the latter as a separate search. The Court explicitly called out a blood draw and administration of a breath test as searches: "The [Fourth] Amendment thus prohibits 'unreasonable searches,' and our cases establish that the taking of a blood sample or the administration of a breath test is a search." Birchfield, 136 S.Ct. at 2173. Nowhere, however, did the Court so much as hint that the ensuing test of the blood sample (or the breath collected for the breath test) might be a search. Indeed, even when Birchfield referred to the test, it is apparent from the context that it actually meant the blood draw. Id. at 2184 (emphasis added) ("A blood test also requires less driver participation than a breath test. In order for a technician to take a blood sample, all that is needed is for the subject to remain still, either voluntarily or by being immobilized."). So nothing in the Court's analysis, from its premises to its conclusion, suggests the actual testing of the blood sample was a search. Indeed, the Court treated the discovery of the defendant's blood-alcohol level as a constitutional non-event.

         ¶18 Although Skinner and Birchfield lie at the foundation of Ms. Randall's argument, it is impossible to escape the significant tension between her position and those authorities. If a blood draw and subsequent analysis constitute two searches, then Skinner and Birchfield erred in failing to independently assess the constitutionality of each one. But if this brace of cases correctly treats only one of these events as a search, then there is something amiss with Ms. Randall's argument. For the following reasons, we conclude that Ms. Randall's conclusion cannot follow from her premises.

         ¶19 In the ordinary course of events, an individual enjoys both of the privacy interests identified by Ms. Randall-the right to be free from a non-consensual blood draw and the right to keep private the information contained in one's blood. If the State wants to invade those privacy interests, it must do so consistently with the Fourth Amendment's requirements. But the circumstances that gave rise to the testing of Ms. Randall's blood sample were anything but ordinary. She had been arrested for operating a vehicle while under the influence of an intoxicant. The evidence of that offense, and the instrumentality by which she committed it-the alcohol she had imbibed-was hidden in her blood.

         ¶20 This, then, is the nature of the privacy interest she claims today: She says that, notwithstanding a constitutionally-compliant search (the blood draw), she nonetheless had a legitimate privacy interest in shielding from the State the very evidence for which it was authorized to search. This has never been the law, and her argument fails to account for the age-old principle that an arrest reduces the suspect's privacy interests. "The search incident to arrest exception rests not only on the heightened government interests at stake in a volatile arrest situation, but also on an arrestee's reduced privacy interests upon being taken into police custody." Riley, 573 U.S. at 391. We are mindful of Riley's admonition that "[t]he fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search 'is acceptable solely because a person is in custody.'" Id. at 392 (quoted source omitted). Consequently, we must now examine the principles that justify incidental searches and determine how they might apply to Ms. Randall's situation.[7]

         ¶21 The reduction in an arrestee's privacy interests applies specifically to the instrumentalities, evidence, and fruits of crime for which the suspect has been arrested. State v. Stevens, 26 Wis.2d 451, 458, 132 N.W.2d 502 (1965) ("Within such scope of the search, instruments, evidence, and fruits of the crime for which the defendant was arrested may be searched for and seized."); Chimel v. California, 395 U.S. 752, 762-63 (1969), abrogation on other grounds recognized by Davis v. United States, 564 U.S. 229 (2011) ("When an arrest is made, ... it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction."); Agnello v. United States, 269 U.S. 20, 30 (1925) ("The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted."); Carroll v. United States, 267 U.S. 132, 158 (1925) ("When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.").[8]

         ¶22 This principle predates both the Wisconsin and United States Constitutions and still obtains today. Over a century ago, the United States Supreme Court observed that "the right on the part of the government ... to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime" has been "uniformly maintained in many cases." Weeks v. United States, 232 U.S. 383, 392 (1914) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961), and overruled in part by Elkins v. United States, 364 U.S. 206 (1960)) . In fact, it said this right has "always [been] recognized under English and American law . . . ." Weeks, 232 U.S. at 392 (emphasis added) . We, too, recognize this ancient precept. "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." State v. Sykes, 2005 WI 48, ¶14, 279 Wis.2d 742, 695 N.W.2d 277 (quoting State v. Fry, 131 Wis.2d 153, 169, 388 N.W.2d 565 (1986), overruled on other grounds by Dearborn, 327 Wis.2d 252 (quoting United States v. Robinson, 414 U.S. 218, 235 (1973))).[9]

         ¶23 If an arrestee may prevent the State from knowing the amount of alcohol in her blood, then all of these cases are wrong and some additional justification i_s necessary to conduct a blood test. But none of the search-incident-to-arrest cases cited above recognized an arrestee's right to keep the instrumentalities and evidence of crime secret from the police. And Ms. Randall offers no authority to support such a proposition.

         ¶24 Additionally, if we were to accept Ms. Randall's argument, we would need to explain why a person's privacy interest in her alcohol concentration level varies depending on the type of search the State performs. Birchfield addressed itself to two possible means by which the State may discover the concentration of alcohol in a suspect's blood stream-a breath test and a blood test. The first, it said, could be performed as a categorical matter as a search incident to arrest. Birchfield, 136 S.Ct. at 2184. The impact of that statement on Ms. Randall's argument cannot be overstated. A breath test involves a search (obtaining a sample of the suspect's alveolar breath) from which the State may discover the information Ms. Randall says she may keep to herself (her blood-alcohol level). Id. at 2176-77. Having obtained the breath sample, Ms. Randall's logic would require the State to obtain a warrant (or satisfy one of the exceptions to the warrant requirement) before reading the results of the test. But nothing in the Court's analysis could support such a conclusion. To the contrary, it establishes that, upon arrest for intoxicated driving, the suspect loses any privacy interest she may have previously had in her blood-alcohol level. And that allows the State to know this information upon no greater showing than a good arrest. It is, of course, certainly true that the State must comply with constitutional requirements in obtaining the sample to be tested, which is why the Court distinguished between breath and blood tests. Id. at 2185 ("Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving."). But that distinction does not, and cannot, affect whether a suspect has a privacy interest in the amount of alcohol in her blood.

         ¶25 The extent of an arrestee's privacy interest in the amount of alcohol in her blood is not contingent on the method the State uses to obtain that information. Logic would not allow us to conclude that an arrestee has a privacy interest in her blood-alcohol level when the State performs a blood draw, but not when it performs a breath test. The method by which an arrestee is searched does not affect the individual's privacy interest in the datum the search reveals. The arrestee is either entitled to keep that information secret, or she is not. Birchfield teaches us that she is not.

         ¶26 This is in keeping with the general principle that an individual has a reduced privacy interest after arrest, Riley, 573 U.S. at 391, which allows the State to seize the instrumentalities, evidence, or fruits of crime discovered on the arrestee's person without any separate constitutional justification.

The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.

Agnello, 269 U.S. at 30.[10]

         B. One Continuing Search

         ¶27 Ms. Randall also agrees with the court of appeals' paradigm in which the blood draw and subsequent test are understood to comprise a single, continuing search. Under this construct, the constitutional justification for obtaining the blood sample must persist until the Laboratory completes its test. If the justification fails at any point during that time, so the reasoning goes, the State may not thereafter possess or examine the blood sample for the presence of alcohol. Ms. Randall likens her situation to an individual who grants government agents permission to search her home, but then revokes consent before they are done. The search, she says, must be "terminated instantly upon [the individual's] revocation of consent . . . ." Painter v. Robertson, 185 F.3d 557, 567 (6th Cir. 1999) . Because the State lost the only justification it had for possessing her blood sample when she revoked her consent, Ms. Randall says, her specimen thereupon became unavailable for testing.

         ¶28 The court of appeals adopted this reasoning. It said "this court [referring to its opinion in VanLaarhoven[11] 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." Randall, No. 2017AP1518-CR, unpublished slip op., ¶11. Based on that understanding, it concluded that

the search of Randall's blood, which comprised both the taking and testing of the blood, had not yet been completed at the time when the officials at the state laboratory possessed Randall's blood but had not yet tested Randall's blood; therefore, before the blood was tested Randall had the right to withdraw her consent to the continuation of that search.

Id., ¶13. We cannot agree with the court of appeals' analysis because its "one continuous search," id., ¶ll, paradigm is unalterably in conflict with Schmerber v. California, 384 U.S. 757 (1966) .

         ¶29 We first note that the court of appeals' characterization of the VanLaarhoven holding is insufficiently precise. What VanLaarhoven actually says is "the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant." 248 Wis.2d 881, ¶16. It then said that a defendant may not "parse the lawful seizure of a blood sample into multiple components, each to be given independent significance for purposes of the warrant requirement." Id. In reaching its conclusion, VanLaarhoven relied on the following observations in United States v. Snyder:

It seems clear, however, that Schmerber viewed the seizure and separate search of the blood as a single event for fourth amendment purposes. . . . The [Schmerber] Court therefore necessarily viewed the right to seize the blood as encompassing the right to conduct a blood-alcohol test at some later time.

852 F.2d 471, 473-74 (9th Cir. 1988) . These statements do not necessarily establish that taking and testing a blood sample comprise a single continuous search. Both the VanLaarhoven and Snyder courts were responding to a defendant's attempt to confer constitutional significance on the blood test by separating it from the search by which the State obtained the specimen. Both courts concluded that defendants cannot multiply the number of constitutionally-significant events by slicing up the timeline and demanding a separate justification for each segment. But just because a blood draw and test do not present multiple such events does not mean the single constitutionally-significant event must necessarily commence with the blood draw and end with the test. The VanLaarhoven court could also be understood as asserting that the one event in need of a constitutional justification is the blood draw, not the test. Its reliance on Schmerber and Snyder suggest this is the proper understanding.

         ¶30 Schmerber establishes that it is not possible to consider a blood draw and test as part of a single continuing search in need of non-lapsing constitutional justification. The Schmerber Court considered the "exigent circumstances" exception to the warrant requirement in the context of a non-consensual blood test conducted subsequent to arrest for intoxicated driving. 384 U.S. at 770. Like Birchfield, the Court concentrated exclusively on whether acquisition of the blood sample was consistent with the Fourth Amendment. That is, it did not inquire into whether the justification for taking the sample still obtained when the State tested it. This is especially important to our analysis here because, of course, the exigency that justifies a non-consensual blood draw never persists beyond the point the State acquires the sample.[12] If the court of appeals is correct, this means that whenever the State's only basis for obtaining the blood sample is an "exigent circumstance," it never has a Fourth Amendment justification for the subsequent test. Therefore, if the blood draw and subsequent test comprise one continuous search, then all such tests must be unconstitutional-according to the court of appeals' analysis-because the justification for obtaining the blood sample lapses immediately after the blood draw.

         ¶31 But the Schmerber court saw no constitutional violation when the State tests a sample of blood obtained under exigent circumstances. It is possible the Court's holding reflects an understanding that a blood draw and test do not comprise one continuous search. It is also possible the Court's analysis represents a failure to accurately perceive "the beginning and end points of a search of a person's blood[.]" Randall, No. 2017AP1518-CR, unpublished slip op., ¶ll. We conclude the first is the more reasonable conclusion. We are not the only ones to do so. See, e.g., Synder, 852 F.2d at 474 ("[S]o long as blood is extracted incident to a valid arrest based on probable cause to believe that the suspect was driving under the influence of alcohol, the subsequent performance of a blood-alcohol test has no independent significance for fourth amendment purposes, regardless of how promptly the test is conducted."). In fact, we are aware of no court (other than the circuit court and court of appeals in this case) to have ever concluded otherwise.

         ¶32 The lesson we must draw from Schmerber is obvious. The constitutional basis for obtaining the blood sample both there and here was evanescent. The exigency supporting the blood draw in Schmerber vanished just as surely (if more quickly) than Ms. Randall's consent here. In both cases, the authorities tested the samples in the absence of the circumstances that made the blood draws compliant with the Fourth Amendment. With respect to the question before us today, there is no constitutionally significant distinction to be drawn with Schmerber. Therefore, if the State of California may test Mr. Schmerber's blood sample when the justification for obtaining it had passed, then the State of Wisconsin may test Ms. Randall's blood sample upon the same rationale. And the rationale is that a blood draw and test do not represent a single continuous search. What Schmerber concluded implicitly, Johnson v. Quander, stated explicitly: "[A] 'search' is completed upon the drawing of the blood . . . ." 440 F.3d 489, 500 (D.C. Cir. 2006). We agree.

         C. Of Smart Phones and Blood Samples

         ¶33 Ms. Randall argues that her circumstances are analogous to those at issue in Riley and require suppression of the blood test results for the same reason the Supreme Court suppressed the information discovered in a smart phone. Although there are some similarities between the two situations, they do not suggest that Riley should govern our conclusion. There, the police arrested Mr. Riley after discovering concealed weapons under the hood of his car. The search incident to his arrest produced a smart phone, which the police proceeded to peruse for useful information. After describing the multitudinous types and amounts of information a smart phone can contain, the Court observed that searching such a device could reveal more information about the suspect than an exhaustive search of the owner's entire house. Riley, 573 U.S. at 396-97. Something similar might be said with respect to the information contained in Ms. Randall's blood-and, in fact, she did. She made the entirely reasonable observation that there resides in her blood "genetic information about ancestry, family connections, medical conditions, [and] pregnancy."

         ¶34 The similarities between a smart phone and a blood sample in terms of the amount of information they each contain, and the personal nature of that information, are such that we must pay particular attention to what the Supreme Court said about the State's access to it. The Fourth Amendment analysis turns, as Riley recognized, on whether there are principles that can effectively limit the incidental search to that which has an appropriate connection to the arrest. Here, there are two. The first relates to the type of information the State may collect from the blood sample. When a government agent conducts a search pursuant to an individual's consent, the scope of the search may not exceed the individual's authorization. "One who consents to a search 'may of course delimit as [she] chooses the scope of the search to which [she] consents.'" Matejka, 241 Wis.2d 52, ¶37 (quoting Jimeno, 500 U.S. at 252) . The "Informing the Accused" form indicates that Ms. Randall consented to a blood test "to determine the concentration of alcohol or drugs in [her] system." Therefore, the State may test the blood sample only for the concentration of alcohol or drugs.

         ¶35 The second principle relates to the testing mechanism and its ability to focus on only the sought-after information. Perusing the contents of a smart phone, the Riley court concluded, would be reminiscent of "the reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity." Riley, 573 U.S. at 403. The Court recognized that there were no practical methods by which the police could limit themselves to reviewing only the information to which an incidental search justifies access. Consequently, such searches may not be conducted without a warrant. But here is where Ms. Randall's situation diverges from Riley. Although her blood contains a wealth of personal information, the tests undertaken by the State reveal only information directly related to the purpose for her arrest, to wit, the presence and concentration of alcohol or other prohibited drugs. If the State could not ascertain that data without also learning genetic information about her ancestry, family connections, medical conditions, or pregnancy, our conclusion would be different. However, nothing in the record suggests that the State's tests result in such generalized rummaging. Therefore, Riley does not suggest that Ms. Randall retains any privacy interest in the amount of alcohol in her blood, so long as the State lawfully obtained the blood sample.

         ¶36 The authorities support the conclusion we reach today, but logic compels it. Ms. Randall's argument depends on the proposition that she had a privacy interest in the instrumentalities and evidence of crime for which the police were authorized to search. Without such a privacy interest, of course, there can be no search capable of implicating the Fourth Amendment. But if Ms. Randall is right, an entire branch of Fourth Amendment jurisprudence (searches incident to arrest) would come to naught. A hidden bag of white powder discovered on a suspect arrested for possession of drugs, or a secreted gun found on an individual arrested for a shooting death, would each be subject to the arrestee's privacy interest. Without a constitutional justification separate and apart from the one warranting arrest, Ms. Randall's position would prevent the State from chemically testing the suspected drugs or fingerprinting the gun. That is to say, having discovered the very thing for which it was authorized to search, the State could do nothing with it unless it thereafter obtained a warrant for its examination and use. The Riley court recognized that searches incident to arrest are justified by the arrestee's reduced expectation of privacy. And Birchfield confirms that this principle applies in the specific context of intoxicated driving. Upon her arrest, Ms. Randall's reduced expectation of privacy meant that she could not keep the presence and concentration of alcohol in her blood secret from the police. So the only relevant question is whether the method by which the State obtained the non-private evidence satisfied the Fourth Amendment's requirements. Ms. Randall's consent to the blood draw satisfied those requirements, and that left the State free to test the blood sample for the non-private information.

         ¶37 The concurrence reaches the same conclusion, but in an uncomfortably abbreviated fashion. It is uncomfortable because it lacks any justification for the conclusion that an individual does not have a privacy interest in the alcohol concentration in her blood. It simply says there is no such interest. The abbreviation is also troubling because it contains no limiting principles circumscribing this lack of a privacy interest. So, for example, nothing in the concurrence would prohibit the State from testing a non-arrestee's blood sample for the presence of alcohol or drugs for no weightier reason than curiosity (so long as it did not violate the constitution in obtaining the sample). And what of blood samples drawn by non-State actors, such as hospitals? If the concurrence's uncabined conclusion is correct, what prevents the State from randomly requesting alcohol and drug concentration tests on blood samples drawn for medical purposes? Certainly nothing in the concurrence would prohibit this. And what about the rest of the treasure trove of information we all carry around with us in our blood? What, in the concurrence's view, protects all of that from the State's curious eyes? The concurrence cursorily says its holding is limited to searches consequent upon arrest for intoxicated driving: "This opinion is confined to blood samples that have been drawn for purposes of alcohol or drug testing subsequent to arrest for driving while intoxicated. It does not address privacy interests that might otherwise attach to testing for other purposes." Concurrence, ¶42 n.1. But not a single sentence in the concurrence explains why the arrest for intoxicated driving has anything to do with Ms. Randall's loss of her privacy interest in the amount of alcohol in her system. If there is a link between the two, the concurrence has not said what it is. This is not "intellectually unfortunate and intentionally misleading," as the concurrence claims. Concurrence, ¶75. It is a simple recognition that the reasoning offered by the concurrence has no bounds, even if the specific conclusion addresses just an arrest for intoxicated driving.[13]

         ¶38 We believe a person has a privacy interest in the information contained in her blood, including the concentration of alcohol or other drugs, until something happens to limit or eliminate that interest. For the reasons explained above, Ms. Randall lost her privacy interest in the alcohol and drug concentration in her blood when she was arrested for intoxicated driving. The concurrence, for some unexplained reason, says she never had such an interest. That is an assertion too broad, too unbounded, to be accepted.

         IV. CONCLUSION

         ¶39 We conclude that the State performed only one search when it obtained a sample of Ms. Randall's blood and subsequently analyzed it for the presence of alcohol or other prohibited drugs. That single search ended when the State completed the blood draw.[14] We further conclude that, although the State must comply with the Fourth Amendment in obtaining a suspect's blood sample, a defendant arrested for intoxicated driving has no privacy interest in the amount of alcohol in that sample. Where there is no privacy interest, there can be no constitutionally-significant search. Therefore, the State did not perform a search on Ms. Randall's blood sample (within the meaning of the Fourth Amendment) when it ...


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