State v. Johnathan L. Johnson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 9, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1398-CR Cir. Ct. No. 2018CF145

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHNATHAN L. JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from judgment of the circuit court for Vilas County:
NEAL A. NIELSEN III, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Johnathan Johnson appeals a judgment, entered upon his
no-contest plea, convicting him of fifth-offense operating a motor vehicle with a
prohibited alcohol concentration (PAC). Johnson contends the circuit court erred,
for two reasons, by denying his motion to suppress the results of an evidentiary
No. 2019AP1398-CR

chemical test of his blood. First, Johnson argues his constitutional right to be free
from unreasonable seizures was violated when a McDonald’s restaurant employee
delayed the delivery of Johnson’s food order until officers responded to the
employee’s 911 call reporting that Johnson appeared to be operating his vehicle
while intoxicated. Johnson reasons that because the 911 dispatcher stated “okay”
in response to being informed by the employee of her decision to delay the
delivery of Johnson’s food, the State sanctioned a violation of a “fast food
contract.” Second, Johnson argues that the judge who authorized a search warrant
for the collection of his blood administered an oath to the officer seeking the
warrant that was “fundamentally defective” because the oath did not include the
words “so help me God.”

¶2 Regarding Johnson’s first argument, we conclude that Johnson has
failed to show the existence of—much less the violation of—a “fast food contract”
that required the McDonald’s employees to avoid delaying the delivery of his
food. Further, because Johnson was not delayed at the McDonald’s premises at
the request of the State and was at all times free to leave prior to the arrival of law
enforcement, we conclude that no seizure occurred.

¶3 As to Johnson’s second argument, we conclude that the warrant
authorizing the search was supported by a statement made under “oath or
affirmation,” as required by the Fourth Amendment to the United States
Constitution, article I, section 11 of the Wisconsin Constitution, and various
Wisconsin statutes. We reach this conclusion in light of our supreme court’s
statement that the validity of an oath or affirmation is a “matter of substance, not
form,” see State v. Tye, 2001 WI 124, ¶19, 248 Wis. 2d 530, 636 N.W.2d 473, in
conjunction with the undisputed fact that the police officer seeking the search

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warrant swore to the warrant-issuing judge that the statements made in the
affidavit supporting the warrant application were true. Consequently, we affirm.

BACKGROUND

¶4 On June 8, 2018, at approximately 1:30 a.m., Johnson drove his
vehicle into the drive-thru lane of a McDonald’s restaurant in Eagle River.
Shortly thereafter, a McDonald’s employee called 911 and the following exchange
occurred:

[Employee]: We have a super drunk guy in our drive[-thru]
right now and we’re holding him here until you guys get
here.

Dispatch: Ok.

[Employee]: Um, there is an open container of booze in the
car.

Dispatch: Ok.

[Employee]: And is there any other information you need
from us?

Dispatch: Okay, Okay, and I will go ahead and send an
officer and you said that he is—is he in line right now
waiting or-.

[Employee]: Ah yeah, my drive[-thru] person pulled him
ahead so he should be in one of the front spots waiting for
his food.

Dispatch: Ok. I will send an officer over that way.

¶5 Vilas County sheriff’s deputy Brook Lewis was dispatched to the
McDonald’s at 1:38 a.m., and she arrived on scene at approximately 1:41 a.m.
After identifying the vehicle in question, she contacted the driver, who identified
himself as Johnson. Lewis observed that Johnson had “slow, thick, slurred

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speech,” and that there were open intoxicants in the vehicle. Johnson
subsequently complied with Lewis’ request that he exit the vehicle.

¶6 After Johnson exited the vehicle, Eagle River police officer
Mark Collins—who had arrived on scene at approximately 1:43 a.m.—“took over
contact” with Johnson. While Collins was speaking with Johnson, Collins
detected an odor of intoxicants on Johnson’s breath and also observed that
Johnson had red, glassy eyes and slurred speech. After administering field
sobriety tests, Collins arrested Johnson for operating a motor vehicle while
intoxicated (OWI).

¶7 Collins then read Johnson the Informing the Accused form and
asked Johnson whether he would submit to a chemical test of his blood. Johnson
refused, and so Collins began the process of applying for a search warrant for
Johnson’s blood. As part of that process, Collins first drafted an affidavit in
support of his search warrant application, which he then faxed to the on-duty
judge.1 In accordance with established protocol, both Collins and Judge Nielsen
then separately called the sheriff’s department and were placed on a three-way
conference call with dispatch.

¶8 During the conference call, in reference to the faxed affidavit,
Judge Nielsen asked Collins if “[i]t is your signature, and you swear all that’s true;
right?” Collins responded, “Yes, sir.” Judge Nielsen ultimately issued the search

1
We observe that the Honorable Neal A. Nielsen III was both the on-duty judge who
authorized the search warrant to draw Johnson’s blood and the judge who presided over the
subsequent criminal proceedings against Johnson. To distinguish between Judge Nielsen’s
actions in issuing the search warrant and his subsequent decisions regarding the legality of the
search warrant, we will refer to him as “Judge Nielsen” when discussing the former aspect of his
involvement in this case and as the “circuit court” when discussing the latter.

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warrant, and staff at a local hospital drew Johnson’s blood. Testing later revealed
Johnson’s blood alcohol concentration was 0.187.

¶9 The State charged Johnson with OWI and PAC, both as fifth
offenses. Johnson moved to dismiss the charges.2 In support, Johnson argued that
while acting as state agents, McDonald’s employees impermissibly seized him in
violation of the Fourth Amendment and a “fast food contract.” He also argued
that the blood draw was an unconstitutional search because the search warrant
affidavit was not signed before a notary and the statements made in the affidavit
were not given under oath or affirmation.

¶10 Following an evidentiary hearing, the circuit court denied Johnson’s
motion. Johnson subsequently pleaded no contest to fifth-offense PAC. He now
appeals, challenging the denial of his suppression motion. See WIS. STAT.
§ 971.31(10) (2017-18).3

DISCUSSION

¶11 When reviewing a circuit court’s denial of a motion to suppress
evidence, we apply a two-step standard. State v. Lonkoski, 2013 WI 30, ¶21, 346
Wis. 2d 523, 828 N.W.2d 552. First, we uphold the court’s findings of fact unless
they are clearly erroneous. Id. Second, we independently apply constitutional
principles to those facts. Id.

2
In the circuit court, both the court and the parties treated Johnson’s motion to dismiss
as a motion to suppress evidence. We do the same on appeal.
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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I. Seizure

¶12 The right to be secure against unreasonable searches and seizures is
protected by both the Fourth Amendment to the United States Constitution and
article 1, section 11 of the Wisconsin Constitution. State v. Dearborn, 2010 WI
84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97. Wisconsin courts generally interpret
the Wisconsin Constitution’s protections in this area identically to the protections
under the Fourth Amendment as defined by the United States Supreme Court. 4 Id.
The Fourth Amendment applies to the actions of government agents, not to the
actions of private individuals. See State v. Rogers, 148 Wis. 2d 243, 246, 435
N.W.2d 275 (Ct. App. 1988).

¶13 Johnson argues that he was subjected to an unreasonable seizure
within the meaning of the Fourth Amendment when the McDonald’s employees
delayed the delivery of his food order until police responded to the 911 call. He
reasons that the employees’ delay constituted an unreasonable breach of a “fast
food contract.” Further, because the employees’ actions were “acquiesced in by
dispatch,” he contends that the employees were acting as government agents when
they committed their alleged breach.

¶14 Johnson’s argument is unavailing for at least three reasons. First,
Johnson fails to provide citation to any legal authority establishing the existence of
a “fast food contract” governing the amount of time within which a fast food

4
Unlike his argument regarding the legality of the search warrant, which we discuss
below, Johnson does not argue that any exception to this general rule applies to his argument
regarding his allegedly improper seizure.

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No. 2019AP1398-CR

employee must fulfill a customer’s order.5 We need not consider unsupported
arguments. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992).

¶15 Second, assuming that the McDonald’s employees breached a “fast
food contract” by delaying the delivery of Johnson’s food order, it does not follow
that their breach constituted a seizure of Johnson within the meaning of the Fourth
Amendment. “[A] person has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he [or she] was not free to leave.”
State v. Williams, 2002 WI 94, ¶4, 255 Wis. 2d 1, 646 N.W.2d 834 (citation
omitted). Johnson wholly fails to explain why a reasonable person would believe
that he or she would not be free to leave a restaurant if they felt that their food
order took too long to arrive. Again, we need not consider undeveloped
arguments. See Pettit, 171 Wis. 2d at 646.

¶16 Finally, and again assuming that the McDonald’s employees
breached a “fast food contract” by delaying the delivery of Johnson’s food order
and further assuming that this breach constituted a seizure, we conclude that a
constitutionally-protected seizure did not occur because the McDonald’s
employees were not acting as government agents when they delayed the delivery
Johnson’s food order. Johnson’s argument to the contrary rests on his assertion

5
In the circuit court, Johnson relied on Betehia v. Cape Cod Corp., 10 Wis. 2d 323, 327,
103 N.W.2d 64 (1960), to support the notion that a “fast food contract” exists. As the State notes
in its response brief, however, Betehia—which Johnson fails to address in his appellate briefs—
held only that there is an “implied warranty of reasonable fitness of food for human
consumption” when a business sells food for immediate consumption on its premises. Id.
Consequently, Betehia does not stand for the proposition that a contract exists requiring a
restaurant to serve its meals within a specified period of time.

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No. 2019AP1398-CR

that when the 911 dispatcher gave her “acquiescence, or tacit approval” to the
McDonald’s employee’s plan to keep Johnson on the premises, the employees
were transformed into government agents.

¶17 We are not persuaded that “tacit approval” of a private individual’s
actions by a government agent is sufficient to implicate the Fourth Amendment.6
Rather, we agree with the State that a government agent must “initiate, encourage
or participate” in the private individual’s action to bring that action within the
ambit of the Fourth Amendment. See State v. Payano-Roman, 2006 WI 47, ¶18,
290 Wis. 2d 380, 714 N.W.2d 548. Stated differently, mere acknowledgment on
the part of a government agent that a private individual intends to take a certain
action does not give rise to the type of “joint endeavor” between private and
government actors that is subject to the Fourth Amendment’s prohibition against
unreasonable searches and seizures. See id., ¶19.

II. Search Warrant

¶18 Johnson next argues that the search warrant authorizing the draw of
his blood was invalid because it was not supported by a valid oath or affirmation.
Our supreme court has “long recognized an oath or affirmation as an essential

6
We observe that the case Johnson cites to support his assertion that an actor’s tacit
approval of an action creates an agency relationship is a civil case addressing the doctrine of
apparent authority. See Ivers & Pond Piano Co. v. Peckham, 29 Wis. 2d 364, 370-71, 139
N.W.2d 57 (1966). Johnson fails to develop any argument explaining how or why this civil
doctrine has applicability to a Fourth Amendment motion to suppress. We decline to abandon our
neutrality to develop such an argument. See State v. Gulrud, 140 Wis. 2d 721, 730, 412 N.W.2d
139 (Ct. App. 1987).

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No. 2019AP1398-CR

prerequisite to obtaining a valid search warrant under the state constitution.”7 Tye,
248 Wis. 2d 530, ¶13. The difference between an oath and an affirmation is that
the former invokes a reference to a deity, while the latter does not. See
affirmation, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “affirmation” as
a “solemn pledge equivalent to an oath but without reference to a supreme being
or to swearing; a solemn declaration made under penalty of perjury, but without an
oath”).

¶19 As explained by the Tye court, the purpose of an oath or an
affirmation is to

impress upon the swearing individual an appropriate sense
of obligation to tell the truth. An oath or affirmation to
support a search warrant reminds both the investigator
seeking the search warrant and the magistrate issuing it of
the importance and solemnity of the process involved. An
oath or affirmation protects the target of the search from
impermissible state action by creating liability for perjury
or false swearing for those who abuse the warrant process
by giving false or fraudulent information. An oath

7
We note that the federal constitution, like the Wisconsin constitution, requires that a
search warrant application be “supported by Oath or affirmation.” U.S. CONST. amend. IV.
Johnson confines his challenge to the validity of the search warrant in this case, however, to the
“oath or affirmation” clause in the Wisconsin Constitution. He does so based upon his
acknowledgement that “Fourth Amendment jurisprudence” considers the omission of certain
words from an oath as a—in Johnson’s words—“technical error only.” See, e.g., United States v.
Brooks, 285 F.3d 1102, 1106 (8th Cir. 2002). The State, for its part, takes no issue with this
characterization of Fourth Amendment jurisprudence.

Although Johnson’s concession that a challenge to the validity of the search warrant
brought under the Fourth Amendment would be without merit is well-taken, we question his use
of the phrase “technical error” to refer to the omission of certain words from an oath. Indeed, in
Brooks, the case Johnson cites to support his “technical error” statement, the court did not hold
that any error—technical or otherwise—occurred when an affiant simply stated he had been “duly
sworn” when preparing a search warrant application. See id at 1104-06. Instead, the Brooks
court held that there was no Fourth Amendment violation at all because “a person may be under
oath even though that person has not formally taken an oath by raising a hand and reciting
formulaic words.” Id. at 1106. In any event, because Johnson does not bring his challenge under
the Fourth Amendment, we do not further discuss this issue.

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No. 2019AP1398-CR

preserves the integrity of the search warrant process and
thus protects the constitutionally guaranteed fundamental
right of people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures.

Tye, 248 Wis. 2d 530, ¶19 (footnotes omitted).

¶20 Our legislature has “reinforced” our constitution’s oath or
affirmation requirement through its enactment of WIS. STAT. § 968.12(2). See
Tye, 248 Wis. 2d 530, ¶11. That statute provides:

A search warrant may be based upon sworn complaint or
affidavit, or testimony recorded by a phonographic reporter
or under sub. (3)(d), showing probable cause therefor. The
complaint, affidavit or testimony may be upon information
and belief. The person requesting the warrant may swear to
the complaint or affidavit before a notarial officer
authorized under ch. 140 to take acknowledgments or
before a judge, or a judge may place a person under oath[8]
via telephone, radio, or other means of electronic
communication, without the requirement of face-to-face
contact, to swear to the complaint or affidavit. The judge
shall indicate on the search warrant that the person so
swore to the complaint or affidavit.

Sec. 968.12(2).

¶21 In addition, our legislature has provided that an “oath or affirmation
[should be] administered in a form calculated to awaken the witness’s conscience
and impress the witness’s mind with the witness’s duty to [testify truthfully].”
WIS. STAT. § 906.03(1). To that end, § 906.03 provides guidance on administering
both an oath and an affirmation:

8
WISCONSIN STAT. § 990.01(24) provides that when the term “oath” appears alone in a
statute, it “includes affirmation in all cases where by law an affirmation may be substituted for an
oath.”

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No. 2019AP1398-CR

(2) The oath may be administered substantially in the
following form: Do you solemnly swear that the testimony
you shall give in this matter shall be the truth, the whole
truth and nothing but the truth, so help you God.

(3) Every person who shall declare that the person has
conscientious scruples against taking the oath, or swearing
in the usual form, shall make a solemn declaration or
affirmation, which may be in the following form: Do you
solemnly, sincerely and truly declare and affirm that the
testimony you shall give in this matter shall be the truth, the
whole truth and nothing but the truth; and this you do under
the pains and penalties of perjury.

(4) The assent to the oath or affirmation by the person
making it may be manifested by the uplifted hand.

This guidance notwithstanding, however, our supreme court has recognized that
whether an oath or affirmation is valid is a “is a matter of substance, not form.”
Tye, 248 Wis. 2d 530, ¶19.

¶22 Johnson advances a number of arguments as to why officer Collins
did not make his statements in support of his search warrant application upon a
valid oath or affirmation. We address, and reject, each of his arguments in turn.

¶23 First, Johnson contends that officer Collins needed to take an oath or
affirmation when he signed the affidavit itself “at the hospital”—i.e., before
Collins spoke to Judge Nielsen on the telephone. We disagree. As set forth
above, WIS. STAT. § 968.12(2) explicitly provides that “a judge may place a
person under oath via telephone, radio, or other means of electronic
communication, without the requirement of face-to-face contact, to swear to the
complaint or affidavit.” Thus, the statute, on its face, does not require that an
affidavit submitted in support of a search warrant application be sworn to before
the officer seeking the search warrant contacts a judge.

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¶24 Second, Johnson asserts that Judge Nielsen did not place officer
Collins under oath over the telephone because “the request to swear to the
affidavit was not combined with [the phrase] ‘so help me God.’” Relatedly—and
although Johnson recognizes that WIS. STAT. § 990.01(24) allows an affirmation
to be substituted for an oath so as to satisfy WIS. STAT. § 968.12(2)—Johnson
argues that when Collins swore to the truth of his statements he did not give an
affirmation because “[t]here is no indication … Collins chose to affirm pursuant to
§ 990.01(41).”

¶25 As an initial matter, we reject Johnson’s cursory argument that WIS.
STAT. § 990.01(41) requires an individual to affirmatively choose whether to give
an affirmation or an oath. Section 990.01(41) simply states that the term “‘Sworn’
includes ‘affirmed’ in all cases where by law an affirmation may be substituted for
an oath.” Nothing in this language even hints at a requirement that an explicit
choice be made as to whether a sworn statement will be made under oath or by
affirmation.

¶26 In his reply brief, Johnson expands on his “explicit choice” argument
by asserting that WIS. STAT. § 906.03(3) requires “a witness [to] first decline to
give an oath prior to being allowed to affirm the truth of forthcoming testimony.”
We disagree. As referenced above, § 906.03(3) states that “[e]very person who
shall declare that the person has conscientious scruples against taking the oath, or
swearing in the usual form, shall make a solemn declaration or affirmation.” Far
from requiring a person to decline to give an oath before they are allowed to give
an affirmation, this language simply ensures that a person cannot be dragooned
into giving an oath when they would prefer to give an affirmation.

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¶27 Turning to the merits of Johnson’s “so help me God” argument, we
conclude that the omission of those words did not render the search warrant
invalid, for two reasons. First, we have previously rejected the argument that an
oath does not comply with WIS. STAT. § 990.01(24) simply because it does not
include the words “so help me God.” See Redner v. Berning, 153 Wis. 2d 383,
394, 450 N.W.2d 808 (Ct. App. 1989).

¶28 Although Johnson recognizes that we are bound by our prior
published decisions,9 he argues that Redner is materially distinguishable because
that case involved “election matters, which support political debate,” whereas the
search warrant application in this case involves “court proceedings, which seek the
truth.” We are not persuaded by Johnson’s attempt to materially distinguish
Redner. Again, the “purpose of an oath or an affirmation is to impress upon the
swearing individual an appropriate sense of obligation to tell the truth.” Tye, 248
Wis. 2d 530, ¶19. Thus, any time an oath or affirmation is required by law, its
purpose is to facilitate a search for the truth—whether in the context of “election
matters” or “court proceedings.”

¶29 Second, even if we could ignore the holding of Redner and conclude
that officer Collins did not take a valid oath due to the omission of the words “so
help me God,” it does not follow that the search warrant was invalid. Again, the
validity of an oath or an affirmation is a “matter of substance, not form.” Tye, 248
Wis. 2d 530, ¶19. At bottom, the requirement for a statement to be made under
oath or affirmation is simply that the statement “must be sworn to.” State v.
Baltes, 183 Wis. 545, 552, 198 N.W. 282 (1924); see also 2 WAYNE R. LAFAVE

9
See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

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No. 2019AP1398-CR

ET. AL., CRIMINAL PROCEDURE § 3.4(c) (4th ed. 2019) (“[T]he ‘Oath or
affirmation’ requirement means the information must be sworn to. ‘No particular
ceremony is necessary to constitute the act of swearing[.]’” (citations omitted)).

¶30 Here, Judge Nielsen undisputedly asked officer Collins if he swore
to the truth of his statements provided in support of his search warrant application,
and Collins undisputedly responded that he did. We conclude this exchange
sufficiently “remind[ed] both the investigator seeking the search warrant and the
magistrate issuing it of the importance and solemnity of the process involved.”
See Tye, 248 Wis. 2d 530, ¶19. The search warrant was therefore properly
supported by oath or affirmation.

¶31 Johnson next argues that officer Collins did not give sworn
testimony because he could not be charged with perjury10 for the statements he
gave to Judge Nielsen. In support of this argument, he notes that one of the
elements of a perjury charge is that the accused was “sworn and testified.” See
Brown v. State, 91 Wis. 245, 248, 64 N.W. 749 (1895). Based on his assertion
that “Collins was not sworn in,” Johnson thus concludes Collins could not have
been charged with perjury.

¶32 Johnson’s argument is circular. For the reasons we explained above,
officer Collins was sworn in when gave his statements to Judge Nielsen.
Accordingly, Collins could have been charged with perjury if he had made a

10
See WIS. STAT. § 946.31(1) (“Whoever under oath or affirmation orally makes a false
material statement which the person does not believe to be true, in any matter, cause, action or
proceeding, before any of the following, whether legally constituted or exercising powers as if
legally constituted, is guilty of a Class H felony[.]”).

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No. 2019AP1398-CR

material statement that he did not believe to be true—which, we clarify, Collins is
not alleged to have done.

¶33 Finally, we note that although the validity of an oath or affirmation
is a “matter of substance, not form,” we consider the better practice for all parties
involved in the search warrant application process is to utilize the directory
methods of administering an oath or affirmation that our legislature has provided
in WIS. STAT. § 906.03(2) and (3). For all the reasons set forth, however, the
failure to do so in this case did not invalidate the search warrant.11

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

11
The State argues that even if the search warrant at issue was not supported by a valid
oath or affirmation, the results of Johnson’s blood test should still be admissible pursuant to the
good faith doctrine. Given our disposition of this case, and because we decide cases on the
narrowest possible grounds, we need not, and do not, address this argument. See State v. Blalock,
150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989).

15