State v. Justin T. Kane

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.
February 6, 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. 2018AP1885-CR Cir. Ct. No. 2017CT145

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUSTIN T. KANE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Iowa County:
MARGARET MARY KOEHLER, Judge. Affirmed and cause remanded with
directions.

¶1 FITZPATRICK, P.J.1 Justin Kane appeals an order of the Iowa
County Circuit Court denying his motion to suppress the results of blood alcohol

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP1885-CR

testing. Kane, who was arrested for operating a motor vehicle while under the
influence of an intoxicant (OWI), third offense, consented to the taking of a
sample of his blood for the purpose of determining his blood alcohol
concentration. Before the Wisconsin State Laboratory of Hygiene tested the
sample, Kane sent a letter to the laboratory in an attempt to revoke his consent to
test the sample. The first question before this court is whether the testing of
Kane’s blood violated his Fourth Amendment right to be free from an
unreasonable search. This is the same question recently addressed by our supreme
court in State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223. I
conclude that the Randall decision controls here and requires the conclusion that
the testing of Kane’s blood was not unconstitutional. The second question before
this court is whether Kane’s consent to the blood draw was voluntary. I conclude
that Kane’s consent was voluntary under the totality of circumstances.
Accordingly, I affirm the circuit court’s order.

BACKGROUND

¶2 The following facts are undisputed on appeal.

¶3 On October 24, 2017, Kane was arrested for OWI, third offense.
Kane was handcuffed with his hands behind his back and was placed in the back
seat of the arresting officer’s squad car. While Kane was in the squad car, the
arresting officer read Kane the Informing the Accused form, and Kane was asked
if he would consent to a blood test. Kane stated in response: “I don’t believe I
have a choice. Yes.” Kane was then transported to a hospital where a sample of
his blood was drawn, and the arresting officer sent the sample to the Wisconsin
State Laboratory of Hygiene for testing.

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No. 2018AP1885-CR

¶4 Kane’s attorney sent a letter, dated October 30, 2017, to the State
Laboratory indicating that Kane “revokes any previous consent that he may have
provided to the collection and analysis of his blood.” On November 8, 2017, the
State Laboratory tested Kane’s blood sample. The State Laboratory’s test showed
that Kane’s blood sample had an alcohol concentration of .188 g/100 mL.

¶5 Kane was charged with OWI, third offense, and operating a motor
vehicle with a prohibited alcohol concentration, third offense. Kane requested that
the circuit court suppress the results of the blood test on the ground that the testing
of his blood, after he purportedly withdrew consent, violated his rights under the
Fourth Amendment of the U.S. Constitution. Kane also argued that the results of
his blood test should be suppressed because his consent to the blood test was not
voluntary and was, thus, invalid. The circuit court denied Kane’s motion.

¶6 Following the denial of Kane’s motion to suppress, Kane pleaded
guilty to OWI, third offense. This appeal follows.

¶7 I mention other material facts in the discussion that follows.

DISCUSSION

¶8 Kane argues that the circuit court erred in concluding, first, that the
testing of Kane’s blood after Kane attempted to withdraw his consent was not an
unconstitutional warrantless search and, second, that Kane’s consent to the testing
of his blood was voluntary. For reasons that follow, I reject Kane’s arguments and
affirm the order of the circuit court.

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No. 2018AP1885-CR

I. Standard of Review.

¶9 This court’s review of an order granting or denying a motion to
suppress presents a question of constitutional fact. State v. Delap, 2018 WI 64,
¶26, 382 Wis. 2d 92, 913 N.W.2d 175. When reviewing a question of
constitutional fact, this court engages in a two-step inquiry. Id., ¶27. First, this
court reviews the circuit court’s factual findings under a deferential standard,
upholding those unless clearly erroneous. Id. A circuit court’s factual findings
are not clearly erroneous if those are supported by any credible evidence in the
record, or any reasonable inferences from that evidence. See Insurance Co. of N.
Am. v. DEC Int’l, Inc., 220 Wis. 2d 840, 845, 586 N.W.2d 691 (Ct. App. 1998).
Second, this court independently applies the constitutional principles to those
facts. Delap, 382 Wis. 2d 92, ¶27.

II. The Testing of Kane’s Blood Was Not an Unconstitutional
Warrantless Search.

¶10 In Randall, our supreme court addressed whether the testing of a
blood sample after a defendant attempted to revoke consent previously given to
test the sample was an unconstitutional warrantless search because the only
possible justification for the testing was the defendant’s consent, which was
purportedly withdrawn before the blood sample was tested. Randall, 387 Wis. 2d
744, ¶¶1, 5, 8, 11, 14-16. A lead opinion, joined by one justice, a concurring
opinion, joined by two justices, and a dissenting opinion were issued by our
supreme court. See id., ¶40-41. The lead and concurring opinions agreed that
Randall’s withdrawal of consent to test her blood did not affect the
constitutionality of the testing of the blood for the presence of alcohol. See id.,
¶¶1 n.1, 36-38; id., ¶¶41-42 (Roggensack, C.J., concurring).

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No. 2018AP1885-CR

¶11 Kane argues that the “precedential value [of Randall] is curtailed”
and that it would be “incorrect to fully rely on Randall” in this case because the
supreme court’s decision was “fractured” and “[t]here was no agreement as to the
legal basis upon which … Randall’s consent could not be withdrawn.” I rejected
the identical argument in State v. Lane, No. 2019AP153-CR, unpublished slip op.
(Oct. 17, 2019). In fact, in Lane, that defendant filed a brief which contains
arguments on this issue that are nearly word-for-word identical to the arguments
set forth in Kane’s brief-in-chief in this appeal. Unsurprisingly, I find my
reasoning in Lane persuasive and adopt it here:

Both the lead and concurring opinions in Randall agree
that a defendant who has been arrested for intoxicated
driving, and whose blood is drawn after the defendant’s
consent, does not have a reasonable expectation of privacy
in the alcohol content of the blood. See [Randall, 387 Wis.
2d 744], ¶39 n.14; id., ¶¶41-42 (Roggensack, C.J.,
concurring). The lead and concurring opinions also agree
that, under those circumstances, a defendant’s withdrawal
of consent has no affect on the constitutionality of the
testing of the blood drawn for the presence of alcohol. See
id., ¶¶1 n.1, 36-38; id., ¶¶41-42 (Roggensack, C.J.,
concurring); see also State v. Ayotte, unpublished slip op.
No. 18AP839, ¶8 (WI App July 25, 2019) (concluding that
the lead and concurring opinions in Randall agree on this
point). A majority of the participating justices joined the
lead and concurring opinions in Randall. When “a
majority of the participating judges ... agree[ ] on a
particular point ... [that point is] considered the opinion of
the court.” State v. Elam, 195 Wis. 2d 683, 685, 538
N.W.2d 249 (1995). Thus, I am bound by the lead and
concurring opinions’ agreed conclusion that testing a blood
sample taken from a defendant who consented to the blood
draw and is arrested for OWI, after the defendant
withdraws consent, does not implicate Fourth Amendment
protections. See Cook v. Cook, 208 Wis. 2d 166, 189, 560
N.W.2d 246 (1997).

Lane, No. 2019AP153-CR, ¶9 (footnote omitted).

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No. 2018AP1885-CR

¶12 Kane argues that, if the lead and concurring opinions in Randall
establish binding precedent, that precedent is not controlling in this case because
the facts are distinguishable from those in Randall. Kane asserts that, unlike the
defendant in Randall, who “clear[ly], [and] unequivocal[ly] ... consent[ed],” Kane
“did not readily agree to the blood test.” This argument is, again, nearly word-for-
word identical to an argument made by the defendant in Lane. That argument was
rejected by me. For the same reasons specified in Lane, and as are discussed
below, I reject Kane’s argument. See id., ¶11.2

III. Kane’s Consent Was Voluntary.

¶13 Kane next contends that the circuit court erred in concluding that his
consent to the testing of his blood sample was voluntary under the totality of the
circumstances. Below, I set forth the legal principles that govern a defendant’s
consent to a warrantless search and the circuit court’s relevant factual findings.
With those principles and findings in mind, I then address Kane’s arguments.

A. Principles Regarding Consent to a Warrantless Search.

¶14 “Warrantless searches are per se unreasonable, subject to several
clearly delineated exceptions.” State v. Artic, 2010 WI 83, ¶29, 327 Wis. 2d 392,
786 N.W.2d 430. One such exception to the warrant requirement is a search
conducted pursuant to consent. Id. In order for the consent exception to be

2
Moreover, Kane does not point out why the purported differences between the facts of
State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223, and this case matter to the
result. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 933 (Ct. App. 1992) (stating that
this court will not decide undeveloped legal arguments).

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No. 2018AP1885-CR

satisfied, consent must be given “by words, gestures, or conduct,” and the consent
must have been voluntary. Id., ¶30.

¶15 The State bears the burden of proving by clear and convincing
evidence that consent was given voluntarily. Id., ¶32; see also State v. Johnson,
2007 WI 32, ¶16, 299 Wis. 2d 675, 729 N.W.2d 182. A defendant’s consent is
voluntary if the defendant’s response was “‘an essentially free and unconstrained
choice,’ not ‘the product of duress or coercion, express or implied.’” Artic, 327
Wis. 2d 392, ¶32 (quoted source omitted). Mere acquiescence by a defendant “to
an unlawful assertion of police authority is not equivalent to consent.” Johnson,
299 Wis. 2d 675, ¶16 (quoted source omitted).

¶16 Whether a defendant’s consent was voluntary presents a mixed
question of fact and law “based upon an evaluation of ‘the totality of all the
surrounding circumstances,’” considering both the circumstances surrounding the
consent and the characteristics of the defendant. Artic, 327 Wis. 2d 392, ¶32
(quoted source omitted). In those two steps, this court considers the circuit court’s
findings of fact under the clearly erroneous standard but applies constitutional
standards to those facts de novo. State v. Vorburger, 2002 WI 105, ¶88, 255 Wis.
2d 537, 648 N.W.2d 829.

¶17 Our supreme court has set forth the following non-exhaustive list of
factors to be considered to determine whether a defendant’s consent was given
voluntarily:

(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant to
persuade him [or her] to consent; (2) whether the police
threatened or physically intimidated the defendant or
“punished” him [or her] by the deprivation of something
like food or sleep; (3) whether the conditions attending the
request to search were congenial, non-threatening, and

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No. 2018AP1885-CR

cooperative, or the opposite; (4) how the defendant
responded to the request to search; (5) what characteristics
the defendant had as to age, intelligence, education,
physical and emotional condition, and prior experience
with the police; and (6) whether the police informed the
defendant that he could refuse consent.

Artic, 327 Wis. 2d 392, ¶33 (citing State v. Phillips, 218 Wis. 2d 180, 198-203,
577 N.W.2d 794 (1998)). Again, consent is determined based upon a
consideration of the totality of the circumstances; “no single factor controls.” Id.,
¶¶32-33.

B. The Circuit Court’s Relevant Findings of Fact.

¶18 At the hearing on Kane’s motion to suppress, testimony was given
by the arresting officer, and the circuit court viewed a video recording of the
arresting officer’s interaction with Kane. That video is not part of the record on
appeal.3 See Fischer v. Wisconsin Patients Comp. Fund, 2002 WI App 192, ¶6
n.4, 256 Wis. 2d 848, 650 N.W.2d 75 (stating that, in the absence of a complete
record, we will assume “that every fact essential to sustain the [circuit] court’s
decision is supported by the record”). The court circuit considered the Artic
factors in light of the arresting officer’s testimony and the video, and made the
following relevant findings:

 As to factor (1), the court found that police did not use deception,
trickery, or misrepresentation to persuade Kane to consent.

3
After a diligent search, there is no indication that the video recording is part of the
record on appeal. To confirm the point, neither party provides a record citation for the video in
their briefs.

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No. 2018AP1885-CR

 As to factor (2), the court found that police did not threaten,
physically intimidate, or punish Kane with the use of sleep or food
deprivation.

 As to factor (3), the court found that the video “clearly show[ed]”
that the arresting officer and Kane “were congenial,” that Kane’s and
the arresting officer’s interaction was “friendly, nonthreatening,
[and] chatty,” and that that their conversation was “cooperative.”
The court found that “Kane … kept apologizing,” that Kane
“thank[ed]” the arresting officer “from time to time,” and that Kane
stated to the officer that “he was embarrassed by the situation.”

 As to factor (4), the court found that the arresting officer asked Kane
“if he would submit to a blood test” and Kane said, “Under those
circumstances, I don’t believe I have a choice. Yes.”

 As to factor (5), the court found that Kane’s arrest was for his third
OWI offense, that Kane had prior experience with OWI arrest
procedures, and that Kane “appeared to know what the routine was
going to be.” The court further found that Kane was handcuffed
when he consented to the blood test but that Kane “did not complain
about his handcuffs prior to being read the Informing the Accused
form.”

 As to factor (6), the court found that Kane “was informed” that he
could refuse consent.

The circuit court determined that, under the totality of the circumstances as found
by the court, Kane’s consent “was not an acquiescence,” but was instead “freely

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No. 2018AP1885-CR

and voluntarily given and not by a restrained choice or product of any duress or
coercion.”

C. Analysis.

¶19 With one exception, Kane does not challenge the circuit court’s
factual findings but, instead, argues that the facts do not support the conclusion
that his consent was voluntary. The exception is the court’s finding under
factor (3) that the conditions surrounding Kane’s consent were “congenial,”
“nonthreatening,” and “cooperative.” Kane argues that the circuit court’s finding
in this respect is erroneous because “Kane was in custody, complained of
handcuffs,4 and expressly stated he felt he did not have a choice in submitting to
the testing.”

¶20 Kane’s argument fails for at least the following two reasons. First,
Kane does not explain why the facts pointed to by him render the circuit court’s
findings as to factor (3) clearly erroneous. See State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (stating that an appellate court may
decline to address issues that are inadequately briefed). Second, the circuit court
found that the video of the arresting officer’s interaction with Kane showed that
Kane and the arresting officer “were having a chatty … [and] cooperative
conversation,” and that Kane “thank[ed]” the arresting officer more than once.

4
I have reviewed the transcript of the hearing on Kane’s motion to suppress and found
no testimony in the transcript to support a contention that Kane complained about the handcuffs.
However, the circuit court stated: “[A]s [defense counsel] points out, [Kane] did not complain
about the handcuffs until after the Informing the Accused [form] was read.” I assume that the
video viewed by the circuit court supports the circuit court’s finding. See Fischer v. Wisconsin
Patients Comp. Fund, 2002 WI App 192, ¶6 n.4, 256 Wis. 2d 848, 650 N.W.2d 75 (stating that,
in the absence of a complete record, we will assume “that every fact essential to sustain the trial
court’s decision is supported by the record”).

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No. 2018AP1885-CR

Without the video to review, I must assume that these findings are true. See
Fischer, 256 Wis. 2d 848, ¶6 n.4. I conclude that those facts support the court’s
finding that the conditions surrounding Kane’s consent were “congenial,”
“nonthreatening,” and “cooperative.” Accordingly, I conclude that the circuit
court’s finding as to factor (3) is not clearly erroneous.

¶21 I now turn to the issue of whether, under the totality of the
circumstances as found by the circuit court, Kane’s consent was voluntary. Kane
makes two primary argument as to why his consent was not voluntary under the
totality of the circumstances, both of which I reject.

¶22 Kane argues that his consent was not voluntary because the arresting
officer “asked [Kane] if he would submit” to the blood draw and not whether Kane
would “consent” to the blood draw. (Emphasis added.) Relying on Johnson, 299
Wis. 2d 675, Kane asserts that the arresting officer used the word “submit,” rather
than “consent” when discussing the blood test and that the officer’s use of the
word “submit” rendered Kane’s consent “a submission or acquiescence to
authority” rather than a voluntary consent.

¶23 In Johnson, the defendant was advised by police that the police
“were going to search the vehicle.” Id., ¶19. The supreme court construed this
statement as a command, rather than a question, and concluded that the
defendant’s “response to that command must consequently be construed as
acquiescence.” Id. Kane admits that his arresting officer asked if he would
submit to a blood test, rather than commanded that he submit to the test. Thus,
any reliance on Johnson is misplaced. Additionally, Kane does not point to any
legal authority holding that, when a defendant is asked by law enforcement to

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No. 2018AP1885-CR

“submit,” as opposed to “consent,” the officer’s statement is a command rather
than a question, and Kane does not argue why it should.

¶24 Kane also argues that his consent was not voluntary under the
totality of the circumstances because, at the time he consented, he “was in custody
[and] complained of handcuffs.” Kane also places emphasis on the fact that Kane
stated “I don’t believe I have a choice,” before answering “yes” to the arresting
officer’s question if Kane would consent to a blood test. Kane asserts that his
statement “express[ed] clear reticence, if not unwillingness to submit.”

¶25 In determining the voluntariness of Kane’s consent, I do not view
the facts pointed to by Kane in isolation. Rather, I must view his consent under
the totality of the circumstances.

¶26 For purposes of clarity, I summarize the circuit court’s findings
which are set forth above. Based on its observation of the video of the arresting
officer’s interaction with Kane and the arresting officer’s testimony, the circuit
court found that the arresting officer did not persuade Kane to consent through
trickery, deception, misrepresentation, threats, physical intimidation, or
punishment. The court found that Kane was apologetic to the arresting officer and
that the officer’s and Kane’s interaction was congenial, friendly, nonthreatening,
and cooperative. The court found that Kane stated “yes” when asked by the
arresting officer if Kane would submit to a blood test. The court further found that
Kane had been arrested for OWI on prior occasions and thus had prior experience
with law enforcement in an OWI arrest situation. Finally, the court found that
Kane was informed that he could refuse the blood test.

¶27 Weighing the facts as found by the circuit court, against those facts
pointed to by Kane, I conclude that under the totality of the circumstances Kane’s

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No. 2018AP1885-CR

consent was voluntary. Kane may have expressed his belief that, by his own
actions of drinking alcohol to excess and operating a motor vehicle, he had placed
himself in an uncomfortable circumstance. But that, by itself, does not mean that
he did not voluntarily consent to the blood test, particularly here where his
interaction with the arresting officer was cooperative and congenial, he had been
arrested for OWI on two prior occasions, and thus he was experienced with arrest
and chemical test procedures, and was informed of his rights.5

¶28 The judgment of conviction indicates that Kane pleaded not guilty to
the OWI, 3rd offense, when, in fact, he entered a plea of guilty. I remand this case
to the circuit court with directions that the circuit court direct the clerk of the court
to correct this clerical error.

¶29 In addition, the circuit court granted a stay of Kane’s sentence.
Therefore, this matter is remanded for further proceedings in the exercise of the
circuit court’s discretion.

CONCLUSION

¶30 For the foregoing reasons, the judgment of the circuit court is
affirmed.

By the Court.—Judgment affirmed and cause remanded with

directions.

5
Because my decision that Kane’s consent was voluntary is dispositive, I do not address
other issues raised by the parties, including the State’s argument concerning implied consent. See
Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (stating that if a decision on
one point disposes of the appeal, the court will not decide other issues raised).

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No. 2018AP1885-CR

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.

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