consent exception in Tennessee

2023Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007).

2017“The consent exception to the warrant requirement applies when a person voluntarily consents to a search.” Reynolds, 504 S.W.3d at 306 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007)).

2017“The consent exception to the warrant requirement applies when a person voluntarily consents to a search.” State v. Reynolds, 504 S.W.3d 283, 306 (Tenn. 2015) (citing Schneckloth v. Bustamonte, 412 -9- U.S. 218, 219 (1973); State v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007)).

2017“The consent exception to the warrant requirement applies when a person voluntarily consents to a search.” Reynolds, 504 S.W.3d at 306 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007)).

2018Officer Barnett testified at the suppression hearing that although the Appellant revoked his consent, he then consented to the blood draw. “‘The consent exception to the warrant requirement applies when a person voluntarily consents to a search.’” Henry, 539 S.W.3d at 241 (quoting Reynolds, 504 S.W.3d at 306 ).

2017“The consent exception to the warrant requirement applies when a person voluntarily consents to a search.” State v. Reynolds, 504 S.W.3d 283, 306 (Tenn. 2015) (citing Schneckloth v. Bustamonte, 412 -9- U.S. 218, 219 (1973); State v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007)).

2017As a result, the issue of whether implied consent satisfies the consent exception to the warrant requirement has never been fully developed in our case law. - 17 - We recognize that in Humphreys, this court stated, “In addition to the exigent circumstances established by the nature of the evidence in cases involving intoxicated motorists, the statutorily created implied consent of the motorist permits the warrantless search of the motorist’s breath or blood.” Humphreys, 70 S.W.3d at 761 (citing Michael A. Janosky, 2000 WL 1449367 , at *4).

2015McNeely reaffirmed this conclusion and reiterated that Schmerber’s “special facts” justified the warrantless action of police in that case; however, “[i]n those drunk-driving investigations where police officers can reasonably 4 In both State v. Humphreys, 70 S.W.3d 752 , and State v. Michael A. Janosky, 2000 WL 1449367 , the warrantless blood draws were also upheld under the consent exception to the warrant requirement because the defendant in each case consented to the warrantless blood draw. -7- obtain a warrant before a blood sample can be drawn without significantly undermining the effica

2017Ct. App. 2014); Aviles v. State, 443 S.W.3d 291, 294 (Tex. App. 2014); Weems v. State, 434 S.W.3d 655, 665 (Tex. App. 2014). 5 State v. Baird, 386 P.3d 239 , 249 n.8 (Wash. 2016) (reiterating that the “implied [c]onsent in the statute does not act as valid consent for a search” and asserting that “absent a warrant or an exception, an officer must obtain actual consent for a breath test.”); Williams v. State, 771 S.E.2d 373, 376-77 (Ga. 2015) (distinguishing compliance with the implied consent statute from the constitutional question of - 20 - As we noted, Code section 55-10-406 states that “[a

2016Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Wulff, 157 Idaho 416 , 337 P.3d 575, 581 (2014); State v. Declerck, 49 Kan.App.2d 908 , 317 P.3d 794, 804 (2014); State v. Modlin, 291 Neb. 660 , 867 N.W.2d 609 , 619 (2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); Aviles v. State, 443 S.W.3d 291, 294 (Tex. App.-San Antonio 2014); Weems v. State, 434 S.W.3d 655, 665 (Tex. App.-San Antonio 2014).

2017Ct. App. 2014); Aviles v. State, 443 S.W.3d 291, 294 (Tex. App. 2014); Weems v. State, 434 S.W.3d 655, 665 (Tex. App. 2014). 5 State v. Baird, 386 P.3d 239 , 249 n.8 (Wash. 2016) (reiterating that the “implied [c]onsent in the statute does not act as valid consent for a search” and asserting that “absent a warrant or an exception, an officer must obtain actual consent for a breath test.”); Williams v. State, 771 S.E.2d 373, 376-77 (Ga. 2015) (distinguishing compliance with the implied consent statute from the constitutional question of - 20 - As we noted, Code section 55-10-406 states that “[a

2016Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Wulff, 157 Idaho 416 , 337 P.3d 575, 581 (2014); State v. Declerck, 49 Kan.App.2d 908 , 317 P.3d 794, 804 (2014); State v. Modlin, 291 Neb. 660 , 867 N.W.2d 609 , 619 (2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); Aviles v. State, 443 S.W.3d 291, 294 (Tex. App.-San Antonio 2014); Weems v. State, 434 S.W.3d 655, 665 (Tex. App.-San Antonio 2014).

2017We have found at least five additional jurisdictions that have held that statutory implied consent does not qualify as consent under the Fourth Amendment.5 4 The Tennessee Supreme Court specifically noted that the following jurisdictions had declined to conclude that implied consent satisfies the consent exception to the warrant requirement: Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Modlin, 867 N.W.2d 609 , 619 (Neb. 2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); State v

2017We have found at least five additional jurisdictions that have held that statutory implied consent does not qualify as consent under the Fourth Amendment.5 4 The Tennessee Supreme Court specifically noted that the following jurisdictions had declined to conclude that implied consent satisfies the consent exception to the warrant requirement: Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Modlin, 867 N.W.2d 609 , 619 (Neb. 2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); State v

2017We have found at least five additional jurisdictions that have held that statutory implied consent does not qualify as consent under the Fourth Amendment.5 4 The Tennessee Supreme Court specifically noted that the following jurisdictions had declined to conclude that implied consent satisfies the consent exception to the warrant requirement: Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Modlin, 867 N.W.2d 609 , 619 (Neb. 2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); State v

2017We have found at least five additional jurisdictions that have held that statutory implied consent does not qualify as consent under the Fourth Amendment.5 4 The Tennessee Supreme Court specifically noted that the following jurisdictions had declined to conclude that implied consent satisfies the consent exception to the warrant requirement: Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Modlin, 867 N.W.2d 609 , 619 (Neb. 2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); State v

2017We have found at least five additional jurisdictions that have held that statutory implied consent does not qualify as consent under the Fourth Amendment.5 4 The Tennessee Supreme Court specifically noted that the following jurisdictions had declined to conclude that implied consent satisfies the consent exception to the warrant requirement: Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Modlin, 867 N.W.2d 609 , 619 (Neb. 2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); State v

2017We have found at least five additional jurisdictions that have held that statutory implied consent does not qualify as consent under the Fourth Amendment.5 4 The Tennessee Supreme Court specifically noted that the following jurisdictions had declined to conclude that implied consent satisfies the consent exception to the warrant requirement: Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Modlin, 867 N.W.2d 609 , 619 (Neb. 2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); State v

2017We have found at least five additional jurisdictions that have held that statutory implied consent does not qualify as consent under the Fourth Amendment.5 4 The Tennessee Supreme Court specifically noted that the following jurisdictions had declined to conclude that implied consent satisfies the consent exception to the warrant requirement: Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Modlin, 867 N.W.2d 609 , 619 (Neb. 2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); State v

2017We have found at least five additional jurisdictions that have held that statutory implied consent does not qualify as consent under the Fourth Amendment.5 4 The Tennessee Supreme Court specifically noted that the following jurisdictions had declined to conclude that implied consent satisfies the consent exception to the warrant requirement: Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015); State v. Modlin, 867 N.W.2d 609 , 619 (Neb. 2015); Byars v. State, 336 P.3d 939 , 946 (Nev. 2014); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014); State v

2020Additionally, Justice Sotomayor, writing for the three-justice dissent, stated that “[w]ith that sliver of the plurality’s reasoning I agree” and indicated that the three dissenting justices “would go further and hold that the state statute, however phrased, cannot itself create the actual and informed consent that the Fourth Amendment requires.” Id. at 2545 (Sotomayor, J., dissenting).

2017Safety, 850 N.W.2d 717, 725 (Minn. Ct. App. 2014) (“[T]he plain language of the [implied consent] statute authorizes a search of a driver’s blood, breath, or urine only if the driver gives express, valid consent to such a search.”); People v. Mason, 214 Cal.Rptr.3d 685, 702 (Cal. App. Dep’t Super.

2017Henry points out, and we agree, that James Dean Wells noted that at the time that the mandatory blood provisions were enacted, the legislative history never indicated that “implied consent” would operate as constitutionally-valid consent because the legislators continued to believe, pursuant to Schmerber, that exigent circumstances justifying the search existed in every drunk driving case: whether the motorist gave actual consent for the testing and reiterating that “[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted f

2017Safety, 850 N.W.2d 717, 725 (Minn. Ct. App. 2014) (“[T]he plain language of the [implied consent] statute authorizes a search of a driver’s blood, breath, or urine only if the driver gives express, valid consent to such a search.”); People v. Mason, 214 Cal.Rptr.3d 685, 702 (Cal. App. Dep’t Super.

2017Ct. App. 2014); Aviles v. State, 443 S.W.3d 291, 294 (Tex. App. 2014); Weems v. State, 434 S.W.3d 655, 665 (Tex. App. 2014). 5 State v. Baird, 386 P.3d 239 , 249 n.8 (Wash. 2016) (reiterating that the “implied [c]onsent in the statute does not act as valid consent for a search” and asserting that “absent a warrant or an exception, an officer must obtain actual consent for a breath test.”); Williams v. State, 771 S.E.2d 373, 376-77 (Ga. 2015) (distinguishing compliance with the implied consent statute from the constitutional question of - 20 - As we noted, Code section 55-10-406 states that “[a

2016See People v. Arredondo, 371 P.3d 240 (Cal. 2016) (granting review to consider the following issues: “Did law enforcement violate the Fourth Amendment by taking a warrantless blood sample from defendant while he was unconscious, or was the search and seizure valid because defendant expressly consented to chemical testing when he applied for a driver‟s license or because defendant was ‘deemed to have given his consent’ under California’s implied consent law?

2016See People v. Arredondo, 203 Cal.Rptr.3d 21 , 371 P.3d 240 (2016) (granting review to consider the following issues; "Did law enforcement violate the Fourth Amendment by taking a warrantless blood sample from defendant while he was unconscious, or was the search and seizure valid because defendant expressly consented to chemical testing when he applied for a driver's license or because defendant was ‘deemed to have given his consent' under California's implied consent law?

2015Because we “do not decide constitutional questions unless resolution is absolutely necessary to determining the issues in the case and adjudicating the rights of the parties,” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (quoting State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002)), we first consider whether the warrantless blood draw in this case was justified under either the consent exception or the exigent circumstances exception to the warrant requirement.

2015Because we “do not decide constitutional questions unless resolution is absolutely necessary to determining the issues in the case and adjudicating the rights of the parties,” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (quoting State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002)), we first consider whether the warrantless blood draw in this case was justified under either the consent exception or the exigent circumstances exception to the warrant requirement.

2014Ct. July 17, 2013) (concluding that McNeely does not “prohibit[ ] courts from finding that statutory implied consent satisfies the consent requirement for the consent exception,” and noting that the defendant never withdrew consent); People v. Harris, 170 Cal. Rptr. 3d 729, 733 (Cal. App. Dep’t Super.

2014Ct. July 17, 2013) (concluding that McNeely does not “prohibit[ ] courts from finding that statutory implied consent satisfies the consent requirement for the consent exception,” and noting that the defendant never withdrew consent); People v. Harris, 170 Cal. Rptr. 3d 729, 733 (Cal. App. Dep’t Super.

2013See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973); State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992).

2013In other words, Appellant argues that the information set out in the affidavit does not meet the two prong test set out in Spinelli v. United States, 393 U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964) (“Aguilar-Spinelli ”), as adopted in State v. Jacumin, 778 S.W.2d 430, 437 (Tenn. 1989), concerning the proof of the reliability of a confidential informant.