consent exception in Wisconsin

2026“To determine if the consent exception is satisfied, we review, first, whether consent was given in fact by words, gestures, or conduct; and, second, whether the consent given was voluntary.” State v. Artic, 2010 WI 83, ¶30 , 327 Wis. 2d 392 , 786 N.W.2d 430 .

2026“To determine if the consent exception is satisfied, we review, first, whether consent was given in fact by words, gestures, or conduct; and, second, whether the consent given was voluntary.” State v. Artic, 2010 WI 83, ¶30 , 327 Wis. 2d 392 , 786 N.W.2d 430 .

2026“To determine if the consent exception is satisfied, we review, first, whether consent was given in fact by words, gestures, or conduct; and, second, whether the consent given was voluntary.” Id., ¶30; see also Phillips, 218 Wis. 2d at 196-97 . “[W]hether consent was given in fact is a question of historical fact.” Artic, 327 Wis. 2d 392, ¶30 .

2010Phillips, 218 Wis.2d at 196 , 577 N.W.2d 794 ; Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). ¶ 30 To determine if the consent exception is satisfied, we review, first, whether consent was given in fact by words, gestures, or conduct; and, second, whether the consent given was voluntary.

2026See id., ¶¶44, 7 No. 2025AP811 46 (consent must be clear and unequivocal, and evidenced through words, gestures, or conduct). ¶19 The Wisconsin Supreme Court reached the same conclusion in Brar, holding that the defendant’s consent provided after the officer read the ITA form satisfies the Fourth Amendment’s consent exception. ¶20 This court rejects Noble’s argument that Mitchell v. Wisconsin, 588 U.S. 840 (2019) “implicitly” overrules the precedent set forth in Brar.

2020With that sliver of the plurality’s reasoning I agree.” Id. at 2545 (Sotomayor, J., dissenting, joined by Ginsburg and Kagan, JJ.).

2021It is well- established that "[o]ne of the exceptions to the warrant rule is that an individual's consent to search satisfies the constitutional 'reasonableness' requirement." Randall, 387 Wis. 2d 744, ¶10 ; see also Birchfield, 136 S. Ct. at 2185 .

2021It is well- established that "[o]ne of the exceptions to the warrant rule is that an individual's consent to search satisfies the constitutional 'reasonableness' requirement." Randall, 387 Wis. 2d 744, ¶10 ; see also Birchfield, 136 S. Ct. at 2185 .

2026See Brar, 376 Wis. 2d 685, ¶¶34-35 (“Brar voluntarily, albeit impliedly, consented when he chose to drive on Wisconsin roads.

2018Similarly, the Supreme Court of Kentucky has said that drivers "consent[ ] to testing by operating a vehicle in Kentucky." Helton v. Commonwealth , 299 S.W.3d 555 , 559 (Ky. 2009). ¶ 43 As judicial opinions of other states, as well as the United States Supreme Court's prior statements show, "[i]mplied consent is not a second-tier form of consent." Brar , 376 Wis. 2d 685 , ¶ 23, 898 N.W.2d 499 .

2018The Colorado court recognized that "Hyde's statutory consent satisfied the consent exception to the Fourth Amendment warrant requirement." Id. , ¶ 3.

2017See, e.g., People v. Hyde, 393 P.3d 962, 968 (Colo. 2017) ("Hyde's statutory consent also satisfied the consent exception to the Fourth Amendment warrant requirement.

2014Matejka, 241 Wis. 2d 52, ¶17 . ¶113 The fact that "consent" is an established exception and that third-party consent can be acceptable does not mean that the consent exception does not present issues such as authority to give consent, scope of the consent, and the voluntariness of the consent. ¶114 There is no dispute here that the driver voluntarily consented to the officer's search of the vehicle.

2007See State v. Matejka, 2001 WI 5 , 241 Wis. 2d 52 , 621 N.W.2d 891 . 6 HH i — 1 I — I ¶ 46.

2025Florida v. Jimeno, 500 U.S. 248, 251 (1991).

2025See Staver v. Milwaukee County, 2006 WI App 33, ¶20 , 289 Wis. 2d 675 , 712 N.W.2d 387 (only dispositive issues need be addressed). ¶18 To determine if the consent exception is satisfied, we first consider whether Beyer gave consent through his “words, gestures, or conduct.” See Artic, 327 Wis. 2d 392, ¶30 .

2025See Staver v. Milwaukee County, 2006 WI App 33, ¶20 , 289 Wis. 2d 675 , 712 N.W.2d 387 (only dispositive issues need be addressed). ¶18 To determine if the consent exception is satisfied, we first consider whether Beyer gave consent through his “words, gestures, or conduct.” See Artic, 327 Wis. 2d 392, ¶30 .

2024See United States v. Thurman, 889 F.3d 356 , 366 & n.9 (7th Cir. 2018) (holding that Riley does not alter the consent analysis for cell phone searches). ¶30 We are cognizant of the fact that, like cell phone searches and blood testing for alcohol concentration, DNA testing “has the potential to reveal a vast amount of personal information, including medical conditions and familial relations.” See Albert E.

2021United States v. South, 28 F.3d 619, 629 (7th Cir. 1994). “[W]e need not decide the validity of constitutional claims broadly stated but never specifically argued.” State v. Scherreiks, 153 Wis. 2d 510, 520 , 451 N.W.2d 759 (Ct. App. 1989). ¶48 Christel fails to develop any argument, citing but one case, Olson, 309 Wis. 2d 365 , ¶44 n.9, setting forth the general principal that a challenger must establish that a statute is unconstitutional on the facts of a particular case or a particular party. ¶49 As before, Christel simply re-argues his version of events, contending that he should have been

2020See People v. Arredondo, 199 Cal. Rptr. 3d 563, 571 (Ct. App.), as modified on denial of reh’g (Mar. 24, 2016), review granted and opinion superseded, 371 P.3d 240 (Cal. 2016) (stating that the phrase “‘implied consent’ is misleading, if not inaccurate” because even though “consent sufficient to sustain a search may be ‘implied’ as well is explicit, … it is nonetheless actual consent, ‘implied’ only in the sense that it is manifested by conduct rather than words”).

2020See 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). 6 No. 2018AP1885-CR satisfied, consent must be given “by words, gestures, or conduct,” and the consent must have been voluntary.

2020See People v. Arredondo, 199 Cal. Rptr. 3d 563, 571 (Ct. App.), as modified on denial of reh’g (Mar. 24, 2016), review granted and opinion superseded, 371 P.3d 240 (Cal. 2016) (stating that the phrase “‘implied consent’ is misleading, if not inaccurate” because even though “consent sufficient to sustain a search may be ‘implied’ as well is explicit, … it is nonetheless actual consent, ‘implied’ only in the sense that it is manifested by conduct rather than words”).

2019See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25 , 318 Wis. 2d 148 , 769 N.W.2d 82 . 5 As noted above, Newville initially argues that because of the allegedly unconstitutional search, the yellow film that Scott observed on his tongue “must be ignored” and “cannot be used to justify the administration of field sobriety tests, the arrest, or the preliminary breath test.” However, Newville later makes a single-sentence argument that because the search of his tongue was unconstitutional, “all evidence gathered as a result of the search must be suppressed.” In suppo

2019See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25 , 318 Wis. 2d 148 , 769 N.W.2d 82 . 5 As noted above, Newville initially argues that because of the allegedly unconstitutional search, the yellow film that Scott observed on his tongue “must be ignored” and “cannot be used to justify the administration of field sobriety tests, the arrest, or the preliminary breath test.” However, Newville later makes a single-sentence argument that because the search of his tongue was unconstitutional, “all evidence gathered as a result of the search must be suppressed.” In suppo

2019See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25 , 318 Wis. 2d 148 , 769 N.W.2d 82 . 5 As noted above, Newville initially argues that because of the allegedly unconstitutional search, the yellow film that Scott observed on his tongue “must be ignored” and “cannot be used to justify the administration of field sobriety tests, the arrest, or the preliminary breath test.” However, Newville later makes a single-sentence argument that because the search of his tongue was unconstitutional, “all evidence gathered as a result of the search must be suppressed.” In suppo

2019See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25 , 318 Wis. 2d 148 , 769 N.W.2d 82 . 5 As noted above, Newville initially argues that because of the allegedly unconstitutional search, the yellow film that Scott observed on his tongue “must be ignored” and “cannot be used to justify the administration of field sobriety tests, the arrest, or the preliminary breath test.” However, Newville later makes a single-sentence argument that because the search of his tongue was unconstitutional, “all evidence gathered as a result of the search must be suppressed.” In suppo

2019See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25 , 318 Wis. 2d 148 , 769 N.W.2d 82 . 5 As noted above, Newville initially argues that because of the allegedly unconstitutional search, the yellow film that Scott observed on his tongue “must be ignored” and “cannot be used to justify the administration of field sobriety tests, the arrest, or the preliminary breath test.” However, Newville later makes a single-sentence argument that because the search of his tongue was unconstitutional, “all evidence gathered as a result of the search must be suppressed.” In suppo

2018Similarly, the Supreme Court of Kentucky has said that drivers "consent[] to testing by operating a vehicle in Kentucky." Helton v. Commonwealth, 299 S.W.3d 555, 559 (Ky. 2009). ¶43 As judicial opinions of other states, as well as the United States Supreme Court's prior statements show, "[i]mplied consent is not a second-tier form of consent." Brar, 376 Wis. 2d 685, ¶23 .

2018Similarly, the Supreme Court of Kentucky has said that drivers "consent[ ] to testing by operating a vehicle in Kentucky." Helton v. Commonwealth , 299 S.W.3d 555 , 559 (Ky. 2009). ¶ 43 As judicial opinions of other states, as well as the United States Supreme Court's prior statements show, "[i]mplied consent is not a second-tier form of consent." Brar , 376 Wis. 2d 685 , ¶ 23, 898 N.W.2d 499 .