            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   April 18, 2019
               Plaintiff-Appellant,                                9:10 a.m.

v                                                                  No. 340614
                                                                   Kalamazoo Circuit Court
COLLIN JAMES STRICKLIN,                                            LC No. 2016-000496-AR

               Defendant-Appellee.


Before: METER, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

        By leave granted,1 the People appeal the district court’s suppression of blood draw
evidence after it held that defendant, Collin James Stricklin, was subject to a warrantless Fourth
Amendment search during a suspected drunk driving encounter with police. Defendant was
arrested and charged with operating while intoxicated in violation of MCL 257.625. It is
uncontested that the arresting police officer informed defendant that, under the implied consent
law, should he refuse consent to a blood draw, he would temporarily lose his license and be
subject to the mandatory imposition of six points against his driving record. After an evidentiary
hearing, the district court suppressed the blood draw evidence, concluding that law enforcement
obtained it during an illegal warrantless search. The circuit court affirmed, concluding that
defendant’s alleged consent to the blood draw was involuntary and coercive because he drove for
a living and feared the impact that losing his license would have on his economic livelihood.
The People now appeal, arguing that the district and circuit courts misapplied Fourth
Amendment precedent and erred in concluding that defendant’s express consent was involuntary.
We agree and reverse.

       Defendant filed a motion to suppress evidence obtained from a blood draw, arguing that
it was an illegal warrantless search under the Fourth Amendment because defendant was


1
 People v Stricklin, unpublished order of the Court of Appeals, entered March 23, 2018 (Docket
No. 340614).



                                               -1-
threatened with loss of his driving privileges if he refused consent. During oral arguments on
defendant’s motion, the prosecution contended that this was an issue of first impression for the
court but maintained that the United States Supreme Court’s then-recent decision in Birchfield v
North Dakota, __ US __; 136 S Ct 2160; 195 L Ed 2d 560 (2016), did not apply because
Michigan’s implied consent law only provided for civil penalties. Defendant’s counsel assured
the district court that defendant “was not in any way challenging the constitutionality of
Michigan’s Implied Consent Law or sanctions” but rather arguing only that the threat of
sanctions affected the voluntariness of his client’s consent to the blood draw and that Birchfield
reaffirmed that consent is based on the “totality of the circumstances.” Defense counsel fully
acknowledged that Birchfield primarily addressed the legality of criminal penalties for refusing
consent but considered that argument “a red herring” and a “distraction.” Rather, defense
counsel stated that “[t]he issue is voluntariness and the severe implied consent sanctions can
certainly or should certainly be considered” when assessing voluntariness.

       The district court held an evidentiary hearing on the suppression motion. Police Officer
Matthew Britton testified for the prosecution. On August 29, 2015, Officer Britton pulled over
defendant for speeding. He performed an OWI investigation, including a field sobriety test and a
preliminary breath test. Based on the results of this investigation, Officer Britton arrested
defendant for operating while intoxicated. Subsequently, Officer Britton asked defendant to take
an evidentiary chemical test. He read the standard form DI177 instructions to obtain consent.
The form stated, in pertinent part:

       I am requesting that you take a chemical test to check for alcohol and/or
       controlled substances or other intoxicating substance in your body. IF YOU
       WERE ASKED TO TAKE OR TOOK A PRELIMINARY BREATH TEST
       BEFORE YOUR ARREST, YOU MUST STILL TAKE THE TEST I AM
       OFFERING YOU.

       If you refuse to take this chemical test, it will not be given without a court order,
       but I may seek to obtain such a court order. Your refusal to take this test shall
       result in the suspension of your operator’s or chauffeur’s license and vehicle
       group designation or operating privilege, and the addition of six points to your
       driving record.

        Defendant consented to take the blood test. When asked whether he believed that
defendant understood his rights, Officer Britton answered, “I believe so.” Officer Britton also
agreed that defendant was fully aware that refusal would result in a suspension of his license as
well as six points added to his driving record. Overall, Officer Britton described defendant as
cooperative. Given the circumstances, he could not remember why he decided to ask for a blood
test over a breath test, and stated only that it was his personal preference.

         Defendant testified on his own behalf. He said that, at the time of his arrest, he was
working at Harold Ziegler Auto Group in a position that required a valid driver’s license. In
addition to working, he also took classes as an enrolled student in the Fire Academy at
Kalamazoo Valley Community College. Defendant testified that he would need a driver’s
license to become a firefighter. He testified that having a driver’s license was “pretty important”
to his livelihood and career.

                                                -2-
        Defendant recalled Officer Britton reading him his rights. He testified that he was fearful
“of not cooperating and the consequences” to his livelihood and career. He did not feel as if he
had any choice. On cross-examination, defendant admitted that the results of the chemical test
indicated that he was drunk. He also acknowledged that he did have a choice to refuse to submit
to the test and agreed that he consented to the blood test after the officer read him his rights.
Defendant said that he “was mainly focused on being one hundred percent compliant” and was
not concerned about whether the officer would obtain a warrant had he refused chemical testing
and acknowledged that his blood alcohol level could have been lower depending on how long it
took the officer to obtain the warrant. He was also aware that a conviction for drunk driving
would negatively impact his ability to have a driver’s license.

         After hearing these two witnesses, the district court gave its decision directly from the
bench. It recognized that the taking of a blood sample is a search governed by the Fourth
Amendment. The district court did not actually address whether or not it found defendant’s
consent involuntary or coerced, but rather reasoned that a warrant was necessary absent exigent
circumstances. The district court held there was no exigent circumstance present as the choice to
draw blood rather than utilize a breath test was only based on the officer’s personal preference.
Accordingly, the district court suppressed the blood draw evidence. At a settlement conference
held the following week, the prosecution indicated that it was unable to proceed because of this
unfavorable evidentiary ruling. It asked for a stay pending an appeal. The district court stated
that it was “not inclined to stay” because the case was already over a year old and dismissed the
case without prejudice.

        The prosecution appealed to the circuit court. The circuit court agreed that no exigent
circumstances supported a warrantless search because the officer admitted that it was his
personal preference to obtain a blood draw rather than a breath test and that nothing prevented
him from obtaining a search warrant. Respecting whether defendant gave valid consent, the
circuit court determined that the totality of the circumstances demonstrated that defendant’s
consent to a blood draw was involuntary because he testified that “he felt coerced by the
potential sanctions for failing to comply with the officer’s request” since “having a license was
important to his livelihood.”

        The prosecution now appeals to this Court, arguing that the district and circuit courts
erred in concluding that defendant’s express consent to the blood draw was not a valid exception
to the Fourth Amendment’s warrant requirement.

               We review de novo the circuit court’s ultimate ruling on a motion to
       suppress evidence. However, we review its factual findings for clear error. A
       finding is clearly erroneous when, although there is evidence to support it, the
       reviewing court is left with a definite and firm conviction that a mistake has been
       made. We overstep our review function if we substitute our own judgment for
       that of the trial court and make independent findings. [People v Barbarich (On
       Remand), 291 Mich App 468, 471-472; 807 NW2d 56 (2011) (quotation marks
       and citations omitted).]

“But the application of constitutional standards regarding searches and seizures to essentially
uncontested facts is entitled to less deference[.]” People v Woodard, 321 Mich App 377, 382;

                                                -3-
909 NW2d 299 (2017) (quotation marks and citation omitted; alteration in original). “We review
de novo whether the Fourth Amendment was violated and whether the exclusionary rule
applies.” Id. at 382.

        The circuit court erred in applying the exclusionary rule under the Fourth Amendment
when it affirmed the district court’s suppression of evidence of a blood draw. We conclude that
defendant’s consent to the warrantless search was not coercive or involuntary under applicable
precedent solely as a result of defendant’s stated fear of economic consequences stemming from
the suspension of his license under the implied consent law.

        In Birchfield, 136 S Ct at 2173, the United States Supreme Court held that the taking of a
blood sample constituted a search and that, consistent with the Fourth Amendment, in order to
obtain a blood sample, law enforcement must either obtain a warrant or satisfy an exception to
the warrant requirement. The Birchfield Court held that because a blood test is highly intrusive,
law enforcement may not conduct a blood test pursuant to the search incident to a lawful arrest
exception. Id. at 2184. There are two remaining exceptions to the warrant requirement
potentially relevant to this appeal: (1) whether exigent circumstances existed constituting an
emergency justifying the warrantless taking of a blood sample; and (2) whether the defendant
validly consented. Both the district court and the circuit court held that the exigent
circumstances exception does not apply. The prosecution does not argue this was error. The
parties disagree over whether defendant validly consented to the warrantless blood draw.

        “It is well established that a search is reasonable when the subject consents and that
sometimes consent to a search need not be express but may be fairly inferred from context.” Id.
at 2185 (citations omitted). “[V]oluntariness of consent to a search must be ‘determined from
the totality of all the circumstances . . . .’ ” Id. at 2186, quoting Schneckloth v Bustamonte, 412
US 218, 219; 93 S Ct 2041; 36 L Ed 2d 854 (1973).

        Important to this Court’s review, defendant does not purport to challenge the validity of
the implied consent laws, and for good reason. In Birchfield, the United States Supreme Court
expressly recognized that it has repeatedly “referred approvingly to the general concept of
implied-consent laws that impose civil penalties and evidentiary consequences on motorists who
refuse to comply.” Id. at 2185. Indeed, all 50 states have enacted a similar law and
“[s]uspension or revocation of the motorist’s driver’s license remains the standard legal
consequence of refusal.” Id. at 2169. In Michigan, our Supreme Court has recognized that
“there is a strong public interest reflected” in the implied consent law and that “society is aware
of the need for effective laws to curtail drunken driving.” See People v Perlos, 436 Mich 305,
327; 462 NW2d 310 (1990).

        “A consent to search permits a search and seizure without a warrant when the consent is
unequivocal, specific, and freely and intelligently given.” People v Galloway, 259 Mich App
634, 648; 675 NW2d 883 (2003). “When a prosecutor seeks to rely upon consent to justify the
lawfulness of a search, he [or she] has the burden of proving that the consent was, in fact, freely
and voluntarily given.” People v Chowdhury, 285 Mich App 509, 524; 775 NW2d 845 (2009)
(quotation marks and citation omitted). The prosecutor cannot satisfy this burden by simply
showing the defendant’s acquiescence to lawful authority. Id. Notably, the defendant’s


                                                -4-
knowledge of the right to refuse “is not a prerequisite to effective consent,” but merely one factor
in a totality of the circumstances analysis. Id. (quotation marks and citation omitted).

         In the seminal case of Schneckloth,2 the United States Supreme Court held that the Fourth
Amendment requires “that a consent not be coerced, by explicit or implicit means, by implied
threat or covert force.” Schneckloth, 412 US at 228. The Supreme Court noted that this
determination, which is commonly referred to as “voluntariness,” does not lend easily to a
“talismanic definition,” but rather “reflect[s] an accommodation of the complex of values
implicated,” and a need to “reconcil[e] the recognized legitimacy of consent searches with the
requirement that they be free from any aspect of official coercion . . . .” Id. at 224-225, 229. The
essential question is whether, under “the most careful scrutiny,” the defendant’s free will “has
been overborne and [the defendant’s] capacity for self-determination critically impaired” by
official coercion. Id. at 225, 229. The Supreme Court recognized some of the relevant factors in
a totality of the circumstances analysis for assessing the psychological impact on the accused to
include age, educational level, whether the accused is advised of his or her constitutional rights,
the nature of the detention, and the use of physical punishment. Id. at 226.

         In this case, the evidentiary hearing record is sparse on details concerning the financial or
psychological impact of the consent decision on defendant and how it may have affected his
ability to exercise free will. There can be little doubt that, by choosing first to drive drunk,
defendant left himself in a Catch-22 of choosing, at least from his point of view, the lesser of two
evils. If defendant consented to the blood draw, it could prove he was driving drunk, which
would likely result in a drunk driving conviction with attendant loss of driving privileges, fine,
and possible jail time. If defendant refused the blood draw, that choice would necessarily result
in a license suspension and points.

       This Court has previously held that “the application of constitutional standards regarding
searches and seizures to essentially uncontested facts is entitled to less deference[.]” Woodward,
321 Mich App at 382 (quotation marks and citation omitted; alteration in original). Whether the
Fourth Amendment was violated and the exclusionary rule applies is subject to our de novo
review. Id. at 382.3 During the short evidentiary hearing, defendant essentially conceded that he
understood his rights and the choice presented. While testifying that he felt as if he had no


2
 Although it related directly to the suppression of coerced confessions and not blood draws, the
importance of Schneckloth is apparent. In Birchfield, the United States Supreme Court cited
Schneckloth for its proposition that voluntariness of consent for blood draws demands a
voluntariness inquiry. See Birchfield, 136 S Ct at 2186. Likewise, Michigan appellate courts
have regularly relied on Schneckloth in determining the validity of consent in chemical testing
cases. See, e.g., People v Borchard-Ruhland, 460 Mich 278, 293-294; 597 NW2d 1 (1999).
3
  We note that the district court failed to recognize that consent is an exception to the Fourth
Amendment’s warrant requirement and did not make any factual determination as to the
voluntariness of defendant’s consent. Because we conclude that the limited, established record
could not possibly support a factual finding that defendant’s consent was involuntary, a remand
would be an exercise in futility.


                                                 -5-
choice, he acknowledged that he understood that Officer Britton could obtain a warrant if he
refused. He also testified that he understood the consequences of a drunk driving conviction.
We conclude that this is the testimony of someone who clearly understood and appreciated the
relevant stakes when faced with two unfavorable choices, not no choice at all. Accordingly,
defendant’s express consent to the blood draw was a valid exception to the Fourth Amendment’s
warrant requirement.

        A defendant may always consent to a warrantless search. Defendant admitted during the
evidentiary hearing that he fully understood his choices under the implied consent law and made
an informed, reasoned decision. Having to make a choice between two undesirable options does
not render defendant’s express consent to the blood draw coercive and involuntary.

       Reversed and remanded for further proceedings. We do not retain jurisdiction.



                                                          /s/ Patrick M. Meter
                                                          /s/ David H. Sawyer
                                                          /s/ Thomas C. Cameron




                                              -6-
