#27205-a-DG

2015 S.D. 45

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellant,

      v.

ERIC E. MEDICINE,                           Defendant and Appellee.

                                   ****
                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA
                                   ****
                  THE HONORABLE THOMAS L. TRIMBLE
                              Judge
                                   ****

MARTY J. JACKLEY
Attorney General

KELLY MARNETTE
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellant.


ROBERT J. ROHL of
DeMersseman Jensen
 Tellinghuisen & Huffman, LLP
Rapid City, South Dakota

      and

RANDAL E. CONNELLY
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellee.

                                   ****
                                            CONSIDERED ON BRIEFS
                                            ON APRIL 20, 2015
                                            OPINION FILED 06/10/15
#27205

GILBERTSON, Chief Justice

[¶1.]         The State appeals the circuit court’s order granting Eric E. Medicine’s

motion in limine and motion to suppress blood evidence obtained by law

enforcement after initiating a traffic stop. The arresting officer first informed

Medicine that he had impliedly consented to a blood draw by virtue of operating a

vehicle in South Dakota, but then asked if Medicine consented to the blood draw.

Medicine consented. The State asserts the totality of the circumstances supports a

conclusion that Medicine’s consent was voluntary. We affirm.

                            Facts and Procedural History

[¶2.]         On May 3, 2014, at approximately 8:06 p.m., Rapid City Police Officer

Robert Neisen initiated a traffic stop of a vehicle driven by Medicine. After

administering field sobriety tests, Officer Neisen arrested Medicine for driving

under the influence. 1 Officer Neisen read the Rapid City DUI advisement card to

Medicine. The advisement card states:

              1.     I have arrested you for a violation of SDCL 32-23-1.
              2.     SDCL 32-23-10 provides that any person who operates a
              vehicle in this state has consented to the withdrawal of blood or
              other bodily substance and chemical analysis.
              3.    I request that you submit to the withdrawal of your
              ________ (blood, breath, bodily substance).
              4.    You have the right to an additional chemical analysis by a
              technician of your own choosing, at your own expense.
              5.    Do you consent to the withdrawal of your ________ (blood,
              breath, bodily substance)?




1.      The validity of neither the stop nor the arrest is in dispute.

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After Officer Neisen finished reading the advisement card, Medicine replied

affirmatively. Medicine did not verbally object to, or physically resist, having his

blood drawn at the Pennington County jail. 2

[¶3.]         Medicine subsequently filed a motion in limine and a motion to

suppress the blood test, arguing that his consent was not voluntary. The circuit

court agreed, granted Medicine’s motion in limine, and suppressed the blood test.

[¶4.]         The State appeals, raising one issue: Whether Medicine’s consent was

voluntary.

                                Standard of Review

[¶5.]         We recently restated the standard of review applicable to this case.

              “We traditionally review a [circuit] court’s decision to suppress
              evidence under an abuse of discretion standard.” State v.
              Muller, 2005 S.D. 66, ¶ 12, 698 N.W.2d 285, 288. However,
              “[t]he Fourth Amendment demonstrates a ‘strong preference for
              searches conducted pursuant to a warrant[.]’” Ornelas v. United
              States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d
              911 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.
              Ct. 2317, 2331, 76 L. Ed. 2d 527 (1983)). Because “the police are
              more likely to use the warrant process if the scrutiny applied to
              a magistrate’s probable-cause determination to issue a warrant
              is less than that for warrantless searches[,]” id., we review a
              motion to suppress evidence obtained in the absence of a
              warrant de novo, see State v. Stanga, 2000 S.D. 129, ¶ 8, 617
              N.W.2d 486, 488 (citing Ornelas, 517 U.S. at 699, 116 S. Ct. at
              1663). Thus, we review the circuit court’s factual findings for
              clear error but “give no deference to the circuit court’s
              conclusions of law[.]” Gartner v. Temple, 2014 S.D. 74, ¶ 8, 855
              N.W.2d 846, 850.

State v. Walter, 2015 S.D. 37, ¶ 6, ___ N.W.2d ___ (footnote omitted).




2.      The parties do not dispute the factual question of whether or not Medicine
        gave consent; rather, they dispute whether that consent was voluntary.

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                               Analysis and Decision

[¶6.]         The Fourth Amendment to the United States Constitution, as well as

Article VI, § 11, of the South Dakota Constitution, protects the individual from

“unreasonable searches and seizures[.]” This protection “requires generally the

issuance of a warrant by a neutral judicial officer based on probable cause prior to

the execution of a search or seizure of a person.” State v. Fierro, 2014 S.D. 62, ¶ 15,

853 N.W.2d 235, 240 (quoting State v. Smith, 2014 S.D. 50, ¶ 15, 851 N.W.2d 719,

724) (internal quotation mark omitted). If the State fails to obtain a warrant prior

to conducting a search, “it is the State’s burden to prove that the search at issue

falls within a well-delineated exception to the warrant requirement.” Id. (citing

State v. Hess, 2004 S.D. 60, ¶ 23, 680 N.W.2d 314, 324). A blood draw constitutes a

search of the person such that the State must obtain a warrant or act under an

exception to the warrant requirement. See Missouri v. McNeely, ___ U.S. ___, 133 S.

Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013); Fierro, 2014 S.D. 62, ¶ 16, 853 N.W.2d at

240.

[¶7.]         The State asserts it was not required to obtain a warrant to draw

Medicine’s blood because Medicine expressly consented to the blood draw. 3

“[C]onsent to conduct a search satisfies the Fourth Amendment, thereby removing

the need for a warrant or even probable cause.” Fierro, 2014 S.D. 62, ¶ 18, 853

N.W.2d at 241 (quoting State v. Akuba, 2004 S.D. 94, ¶ 12, 686 N.W.2d 406, 412)

(internal quotation mark omitted). “[W]here the validity of a search rests on


3.      The State does not rely on SDCL 32-23-10, which we recently held “does not
        provide an exception to the search warrant requirement in South Dakota[.]”
        Fierro, 2014 S.D. 62, ¶ 23, 853 N.W.2d at 243.

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consent, the State has the burden of proving that the necessary consent was

obtained and that it was freely and voluntarily given . . . .” Florida v. Royer, 460

U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983). In determining

whether the State has met this burden, we consider the totality of the

circumstances. Akuba, 2004 S.D. 94, ¶ 12, 686 N.W.2d at 412. “In viewing the

totality of the circumstances, we consider the characteristics of the accused: age,

maturity, education, intelligence, and experience. We also consider the conditions

wherein the consent was obtained, including the officer’s conduct and the duration,

location, and time of the event.” State v. Castleberry, 2004 S.D. 95, ¶ 9, 686 N.W.2d

384, 387 (citing United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46 L.

Ed. 2d 598 (1976)). A defendant’s knowledge of his right to refuse consent is also

relevant to, but not necessary for, an ultimate finding of voluntariness. Id.

[¶8.]         A number of circumstances suggest Medicine’s consent was voluntary.

Medicine was 30 years old at the time of his arrest. He appeared to be of ordinary

intelligence and informed Officer Neisen that he had previously obtained his GED.

Officer Neisen conducted himself professionally and cordially. The traffic stop itself

occurred on a public street at 8:06 p.m., lasted less than 20 minutes, and

approximately 44 minutes elapsed between the stop and the blood draw.

Additionally, the State points out that Medicine had several previous encounters

with law enforcement. 4



4.      The contribution of Medicine’s past experience with law enforcement to the
        totality of the circumstances in the present case is somewhat limited as
        neither party has presented evidence of similarity between Medicine’s prior
        encounters with law enforcement and his encounter with Officer Neisen.

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[¶9.]        Nevertheless, the circuit court found that Medicine did not know, and

was not advised, that he had the right to refuse a blood test or that the State would

be required to obtain a warrant if he refused. The court further found that

Medicine believed he was required to give a blood sample. The court based its

findings on Officer Neisen’s testimony, Medicine’s testimony, and the court’s

examination of the DUI advisement card. “When a court ‘bases a finding of consent

on the oral testimony at a suppression hearing, the clearly erroneous standard is

particularly strong [because] the court had the opportunity to observe the demeanor

of the witnesses.’” Id. ¶ 12, 686 N.W.2d at 388 (quoting United States v. Sutton, 850

F.2d 1083, 1086 (5th Cir. 1988)). After reviewing the oral testimony presented to

the court, we see nothing to suggest the court clearly erred in its factual findings.

[¶10.]       A review of the DUI advisement card further supports the circuit

court’s findings. The second sentence of the card reads, “SDCL 32-23-10 provides

that any person who operates a vehicle in this state has consented to the

withdrawal of blood or other bodily substance and chemical analysis.” (Emphasis

added.) Thus, Officer Neisen told Medicine that he had already consented to a

blood draw by operation of law. Furthermore, the third sentence of the card reads,

“I request that you submit to the withdrawal of your ________ (blood, breath, bodily

substance).” (Emphasis added.) Although the State suggests this sentence should

be viewed as a second request for consent (in addition to the fifth sentence), we are

unconvinced. The word consent is defined as: “To give assent, as to the proposal of

another; agree.” The American Heritage College Dictionary 296 (3d ed. 1997). In

contrast, the word submit is defined as: “To yield or surrender (oneself) to the will or


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#27205

authority of another.” Id. at 1353. In essence, Officer Neisen informed Medicine

that he had already granted authority to the State to draw his blood, then

reinforced that assertion by asking Medicine to surrender to the authority he

purportedly had previously granted. 5 Although the card’s fifth and final sentence

did ask for Medicine’s consent to draw his blood, this is not enough to leave us “with

a definite and firm conviction that a mistake has been committed.” Gartner, 2014

S.D. 74, ¶ 8, 855 N.W.2d at 850 (quoting Estate of Olson, 2008 S.D. 97, ¶ 9, 757

N.W.2d 219, 222). Therefore, the circuit court did not clearly err in finding that

Medicine did not know he had the right to refuse consent and that he actually

believed he was required to give a blood sample.

[¶11.]         In addition to supporting the circuit court’s finding that Medicine did

not know he had the right to refuse a blood test, the language of the DUI

advisement card is also relevant to our totality-of-the-circumstances analysis in


5.       We think a careful reading of SDCL 32-23-10 and SDCL 32-23-10.1 supports
         this ordinary language. SDCL 32-23-10 states, in relevant part:
               Any person who operates any vehicle in this state is considered
               to have given consent to the withdrawal . . . and chemical
               analysis of the person’s blood . . . to determine the amount of
               alcohol in the person’s blood . . . . The arresting law enforcement
               officer may, subsequent to the arrest of any operator for a
               violation of § 32-23-1, require the operator to submit to the
               withdrawal of blood . . . as evidence.
         (Emphasis added.) Standing alone, this statute suggests that the Legislature
         contemplated a difference between consent and submit. SDCL 32-23-10.1
         reinforces this conclusion, stating: “If a person refuses to submit to chemical
         analysis of the person’s blood . . . or allow the withdrawal of blood . . . as
         provided in § 32-23-10, and that person subsequently stands trial for
         violation of § 32-23-1 or § 32-23-21, such refusal may be admissible into
         evidence at the trial.” If consent and submit were meant to have the same
         meaning, SDCL 32-23-10.1 would suggest a person has the power to withhold
         consent to a blood draw—a reading clearly contradicted by SDCL 32-23-10.

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another respect: the DUI advisement card is evidence of coercion. “[T]he Fourth

and Fourteenth Amendments require that a consent not be coerced, by explicit or

implicit means, by implied threat or covert force.” Schneckloth v. Bustamonte, 412

U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973). “[A]ccount must be

taken of subtly coercive police questions, as well as the possibly vulnerable

subjective state of the person who consents.” Id. at 229, 93 S. Ct. at 2049. The

State cannot meet its burden of proving voluntary consent “by showing a mere

submission to a claim of lawful authority.” Royer, 460 U.S. at 497, 103 S. Ct. at

1324. In Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797

(1968), for example, law enforcement officers went to a defendant’s residence and

informed his grandmother, the owner of the property, that they possessed a warrant

to search the premises. Id. at 546-48, 88 S. Ct. at 1790-91. She replied, “Go

ahead[.]” Id. at 546, 88 S. Ct. at 1790 (internal quotation marks omitted). In

invalidating the search, the Supreme Court held, “A search conducted in reliance

upon a warrant cannot later be justified on the basis of consent if it turns out that

the warrant was invalid.” Id. at 549, 88 S. Ct. at 1792. The same is true when “the

State does not even attempt to rely upon the validity of the warrant, or fails to show

that there was, in fact, any warrant at all.” Id. at 549-50, 88 S. Ct. at 1792.

[¶12.]       Nevertheless, the State argues Bumper is inapplicable here. According

to the State, Officer Neisen did not tell Medicine he was required to give a blood

sample, nor did Officer Neisen claim to have a warrant; rather, the State claims

Officer Neisen merely informed Medicine of SDCL 32-23-10. There are several

problems with this assertion. First, as we have already discussed, the plain


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meaning of the words consent and submit undermine the State’s assertion that the

second and third sentences of the DUI advisement card did not operate as a

communicated mandate. Second, because consent is an exception to the warrant

requirement, an officer’s assertion that a defendant has already consented is

functionally equivalent to an assertion that the officer possesses a warrant—both

claims are assertions that the officer has authority to conduct a search. Thus, when

a law enforcement officer acts with “presumed authority . . . , [a defendant’s]

conduct complying with official requests cannot . . . be considered free and

voluntary.” See Lo–Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S. Ct. 2319,

2326, 60 L. Ed. 2d 920 (1979).

[¶13.]         Third, the State’s claim that the DUI advisement card’s second

sentence was not misleading because its language is taken from SDCL 32-23-10 is

logically dependent on the language of SDCL 32-23-10 not being misleading. As the

State said, “This claimed ‘misrepresentation’ is in fact taken from the language

contained in SDCL 32-23-10[.]” However, the State’s assertion that SDCL 32-23-10

“was not invalidated in Fierro” does nothing to explain the logical inconsistency

between our holding in that case and the State’s position in this case. In Fierro, we

held that SDCL 32-23-10 is not an exception to the warrant requirement and

reiterated, “[T]he Legislature cannot enact a statute that would preempt a citizen’s

constitutional right, such as a citizen’s Fourth Amendment right.” 2014 S.D. 62,

¶ 23, 853 N.W.2d at 243. Although we did not hold SDCL 32-23-10 invalid per se, 6

see id. ¶ 27 n.6, 853 N.W.2d at 244 n.6, our holding certainly recognized as invalid


6.       The remaining validity of SDCL 32-23-10, if any, is not before us.

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the invocation of SDCL 32-23-10 for the purpose of eliciting express “consent” by

declaring such has already been impliedly given. Whether fabricated or an honest

recitation of purported statutory authority, “[w]hen a law enforcement officer claims

authority to search [an individual], he announces in effect that the [individual] has

no right to resist the search. The situation is instinct with coercion—albeit

colorably lawful coercion. Where there is coercion there cannot be consent.” See

Bumper, 391 U.S. at 550, 88 S. Ct. at 1792.

[¶14.]       We are not convinced that the DUI advisement card’s fifth sentence

was enough to counteract the coercive effect of the card’s second and third

sentences. As noted above, the card’s second and third sentences served as two

assertions—one explicit and the other implicit—that the State already possessed

the authority to draw Medicine’s blood, whether he allowed it to or not. Although

the State is not normally required to prove a defendant knew he had the right to

refuse consent, the Supreme Court cases from which this rule derives are materially

distinguishable from the present case: each involved officer conduct that did not

disclose the subject’s right to withhold consent, but also did nothing to actively

suggest the subject had no such right. See United States v. Drayton, 536 U.S. 194,

197-99, 122 S. Ct. 2105, 2109-10, 153 L. Ed. 2d 242 (2002); Ohio v. Robinette, 519

U.S. 33, 35-36, 117 S. Ct. 417, 419, 136 L. Ed. 2d 347 (1996); Schneckloth, 412 U.S.

at 220, 93 S. Ct. at 2044. In contrast, the DUI advisement card at issue in the

present case actually contributed to Medicine’s belief that he was required to give a

blood sample. When the State causes or actively contributes to a defendant’s

ignorance—as opposed to merely declining to take steps to remedy ignorance—the


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State may mitigate the impact of the relevant coercive conduct on the totality of the

circumstances by proving the defendant knew he had a right to refuse consent.

Asking Medicine if he consented to a blood draw, which implied he had the right to

decline, did not effectively retract Officer Neisen’s explicit and implicit assertions

that Medicine possessed no such right.

[¶15.]       We also find relevant the fact that Medicine had already been placed

under arrest at the time he gave consent. The Supreme Court has suggested that

the condition of being in custody, when combined with other relevant

circumstances, can invalidate a consent. See Watson, 423 U.S. at 424, 96 S. Ct. at

828 (“[T]he fact of custody alone has never been enough in itself to demonstrate a

coerced confession or consent to search.” (emphasis added)). In the related context

of confessions, see Schneckloth, 412 U.S. at 223-24, 93 S. Ct. at 2045-46, “any

interview of one suspected of a crime by a police officer will have coercive aspects to

it, simply by virtue of the fact that the police officer is part of a law enforcement

system which may ultimately cause the suspect to be charged with a crime[,]”

McDonough v. Weber, 2015 S.D. 1, ¶ 25, 859 N.W.2d 26, 38 (quoting State v.

Thompson, 1997 S.D. 15, ¶ 23, 560 N.W.2d 535, 540 (quoting Oregon v. Mathiason,

429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977))). Here, not only was

Medicine in custody, but Officer Neisen had actually placed Medicine under arrest,

handcuffed him, placed him in a police vehicle, twice asserted the State’s authority

to draw his blood, and then asked for consent. Officer Neisen did not mitigate this

“coercive environment[,]” Mathiason, 429 U.S. at 495, 97 S. Ct. at 714, by informing




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Medicine of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.

Ed. 2d 694 (1966), prior to obtaining Medicine’s consent. 7

[¶16.]         The totality of the circumstances suggests Medicine’s response to

Officer Neisen’s recitation of the DUI advisement card did not constitute a valid

consent. Officer Neisen twice asserted the State had authority to draw Medicine’s

blood. The coercive effect of these assertions was compounded by the inherently

coercive environment of a custodial arrest. Against this backdrop, Medicine lacked

knowledge that he had the right to refuse consent; instead, he thought he was

required to give a blood sample. Considering the totality of the circumstances, we

are convinced Medicine’s “consent was not his own ‘essentially free and

unconstrained choice’ because his ‘will had been overborne and his capacity for self-

determination critically impaired.’” Watson, 423 U.S. at 424, 96 S. Ct. at 828

(quoting Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2047). Thus, the circuit court did

not err in granting Medicine’s motion.




7.       An arresting officer is not required to administer a Miranda warning to an
         individual prior to requesting consent for a search, and the failure to give
         such a warning does not invalidate consent. See Schneckloth, 412 U.S. at
         246-47, 93 S. Ct. at 2058. However, advising an arrestee that he has the
         right to remain silent might, in some cases, serve to mitigate the otherwise
         coercive nature of custodial questioning.

         Officer Neisen testified at the motion hearing that he read a Miranda
         warning to Medicine. However, we are unable to locate such warning in the
         visual and audio recording of his encounter with Medicine, which begins prior
         to the traffic stop and concludes several minutes after Officer Neisen’s
         recitation of the DUI advisement card. Therefore, such warning necessarily
         did not occur prior to Officer Neisen obtaining consent from Medicine.

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                                     Conclusion

[¶17.]       Consent is not valid unless it is “the product of an essentially free and

unconstrained choice by its maker[.]” Schneckloth, 412 U.S. at 225, 93 S. Ct. at

2047 (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L.

Ed. 2d 1037 (1961)). We do not hold today that the language of the DUI advisement

card at issue necessarily precludes voluntary consent. Rather, we continue to

consider the totality of the circumstances. In this case, the coercive nature of the

DUI advisement card, the inherently coercive environment of a custodial arrest, and

Medicine’s lack of knowledge regarding his right to refuse consent outweigh the

other circumstances present. Thus, we conclude Medicine’s consent was

involuntary; the circuit court did not err in granting Medicine’s motions. We affirm.

[¶18.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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