Amicus Brief: Mitchell v. Wisconsin

Amicus Brief

Amicus Brief: Mitchell v. Wisconsin

The court should reject Wisconsin’s claim that it can impute consent sufficient to sustain a warrantless search merely from an individual’s choice to drive on the state’s roadways.

Gerald P. Mitchell, Petitioner,
State Of Wisconsin, Respondent.

On Writ of Certiorari to the Supreme Court of Wisconsin

Brief of Reason Foundation, DKT Liberty Project, and the Due Process Institute as Amici Curiae in Support of Petitioner

Summary of Argument

The warrant requirement provides an essential safeguard against the government’s ability to invade Americans’ most private spaces. When considering whether “to invade another’s body in search of evidence of guilt,” the “importance of informed, detached and deliberate determinations” is particularly “indisputable and great.” Schmerber v. California, 384 U.S. 757, 770 (1966). Yet, Wisconsin has attempted to impute consent, by statute, to enter one of the most sacrosanct of private places: an individual’s body.

After Petitioner was arrested on suspicion of drunk driving, while he was unconscious, and without a warrant, Wisconsin officials drew a sample of his blood based only on the consent he purportedly provided under the state’s implied consent law. Based on that statute, the Wisconsin Supreme Court found the consent exception to the warrant requirement satisfied on the theory that Petitioner had agreed to a blood draw as a consequence of his decision to drive on the state’s roadways. Allowing the government to deem, by statute, an individual to have voluntarily waived essential constitutional rights would provide the government with expansive authority to chip away at the Fourth Amendment, as well as a number of other rights.

It is beyond dispute that a blood draw involves a serious invasion of an individual’s expectation of privacy. Individuals have a strong liberty interest in their bodily integrity. Yet, through a blood draw the government pierces an individual’s skin and extracts a part of her body. Not only does such a search invade an individual’s body, it also places in the government’s hands material— a person’s blood—from which a vast array of personal medical and genetic information can be obtained. In part because of these privacy interests, this Court has declined to find that warrantless blood draws, as a categorical matter, satisfy the exigent circumstances and search incident to arrest exceptions to the warrant requirement.

Under this Court’s precedent, the result should be the same with respect to the consent requirement. Whether consent is actual and voluntary requires an analysis of the totality of the circumstances. The rule endorsed by the Wisconsin Supreme Court below, however, permits the government to impute consent based entirely on the fact that a motorist has elected to drive on the state’s roads. Not only does this categorical rule fail to analyze whether an individual actually consented to a search, it also is necessarily coercive.

Most importantly, affirming the decision below would supply the government with a straightforward means to undermine essential constitutional protections. In the Fourth Amendment context, the ability to deem certain actions as establishing voluntary consent would provide the government with an easy avenue to avoid the necessity of seeking a warrant. But the consequences of an affirmance would not necessarily be cabined to the Fourth Amendment. Most constitutional rights can be waived after a finding that an individual has voluntarily relinquished those rights. Thus, deeming certain actions as sufficient consent to waive a constitutional right could likewise undermine the right to counsel, the right against self-incrimination, the right to a jury trial, and other critical protections. That result cannot be squared with the Constitution; allowing the government to erode protected individual rights and liberties simply through legislation is impermissible. The decision below must be reversed.

I. A Blood Draw Constitutes A Serious Invasion Of An Individual’s Bodily Integrity And Expectation Of Privacy.

II. Statutorily Imputed Consent Is Not Constitutionally Sufficient Under This Court’s Precedent.

III. Allowing The Government To Impute Consent By Statute Would Establish A Significant End-Run Around Constitutional Protections.

Amicus Brief: Mitchell v. Wisconsin