State v. Donald P. House

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 25, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1923-CR Cir. Ct. No. 2020CF713

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONALD P. HOUSE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Wood County:
GREGORY J. POTTER, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1923-CR

¶1 PER CURIAM. Donald House appeals a judgment of conviction
for operating with a prohibited blood alcohol concentration as a fifth or sixth
offense. The issues are whether the circuit court, in denying his suppression
motion, correctly determined that House was not in custody for Fifth Amendment
purposes before he was arrested, and that House voluntarily consented to a
warrantless blood draw. We affirm.

¶2 House pled no contest to one count of operating with a prohibited
blood alcohol concentration as a fifth or sixth offense. Before doing so, he moved
to suppress statements that he made before arrest and to suppress the blood test
result. The circuit court denied the motions. The issues are preserved for appeal,
despite House’s plea, by operation of WIS. STAT. § 971.31(10) (2021-22).1

¶3 House argues that statements he made before his arrest should be
suppressed because they were made in response to a custodial interrogation that
occurred without him being advised of his rights under Miranda v. Arizona, 384
U.S. 436 (1966).

¶4 The relevant facts found by the circuit court are not in dispute.
Briefly stated, an officer saw House driving a car in a public parking lot after
hours, moving towards the exit. The officer asked House to stop, and they had a
conversation. The officer observed beer cans in the car and asked a series of
questions related to whether House had been drinking. As part of that
conversation, House acknowledged that he had been drinking (specifically, that he
had consumed three beers at a bar), that he had just been released from prison for

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP1923-CR

drinking and driving, and that he was on “probation or parole.” This was followed
by field sobriety testing and a preliminary breath test, which led to House’s arrest.

¶5 Once the historical facts are found, the determination of when
custody began is an issue of law that we review independently of the circuit court.
State v. Bartelt, 2018 WI 16, ¶25, 379 Wis. 2d 588, 906 N.W.2d 684. We apply a
two-part objective test in which we first ask whether the person’s freedom of
movement was curtailed such that a reasonable person would not feel free to leave,
and then ask whether, under the totality of the circumstances, the environment
presented the same inherently coercive pressures as the type of station house
questioning at issue in Miranda. Bartelt, 379 Wis. 2d 588, ¶¶31-33.

¶6 House argues that, for Miranda purposes, he was in custody before
his arrest. He does not argue that he was immediately in custody upon stopping
the car at the officer’s request. Such an argument, if successful, would turn every
traffic stop into a custodial interrogation from the first word, which is clearly not
the state of the law. Instead, House argues that custody began at some point
during his conversation with the officer. More specifically, he argues that it began
when the officer made a statement indicating a belief that House had been
drinking and driving, or that it began later, when the officer directed House to
place the car in park and not drive. House argues that these were moments that
would lead a reasonable person to believe the person was not free to leave.

¶7 The State appears to concede that a reasonable person would not feel
free to leave at these moments. However, this factor does not turn every traffic
stop into a custodial interrogation. Instead, the State focuses on the second part of
the test, whether the environment presented the same coercive pressures as station

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No. 2022AP1923-CR

house questioning. The State argues that such pressures were not present here.
We agree.

¶8 Case law states that a traffic stop typically does not rise to the level
of being in custody for Miranda purposes unless, under the totality of the
circumstances, the person’s freedom of action is curtailed to a degree associated
with a formal arrest. State v. Dobbs, 2020 WI 64, ¶59, 392 Wis. 2d 505, 945
N.W.2d 609. House argues that such curtailment of freedom occurred here
because two officers were present, police were asking about his consumption of
alcohol, and he was told to stop driving. However, we do not agree that these
circumstances are comparable to a formal arrest. These are ordinary
circumstances of a traffic stop. Both when House was asked about his
consumption of alcohol and also when he was told to stop driving, House was not
removed from his vehicle, was not handcuffed or patted down, and he continued to
remain in a location that was public. House was not in custody when he made
statements to the police before his arrest.

¶9 Turning to the voluntary consent argument, House contends that the
circuit court erred by concluding that he voluntarily consented to a warrantless
blood draw. After the officer arrested House, the officer read him the informing
the accused form and House ultimately agreed to submit to a blood draw. The
officer took House to a hospital for the blood draw to be conducted.

¶10 House argues that his consent was not freely and voluntarily given
because the officer told him that a blood sample “was required” and the
phlebotomist told him that he did not get “the chance to refuse anything.” House
argues that these statements misinformed him as to whether he was permitted to
refuse a warrantless blood draw, and that case law establishes that consent based

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No. 2022AP1923-CR

on misinformation is not valid. See State v. Blackman, 2017 WI 77, ¶¶57-59, 377
Wis. 2d 339, 898 N.W.2d 774.

¶11 These statements by the officer and phlebotomist, if standing alone,
might reasonably be interpreted in the manner that House argues. However, there
was other context to the exchanges that clarified the situation such that House was
not misinformed.

¶12 The context for the officer’s statement is as follows. After the
officer arrested House, the officer read him the informing the accused form,
including the question asking whether House would submit to a blood draw.
House asked why that was needed, since the officer already had the results of the
“breathalyzer” test. The officer reread the question on the form, and House again
asked why. The officer answered, “Because that’s what’s required,” and House
responded, “Fine, whatever.” The officer asked, “Yes? No?” House answered,
“Yes.”

¶13 The context for the phlebotomist’s statement is as follows. At the
hospital, as the blood draw was being readied, House began to insist on giving
only one vial of blood. When the phlebotomist said he was going to use two vials,
House said that “I’ll refuse completely.” The phlebotomist said, “You don’t get
the chance to refuse anything.” The officer said, “Okay, so if you refuse
completely, I will get a search warrant.” After some continued discussion about
the search warrant, House repeated, “[O]ne tube. One tube only.” The officer
asked, “Are you refusing?” House said, “You’re only going to take one tube out
of my arm.” The officer again asked, “Okay, so are you refusing the blood test
now?” House first answered by saying, “You don’t need two tubes,” and then,
after some more back and forth along the same lines, said, “You’re going to take

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No. 2022AP1923-CR

two tubes.” The officer said, “So are you going to take the blood test or not now?”
and House indicated his consent by rolling up his sleeve.

¶14 In both instances, the officer’s continued questions asking if House
was agreeing or refusing to submit to a blood draw after the statements relied on
by House strongly imply that House had a choice to refuse the blood draw, at least
as of those moments. In addition, as noted, after the phlebotomist’s statement, the
officer also told House that if he refused the blood draw, the officer would obtain a
search warrant. That statement implies that any refusal would be honored, as of
that moment, and would lead to a different course of action by the officer to obtain
the sample. These parts of both exchanges sufficed to clarify to House that he was
permitted to refuse a warrantless blood draw.

¶15 House also argues that his consent was coerced because the officer
did not accept House’s repeated refusals, and instead continued to ask if House
would allow the blood draw. House does not argue that the officer’s demeanor
was in any way coercive, but only that his repeatedly asking House whether he
agreed or refused to submit to a blood draw was coercive. Although neither party
has provided case law exploring the issue, we assume without deciding that,
depending on all relevant circumstances, if an officer were to repeatedly ask a
person for a blood draw, despite the person’s unambiguous refusals, a sufficient
number and type of requests could become, or contribute to, coercive conduct in a
legal sense. However, under the circumstances here, we conclude that the
exchanges during which the officer made multiple requests were not coercive.

¶16 In the first exchange described above, the officer’s repeating the
question on the informing the accused form when House questioned the need for a
blood draw made it clear that House could refuse. In the second exchange

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No. 2022AP1923-CR

described above, House’s demand for only one vial was peculiar and ambiguous,
and unlike the easily anticipated form of refusal—with which many police officers
would be familiar through experience or training—in which the person entirely
rejects a needle insertion and blood draw. Faced with House’s demand, it was
important, and in House’s interest as well, for the officer to proceed as he did:
(1) clarify to House that failure to allow two vials would be considered a complete
refusal, (2) try to confirm that House understood this point; and (3) pose the
question again about whether House would allow two vials. Here, we could not
fault the officer as acting prematurely if, at some point during the exchange, the
officer had told House that the officer was accepting the refusal and would obtain
a search warrant instead. Instead, the officer pursued clarity by engaging in what
the video shows was a reasonable back-and-forth exchange, and not an
overbearing or misleading series of requests by the officer. As to both exchanges,
immediately after House was arrested and then at the hospital, the few extra
seconds in which the officer continued to respond to House’s statements and
provide information, and to wait for House to process the information and reach a
decision, was not so long a time as to become coercive.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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