State v. Miles Jimmy Cruz

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.
July 29, 2025
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. 2023AP1091-CR Cir. Ct. No. 2021CF1861

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MILES JIMMY CRUZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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).

¶1 PER CURIAM. Miles Jimmy Cruz appeals a judgment convicting
him of first-degree sexual assault (great bodily harm), kidnapping, strangulation
No. 2023AP1091-CR

and suffocation, and second-degree recklessly endangering safety. He argues that
his Fourth Amendment rights were violated when the police collected DNA
evidence from him through fingernail scrapings and buccal swabs without
obtaining a search warrant. We conclude that Cruz consented to both searches,
and, therefore, Cruz’s Fourth Amendment rights were not violated. Accordingly,
we affirm.

BACKGROUND

¶2 A woman carrying an infant was physically and sexually assaulted
while walking on a public trail. An eyewitness told deputies that the assailant
wore a red hooded sweatshirt and carried a tan blanket. A short time later, the
deputies located 17-year-old Cruz, who bore fresh scratches on his arms and
matched portions of the description. Cruz was transported to the station as a
reported runaway, not under formal arrest.

¶3 Detective Sergeant Matt Guth conducted a video recorded interview
with Cruz in a room at the police station. Guth read Cruz his Miranda1 rights.
Guth asked him about what was going on with his life and specifically questioned
whether Cruz had gotten into a fight with a woman with a baby that day, which
Cruz denied. After about 20 minutes, Guth noticed Cruz repeatedly biting his
fingernails. Concerned that any foreign DNA might be lost by Cruz doing this,
Guth retrieved a collection kit and said, “I’m gonna collect some DNA from your
fingers.” After Cruz said, “Okay,” Guth said, “Is that all right?” Cruz nodded his
head, then extended his hand, and Guth swabbed the underside of each nail.

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2023AP1091-CR

Roughly three hours later as the interview was concluding, Guth asked to
“eliminate” Cruz as a suspect by taking a buccal swab. Cruz asked, “you put that
in my mouth, right?” Cruz acknowledged that he understood, nodded, and opened
his mouth, whereupon Guth collected the sample.

¶4 Cruz moved to suppress both DNA samples, arguing there was a
lack of consent to their collection.2 Following an evidentiary hearing, the circuit
court denied the motion, making numerous factual findings that supported the
notion that Cruz had voluntarily consented to both search requests. Cruz then pled
no contest to the charges for which he was convicted. Cruz now appeals,
renewing his Fourth Amendment objections to the fingernail and buccal swabs.

DISCUSSION

¶5 “The Fourth Amendment of the United States Constitution and
Article 1, Section 11 of the Wisconsin Constitution protect people from
unreasonable searches and seizures.” State v. Young, 2006 WI 98, ¶18, 294
Wis. 2d 1, 717 N.W.2d 729. Warrantless searches are presumptively
unreasonable, but the State may overcome that presumption by proving a
recognized exception to the warrant requirement, such as voluntary consent by the
person subject to the search. State v. Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d
794 (1998). Whether consent is voluntary is a mixed question of fact and law.
State v. Bermudez, 221 Wis. 2d 338, 345, 585 N.W.2d 628 (Ct. App. 1998). We
will not upset the circuit court’s findings of fact “unless they are contrary to the
great weight and clear preponderance of the evidence.” Id. However, we

2
According to the complaint, the DNA analysis showed “Very Strong Support” for the
conclusion that the victim’s DNA was present under Cruz’s fingernails.

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No. 2023AP1091-CR

independently determine whether, based on the facts, the constitutional standard of
voluntariness is met because this determination presents a question of law. Id. at
345-46.

¶5 The consent inquiry is an objective one: the question is what a
typical reasonable person would have understood from the exchange under all of
the circumstances. Florida v. Jimeno, 500 U.S. 248, 251 (1991). A search is
consensual when the defendant gives permission and that permission is knowing,
intelligent, and voluntary under the totality of circumstances. Bermudez, 221
Wis. 2d at 348. “In considering the totality of the circumstances, we look at the
circumstances surrounding the consent and the characteristics of the defendant; no
single factor controls.” State v. Artic, 2010 WI 83, ¶33, 327 Wis. 2d 392, 786
N.W.2d 430. Artic lays out six nonexclusive factors for assessing the
voluntariness of consent:

(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant to
persuade him to consent; (2) whether the police threatened
or physically intimidated the defendant or “punished” him
by the deprivation of something like food or sleep;
(3) whether the conditions attending the request to search
were congenial, non-threatening, and cooperative, or the
opposite; (4) how the defendant responded to the request to
search; (5) what characteristics the defendant had as to age,
intelligence, education, physical and emotional condition,
and prior experience with the police; and (6) whether the
police informed the defendant that he could refuse consent.

Id., ¶33.

¶8 Applying the six Artic factors to Guth’s request to collect DNA from
Cruz’s fingers, all but one factor favor a finding of voluntary consent. Guth used
no deception when interacting with Cruz; to the contrary, he explicitly asked Cruz

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No. 2023AP1091-CR

if he had been in a fight with a woman earlier in the day before asking Cruz for
DNA. Guth made no threats or show of force, and the interview-room conditions
were neutral. Cruz was offered water and restroom breaks. Cruz freely
cooperated, by verbally saying, “OK,” nodding, and extending his hand when
asked for DNA from his fingernails. Although he was only 17, Cruz had
completed high school. Cruz received Miranda warnings at the beginning of his
interview with Guth, and Cruz exhibited no confusion or impairment. While Guth
did not expressly tell Cruz that he could refuse to provide the DNA samples, that
single factor does not outweigh the other five. Under the totality of circumstances,
we conclude that Cruz’s consent to the collection of DNA from his fingernails was
freely, intelligently, and voluntarily given.

¶10 The buccal swabs likewise rested on voluntary consent, for many of
the same reasons previously listed. Guth explained that a “swab” would help
“eliminate” Cruz as a suspect, making it clear that the swabs were being done as
part of a criminal investigation. Cruz responded, “you put that in my mouth,
right?” He then nodded and opened his mouth. Those affirmative words and
gestures exceed the mere acquiescence condemned in State v. Johnson, 2007 WI
32, ¶19, 299 Wis. 2d 675, 729 N.W.2d 182.

¶11 In sum, the warrantless fingernail scrapings and buccal swabs did
not violate Cruz’s Fourth Amendment rights because Cruz voluntarily consented
to them. Accordingly, the circuit court properly denied Cruz’s motion to suppress.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2023-24).

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