Mitchell v. Wisconsin (18-6210)

argument 18-6210

Mitchell v. Wisconsin

Supreme Court of the United States 1h 1m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

▲ 0

Transcript

jump: chapters · speakers · find in transcript

Transcript

Transcript generated automatically by AI and may contain errors.

What novel consent theory does Wisconsin propose for blood draws?

John G. Roberts 0:00

We'll hear argument next in case eighteen sixty two ten, Mitchell versus Wisconsin. Mr Hinkle.

Mr. Hinkle 0:09

Mr Chief Justice, and may it please the Court, the state advances a bold and novel proposition here that it can excuse itself from the Fourth Amendment warrant requirement simply by enacting a statute saying that some of its that its citizens have consented to a search. Here that search is a blood draw, but there's no reason uh that similar statutes couldn't be enacted to authorize all manner of other searches. For example, a state could declare that driving on its roads constitutes consent to the installation of a GPS tracking device on a person's vehicle. or consent to an officer scrolling through a person's cell phone if they happen to be stopped. На this court has never approved a search on the theory uh that

Mr. Hinkle 0:51

that a search c that consent can be deemed by operation of law. And that's because under Schneckloth, consent is a question of fact.

John G. Roberts 0:58

Is it? It doesn't strike me immediately as that horrendous to Allowed officers to look not through the cell phone but to sort of calls, find out was this person calling somebody or talking to somebody at the time they you know, ran over somebody else. Is that Is that so obviously?

Mr. Hinkle 1:19

I don't know that it's not a good idea. Is

John G. Roberts 1:20

that so clearly something that they couldn't do?

Mr. Hinkle 1:23

I don't know that it's uh uh more that it's an equally intrusive search I suppose to a blood draw. What I'm trying to express is that once we accept that uh a s the simple existence of a statute can provide consent then reasonableness doesn't really enter into the picture anymore. A s a search uh that's based on consent is reasonable regardless of any other factors. If a police officer comes to my house and says, Hey, I'd like to come in and look around, do you mind? and I say yes, it doesn't matter if he has any suspicion. So these are the kinds of uh situations that we find ourselves in if we permit that uh that a statute can bring about consent.

Elena Kagan 2:02

How how how would it be if the Statute simply said. If you don't consent Let's say we haven't we now have a a conscious Driver. If you Don't consent. Then we will immediately revoke your license. And when we try you for driving under the influence We can tell the jury that you refuse consent to a protest. With that statute that that statute wouldn't have a fourth amendment problem, would it?

Mr. Hinkle 2:39

Under Birchfield, no. Uh uh that's the holding of Birchfield that uh the states can impose that sort of condition on the decision to operate.

Elena Kagan 2:46

What about the unconscious driver? who have i to uh uh couldn't hear Who is notice

Mr. Hinkle 2:56

incapable of having that conversation? Is that

Elena Kagan 2:59

Who Uncap he's incapable of hearing what he's told. But in the c in in the case of the unconscious driver, could his license be revoked?

Mr. Hinkle 3:15

The Wisconsin statute at issue here doesn't lead to that result. Uh I don't see any constitutional problem with saying that it could be, but it's just the fact that Wisconsin statute doesn't permit that in this circumstance. The legislature could certainly remedy that. Now regarding consent, this court said in Schneckclaugh that the capacity for a conscious choice is the bare minimum for voluntary consent. Given that we're talking about someone who is unconscious, that's a good enough reason for this court to reject the state's consent theory. Um

Elena Kagan 3:46

We let people give advanced consent on any number of issues, including DNR. Do not resuscitate. consent forms. Um And generally they come into effect when you're not in a position to revoke. Um why isn't this comparable?

Mr. Hinkle 4:18

In the case of a DNR, um a person, you know, sits down and and makes a decision. Here there's no indication that any decision like that was made to permit the search.

Brett M. Kavanaugh 4:26

Wisconsin could do that. Suppose at the time you went in f to get your driver's license, you had to sign something and it said uh I'm I'm I'm agreeing that if I'm ever found unconscious, uh uh you know I'm giving my consent now.

Mr. Hinkle 4:42

Yes, I think that's a harder question. Um it's Once we have knowledge and uh and and some course of action that has been deemed to trigger a search, then it gets it starts to look more like what we commonsensically would think of as consent.