### COURT OF APPEALS DECISION DATED AND FILED November 4, 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2021AP564 Cir. Ct. No s . 2019TR2414 2019TR2415 2019TR2425 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
T ERENCE S. O ’ H AIRE ,
D EFENDANT - A PPELLANT .

APPEAL from judgments of the circuit court for Juneau County:
STACY A. SMITH , Judge. Affirmed

. ¶ 1 GRAHAM, J. 1 Terence S. O ’ Haire appeals a revocation judgment
for unlawfully refusing to submit to an implied consent test (the “refusal ” ), a

1 This appeal is decided by one judge pursuant to W IS

. S TAT

. § 752.31(2) (c) and (g) (2019

- 20). All references to the Wisconsin Statutes are to the 2019

- 20 version.No. 2021AP564

2 judgment of conviction for operating a motor vehicle while under the influence of

an intoxicant , first offense ( the “ OWI ” offense ) , and a judgment of conviction for
posse ssion of an open intoxicant in his motor ve hicle (the “open intoxicant”
offense ) . O ’ Haire argues that the results of a preliminary breath screening test (“PBT”) an d his subsequent refusal to submit to an evidentiary breath test under implied consent laws should have been suppressed because t he arresting officer
coerced his consent to the PBT, invalidating his consent for Fourth Amendment
purposes. For the reasons explained below, I disagree and affirm the judgments.

BACKGROUND

¶ 2 Sergeant James Sawyer stopped O ’ Haire ’ s vehicle on the evening of July 20, 2019, and O ’ Haire was cited with the three counts listed above ba sed on
the events that followed

. The facts pertinent to this appeal come from Sawyer ’ s testimony at a suppression hearing , which t he circuit court credited and O ’ Haire
does not meaningfully dispute.

¶ 3 Sawyer t estified that on the night in question , he stopped O ’ Haire ’ s vehicle after observing it drift toward the center li ne , swerve, weave within its lane, and use the left turn signal to signal a right turn . Upon making contact with
O ’ Haire , Sawyer detected a strong aroma of alcohol in the vehicle and that
O ’ Haire ’ s eyes appeared “ glossy. ” O ’ Haire admitted that he had been driving

“ like an asshole ” and stated he was unfamiliar with the area.

¶ 4 Sawyer ran O ’ Haire ’ s informa tion and then asked him to step out of
the vehicle. Sawyer continued to detect the odor of alcohol even after O ’Haire
exited the vehicle. O ’ Haire eventually admitted that he ha d been drinking that day
but denied that he had consumed any alcohol within the last two hours. Sawyer
asked O ’ Haire to submit to a series of field sobriety tests, and O ’ Haire exhibitedNo. 2021AP564

3 indications of intoxication on each test. According to Sawyer, “everything I saw that night indic ated to me that [O ’ Haire] was impaired.”

¶ 5 Sawyer then advised O ’ Haire that he intended to administer a PBT, 2
and t he conversation that followed is the focus of O ’ Haire ’ s motion to suppress and arguments on appeal

. 3 O ’ Haire asked if he had to submit to the PBT , to which Sawyer responded : “ [Y] ou don ’ t have to do this, but I am telling you right now that if you ’ re going to be below the legal limit, this is going to be in your best
interest because if you don ’ t blow into this, you ’ re going to jail, so you can make
the decision. ” O ’ Haire asked wheth er his passenger could provide the PBT sample, and Sawyer responded that the passenger ’ s blood alcohol concentration

was not relevant to the investigation . Sawyer then said : “ Either you blow in to it, and if it is below the legal limit, we will figure out what we are going to do or you just don ’ t blow into it and go right to jail. It doesn ’ t matter to me. ”

¶ 6 Sawyer then offered the PBT device to O ’ Haire, who stared at it blankly. Sawyer put the PBT device down , told O ’ Haire that he was under arrest , and asked him to place his hands behind his back. At that point, O ’ Haire agreed to

2 W ISCONSIN S TAT

. § 343.303 allows an officer to “request [a] person to provide a sample of his or her breath for a pr eliminary breath screening test ” if the officer has probable cause to believe that a person is violating or has violated various OWI

- related statutes. During the circuit court proceedings, O’Haire argued that Sawyer’s actions violated this statute because it did not constitute a “request.” On appeal, O’Ha ire does not raise this statutory argument until his reply brief, and I address i t no further. See A.O. Smith Corp. v. Allstate Ins. Cos. , 222 Wis. 2d 475, 491

- 92, 588 N.W.2d 285 (Ct. App. 1998) (arguments advanced in the circuit court but not the court of appeals are deemed abandoned, and I generally do not address arguments raised for the first time in a reply brief).

3 There are minor variations between the conversation as recorded on his body camera and Sawyer’s testimony paraphras ing that conversation during the suppression hearing. O’Haire does not argue that any differences are material, and I take the quotations above directly from the transcript of defense counsel’s cross

- examination of Sawye r at the suppression hearing.No. 2021AP564

4 submit to the PBT . The result was .172 , well in excess of the lega l limit

. See W IS

. S TAT

. § 340.01(46m)(a)

. ¶ 7 Sawyer arrested O ’ Haire and transported him to jail. After they
arrived , Sawyer asked O ’ Haire to consent to an evidentiary breath test for purposes of chemical analysis pursuant to Wisconsin ’ s implied consent law, W IS

. S TAT

. § 343. 305. 4 O ’ Haire refused to provide the sample, and, as a result, he was also cited under § 343.305(9)(a) with unlawful refusal

. ¶ 8 O’Haire timely requested a refusal hearing under W IS

. S TAT

. § 343.305(10)(a). He then moved to suppress the PBT result so that it could not be used against him at the refusal hearing

. He argu ed that his consent was involuntary and that it had been coerced by Sawyer ’ s “ threat ” to take him to jail if
he did not sub mit. H e also argue d that his subsequent refu sal to submit to an evidentiary breath test was the fruit of the unlawful administration of the PBT, and that it should be suppressed as well

. As I understand it, O ’ Haire sought an order preventing the State from admit ting evidence of his refusal d uring the refusal hearing , and further preventing the S tate from admitting such evidence to prove
O ’ Haire ’ s consciousnes s of guilt in the OWI trial

. ¶ 9 T he circuit court denied O ’ Haire ’ s motion , determining that his consent to the PBT was voluntary. As a result of this determination , the court did
not reach O ’ Haire ’ s argument that evidence of his r efusal should be suppressed as fruit of an unlawful ly administered PBT . However, the court briefl y mention ed

4 In contrast to a PBT administered under W IS

. S TAT

. § 343.303, a test of blood, breath, or urine requested under W IS

. S TAT

. § 343.305 is admissible in court under most circumstances. To distinguish this type of test from a PBT, I refer to the test Sawyer req uested pursuant to § 343.305 as an “evidentiary test” or a n “evidentiary breath test.”No. 2021AP564

5 that it saw no “ causal nexus ” between the administration of the PBT and
O ’ Haire ’ s subsequent refusal to provide a breath sample for chemical testing

. ¶ 10 The circuit court held a hearing on the refusal and a bench trial on the OWI and open intoxicant offenses back

- to

- back on the same day . The PBT
result was admitted into evidence for purposes of the refusal hearing, 5 and
O ’ Haire ’ s refusal to submit to c hemical test ing of his breath was admitted into
evidence for purposes of bot h proceedings. Sawyer testified at the refusal hearing
and at the OWI trial . H is testimony during both proceedings was consistent with the testimony he provided at the suppression hearing.

¶ 11 T he court found O ’ Haire guilty of the refusal at the close of the refusal hearing, and guilty of the OWI and open intoxicant offenses at the close of
the bench trial. O’Haire appeals.

. 6

DISCUSSION

¶ 12 The Fourth Amendment guarantees that the “right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ....” U.S. C ONST

. A MEND

. IV ; see also W IS

. C ONST

. art. I, § 11. A breath
test is considere d a search for Fourth A mendment purposes

. Skinner v. Railway

5 W ISCONSIN S TAT

. § 343.303 limits the admissibility of PBT results into evidence , allowing admission only to show prob able cause for an arrest or to prove that an evid entiary test was properly required or requested under W IS

. S TAT

. § 343.305(3). In this case, the PBT results were admitted during the refusal hearing for the purposes specified in § 343.30 3

.

6 O’Haire’ s conviction of the open intoxicant offense was based on an open container that Sawyer found when he searched O’Haire’s vehicle following the arrest. Although O’Haire purports to appeal this judgment, his appellate briefing does not provide any legal basis for reversing it. Ther efore, I do not fur ther address the judgment of conviction related to the open intoxicant

.No. 2021AP564

6 Labor Exec s. ’ Assoc ., 489 U.S. 602, 616

- 17 (1989); County of Milwaukee v. Proegler , 95 Wis. 2d 614, 624, 291 N.W.2d 608 (Ct. App. 1980).

¶ 13 A warrantless search is unreasonable and therefore unconstitutional unless it falls within one of the “ ‘ specifically established and well

- delineated ’ exceptions to the Fourth Amendment ’ s warrant requirement.” State v. Williams , 2002 WI 94, ¶18, 255 Wis. 2d 1, 646 N.W.2d 834 (quoting Katz v. United States , 389 U.S. 347, 35 7 (1967)). Voluntary consent is one of these “established and
well

- delineated exceptions.” See Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973). When a defendant challenges evidence gathered pursuant to the consent

exce ption, the State bears the burden to prove that the consent was voluntary by clear and convincing evidence. State v. Phillips , 218 Wis. 2d 180, 197 , 577 N.W.2d 794 (1998).

¶ 14 Under some circ umstances, the exclusionary rule requires the suppression of evidence obtained in an unconstit ut i onal search

. State v. Carroll , 2010 WI 8, ¶19, 322 Wis. 2d 299, 778 N.W.2d 1. The exclusionary rule “ applies not only to primary evidence seized during an unlawful search, but also to derivative evidence acquired as a result of the illegal search, unless the State shows sufficient attenuation from the original illegality to dissipate that taint .” Id.
This doctrine about derivative evidence is often referred to as t he “fruit of the poisonous tree.” Wong Sun v. United States , 371 U.S. 471 , 488 (1963).

¶ 15 When reviewing the denial of a suppression motion, I uphold the
circuit court ’ s findings of fact unless they are clearly erroneous. State v. Casare z , 2008 WI App 166, ¶9, 314 Wis. 2d 661, 762 N.W.2d 385. T he application of
constitutional principles to the facts is a question of law that I review de novo

. Id

.No. 2021AP564

7 ¶ 16 O ’ Haire raises two arguments on appeal . First, he argues that his
consent to the PBT was involuntary, and therefore, the circuit court erred when it
admitted the PBT re sult during the revocation hearing

. Second, he argues that his
refu sal to submit to an evidentiary breath test should have been suppressed as fruit

o f the poisonous tree during the revocation hearing and bench trial alike . I ad dress these arguments in turn.

I
¶ 17 O ’ Haire acknowledges that h e verbally consented to the PBT, but he argues that Sawyer coerced his consent, rendering it involuntary

. ¶ 18 Consent is voluntary if it was the product of “ ‘ an essentially free and
unconstrained choice ’ ” given “in the absence of ‘ duress or coercion, either express or implied. ’ ” State v. Blackman , 2017 WI 77, ¶56

- 57, 377 Wis. 2d 3 39, 898 N.W.2d 774 ( quoted source omitted ); Phillips , 218 Wis. 2d at 197. When evaluating the totality of t he circumstances , courts consider a variety of nonexclusive factors, including, among others, the presence or absence of coercive police tactics suc h as dec eption, threats, or intimidation ; whether the conditions attending the request to search were congenial, non

- threatening, and cooperative, or the opposite; and whether the police advised the defendant or the defendant otherwise knew of the right to refuse to consent to the search. See, e.g. , State v.
Artic , 2010 WI 83, ¶33, 327 Wis. 2d 392, 768 N.W.2d 430; Phillips , 218 Wis. 2d
at 198

- 204.

¶ 19 O ’ Haire acknowledges that Sawyer told him that he did not have to
consent to the search , and he does not argue that Sawyer’s demeanor was in any
way non

- congenial . However, O’Haire points to Sawyer ’ s statements that he
would take O ’ Haire to jail if he did not take the PBT and to Sawyer ’ s direction toNo. 2021AP564

8 “turn around and place his hands behind hi s back” when O ’ Haire hesitated. O’Hair e characterizes these statements as a “threat,” and he argues that the statements rose to a level of “intimidation” that renders his consent involuntary

. ¶ 20 O’Haire relies on Bumper v. North Carolina , 391 U.S. 543, 548

- 49 (1968), but that case is inapt. In Bumper , the officer told the defendant’s grandmother that he had a warrant to search the house, and the grandmother acquiesced to the officers’ request to search. Id. at 546. When Bumper sought t o suppress the evidence discovered during the search, the prosecutor affirmatively
stated that he did not intend to re ly on the warrant as legal justification for the
search. Id. He instead relied exclusively on the grandmother’s consent. Id. The Supre me Court rejected this argument, explaining:

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. The result can be no different when it turns out that 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

.
¶ 21 Here, by contrast, O’Haire does not argue on appeal that Sawyer
lacked lawful authority to arrest him for OWI long before he consented to a PBT. Indeed, as discussed in greater detail below, the facts known to Sawyer overwhelmingly supported a determination that there was probable cause to arrest O’Haire. O ’ Haire does not address case law holding that an officer ’ s expressed intention to take an action that the officer is legally entitled to take does not “vitiate consent” if the expressed intention is “genuine” and “not merely a pretext to induce submission.” Artic , 327 W is. 2d 392, ¶41 ( addressing this concept in the context of an officer’s “[t] hreat[] to obtain a search warrant ”) ( quoted source
omitted ); s ee also 4 W AYNE R. L A F AVE , S EARCH AND S EIZURE , § 8.2 (a), (c) (6thNo. 2021AP564

9 ed. 2020) (explaining that false or overstated claims of police authority constitute coercion, but lawful claims generally do not).

¶ 22 L ike the circuit court, I conclude that Sawyer accurately informed
O ’ Haire of his precise legal situation and the consequences of refusal

— that
O ’ Haire ha d a right to re fuse the PBT, and if he did, Sawyer would immediately take him to jail. Given that Sawyer had the lawful authority to arrest O’Haire and every intention to do so, Sawyer’s so

- called “threat” do es not amount to coercion

. Therefore, in the absence of any other indicia of coercion, I conclude that , under the totality of the circumstances, O ’ Haire ’ s consent was voluntary, and that the
circuit court did not err when it admitted the PBT result during the refusal hearing for the purposes s pecified in W IS

. S TAT

. § 343.303

.

II
¶ 23 My determination that O ’ Haire ’ s consent was voluntary is dispositive to the outcome of this appeal. Theref ore, I need not address O ’ Haire ’ s remaining arguments, including his argument that the circu it court erred by not suppressing evidence of his subsequent refusal to provide a sample for chemical testing as “ fruit of the poisonous tree

. ” See Barrows v. Am erican Fam. Ins. Co. , 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) ( “An appellate court need not address every issue raised by the parties w hen one issue is dispositive.”). Nevertheless, for the sake of complete ness, I now briefly explain why I would still affirm , even if I had concluded that his consent was involuntary
and t hat the PBT result should have been suppressed

. ¶ 24 First, any erroneous failure to suppress the results of the PBT during the refusal hearing was entirely harmless. An error will generally be considered harmless if there is “no reasonable possibility” that it contributed to the verdict.No. 2021AP564

10 See State v. Tulley , 2001 WI App 236, ¶7 , 248 Wis. 2d 505, 635 N.W.2d 807.
Here , although Sawyer testified about the PBT resul t during the refusal hearing , the sole purpose of this testimony was to show t hat he had probable cause to arrest
O ’ Haire and to require him to submit to an evidentiary breath test

. See W IS

. S TAT

. § 343.303. As the circuit court explained, the facts overwhelmingly demonstrated that Sawyer had probable cause to arrest O ’Haire, incl uding, among other s, his erratic driving, the aroma of alcohol inside and outside the vehicle , O ’ Haire ’ s performance on the roadside sobriety tests, and the fact that O ’ Haire admitted to drinking alcohol that day

. The court did not mention the PBT result even once when it explained its reasons for determining that there was probable cause for the

arrest. Under the circumstances, there is no reasonable possibility that the court would have acquitted O’ Haire of the refus al had it suppressed the PBT result

. ¶ 25 Second, for the same reason, O ’ Haire ’ s argument that his refusal to
submit t o chemical test ing was the “fruit” of his “unlawful consent” to the PBT
also fall s short. Specifically, O’Haire provides no persuasive basis for concluding that Sawyer’s decision to require O’ Haire to submit to an evidentiary test and O’Haire’s subsequent refusal are derivative of the PBT result. Again , there was

o verwhelming factual support for Sawyer ’s determination that he had probable
cause to believe t hat O’Haire was impaired by alcohol . Under the circumstances, O’Haire provides no basis to conclude that S awyer would not have asked O ’ Haire

to submit to an evidentiary te st if O ’ Haire had refused to consent to a PBT

. ¶ 26 I n an effort to forge a connection between the PBT and O’Haire’s subsequent refusal to submit to chemical testing, O ’ Haire asserts that PBT results play “a significant role in which type of [evidentiary ] test an officer will request.” Specifically, he asse rts that “a law enforcement officer makes a decision whether to request an evidentiary breath or blood test as a direct function of what isNo. 2021AP564

11 revealed by the PBT”

— if the PBT reveals the presence of alcohol, the officer is likely to request a breath test, and if not, the officer might suspect that the driver is impaired by c ontrolled substances and request a blood test. This argument misses
the mark and is entirely beside the point. It is undisputed that, with or without the PBT result, Sawyer had probable c ause to request that O’Haire submit to a blood,
breath , or urine test, W IS

. S TAT

. § 343.305 , and that u nder the circumstances, there is a civil penalty for refusing such test s , § 343.305(9)(a) . O’Haire refused to take
the evidentiary breath test that was offered, and he provides no reason to believe that he would have consented to a blood or urine test if Sawyer had offered those tests instead. Accordingly , I conclude that O’Haire’s subsequent refusal to submit

to evidentiary testing is not derivative of the PBT test

. 7

¶ 27 For all these reasons , I conclude that the circ uit court did not err
when it denied O ’ Haire ’ s motion to suppress the PBT result and his subsequent refusal to submit to an evidentiary test.

By the Court

. — Jud gments affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)4.

7 During the suppression hearing, O ’Haire’s counsel stated that he expected the State to rely on the inevitable discovery doctrine as a basis for denying his motion to suppress eviden ce of the refusal. However, neither party advance s any argument based on that doctrine in the circuit court or on appeal, and therefore I do not further address it.