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COA: delay in McDonald’s order wasn’t a “seizure”; warrant didn’t require officer to invoke God

State v. Johnathan L. Johnson, 2019AP1398, 9/9/20, District 3 (not recommended for publication); case activity (including briefs)

Johnson was arrested for OWI in a McDonald’s parking lot. He’d ordered some food at the drive-through, and an employee had noticed his intoxication and called police.

Johnson first argues that his order created a “fast food contract,” that this contract was violated by the restaurant’s possible intentional delay in giving him his food, and that the 911 dispatcher’s response of “okay” when informed the food would be delayed made this contract breach chargeable to the state, rendering it also a Fourth Amendment seizure.

The court of appeals does not buy this argument. It gives three reasons. First, it says Johnson hasn’t cited any authority for the concept of a “fast food contract” governing the time within which food must be delivered. (¶14). Second, even assuming McDonald’s breached its obligation to Johnson, this breach didn’t deprive him of his freedom to leave. (¶15). Third, the dispatcher’s “tacit approval” of McDonald’s’s tactics didn’t create a “joint endeavor” such that any seizure could be attributed to the state. (¶17).

After police arrested Johnson, he refused to consent to a blood draw. Officers therefore sought a warrant via their established fax-and-telephone procedure. Johnson argues the court erred in issuing the warrant. He frames the claim in various ways, but the nub is that the officer didn’t properly swear his testimony was true: the judge asked him if he swore, and he said he did, but he didn’t say “so help me God.”

This argument fares no better than the first. The court of appeals notes that affirmations–which do not invoke a deity, in contrast to oaths, which do–are expressly permitted by statute, and rejects Johnson’s arguments about whether this statute was complied with as mere technical cavils. (¶¶18-33).

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