Date: 12/23/2009

Issue:  Reasonable Suspicion Standard.

Holding:  The State did not provide specific, articulable facts that supported the officer's reasonable suspicion of a window tint violation.

Summary: A police officer stopped Conaway and Griffin’s vehicle because he suspected a window tint violation.  After the officer approached the vehicle he saw drug paraphernalia on the front passenger-side floor.  A subsequent search of the car revealed heroin and additional paraphernalia.  Both Conaway and Griffin moved to suppress the drug evidence, alleging that the stop was not supported by reasonable suspicion of a window tint violation.  The circuit court agreed and suppressed the evidence.  The State of Wisconsin appealed arguing the officer’s suppression hearing testimony supported that he reasonably suspected the tint violation.  

The window tint regulation requires at least 35% of light to pass through a window except if the tinting was done at the time the vehicle was manufactured. Reasonable suspicion must be based on “‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’” State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990).  The State argued that the officer did not need certainty that there was a tint violation, rather he only needed to reasonably suspect that the car window violated the tint regulation.  However, both the circuit court and the court of appeals found that the officer did not provide the requisite specific, articulable facts to support his reasonable suspicion.  The officer asserted: “1. He had more than thirteen years of experience as a state trooper, which included training on use of a tint meter, a device that measures how much light is passing through a window; 2. He was aware of the rear window 35% requirement; 3. He had stopped between ten and one hundred vehicles for illegal window tint; 4. He stopped the defendant’s vehicle because the rear window ‘appeared to [have] dark window tint.’ ”

The court of appeals concluded the assertions did not amount to reasonable suspicion because the officer did not make a connection between his experience and his ability to differentiate between legally and illegally tinted windows.  Furthermore, the officer failed to show that he had some level of expertise in gauging whether the rear window of the defendant’s vehicle came close to or failed the window tint regulations.  

Date: 10/29/09

Issue:  Supression of PBT results, defendant's statements and field sobriety tests.

Holding:  Suppression of McPike’s statements and FSTs is not warranted under the Brockdorf subjective/objective test, but suppression of the PBT results is affirmed.

Summary: McPike, a police detective, was charged with first offense OWI and placed on administrative leave awaiting internal investigation.  When McPike met with a police lieutenant in the internal affairs unit; the lieutenant detected an odor of alcohol coming from McPike and noticed that his eyes were glassy and red.  Another officer confirmed the lieutenant’s suspicions that McPike was intoxicated.   The lieutenant asked McPike to submit to a PBT, which he initially declined, but finally agreed after the lieutenant stated she was “administratively compelling” him to submit.  McPike was not advised that refusal to submit to the PBT would result in termination or any other discipline. The PBT results showed an alcohol concentration of 0.132.  He also submitted to a field sobriety test and admitted that he had been drinking the night before.  The State charged McPike with second offense drunk driving.  

McPike moved to suppress all test results and statements.  The circuit court granted the motion based on the two-part test established by the Wisconsin Supreme Court in State v Brockdorf. 2006 WI 76, 291 Wis. 2d 635, 717 N.W.2d 658.  In Brockdorf, the court utilized a subjective/objective test for determining whether a public officer’s statements must be suppressed as being coerced by the officer’s public employer.  The circuit court found that McPike subjectively believed that a failure to submit to the PBT and respond to other officer’s questioning could result in his termination.  The court also determined that McPike’s belief was objectively reasonable because he was told by the lieutenant that she was “administratively compelling” him to comply.  The State appeals the circuit court’s decision to suppress the test result and statements under State v. Brockdorf. 

The United States Supreme Court held in Garrity v. New Jersey that a public officer’s statements made under a threat of removal are considered coerced as a matter of law and may not be used against the officer in criminal proceedings.  385 U.S. 493, 500 (1967).  The Wisconsin Supreme Court established a test to determine what is a sufficient “threat of removal from office” in Brockdorf.  In Brockdorf the court adopted a two-prong test for determining whether statements should be suppressed under Garrity.  First, “[the public employee] must subjectively believe he or she will be fired for asserting the privilege against self-incrimination” and secondly, “the belief must be objectively reasonable.” Brockdorf, 291 Wis. 2d 635 ¶35. 

The State does not challenge the circuit court’s finding that McPike subjectively believed that he would be terminated if he refused to submit to the PBT.  However, the State argues that the objective prong is not met.  The court in applying Brockdorf compared the facts and circumstances of that case to McPike’s case.  McPike’s case does not involve an express threat of termination, nor does it involve a statute, rule, regulation or policy specifying that termination would occur if he refused to cooperate. When the lieutenant stated that she was “administratively compelling” McPike to submit to a PBT, she was invoking a Madison Police Department policy that requires officers to submit to a PBT if a supervisor requests.  If McPike did not agree, then he could face a first-offense insubordination as a consequence but nowhere does it state that he could be terminated for noncompliance.  Nothing the investigating officer “did was objectively coercive enough to conclude that the challenged statements and evidence were involuntary under Garrity.  The court abides by the reasoning of Brockdorf. 

However, the court concluded that the PBT results were properly suppressed because PBT results are generally inadmissible at trial, regardless of Brockdorf or Garrity.  See. Wis. Stat. § 343.303.  

Date:  9/30/09

Issue:  Sentencing Enhancers

Holding:  Two prior out-of-state “zero tolerance” suspensions do not count as prior convictions under Wis. Stat. § 343.307 for sentencing enhancement purposes under Wis. Stat. § 346.65(2)

Summary: Carter was arrested and charged with second offense and OWI- PAC and operating with a prohibited blood alcohol concentration. The State later amended the OWI charges to fourth offense, once it discovered that Carter had two prior “zero-tolerance” suspensions on his Illinois driving record.*  Carter filed a motion to exclude the “zero-tolerance” suspensions from his prior convictions count. The trial court held that § 343.307 encompassed the disputed “zero-tolerance” suspensions from Illinois.  Carter was convicted and sentenced on OWI as a fourth offense. 

Carter appealed, again raising his challenge to the counting of the two prior “zero-tolerance” suspensions. Wisconsin’s accelerated penalty structure for OWI offenses bases the severity of a defendant’s penalty on his or her number of prior convictions. See Wis. Stat. § 346.65(2). Wis. Stat § 343.307 governs the “[p]rior convictions, suspensions or revocations to be counted as offenses” for purposes of OWI penalties.  Carter objected to counting the two “zero-tolerance” suspensions as “convictions” within the meaning of Wis. Stat. § 343.307(1)(d).  In Arvia v. Madigan, 809 N.E.2d 88 (Ill. 2004), the Illinois Supreme Court addressed the “zero-tolerance” law in the context of an equal protection challenge, and explained that suspension under the “zero-tolerance” law is not a summary suspension under DUI law but rather a purely administrative process.  The court then looked to State v. Machgan, 2007 WI App 263, 306 Wis. 2d 752, 743 N.W.2d 832, where the Wisconsin Supreme Court found a Missouri administrative suspension following an arrest was not counted as a prior conviction for enhancement purposes.  The Illinois Supreme Court framed “zero-tolerance” suspensions as an administrative suspension, thus according to Machgan, Carter’s two out-of-state “zero tolerance” suspensions cannot be counted under § 343.307 and considered for enhancement purposes under § 346.65(2).

Furthermore, the court concluded that the state also failed to establish that Carter’s suspension was the result of a refusal to submit to chemical testing and failed to then show the suspension counts under § 343.307(1)(e) for purposes of penalty enhancement under § 346.65(2).  For all the above reasons the court reversed and remanded for sentencing consistent with an  OWI second offense. 


* In Illinois, a “zero tolerance” summary suspension may be imposed if a driver under 21 years of age is arrested for any traffic violation, provided there is probable cause to believe the driver consumed some amount of alcohol and refuses testing or submits and has an alcohol concentration greater than zero. 

Date:  7/16/09

Issue:  Whether the crime of hit and run causing injury (not great bodily harm) should be classified as a felony or a misdemeanor

Holding:  The crime of hit and run causing injury is a felony under Wis. Stat. § 346.74(5)(e), despite the fact that the offense carries a maximum penalty of less than one year of incarceration.

Summary:

The State filed a criminal complaint against defendant Brandt charging him with operating a motor vehicle involved in an accident resulting in personal injury and failing to remain at the scene of the accident, contrary to Wis. Stat. §§ 346.67(1) and 346.74(5)(b).  The complaint stated that these three violations are all felonies.  Brandt responded with a motion to dismiss, alleging the violations were not felonies but misdemeanors.  The circuit court denied the motion and Brandt appealed.   

The court of appeals concluded the violations were properly classified as felonies.  Brandt was charged with violating Wis. Stat. § 346.67(1), which states that “[t]he operator of any vehicle involved in an accident resulting in injury to … any person shall immediately stop such vehicle at the scene of the accident.”  He was sentenced under Wis. Stat. § 346.74(5)(b), which establishes a maximum of nine months’ imprisonment when the accident involves injury to a person but not great bodily harm.”  However, offenses punishable by a maximum period of incarceration of less than one year are ordinarily classified as misdemeanors under Wis. Stat. §§ 939.60 and 973.02.   The State argued that under  § 346.74(5)(e), a violation of § 346.67(1) is “a felony if the accident involved death or injury to a person.”  In cases where two or more statutes relate to the same subject matter, “the more specific statute controls over the general statute.” State v. Machgan, 2007 WI App 263, ¶7, 306 Wis. 2d 752, 743 N.W.2d 832.  Brandt contended that Wis. Stat. § 346.74(5) is inconsistent with the principles of felony classification under Wis. Stat. §§ 939.60 and 973.02.  Brandt cited McDonald v. Circuit Court for Douglas County, 100 Wis. 2d 569, 579, 302 N.W.2d 462 (1981), where the court found that because a violation of § 346.67(1) carried the maximum punishment of at least one year of imprisonment, it was a felony.  Thereafter, the Wisconsin State Legislature, enacted 2001 Wis. Act 109 which changed the punishment from one year to a maximum of at least a maximum of 9 months.  Brandt argued that because the violation was now punishable by a maximum of less than a year of incarceration, based on the reasoning of McDonald, it would no longer be classified as a felony but as a misdemeanor.

The court determined that because Wis. Stat. § 346.74(5)(e) specifically applied to violations, the inconsistency with Wis. Stat. §§ 939.60 and 973.02, must be resolved under State v. Machgan, when the more specific statute controls. 306 Wis. 2d 752 ¶7.  Furthermore, the court stressed that the plain language of Wis. Stat. § 346.74(5)(e) designates violations that result in death or an injury as felonies. 

Date:  5/13/09

Issue: 1. Was Schloegel in “custody” for Miranda purposes at the time of questioning in the school parking lot? 2. Does a student’s minimal expectation of privacy at school extend to the school parking lot for purposes of a search conducted by school officials or a school liaison officer?

Holding: 1. There was no Miranda violation because Schloegel was not being detained by the police but was in custody of the school at the time of questioning. 2.  The search of Schloegel’s vehicle in the school parking lot was reasonable and constitutional because it meets the two-prong test from New Jersey v. T.L.O.

Summary: An informant told high school officials that defendant Schloegel, a high school student, was in the possession of drugs on school grounds.  Schloegel consented to having a school official, accompanied by local police officer; search his person, his book bag and his locker.  No contraband was found.  The school official also wanted to search Schloegel’s vehicle.  Like all students who parked in the school parking lot, Schloegel had signed a parking form that gave consent to school administrators to search his vehicle when they have “reasonable suspicion to believe the search will produce evidence of a violation of a particular law, a school rule, or a condition that endangers the safety or health of the student driver or others.”  During the search of Schloegel’s car, a container of marijuana, a pipe, Oxycontin, and cash were found.  After discovering the evidence, the school police liaison asked Schloegel a series of questions in which he responded to some.  Police then placed Schloegel under arrest and read him his Miranda rights.  

Schloegel moved to suppress all statements he had made before and after his arrest arguing that he was in custody at the time of the police liaison’s questioning before his Miranda rights were read and that the pre-Miranda statements tainted his post-Miranda statements to the point that all statements should be suppressed. He also moved to suppress the items discovered during the search of his car arguing that the minimal expectation of privacy in a school extends to the parking lot for the purpose of a search conducted by school officials or a school police liaison. 

The court found there was no Miranda violation.  Miranda warnings are only required when a person is in custody. See, State v. Morgan, 2002 WI App 124, ¶10, 254 Wis. 2d, 602, 648 N.W.2d 23.  To determine whether Schloegel was in custody at the time of the questioning, the court looked at the totality of the circumstances to see whether he “suffered a restraint on freedom of movement of the degree associated with a formal arrest.” State v. Goetz, 2001 WI App 294, ¶11, 249 Wis. 2d 380, 638 N.W.2d 386.  The court determined he was not in police custody before Miranda warnings; he was not handcuffed or placed in a police car to be detained, therefore at most he was in school custody not police custody which does not constitute a Miranda violation.  

The court then addressed Schloegel’s second allegation that the minimal expectation of privacy in a school extends to the school parking lot.   In New Jersey v. T.L.O., the Supreme Court set forth the standard for a search on school grounds by public officials, weighing the interest of student privacy with the substantial interest of teachers and administrators in maintaining disciple in the school.  469 U.S. 325, 339 (1985).  The Court found that a school search is legal when it satisfies a two-prong test: “(1) the search must be ‘justified at its inception,’ and (2) ‘reasonably related in scope to the circumstances which justified the interference in the first place.’” Id. at 341-42.  The court in the case at bar found that the search was justified at its inception because school officials were alerted that Schloegel had possession of illegal drugs and he had a prior drug arrest on record.  Furthermore, the search of Schloegel’s vehicle was reasonably related to the scope of the search for contraband.  Since drugs were not found on Schloegel’s person, backpack or locker, it was a reasonable next step for school officials to search his car. 

Date:  4/29/09

Issue:  Protective pat-down search during traffic stop.

Holding:  A pat-down search of the defendant was justified because it was based on specific, articulable facts supporting a reasonable suspicion that the defendant could pose a threat to the officers’ safety.

Summary:  At approximately 6:20 p.m. two officers stopped Bridges for operating a vehicle with defective brake lamps.  The traffic stop was in “not such a good area” of town, known for gun violence, and in a poorly-lit area that was more deserted at night.  Due to the location of the traffic stop and because Bridges had a passenger, the officers called for back-up.  The officers noticed Bridges make a “questionable movement” in the vehicle, which heightened suspicion that he might be obtaining or concealing a weapon or controlled substances.  When the officer approached the vehicle to ask Bridges for identification, Bridges did not make any more “furtive” movements.  The officer asked the defendant about the “furtive" movements that he saw, but Bridges gave no explanation.  The defendant does not dispute the officers’ description of the movements he made.  Back-up had not arrived, so the officers asked Bridges to step out of the vehicle, where they handcuffed him for “safety precautions,” and then conducted a brief pat-down search.  Officers found cocaine and $200 on Bridges.  Bridges was issued a citation for the defective brake lamps and was charged with one count of Possession of Cocaine with Intent to Deliver.  Bridges moved to suppress the evidence and the circuit court denied the motion.  

On appeal, Bridges alleged that the evidence should have been suppressed as an unreasonable search and seizure under the Fourth Amendment.  The court found that based on the totality of the circumstances, a protective search was justified by the specific, articulable facts supporting an objectively reasonable suspicion that Bridges posed a threat to the officers’ safety.  Thus, the evidence found during a legitimate pat-down frisk of a suspect is admissible.  State v. Johnson, 2007 WI 32, ¶21, 299 Wis. 2d 675, 729 N.W.2d 182 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).   

The court applied an objective test to review the officers’ decision to perform a protective search,““[W]hether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger” because the person may be armed with a weapon and dangerous. “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to [the officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he [or she] is entitled to draw from the facts in light of his [or her] experience.” State v. Johnson, 299 Wis. 2d 675, ¶21 (citing Terry, 392 U.S. at 27).  The court found that the officers had objectively reasonable suspicion, based on the totality of the circumstances, including Bridges lack of response to the officer’s question and the officers’ combined law enforcement experience, to perform a protective search of Bridges during the traffic stop. 
 

Date:  4/8/2009

Case No:  2008AP70-CR

Issue: Community Caretaker Exception to the 4th Amendment

Holding: The officer's conduct was a bona fide community caretaker function.  

Summary: Defendant Truax’s vehicle had abruptly pulled over to the side of the road, after seeing a police officer’s car going in the opposite direction on the same road.  The officer noticed the vehicle’s abrupt stop and monitored the vehicle in his review mirror to see if the driver signaled for assistance.  Since it was late at night, the officer decided to turn his car around to see if the vehicle was having mechanical difficulty or if the driver was suffering from a medical condition.  When the officer made contact with the driver, identified as Truax, he immediately noticed that Truax had red, watery eyes, slurred speech, and a very strong odor of intoxicants.  Truax admitted to consuming alcohol and then failed a field sobriety test.  He was charged with operating a motor vehicle while intoxicated and operation with a prohibited alcohol concentration, both as a fifth and subsequent offense.  Truax filed a motion to suppress the evidence obtained during the stop based on lack of reasonable suspicion.  The trial court granted Truax’s motion to suppress and dismissed the complaint.  

The court of appeals reversed and remanded with instructions to reinstate the complaint, finding the officer had engaged in a bona fide community caretaker function when he approached Truax’s vehicle.  The United States Supreme Court first described the community caretaker function in Cady v. Dombrowski, 413 U.S. 433, 441 (1973).  The Court reasoned that, “Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”  In State v. Anderson, 142 Wis. 2d 162, 417 N.W.2d 411 (Ct. App. 1987) the Wisconsin Supreme Court adopted a three-part test for determining the reasonableness of a seizure by police as a community caretaker function; namely, (1) whether a seizure within the meaning of the fourth amendment has occurred, (2) whether the police activity was a bona fide community caretaker activity, and (3) whether the public need and interest outweigh the intrusion upon the privacy of the individual.  

Here, the court concluded that because the officer approached Truax’s vehicle out of concern that he was in need of assistance and not to investigate a traffic violation or suspicion of drunk driving, the officer was acting within a bona fide community caretaker function.  The court also concluded the officer’s conduct was reasonable, in that the public has a substantial interest in police offering assistance to motorists who may need assistance, especially after dark and in less urban areas. State v. Kramer, 2009 WI 14, ¶42.  The court found it is in the public interest to have police attend to drivers in need of roadside assistance, therefore the officer’s actions with Truax were reasonable bona fide community caretaker activity.