Full text available at: www.wisbar.org
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 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.
State
v. Carter, 2009 WI App 155
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 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 § 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
imposes 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.
State
v. Brandt, 2009 WI App 115
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 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 an injury as felonies.
State v. Schloegel, 2009 WI App 85
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:
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.
State
v. Bridges, 2009 WI App 66
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:
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,
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.
State v. Truax, 2009 WI App 60
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: