2011 WI App 17
Date: 12/23/2010
Issue: Community Caretaker Exception
Holding: The community caretaker exception to the Fourth Amendment allowing for warrantless searches under certain circumstances does not apply to the search of a home for the purpose of locating a suspect following a hit and run where there is little or no evidence that a member of the public is in need of assistance.
Summary:
On January 1, 2008, an officer was dispatched to the scene of a crash involving a Dodge Durango and a brick building. The building had substantial damage. The Durango had been driven from the crash site to the entrance of a quarter-mile driveway to a residence where it was buried in deep snow. The officer located the Durango and noted damage to the front left fender. While the officer was waiting for backup, a vehicle came down the driveway and the person identified himself as the owner of the house. He also told the officer that the driver of the Durango, the defendant in this case, was his girlfriend who was asleep in the house. The officers were then able to reach the house in a four-wheel drive vehicle. When they got there, the officers found the door was unlocked. One officer entered the house, located the defendant, and arrested her for fifth offense OWI. State v. Ultsch, No. 2010AP895, ¶2-5 (Wis. Ct. App. filed December 23, 2010).
The defendant argued the trial court erred in denying her motion to suppress evidence because it was obtained as a result of a warrantless search. The trial court concluded the evidence was permissible under the community caretaker exception to the warrant requirement. Id. at ¶1.
The court of appeals applied the three-step test articulated in State v. Pinkard to determine whether the community caretaker exception allowed for a warrantless search in this case. 2010 WI 81, ¶29, 327 Wis. 2d 346. First, there must be a search; second, the officer conducting the search must have a bona fide community caretaker purpose; and third, the public interest inherent in the search must outweigh any intrusion on the privacy of the affected individual. Id.
The court held that there was a search but no bona fide community caretaker purpose because there was no evidence to indicate the defendant or anyone else was in danger of being harmed or in need of assistance. The defendant’s boyfriend did not indicate that she was in any danger, and there was no physical evidence in the Durango or elsewhere to indicate the defendant was injured or in any kind of immediate danger. State v. Ultsch at ¶19-22.
Furthermore, the court held that even if there was a bona fide purpose, the third step of the Pinkard test--balancing the public and private interest--could not be met. The court recognized that had defendant been sleeping or sitting in the parked vehicle, the circumstances could have given rise to the community caretaker function. See State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598. A warrantless entry into a residence will always be subjected to stricter scrutiny. In this case, the court looked at four factors: the public’s interest, the attendant circumstances, whether the search was in an automobile or a house, and the existence of alternative courses of action. Weighing these factors, the court held that the third step of the test was not met. Id. at ¶25-28.
The court overturned the lower court’s decision denying the motion to suppress evidence.
State v. Cesar
2010 WI App 170
Date: 11/24/2010
Issue: Improper Seizure/Involuntary Statements
Holding: Defendant was not unlawfully seized within his home
when officers attempted to contact him so that the statements he made
when he stepped outside his home were voluntary.
Summary:
A police officer responded to a report of an accident in which a truck struck a fire hydrant. When the officer arrived at the scene of the accident, the truck had left. After a search of the block, the officer located a truck matching a witness’s description. The truck was parked in the driveway of the defendant and had damage consistent with the reported accident, along with a broken beer bottle by the truck’s side. State v. Cesar, 2010 WI App 170 at ¶3.
Three uniformed police officers then attempted to make contact with the suspect. Two officers knocked on the front door while one officer was posted at the back door. The officers rang the doorbell several times and knocked while looking in the windows for the defendant. The officers spotted the defendant through the kitchen window. The officers told the defendant through the window that he could talk with the officers outside, or they would obtain a warrant and enter the house later. After several minutes of back and forth between the officers and the defendant, the defendant decided to come out of the house and talk with the officers. During the conversation outside of the house, the defendant told the police he had taken Ambien and consumed alcohol before driving to the store and back in his truck. The defendant was arrested and convicted of OWI and hit and run of property. Id. at ¶4-6.
Defendant moved to suppress any evidence included in the conversation after he left the house, arguing the officer’s conduct constituted an unlawful seizure. The court of appeals concluded that there was no seizure in this case because while the police were attempting to get the defendant to come outside and talk with them, they informed the defendant he could come out voluntarily or they would come back with a warrant. The court viewed this as strong evidence that the defendant was aware of the voluntary nature of the conversation outside of the house, and that conversation was therefore not a seizure. Id. at ¶18-19.It is also important to note that the court in this case did not explicitly recognize that a constructive “in-home” seizure rule exists in Wisconsin, but did discuss and distinguish two federal court cases dealing with this type of seizure without simply stating there is no such rule. Id. at ¶14-17; See also United States v. Jerez, 108 F.3d 684 (7th Cir. 1997), United States v. Reeves, 524 F.3d 1161 (10th Cir. 2008).
Defendant also challenged the admissibility of statements he made to
the officers after leaving his house as involuntary. The court held
that the totality of the circumstances showed the conversation between
the officers and the defendant was amicable, that there was no
“constructive entry” into the home, and no trickery or deceit involved in
the conversation. The statements were therefore voluntary. State v.
Cesar at ¶20-21.
The court of appeals upheld the lower court’s decision denying defendant’s motion to suppress this evidence.
2010 WI App 155
Date: 10/6/2010
Issue: Intoxication test administration.
Holding: When law enforcement invokes §343.305 to test a suspect for intoxication, a primary test is to be provided by the law enforcement agency at the agency’s expense. Under §343.305(5)(a), the agency must also provide the opportunity for a second test provided at the agency’s expense, or, the second test may be refused by the suspect, and the suspect may then choose their own test at his or her own expense.
Summary:
Defendant appealed his conviction of felony OWI (5th or 6th) by asserting that the arresting officer did not follow §343.305(5)(a) when he failed to provide a third alternative intoxication test. Defendant also challenged whether there was probable cause for a stop, but the court ruled the totality of the circumstances showed that there was probable cause for a stop in this case. State v. Batt, No. 2009AP3069 at ¶16-23 (Wis. Ct. App. filed October 6, 2010).
On August 10, 2008, Defendant was arrested under suspicion of driving under the influence of an intoxicant. The arresting officer read defendant the Informing the Accused form pursuant to Wis. Stat. §343.305(4), which included instructions on his right to alternative tests for intoxication following the administration of a primary test conducted by the police. Defendant consented to the primary test, then requested and was administered an alternative breath test. Defendant also requested a third test by “a qualified person at his expense.” Id. at ¶4. The officer informed defendant he would have to make his own arrangement for the test at his expense, but that the jail might let him use the phone to do so. Defendant was not given an opportunity to make any call, and he did not receive a third test.
Defendant was a ultimately convicted of felony OWI (5th or 6th). Defendant argued on appeal that he was entitled to a third test under §343.305(5)(a). He argues that this statute requires an alternative test administered at police expense, and “the opportunity to obtain a third test at the person’s own expense.” Id. at ¶6. The State reads this statute as requiring either an alternative test at police expense, or an alternative test which the person selects and pays for, but not both.
On this appeal, the court rejected Defendant’s argument and ruled that §343.305(5)(a) requires one alternative test or the other but not both, based on the interpretation of the statute in State v. Stary, 187 Wis. 2d 266, 270 (Ct. App. 1994). The court found that when police use §343.305 to obtain an intoxication test, “it must (1) provide the primary test of its choice at its own expense; (2) provide an opportunity for a second test of its choice at agency expense; and (3) if the second test is refused by the suspect in favor of one at his or her own expense, it must provide reasonable opportunity for a test of the suspect’s choice at the suspect’s expense.” Id. at ¶11
State v. Tomaszewski
2010 WI App 51
Date: 3/23/2010
Issue: Probable cause to stop.
Holding: Section 347.12(1)(b), which prohibits the use of high beams within 500 feet of following or approaching another vehicle, does not require proof that the headlights reflected into the eyes of another driver. An officer need only have a reasonable suspicion that a driver had his or her high beams on while following or approaching within 500 feet of a vehicle to constitute a lawful stop.
Summary:
Tomaszewski challenges the legal basis for his traffic stop, which resulted in his arrest for an OWI-5th and subsequent offense. The arresting officer observed Tomaszewski driving on Interstate 94 with his high beams on while following approximately 400 feet behind a semi truck. Section 347.12(1)(b) states as follows:
“Whenever the operator of a vehicle equipped with multiple-beam headlamps approaches or follows another vehicle within 500 feet to the rear, the operator shall dim, depress, or tilt the vehicle’s headlights so that the glaring rays are not reflected into the eyes of the operator of the other vehicle.”
The officer estimated that Tomaszewski was traveling approximately 400 feet behind the vehicle and did not dim his lights until after he approached the semi’s passenger compartment. The officer stopped Tomaszewski for violating § 347.12(1)(b) and ultimately arrested him for OWI, based on odor of alcohol, glassy, bloodshot eyes, slurred speech, and that he failed the field sobriety tests.
Tomaszewski appealed his OWI conviction, contending that the circuit court wrongly denied his motion to suppress evidence of his intoxication. On appeal, Tomaszewski argued that the motion should not have been denied because the officer did not have reasonable suspicion to conduct a stop, as there was no way the officer could have believed his high beams were reflecting into the eyes of the semi driver. The State argued that such evidence was not required, because the language “so that the glaring rays are not reflected into the eyes of the operator of the other vehicle” describes the purpose of the statute, rather than an element of the offense. State v. Tomaszewski, No. 2009AP385 at ¶8 (Wis. Ct. App. filed March 23, 2010).
The court of appeals held that Tomaszewski’s interpretation of the statute “would require an ordinary driver using high beams to know whether his or her headlights will impair another driver’s vision” and concluded this would be “absurd.” Id. at ¶10. Therefore, § 347.12(1)(b) is a strict liability offense, and the court concluded the traffic stop was proper because it was based on a reasonable suspicion that Tomaszewski was following too close to another vehicle while his high beam lights were on.
State v. Sowatzke
2010 WI App 81
Date: 5/26/2010
Issue: Determining priors for PAC status.
Holding: Prior convictions, suspensions, or revocations counted under §343.307(1) do not apply to a determination of prohibited alcohol concentration under § 340.01(46m) until after a § 343.307(1) judgment has been entered.
Summary:
Brian K. Sowatzke was arrested on March 6, 2008, and charged with third offense operating while intoxicated (OWI). While this charge was pending, he was arrested twice more and charged with third offense OWI: once on May 9, 2008, and again on May 14, 2008. Sowatzke was convicted of the May 13 third offense OWI on July 21, 2008. The next day, the State amended the May 9 criminal complaint to include a charge of fourth offense OWI with a prohibited alcohol concentration (PAC) in violation of § 346.63(1)(b) because Sowatzke had a chemical test result of 0.048. Under § 340.01(46m), a person with three or more prior convictions, suspensions or revocations is subject to an alcohol concentration of more than 0.02. If a person has two or fewer prior convictions, suspensions or revocations, the person is subject to an alcohol concentration of 0.08.
Sowatzke
filed a motion to dismiss the fourth offense PAC charge on the grounds that his
May 9 blood alcohol concentration (
The
court of appeals distinguished this case from Banks because Banks
dealt with the question of “whether an undoubtedly illegal act can be
criminally punished, whereas this case involves whether Sowatzke’s [
State v. Puchacz
Date: 1/20/2010
Issue: Offender status, probable cause to stop.
Holding 1: Out-of-state convictions
Holding 2: The officer had probable cause to stop
defendant because he saw him crossing the center line, which is a
violation of Wis. Stat. § 346.05.
Summary:
Wis. Stat. § 343.307(1)(d) sets forth the criteria to determine whether prior conduct may be used to calculate a defendant’s prior drunk driving convictions. Section 343.307(1)(d) includes:
Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction’s laws.
In Wis. Stat. § 343.307(1)(d), “substantially similar” emphasizes that the out-of-state statute need only prohibit conduct similar to the list of prohibited conduct in the statute. Michigan Comp. Laws Ann. § 257.625(3), operating-while-visibly-impaired due to consumption of alcohol, is “substantially similar” to the prohibited conduct listed in Wis. Stat. § 343.307(1)(d).
As for the motion to suppress evidence, the court of appeals agreed with the circuit courts denial of the motion. Under State v. Popke, 2009 WI 37, ¶10, 317 Wis. 2d 118, 765 N.W.2d 569, when Officer Erickson observed Puchacz crossing over the center line, he had probable cause to believe that Puchacz had committed a traffic violation, justifying a traffic stop. A momentary swerve across the center line is sufficient for probable cause for a traffic stop. Popke, ¶¶17-18.
