2011 Wisconsin Appellate Court Decisions | University of Wisconsin Law School

McFarland v. Zetzman

2011 AP 1440 (recommended for publication)

3/15/2012

Issue: Seizure

Holding: Docket entries resolving traffic forfeiture and municipal ordinance cases are final, appealable decisions within the meaning of Wis. Stat. § 808.03(1).

Summary: The court of appeals considered the procedural question of “whether a party may appeal a traffic forfeiture disposition based on a docket entry, rather than a written final order, when a municipal court decision has been appealed to a circuit court.” McFarland v. Zetzman, 2011AP1440 (Wis. App. filed March 15, 2012), ¶1.

In this case, Jennifer Zetzman was convicted in municipal court of operating a motor vehicle while intoxicated and with a prohibited blood alcohol concentration. Zetzman sought de novo review in the circuit court. The circuit court affirmed Zetzman’s convictions. The court’s decision was not reduced to a signed written judgment or order, but was instead rendered orally and then recorded in the circuit court docket entries. Zetzman appealed based on the circuit court docket entries. Id. at ¶2

The court considered whether the case at the time Zetzman appealed had been “prosecuted in circuit court” as required by Wis. Stat. § 808.03(1)(c). The court concluded the phrase “prosecuted in circuit court” is ambiguous and based on legislative intent held that “all traffic forfeiture and ordinance cases initially prosecuted in the municipal court must be appealed and further prosecuted in the circuit court either by trial de novo or on the municipal record before review can be sought in the court of appeals.” Id. at ¶7. Docket entries resolving traffic forfeiture and municipal ordinance cases are final, appealable decisions within the meaning of Wis. Stat. § 808.03(1). Id. at ¶10.

Therefore, because Zetzman’s conviction originated in municipal court and was appealed de novo in the circuit court, no written order was required for the court of appeals to obtain jurisdiction. Id. at ¶11.

State v. Salon

2011 WI App 157

11/9/2011

Issue: Seizure

Holding: A three-minute extension of a seizure affecting the passenger of a vehicle stopped for speeding does not violate the Fourth Amendment because the intrusion on the passenger’s liberty is outweighed by the public interest in officer safety.

Summary: A police officer pulled a vehicle over for speeding. State v. Salonen, 2011 WI App 157, ¶2. The defendant was a passenger in the car. Id. The officer asked for identification of each vehicle occupant and ran checks on each. Id. The officer also called a K-9 officer to the scene, because he knew that two of the parties in the car had recently been involved with illegal drugs. Id.

A K-9 officer and a backup officer arrived at the scene ten minutes into the stop. Id. at ¶3. About two minutes later, while the original officer worked on the driver’s citation, the defendant asked the backup officer if she could leave for work. The backup officer said no, but that he would provide her employer an excuse. Id. at ¶4. About three minutes after the defendant asked if she could leave, the K-9 officer used her dog to conduct a sniff of the car. Id. at ¶5. The dog alerted for drugs where the defendant was sitting, the police found evidence of drug packaging, and the defendant was arrested. Id. at ¶6. The defendant was searched at the Sheboygan Police Department, and an additional baggie of drugs was found in the defendant’s mouth. Id.

The trial court granted the defendant’s motion to suppress evidence, and the State appealed. Id. at ¶7. The State argued that even though the defendant was not allowed to leave when she asked the backup officer if she could go, Wisconsin law permitted the officer to detain the defendant during the entire stop. Id. at ¶9.

The Wisconsin Court of Appeals relied on the holding of Arizona v. Johnson, 555 U.S. 323 (2009) to overturn the trial court’s decision. In that case, the Supreme Court said the detention of passengers in a traffic stop would “ordinarily” be reasonable for the duration of the stop. Id. at 333.

The Wisconsin court in this case explained the Johnson decision is meant to further the public interest of ensuring officer safety during a traffic stop. Salonen, 2011 WI App 17 at ¶12. When this public interest is weighed against the “minimal intrusion” on the defendant’s liberty in this case, the interest in officer safety outweighs the three minutes the defendant had to wait for the K-9 sniff. Id. at ¶14.

Wisconsin Dolls, LLC v. Town of Dell Prairie

2011 WI App 41

9/1/11

Issue: Alcohol licenses

Holding: A combination Class “B” and “Class B” license for the sale of fermented malt beverages and intoxicating liquor requires that the license “particularly describe the premises” for which the municipality issued the license.

Summary: Wisconsin Dolls, LLC, runs an adult-oriented resort. Wisconsin Dolls, LLC v. Town of Dell Prairie, 2011 WI App 41, ¶3. Wisconsin Dolls first submitted an application to the Town of Dell Prairie for a Class “B” license for fermented malt beverages and a “Class B” license for intoxicating liquor in 2004. Id. On the application, Wisconsin Dolls listed “all 8 acres of the resort” next to the “Premises description” on the application. The Town approved the application and subsequently renewed it annually until 2009. Id.

In 2009, the Town clerk reviewed the application for renewal and determined the description of the premises was inadequate. Id. at ¶6. The Town Board voted to renew Wisconsin Doll’s license only if it was amended to specify the premises serving alcohol. Id. at ¶7. Wisconsin Dolls did not amend the application, but the Town issued a license with the premises changed to read “Main Bar/Entertainment Building.” Id. at ¶8.

Wisconsin Dolls argued on appeal that the amendment of the description of premises by the Town constituted a nonrenewal of the license, requiring notice and hearing procedures in Wis. Stat. § 125.12(3). Id. at ¶8. The Court of Appeals framed the issue to focus on whether the original license issued in 2004 was valid. Id. at ¶11. If the license was not valid, the court reasoned, there could be no renewal or nonrenewal, and Wisconsin Dolls would not be entitled to the procedures under Wis. Stat. § 125.12(3). Id.

The court held Wisconsin Dolls did not have a valid license because they did not “particularly describe the premises” for which the license was issued, as required by § 125.26(3) for Class “B” licenses, and § 125.51(3)(d) for “Class B” licenses. Id. at ¶15. The court ultimately concluded this “means that the license must contain sufficient detail to identify the specific areas where the alcohol beverages will be sold or stored or both.” Id. at ¶20. The court then applied the description Wisconsin Dolls provided for their license, “all 8 acres of the resort,” and held this description did not particularly describe the premises, the original license was invalid, and therefore Wisconsin Dolls was not entitled to notice and hearing procedures. Id. at ¶26.

State v. Holder

2011 WI App 116

7/28/2011

Issue: Determining prior convictions

Holding: A defendant who drives drunk from one state to another during one incident of drunk driving and is subsequently arrested and convicted in both states has two OWI convictions under Wis. Stat. § 346.65(2)(am)5.

Summary: The defendant was charged and convicted of operating while intoxicated fifth or sixth offense. State v. Holder, 2011 WI App 116, ¶2. Two of the defendant’s underlying convictions meriting the OWI fifth or sixth offense charge stemmed from the same incident of drunk driving. Id. ¶3. This incident began when a Michigan officer attempted to pull over the defendant in Menominee, Michigan. Id. Before the defendant pulled over, he crossed a bridge into Wisconsin. Id. The defendant was arrested in Wisconsin with the help of local Wisconsin police. Id. The defendant was charged and convicted of operating while intoxicated in Wisconsin, and operating a motor vehicle under influence of liquor in Michigan. Id.

The defendant moved to strike either the Wisconsin or Michigan conviction as arising from the same incident. ¶4. Wisconsin Statute § 346.65(2)(am)5 provides for enhanced penalties after five or six previous OWI convictions. ¶6.

To decide whether to count two state convictions stemming from one incident as one conviction or two, the court said it must “determine whether [the defendant], during his continuous stint of driving under the influence of an intoxicant, came to a proverbial ‘fork in the road’ and if he did, whether it was or was not his intent to ‘invade’ a different interest.” at ¶8 (citing State v. Ellis H., 2004 WI App 123).

Applying the “fork in the road” test, the court found the defendant in this case came to a “fork in the road” when he crossed state lines by choosing to violate drunk driving laws in a new state. ¶13. Therefore, both convictions arose from distinct legal incidents, and both convictions count for purposes of Wis. Stat. § 346.65(2)(am)5.

State v. Anagnos

2011 WI App 118

7/27/2011

Issue: Probable cause to stop/Refusal Hearing

Holding: Failure to use a turn signal must affect other traffic to provide probable cause to stop for a traffic violation. In addition, a trial court may determine the lawfulness of a stop during a refusal hearing.

Summary: An officer was in the right hand turn lane of a highway intersection when he saw the defendant pull out of the Taco Bell parking lot. State v. Anagnos, 2011 WI App 118, ¶3. The Taco Bell was behind and to the left of the officer. Id. The officer saw the defendant pull out of the parking lot at a rapid speed and pull into the left hand turn lane next to the officer. Id. The officer thought the defendant made an illegal left hand turn from the Taco Bell parking lot across a median before pulling into the turn lane. Id. When the defendant turned left, he failed to use a turn signal. Id. The officer pulled the defendant over and eventually arrested the defendant for operating while intoxicated. Id.

The officer read the defendant the “informing the accused” form required by Wis. Stat. § 343.305(4), but the defendant refused chemical testing. Id. at ¶4. The defendant requested a hearing on the refusal charge. Id.

At the refusal hearing, the trial court found the officer did not have reasonable suspicion to stop the defendant. Id. at ¶6. On appeal, the State argued that the officer did have reasonable suspicion to conduct a stop, and the trial court did not have the authority to rule on the lawfulness of the stop at the refusal hearing. Id.

First, the court of appeals held there was no reasonable suspicion to conduct a stop. In order for failure to signal to constitute a lawful stop, the failure must affect other traffic. Id. at ¶9. In this case, there were no other cars or pedestrians that would be affected by the defendant’s unsignaled turn. Id. at ¶10. Additionally, the defendant turned over a low median legally, and rapid acceleration does not provide reasonable suspicion of a crime. Id. at ¶11.

Second, the court held it is “proper for the circuit court to inquire into whether the deputy had reasonable suspicion to stop” the defendant. Id. at ¶15. “The refusal hearing statute states that a circuit court may consider “whether the [defendant] was lawfully placed under arrest.” Wis. Stat. § 343.305(9)(a)5.a. Id. at ¶15. The court therefore upheld the decision of the circuit court. Id. at ¶21.

Questions, Inc. v. Milwaukee

<2011 WI App 126, 7/19/2011

Issue: Liquor License Renewal

Holding: The Milwaukee Common Council properly imposed a suspension of a bar’s Class B license, even though 1) the Milwaukee Police Department did not file a written objection to the license renewal, 2) the evidence consisted of hearsay statements corroborated by circumstantial evidence, 3) the City Attorney drafted the Findings of Fact and Conclusions of Law, and 4) the Common Council sent notice to Questions that did not include the exact phrase “intention not to renew.”

Summary: Questions, a bar in Milwaukee, operates with a Class B Tavern and Amusement License that the City requires be renewed yearly. Questions, Inc. v. Milwaukee, 2011 WI App 126, ¶2. When Questions sought to renew their license for 2009, the City sent them a notice informing them that the surrounding community had numerous objections to the license, including racing and loud vehicles, loud music, illegal drug activity, fighting, prostitution, drunkenness, excessive and inappropriate use of police resources, shootings and gunshots, and other complaints that impair the health, safety, and welfare of the neighborhood. Id. Attached to the notice was a synopsis of seventy police reports compiled by the Milwaukee Police Department (MPD). Id.

The Milwaukee Common Council’s Licenses Committee held a hearing on January 26, 2009. Id. at ¶5. The Council concluded that the case for nonrenewal had not been made, but there were issues of Question’s impact on the community. Id. at ¶7. The Council voted to renew the license with a twenty-five day suspension. Id. Questions filed a complaint with the Milwaukee County Circuit Court, and that court upheld the suspension. Id. at ¶11. Questions then appealed the circuit court decision to the court of appeals.

Questions brought four arguments on appeal. First, Questions argued “the MPD’s objection to Questions’ license renewal during the January 26 hearing violated Milwaukee, Wis. Ordinance § 90-11-1-b.” Questions, 2011 WI App 126 at ¶12. The court held that Questions forfeited the right to raise this issue when it did not raise it before the Common Council or the circuit court. Id. at ¶15 (citing State ex rel. Olson v. City of Baraboo Joint Review Bd., 2002 WI App 64). Even if the claim had been raised, the court held it would fail anyway because the language of the ordinance permitted but did not require the MPD to file a written objection to the license renewal. Id. at ¶18.

Second, Questions argued the Common Council’s twenty-five day suspension was not supported by substantial evidence because the “police report synopsis consisted of uncorroborated hearsay controverted by in-person testimony.” Id. at ¶20. The court responded first by saying hearsay is only prohibited by statute from “proceedings in the court of the state of Wisconsin.” Id. at ¶21. (citing Wis. Stat. §§ 901.09, 908.02 & 911.01). The court also pointed out that the case Questions relied on, Gehin v. Wisconsin Group Insurance Board, 2005 WI 16, “stands for the proposition that an administrative agency cannot rely onuncorroborated written hearsay alone when that hearsay is otherwise controverted by in-person testimony.” Id. at ¶22 (citing Gehin at ¶4). Here, circumstantial evidence sufficiently corroborated the police reports, and there was no testimony by Questions directly contradicting the incidents listed in the MPD synopsis. Id. at ¶¶ 25-26.

Third, Questions argues that the “Findings of Fact and Conclusions of Law submitted to the Common Council by the Licenses Committee did not comport with the requirements of Wis. Stat. § 125.12(2)(b)(3) and Milwaukee, Wis., Ordinance § 90-11-2-c-2,” which require the input, review, or approval by the Licenses Committee. Id. at ¶28. The court held:

[O]n the record before the Common Council, all members of the Licenses Committee acknowledged reading the Findings of Fact and Conclusions of Law drafted by the City Attorney’s Office and no member of the Committee spoke up to say that they did not approve of the document as drafted. Each committee member’s acknowledgement of receipt and failure to object is sufficient to demonstrate that the document accurately represented the Committee’s findings and recommendations." Id. at ¶31.

Finally, Questions argues the Common Council’s notice of the license renewal hearing was insufficient because it did not indicate specifically an “intention not to renew,” but instead indicated there was a possibility the renewal would be denied. Id. at ¶34. The court held the exact phrase was not necessary according to common sense and the plain language of Wis. Stat. § 125.12(3).

The Court of Appeals affirmed the Common Council’s decision and did not address the circuit court’s decision.

State v. Devries

2011 WI App 78

5/17/2011

Issue: Determining prior convictions

Holding: Certified documentation showing a defendant did not appear for a trial arising out of a drunk driving incident is sufficient evidence of a previous drunk driving conviction.

Summary: The Walworth County circuit court convicted the defendant of drunk driving as a fifth offense. State v. Devries, 2011 WI App 78, ¶ 1. Defendant appealed the conviction, arguing that the trial court wrongly counted two previous drunk-driving matters as convictions as defined by Wis. Stat. §340.01(9r) to determine the level of her offense under §343.307(1). Id. ¶ 1.

Prior to her trial in Wisconsin for drunk driving, the defendant was arrested in Arizona for drunk driving, but did not show up for her trial date. She was also arrested for drunk driving in California and failed to appear for trial for that charge as well. Id. at ¶¶ 5-7

Defendant argued the trial court did not have sufficient evidence to count the incidents in Arizona and California as convictions as the word is defined under Wis. Stat. § 340.01(9r). Defendant argued the State failed to provide competent proof of convictions in the Arizona and California incidents. The court of appeals concluded that certified documentation of defendant’s arrest and failure to appear for her trial was sufficient evidence of a conviction under § 340.01(9r). Id. at ¶¶ 8-10

Defendant also argued the procedures surrounding the Arizona and California incidents were constitutionally flawed, and therefore should not be counted as previous convictions. The court held that the defendant did not provide any evidence at all that her procedural rights were violated in the Arizona or California matters. Furthermore, even if the defendant made a prima facie showing of a constitutional violation, the State has the right to question the defendant about the violation and the defendant exercised her Fifth Amendment right not to do so. Id. at ¶¶ 12-13.

The court held that the defendant’s drunk driving incidents in Arizona and California are convictions for the purpose of § 340.01(9r) and affirmed the decision of the trial court.

State v. Walli

2011 WI App 86

Date: 5/11/2011

Issue: Standard of review

Holding: An appellate court will apply the clearly erroneous standard of review when the record contains a video recording and disputed testimony as to what the recording shows.

Summary: An officer driving westbound on patrol observed the defendant driving from the other direction cross the center line and nearly sideswipe the officer’s vehicle. The officer turned his emergency lights on and proceeded to pull over the defendant. When the officer turned on his emergency lights, the squad car’s mounted video camera system recorded events beginning thirty seconds before the lights were activated, including what the officer testified was a recording of the defendant crossing the center line. The officer pulled the defendant over, and the defendant was arrested. The defendant was charged and convicted of operating a motor vehicle while intoxicated and resisting an officer. State v. Walli, 2011 WI App 86, ¶2-4.

On appeal, the defendant challenged the conviction on the grounds that there was insufficient evidence showing that the initial stop was supported by reasonable suspicion. The State argued that the defendant crossed the center line, which is a traffic violation providing reasonable suspicion for a stop. The defendant argued that the video recording evidence obtained from the officer’s mounted camera should be reviewed by the court de novo under the “documentary evidence exception” to the clearly erroneous standard, and the court should conclude the defendant never crossed the center line. Id. at ¶13

The court rejected the defendant’s argument, but limited their holding to the specific facts of this case. The court held that when the record contains video evidence along with disputed testimony regarding what the video evidence actually shows, this is a disputed issue of fact left to the trial court as the finder of fact. Id. at ¶14. Therefore, a finding of fact involving this circumstance is subject to review under the clearly erroneous standard. Id.