2011 WI 104
Issue: Probable Cause
Holding: An officer who knows a driver has a PAC of 0.02 and smells of alcohol has probable cause to request the driver submit to a preliminary breath test under Wis. Stat. §343.303.
An officer stopped Jason Goss for a burned out license plate bulb and a dirty license plate, which made it impossible for the officer to read. State v. Goss, 2011 WI 104, ¶3. Goss admitted that he was driving with a revoked driver’s license. Id. The officer also learned that Goss had four prior OWI convictions, and therefore was subject to a prohibited alcohol concentration (PAC) of 0.02. Id. The officer noted Goss had an odor of intoxicants on his person. Id. Based on these two pieces of information, the officer requested Goss submit to a preliminary breath test (PBT) pursuant to Wis. Stat. §343.303. Id. The PBT result was .084. Id. at ¶4. Goss was charged with fifth offense OWI. Id. at ¶7. Goss filed a pretrial motion to suppress the PBT results for lack of probable cause. The Wisconsin Court of Appeals concluded that the odor of alcohol by itself is enough to establish probable cause to request a preliminary breath test under Wis. Stat. §343.303 in a situation where an officer knows a driver has four prior OWI convictions and is subject to a PAC of .02. Id. at ¶8.
The issue before the supreme court was whether an officer who knows a non-commercial driver is subject to a 0.02 PAC and smells intoxicants has probable cause to request a PBT under Wis. Stat. §343.303. Id. at ¶2.
Wisconsin Stat. § 343.303 states, “If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63 [which prohibits driving or operating a motor vehicle with a prohibited alcohol concentration] … the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test ….” Id. at ¶11.
In County of Jefferson v. Renz, the Wisconsin Supreme Court held that an officer can request a PBT test if the officer detects any presence of alcohol on a person driving a commercial motor vehicle. 231 Wis. 2d 293 (1999). This standard is known as the “any presence” or “reason to believe” standard to distinguish the standard required for non-commercial drivers. Goss, 2011 WI 104 at ¶12. (citing Renz, 231 Wis. 2d at 293). For a non-commercial driver, the standard of probable cause as the term is used in §343.303 was lower than “probable cause to arrest,” a category referred to as “probable cause to believe.” Id. at ¶13.
Goss argued on appeal that the “probable cause to believe” standard must be higher than the commercial vehicle “any presence” standard, or else § 343.303 would be superfluous, that the prior convictions should have no probative value, and that there was nothing more than the odor of alcohol here to support a request for a PBT. Id. at ¶20. The supreme court rejected Goss’s argument, and cited State v. Lange, which held that an officer can consider prior convictions for OWI to support a finding of probable cause. 2009 WI 49 ¶33, 317 Wis. 2d 383. Based on the prior convictions and odor of alcohol in this case, the officer had “probable cause to believe” under § 343.303 to request a PBT. Goss, 2011 WI 104 at ¶28.
2011 WI 78
Issue: Admissibility of Evidence
Holding: Expert testimony is not necessary to admit an electronic monitoring device (EMD) report, and the report is not considered hearsay because it is computer-generated information.
Summary: Police arrested the defendant after he attempted to break in to his estranged wife’s home. State v. Kandutsch, 2011 WI 78, ¶6. The defendant was intoxicated, and the State charged the defendant with operating while intoxicated because of circumstantial evidence that the defendant drove drunk to his wife’s house. The defendant was convicted, and he appealed the case to the Wisconsin Supreme Court.
At trial, the State relied on a report produced by an electronic monitoring device (EMD) worn by the defendant to prove the defendant drove to his wife’s home intoxicated. Id. at ¶9. As proof, the State introduced the EMD report showing the defendant was “out of range” of the monitoring device at 10:03 PM on the night of his arrest, meaning he left the vicinity of his house at that time. Id. at ¶10. The drive between the defendant’s house and his wife’s is about fifteen minutes. Id. The defendant’s wife called 911 at 10:23 PM. Id. The defendant argued he left his house around 9:00 PM and became intoxicated after he arrived close to his wife’s house. Id. ¶9.
On appeal, the defendant first argued the court should not have admitted the EMD report as evidence because the State did not provide expert testimony as a foundation for admissibility of the report into evidence. Id. ¶25. The Wisconsin Supreme Court held that expert testimony is required when an issue is “beyond the realm of lay comprehension,” but the “EMD report does not present an issue that is particularly complex or unusually esoteric, and … the EMD involves scientific principles that are indisputable and fully within the lay comprehension of the average juror.” Id. ¶50. Therefore, the testimony of two Department of Correction officers as to the use and operation of the EMD provided sufficient foundation. Id. ¶45.
The defendant also argued the EMD report should be inadmissible as hearsay. The court rejected this argument by drawing a distinction between computer-generated records and computer-stored records. Id. at ¶57. Computer-stored records merely store human produced information, whereas “[c]omputer-generated records … are those that represent the self-generated record of a computer's operations resulting from the computer's programming.” Id. The court decided the EMD report fell under the latter category. Id.
Finding the EMD report was properly admitted, the court affirmed the decision of the court of appeals.
2011 WI 49
Issue: Reasonable Suspicion for Protective Search
Holding: The Wisconsin Supreme Court held that furtive movements and visible nervousness, a record of arrests for violent crimes and a drug delivery arrest that had occurred nearby provide reasonable suspicion to conduct a protective search of a car during a traffic stop. Additionally, a marijuana plant discovered in plain view during a protective search is admissible evidence.
The arresting officer in this case initiated a traffic stop after observing the defendant speeding. As the officer pulled the defendant over, the defendant’s car swerved while the defendant made movements in the car suggesting he was hiding something under the driver seat. After the defendant was pulled over, the officer asked dispatch to run a criminal history on the defendant. The check revealed a pending drug charge and previous arrests for murder, armed robbery, and false imprisonment. State v. Buchanan, 2011 WI 49, ¶¶ 4-5.
The officer requested backup, and after a second officer arrived, conducted a protective search of the defendant and the defendant’s car. During the search, the officer spotted a green plant on the floor of the vehicle. The officer conducted a field test of the plant and confirmed it was marijuana. The officer then placed the defendant under arrest and conducted a full search of the vehicle, discovering additional marijuana. Id. at ¶6.
The defendant argued on appeal that the officer did not have reasonable suspicion to conduct a protective search of the vehicle, and that the plant discovered during this search was not in plain view. Based on these arguments, the defendant moved to suppress evidence of the marijuana discovered in his car. Id. at ¶7.
The defendant cited two cases in support of his argument that the officer did not have reasonable suspicion to conduct a protective search of the car. Id. at ¶2. The first, State v. Johnson, held that a driver making movements indicating he was reaching underneath the seat is not enough by itself to provide reasonable suspicion allowing a protective search. 2007 WI 32, ¶3, 299 Wis. 2d 675. The second, State v. Eason, held that a suspect’s arrest record on its own was not enough to provide reasonable suspicion. 2001 WI 98, 245 Wis. 2d 206.
The court disagreed with the defendant’s argument. The court stated that for a protective search to be lawful, the officer conducting the search must first have “specific and articulable facts which, taken together with the rational inferences from those facts create reasonable suspicion and justify a protective search for the officer's safety.” Buchanan, 2011 WI 49 at ¶3. Applying this standard, the court held “reasonable suspicion can be established under circumstances that include a furtive movement, unusual nervousness, and a troubling arrest record for violent crimes and drug trafficking….” Id. at ¶19.
The defendant’s second argument was that the green plant discovered during the officer’s protective search of the vehicle was not in plain sight, and therefore beyond the scope of a protective search. Id. at ¶21. In addressing this argument, the court said an object discovered under the plain view doctrine is admissible as evidence. Id. at ¶23. In order for the plain view doctrine to apply, certain conditions must be met: “(1) the evidence must be in plain view; (2) the officer must have a prior justification for being in the position from which she discovers the evidence in ‘plain view’; and (3) the evidence seized in itself or in itself with facts known to the officer at the time of the seizure, [must provide] probable cause to believe there is a connection between the evidence and criminal activity. Id. (citing State v. Guy, 172 Wis. 2d 86, 101-102 (1992).
In this case, the court held the evidence showed the green plant was in plain view and the officer had justification for being in the car because of the reasonable suspicion discussed above. As for the third condition, the court cited uncontroverted evidence that “the trooper had sufficient experience to identify the plant material as marijuana by its appearance and smell, and that identification provided probable cause for him to seize it.” Id. at ¶26.
The court found the evidence of marijuana in the defendant’s car was appropriately obtained and affirmed the decision of the court of appeals. Id. at ¶28.