State v. Denk, 2008 WI 130
Date: 12/30/08
Case No: 2006AP1744
Issue: Search Incident to arrest and plea-bargaining.
Holding: An officer can search a passenger of a vehicle without probable cause if based on the totality of the facts makes it necessary to preserve evidence or for the safety of the officer.
Summary:
Denk was a passenger of a vehicle that was pulled over on the side of the road. A police officer stopped to see if the vehicle needed assistance but discovered a strong odor of marijuana. The driver of the vehicle gave the officer consent to search the vehicle and marijuana was found on the driver of the vehicle. The officer also found a methamphetamine pipe and some cleaning tools in Denk’s eyeglass case, which was lying on the outside the car, on the ground next to the passenger door. Both the driver of the vehicle and Denk were placed under arrest.
The court denied a motion to suppress evidence found in the eyeglass case, as part of the search incident to arrest. Denk pleaded no contest and was found guilty of felony possession of methamphetamine. Denk appealed asserting that the court erred in denying his motion to suppress evidence and that in the interest of justice he should be allowed to withdraw his plea because he did not enter it knowingly or voluntarily.
The first question before the Wisconsin Supreme Court was whether the officer could search the personal belonging of Denk, that was not inside the vehicle, as part of a search incident to arrest of the driver of the vehicle. Denk asserts that the search did not fit into the search incident to arrest exception because the officer did not have probable cause. In State v. Pallone, 236 Wis. 2d 162, ¶3, the court found that under some circumstances an officer can conduct a warrantless search of a passenger’s belongings even when the officer does not have probable cause to arrest the passenger, in order to preserve evidence and for the safety of the officer. In the case at bar, the court based its decision on the facts, including that the officer was the sole officer on the scene, it was a late night custodial arrest involving two men, and the officer smelled an odor of marijuana. The Wisconsin Supreme Court found that the warrantless search was incident to the arrest of the driver and was reasonable based on the totality of the circumstances.
The court also addressed Denk’s argument that he did not enter into the plea agreement knowingly or voluntarily. The Wisconsin Supreme Court found Denk would have to show by clear and convincing evidence that without withdrawing the plea there would be “manifest injustice” to question the integrity of the plea showing it was entered unknowingly or involuntarily.” Since Denk received the benefits of the plea bargain as promised there was no manifest injustice.
State v. Sumner, 2008 WI 94
Date: 7/15/08
Case No: 2006AP102
Issue: Protective frisk following a traffic stop
Holding: A protective frisk, subsequent to a lawful traffic stop, is justified if there is reasonable suspicion based on specific articulable facts that the suspect may be armed and dangerous.
Summary:
On appeal, the court determined there was not a reasonable suspicion that Sumner was armed and dangerous since there was a 15-minute lapse in time from when Sumner pulled over, made the reaching gestures, and when the officers did a protective search. The Wisconsin Supreme Court reversed agreeing with the trial court that based on the totality of circumstances the deputies had reasonable suspicion for a protective search. During an investigative stop, an officer is authorized to conduct a protective pat down search of the suspect as a safety precaution if the officer has specific and articulable facts that give rise to a reasonable suspicion that the suspect is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 21 (1968). The reasonableness of a protective search for weapons is an objective standard, codified in § 968.25, which governs searches during temporary questioning. In determining whether a frisk was reasonable, courts will look at the totality of the circumstances, on a case-by-case basis. Here the court reviewed the following facts: time of night, Sumner’s initial reaching gestures, the clutter in the vehicle, Sumner’s lack of identification and suspended driver’s license, Sumner’s nervous demeanor and visible perspiration, erratic behavior, together with the fact that Sumner kept putting his hands in his pockets, even after deputies instructed him not to. These facts all validate the officer’s reasonable suspicion that Sumner was both armed and dangerous.
The court rejected the contention that the officer’s reasonable suspicion was obviated by the fact that 15-minutes passed from the time of the stop, the reaching gestures and the officer’s protective search. The court reasoned that the passage of time can be a factor in the totality of the circumstances, but it is not likely to be a determinative factor. Furthermore, since the bindles of heroin fell in plain sight the evidence was admissible.
State v. Ramon Lopez Arias, 2008 WI 84
Date: 7/9/08
Case No: 2006AP974-CR
Issue: (1) Does a dog “sniff” of a stopped vehicle constitute a search, and (2) was the vehicle stop unreasonably prolonged due to the dog sniff being part of the officer’s controlled substance investigation?
Holding: (1) A dog sniff of the exterior of a vehicle in a public place does not constitute a search and (2) the stop was not unreasonably prolonged by the dog sniff.
Summary:
Arias appealed, alleging that dog sniff of the vehicle was a violation of the Wisconsin Constitution, protecting against unreasonable search and seizures, and that the officer lacked reasonable suspicion to conduct such a search. The U.S. Supreme Court held in Illinois v. Caballes, 543 U.S. 405, 410 (2005), that a dog sniff of the exterior of a vehicle is not a search within the meaning of the Fourth Amendment. The Wisconsin Supreme Court recognized that historically, Article I, Section 11 of the Wisconsin Constitution has been interpreted in accord with the Supreme Court's interpretation of the Fourth Amendment. See, e.g., State v. Malone, 2004 WI 108, ¶15, 274 Wis. 2d 540, 683 N.W.2d 1; State v. Guzman, 166 Wis. 2d 577, 586-87, 480 N.W.2d 446 (1992); State v. Williams, 47 Wis. 2d 242, 249, 177 N.W.2d 611 (1970). Therefore, a dog sniff of the exterior of a vehicle in a public place does not constitute a search under Article I, Section 11, because finding otherwise would be departure from the Supreme Court's Fourth Amendment jurisprudence. Arias had no reasonable expectation of privacy in the air space around the vehicle in a public place and a dog sniff is a less intrusive in that it gives limited information that is relevant to contraband, which is not protected by the constitution. Therefore, the dog sniff around the vehicle was not a search under the Wisconsin Constitution.
Arias also appealed on the grounds that the dog sniff unreasonably prolonged his seizure by the officer. The supreme court found that while the total length of the stop was 38 minutes, the dog sniff only took approximately 78 seconds. To determine whether the 78 seconds constitute an unreasonable search and seizure, the court employed the three-part test from State v. Griffith, 2000 WI 72, ¶23, 236 Wis. 2d 48, 613 N.W.2d 72, “(1) weighing of the gravity of the public concerns served by the seizure, (2) weighing the degree to which the seizure advances the public interest, and (3) weighing the severity of the interference with individual liberty.” The court found that the incremental liberty intrusion of the dog sniff search did not outweigh the public interest served by it and therefore it was a reasonable search and seizure and did not unreasonably prolong the controlled substance investigation.
State v. Jorgensen, 2008 WI 60
Date: 6/13/08
Case No: 2006AP1847
Issue: Plain Error
Holding: When the unobjected to errors of a case are so fundamental, obvious, and substantial; and the State has not met its burden of proof that the errors were harmless, then the errors constitute plain error, requiring a new trial.
Summary:
Jorgensen was in court for a plea and sentencing hearing, when it was discovered he was intoxicated and in violation of the no alcohol terms and conditions of his bond agreement. As a result, he was charged with bail jumping, operating after revocation, and suspected OWI. The State prosecuted Jorgensen for these offenses and allowed the same prosecutor and judge who witnessed the alleged intoxication at the court hearing to handle the trial on the new charges. Jorgensen was convicted of all charges but appealed on three grounds: (1) plain error, (2) ineffective assistance of counsel, and (3) in the interest of justice. The circuit court denied the motion for relief and the court of appeals affirmed. Jorgensen argued that the reading of the hearing transcript during the trial and the prosecutor’s closing arguments were prejudicial. The court of appeals found that the defense’s failure to object to the closing remarks was not ineffective counsel but was a defense strategy and the reading of the transcript out loud in court was not enough to impact the jury’s verdict.
Nichols v. Progressive Northern Insurance Company, 2008 WI 20
Date: 3/25/08
Case No: 2006AP364
Issue: Social Host Liability
Holding: A claim for common-law negligence cannot be permitted against social hosts, who were aware of drinking on their property but did not supply the alcohol. To allow such a claim of negligence would be an inappropriate extension of common-law liability according to public policy considerations.
Summary:
The Nichols were involved in a motor vehicle accident on the night of June 5, 2004. They were struck by Beth Carr, a high school student, who was intoxicated at the time of the accident. The Nichols alleged that Carr was allowed to illegally consume alcohol on property owned by the Niesens and that the consumption of alcohol by Carr was a substantial factor in causing the accident. The Nichols did not assert that the Niesens knew of the underage drinking but rather that the Niesens were negligent because they had a duty to supervise the high school students on their property. The complaint was initially dismissed for a failure to state a claim but the Court of Appeals found that the Nichols established all four elements of a common-law negligence claim.
The Wisconsin Supreme Court accepted, without deciding, that the Court of Appeals was correct in concluding the Nicholas satisfied all four elements of common-law negligence. However, the Supreme Court concluded that dismissal was proper based solely on public policy grounds.
The six public policy factors were articulated in Stephenson v. Universal Metrics, Inc., “a claim for common-law negligence is precluded if, (1) the injury is too remote from the negligence, (2) the injury is too wholly out of proportion to the tortfeasor’s culpability, (3) in retrospect it appears too highly extraordinary that the negligence should have brought abut the harm, (4) allowing recovery would place too unreasonable a burden upon the tortfeasor, (5) allowing recovery would be too likely to open the way to fraudulent claim, and (6) allowing recovery would have no sensible or just stopping point.” Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶43, 251 Wis. 2d 171,641 N.W.2d 158. The court concluded that the sixth factor is applicable in this case and precludes liability against the Niesens. Allowing a common-law negligence claim against Niesens as social hosts would be an improper expansion of liability, specifically against property owners.
Furthermore, the court states that the decision to expand common-law negligence to cover situations like this one would be a decision for the legislature not for courts. After assessing the public policy considerations the Wisconsin Supreme Court reversed the Court of Appeals decision.
Washburn County v. Smith, 2008 WI 23
Date: 3/28/08
Case No: 2006AP3163
Issue: Probable cause to arrest for OWI and refusal under the Implied Consent Law.
Holding: The officer had probable cause to arrest Smith for OWI and Smith's subsequent implied consent refusal was unlawful.
Summary:
Police initiated a traffic stop of Smith for going 21 miles-per-hour over the speed limit. Smith did not pull over right away in response to the officer’s emergency lights. The officer also observed Smith’s vehicle cross the double-yellow centerline twice before stopping. The officer detected an odor of intoxicants and the defendant admitted he had “a couple of beers.” The officer arrested Smith for operating a motor vehicle while under the influence of an intoxicant. Smith subsequently refused to submit to a chemical test under the implied consent law.
Smith raised two issues in the context of the refusal hearing. First, he argued the officer did not have probable cause to arrest for OWI. In the refusal hearing setting, “probable cause” refers to that quantum of evidence that would lead a reasonable officer to believe that defendant was operating a motor vehicle while under the influence of an intoxicant. Smith at ¶ 15. Second, Smith argues he did not improperly refuse to submit to chemical testing because the officer made misstatements when informing him under the Implied Consent Law.
Smith argued that a field sobriety test is required in all cases to establish probable cause under State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991). Smith argued that because he did not have slurred speech, difficulty standing, bloodshot eyes or other indicia of intoxication, the officer could not have formed probable cause for OWI. In response, the Wisconsin Supreme Court clarified that the Swanson decision did not create a general rule requiring field sobriety tests in all cases as a prerequisite for establishing probable cause. Rather, the question of probable cause must be determined on a case-by-case basis.
The facts in Smith are similar to State v. Wille, 185 Wis. 2d 673, 684, 518 N.W.2d (Ct. App. 1995). In Wille, the court of appeals found that the law enforcement officer had probable cause to arrest Wille when the officer smelled alcohol; knew that the defendant caused an automobile accident; and heard the defendant make a statement which evinced a consciousness of guilt. Applying Wille, the Wisconsin Supreme Court concluded that at the time of Smith’s arrest, the officer knew defendant had been speeding late at night; defendant delayed in pulling over after the officer activated his emergency lights; defendant drove over the center line twice; defendant had an odor of alcohol on his breath; defendant admitted to consuming alcohol over a period of ten plus hours; and defendant provided inconsistent and equivocal information about the amount of alcohol he drank during that time. Therefore, the officer had probable cause to believe that defendant had operated a motor vehicle while under the influence of an intoxicant.
Smith also argued that a refusal to submit to a chemical test for intoxication cannot result in revocation of operating privileges unless the officer has properly informed the person of his/her rights under the law. Smith contends that the officer made two misstatements concerning penalties for refusing a chemical test when informing him under the implied consent law under Wis. Stat. § 343.305(4). First, the officer advised the defendant of Wisconsin license penalties even though the defendant was licensed in Louisiana. Second, the officer mistakenly told the defendant that if he refused the chemical test he would get a hearing within ten days.
In County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), the court of appeals established a three-prong test to determine whether an officer fulfilled the requirements under the informed consent law. Specifically, three questions must be answered in the affirmative, before finding the information provided by the law enforcement officer was inadequate, namely: “(1) Has the law enforcement officer not met, or exceeded his or her duty under §§ 343.305(4); (2) Is the lack or oversupply of information misleading; and (3) Has the failure to properly inform the driver affected his or her ability to make the choice about chemical testing?” Id.
Further, in State v. Ludwigson, the court of appeals held that it is the defendant’s burden to prove by a preponderance of the evidence that the erroneous additional information the officer provided caused the defendant to refuse to submit to chemical testing. The supreme court applied Quelle and Ludwigson to the facts of this case. In response to the first question, the answer is in the affirmative because the officer provided more information than required under § 343.305(4). In response to the second query, the court found that the officer accurately stated Wisconsin law. However, the officer incorrectly told the defendant he was entitled to a refusal hearing within ten days. Finally, and most importantly, the court concluded that Smith failed to make a prima facie showing required by Ludwigson that the officer’s statements about a hearing contributed to the defendant’s refusal to submit to chemical testing.
The Wisconsin Supreme Court concluded that the circuit court did not err in finding the state presented sufficient evidence at the refusal hearing to establish the officer’s probable cause to believe the defendant was operating a motor vehicle while under the influence of an intoxicant. Also, the circuit court did not err in holding that the defendant improperly refused to submit to chemical testing under the Implied Consent Law.
State v. Hambly, 2008 WI 10
Date: 2/07/08
Case No: 2005AP3037
Issue: Admissible inculpatory statements
Holding: Inculpatory statements made by a suspect in custody, after Miranda rights are given, are admissible if the suspect initiates the communication with a law enforcement officer and voluntarily, knowingly, and intelligently waives his/her right to counsel.
Summary:
Officers approached Hambly to speak with him about drug transactions. Hambly refused to talk with the officers and was then placed under arrest. He requested to speak with an attorney, but soon thereafter, Hambly initiated communication with the officers and signed a Miranda waiver form. An officer then proceeded to interview Hambly for approximately an hour and Hambly admitted that he sold cocaine on several occasions. The State charged Hambly with three counts of delivering cocaine. He moved to suppress the statements made to the officers. The circuit court denied this motion after a hearing. He was found guilty on one count. Hambly appealed his conviction, alleging the circuit court erred in denying his motion to suppress the statements made to the officer. The court of appeals affirmed the order denying the suppression and affirmed the conviction.
The Wisconsin Supreme Court concluded that Hambly’s statements are admissible. Hambly invoked his Fifth Amendment Miranda right while in custody, then initiated communication with a police officer in which he voluntarily, knowingly and intelligently waived his right to counsel. Miranda v. Arizona, 384 U.S. 436 (1986).
To show that a suspect waived his/her Miranda right to counsel after invoking it, the state must meet two criteria: (1) the suspect initiated further communication exchanges or conversations with police, and (2) the suspect waived the right to counsel voluntarily, knowingly and intelligently. The court determined that the officer did not engage in express questioning after Hambly invoked his Fifth Amendment Miranda right to counsel. The officer’s words and conduct towards Hambly did not constitute interrogation and did not elicit an incriminating response from Hambly. The Wisconsin Supreme Court found that Hambly willingly initiated the communication with the officers, when he sought more information about why he was under arrest. Hambly voluntarily, knowingly, and intelligently waived his right to counsel in order to talk with the officers about the drug transactions. For a waiver to be voluntarily, it must be the product of a free and deliberate choice rather than by intimidation, coercion or deception. There is no evidence, which shows Hambly was intimidated or coerced. For a waiver to be knowing and intelligent, it must be made with full awareness of the nature of the rights abandoned. Hambly reviewed and signed the Miranda waiver form before speaking with the officers showing his willingness and desire for a discussion with the officers. The inculpatory statements made by Hambly are therefore admissible.
The court is divided on whether to adopt a temporal standard to determine whether a suspect in custody has effectively invoked his/her Miranda rights. Three justices adopted the standard that a suspect may effectively invoke the Fifth Amendment Miranda right to counsel when in custody even before interrogation is imminent. The other three justices conclude it is unnecessary to determine whether the appropriate temporal standard to adopt is “anytime in custody” or the “imminent or impending interrogation” standard.
