2012 WI App 915
April 3, 2013
Issue: Whether the officer’s misreading of Laufer’s license plate could form the basis for reasonable suspicion to stop.
Holding: The officer made a traffic stop based on a mistaken observation of defendant’s license plate, which was a good-faith mistake of fact, not of law.
Summary: An officer ran a random registration check on a license plate, which was registered to a different color vehicle than the one driven by Laufer. The officer initiated a traffic stop when Laufer pulled into a driveway. Laufer, No. 2012AP915 (Wis. App. filed April 3, 2013), ¶¶ 1, 2. When the officer approached Laufer’s vehicle, he realized he had misread the license plate. The officer continued in his approach to tell Laufer why he had stopped the vehicle. The officer noticed “an odor of intoxicants” and requested Laufer do the field sobriety tests. The officer arrested Laufer for OWI. Id. at ¶3.
“A traffic stop is generally reasonable if officers have probable cause to believe that a traffic violation has occurred…or have grounds to reasonably suspect a violation has been or will be committed.” Id. at ¶6 (citing State v. Popke, 2009 WI 37, 317 Wis. 2d 118, 765 N.W.2d 569). In State v. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999), aff’d by an equally divided court, 2000 WI 23, 233 Wis. 2d 278, 607 N.W.2d 620, the court concluded that if the facts would support a violation only under a legal misinterpretation, a violation has not occurred. Therefore, even a good-faith mistake of law will not support probable cause.
In this case, the officer’s testimony indicated he stopped Laufer to make sure the vehicle registration that was on the vehicle “was actually the vehicle that…I was following.” In Laufer, the officer believed that the vehicle he was following might have license plates that were not registered to it, based on the color discrepancy between the vehicle he observed and the registration plate he ran. Laufer, at ¶8. The officer was mistaken in his observations as a matter of fact, but the facts related by the officer constituted a violation of the law. The court concluded the officer’s misreading of the plate was in good faith and was not a mistake of law.
2013 WI App 37
Issue: Did the officer use unreasonable force during his arrest of Herr to warrant suppression of the evidence?
Holding: The trial court properly denied defendant’s motion to suppress because the evidence was not causally related to the alleged use of unreasonable force.
Summary: An officer attempted to stop Herr for speeding and operating on the wrong side of the road. Herr did not pull over. Herr went through stop signs, weaved in his lane, crossed onto the gravel on the side of the road and avoided a stop strip. Herr was finally boxed in by law enforcement in a felony stop. Herr, ¶¶2-3. Two squad cars were behind Herr’s car and two were in front. The officers drew their weapons and ordered Herr to show his hands and get out of the vehicle. Herr did not follow the police command. An officer took out his taser and advised the other officers he was “going to go nonlethal” to remove Herr from the vehicle. Herr,¶4. The officer deployed the taser for five seconds, which allowed police to take Herr into custody. Id. Herr was charged with felony OWI, felony OWI-prohibited alcohol concentration, felony eluding arrest, and misdemeanor operating after revocation. Herr filed a motion to suppress “any and all statements made by the defendant, the chemical test of the defendant’s blood, and any other observations made by the arresting officer” on the grounds that the officer’s use of the taser was unreasonable. The trial court denied the motion because there was “no causal connection” between the use of force and the evidence collected against Herr. Herr, ¶5.
Herr argued the remedy for the alleged unreasonable use of force is suppression of all evidence obtained from him. Herr, ¶7. Not all illegal conduct triggers the exclusionary rule. If the interests that were violated by the unlawful police conduct are unrelated to the seizure of evidence, the exclusionary rule is inapplicable. Herr, ¶4 (citing Hudson v. Michigan, 547 U.S. 586, 593 (2006)). The Seventh Circuit held that even if police use excessive force, a defendant’s remedy is a suit for damages under 42 U.S.C. § 1983 (2012) or a state statute in conformity therewith, rather than exclusion of evidence in defendant’s criminal trial. Herr, ¶9 (citing United States v. Watson, 558 F.3d 702 (7th Cir. 2009)).
In this case, Herr does not challenge the basis for the traffic stop of his vehicle and placing him under arrest for felony OWI after eluding arrest. However, Herr argues he was tortured into making the statements he made or in consenting to field sobriety tests and a blood draw. Herr, ¶10. The court reasoned, “Suppression of evidence…has always been out last resort, not our first impulse.” The Fourth Amendment does not require courts to exclude all evidence or forgo prosecuting a defendant following unlawful police conduct. The trial court denied Herr’s motion to suppress without making a finding as to the officer’s use of the taser. In a footnote, the court of appeals stated, “While we do not decide the issue, our independent review of the record suggests that the use of the taser was most likely reasonable.” Herr,¶11, n.1.
2013 WI App 39
Issue: Did Bohlinger make a prima facie showing that he did not knowingly, intelligently and voluntarily waive his right to counsel in earlier OWI proceedings?
Holding: Yes, Bohlinger made a prima facie showing. The case is remanded to circuit court for an evidentiary hearing where the State will have the opportunity to meet its burden of proof that Bohlinger possessed the constitutionally required knowledge and understanding to execute valid waivers of counsel.
Bohlinger appeals his fourth-offense OWI conviction. He argues the trial court erred by denying his motion to collaterally attack his second and third OWI convictions from 2008 and 2009. Bohlinger, ¶1. Bohlinger submitted transcripts of the 2008 and 2009 plea hearings in support of his motion. He did not argue the colloquies themselves were deficient, but that he suffered from “cognitive and learning disabilities,” that prevented him from understanding his right to an attorney. Id. at ¶5. Bohlinger submitted an affidavit documenting his difficulties with learning and reading as well as a written report from a psychologist who concluded he did not have the “mental capacity to waive his right to an attorney in the 2008 and 2009 cases.” Id.
The trial court held a hearing on Bohlinger’s motion where a psychologist testified that defendant suffers from “mild mental retardation or cognitive difficulty” in addition to his reading level, comprehension, attention and concentration. Id. at ¶¶6-9. Bohlinger’s special education teacher from middle school and high school testified that defendant was “significantly limited” in his mental abilities consistent with the psychologist’s testimony. Id. at ¶12. The circuit court denied the motion, concluding that the transcripts showed a sufficient colloquy had taken place even though Bohlinger did not have the cognitive ability to waive counsel in either case. Id. at ¶13.
The Sixth Amendment secures the right to counsel to a defendant at all critical stages of the criminal process. Id. at ¶14. A defendant may waive his or her right, but a constitutional waiver requires it be entered “knowingly, intelligently, and voluntarily.” Id. (citing State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997)). Further, a defendant may collaterally attack a prior conviction used to enhance a sentence proceeding based on having been denied the constitutional right to counsel in the earlier case. Id. at ¶15, (citing State v. Hahn, 2000 WI 118, ¶17, 238 Wis. 2d 889, 618 N.W.2d 528)). Defendant’s assertion must be supported with a prima facie showing that his or her constitutional right to counsel in the prior proceeding was violated. Id. If the defendant makes a prima facie showing, the burden shifts to the State to prove by clear and convincing evidence that defendant in fact possessed the requisite understanding to “knowingly, intelligently, and voluntarily waive the right to counsel.” Id. at ¶16.
On review, the court of appeals concluded that a defective waiver colloquy is not required to make a prima facie showing that a person’s right to counsel was violated. Rather, State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, held that a defective colloquy “can form the basis for a collateral attack” when supported by additional evidence. Id. at ¶18. In Iowa v. Tovar, 541 U.S. 77 (2004), the U.S. Supreme Court held that even when the evidence shows a facially valid waiver colloquy, a court may consider factors outside the transcript to determine whether the waiver was made knowingly, intelligently, and voluntarily. Id. at ¶19. The court of appeals held that Bohlinger provided ample evidence to make a prima facie showing that he did not execute knowing, intelligent, and voluntary waivers of counsel in the 2008 and 2009 cases. The trial court dismissed defendant’s motion before having the State proceed with presenting evidence to meet its burden of proof. The court now remands the case for an evidentiary hearing where the State may proceed to prove a constitutional waiver or counsel. If the State fails to meet its burden, Bohlinger will be entitled to “attack, successfully and collaterally,” his 2008 and 2009 convictions. Id. at ¶21.
2013 WI App 16
In this consolidated appeal, appellants present a common issue; namely, whether in a prosecution for a subsequent OWI-related offense, the State is required to prove the elements of an underlying first-offense OWI to a jury beyond a reasonable doubt for purposes of penalty enhancement.
The elements of an underlying first-offense OWI need not be proven to a jury beyond a reasonable doubt in a criminal proceeding for a subsequent OWI violation.
Defendants-Appellants Verhagen, Nickles, Van Asten, and Bell were charged with criminal OWI offenses based on having been previously convicted of OWI. State v. Verhagen, 2013 WI App 16, ¶ 1. Each defendant filed pretrial motions based on New Jersey v. Apprendi, 530 U.S. 466 (2000) arguing the State be required to prove beyond a reasonable doubt the facts underlying their civil forfeiture OWI offenses. Verhagen., ¶¶ 6, 7, 8, 15. Specifically, the appellants argue that Wis. Stat. § 343.307(1), which enumerates what convictions must be counted when determining the penalty for drunk driving, is unconstitutional as applied to them because it required the courts to count civil convictions obtained without the guarantees of a jury trial or criminal burden of proof. Id., ¶ 16. Separately, Van Asten filed a pretrial motion collaterally attacking his second offense OWI conviction on the ground that he entered a plea without a valid waiver of counsel. Id., ¶ 9.
Relying on Apprendi, 530 U.S. at 476-85, appellants argue due process imposes on the State the burden of proving each essential element of a charged crime beyond a reasonable doubt. Id., ¶ 19. The court reasoned that Wisconsin’s OWI penalty scheme is consistent with the directive of Apprendi. In State v. McAllister, 107 Wis. 2d 532, 319 N.W.2d 865 (1982), the supreme court concluded that the number of a defendant’s prior OWI convictions to be counted for penalty enhancement purposes is not an essential element of the offense. Rather, the proper time to determine the number of a defendant’s prior convictions for sentence enhancement purposes is at sentencing (citing State v. Matke, 2005 WI App 4, 278 Wis. 2d 403, 692 N.W.2d 265) Id., ¶ 24. Further, the supreme court has concluded there is no inherent unfairness in considering previous convictions as penalty enhancers rather than as an element of the charged offense. Wisconsin’s OWI penalty structure satisfies due process as it gives ample notice of the prohibited conduct and penalties. Id., ¶ 29. Therefore, the court of appeals declined to hold that the underlying facts of a first-offense OWI must be submitted to the jury in a subsequent prosecution to impose an enhanced penalty. Id., ¶ 32.
As to Van Asten’s collateral attack, the court pointed out that a collateral attack may only be made on an earlier conviction when based on the denial of defendant’s constitutional right to a lawyer (citing State v. Ernst, 2005 WI 107, 283 Wis.2d 300, 699 N.W.2d 92), Id., ¶ 35. To succeed, a defendant must point to facts that demonstrate that he or she did not know or understand the information which should have been provided in the previous proceeding and, thus did not knowingly, intelligently, and voluntarily waive his or her right to counsel. Id. Here, the court found clear evidence that Van Asten’s waiver was knowing, intelligent, and voluntary.
The court concluded that when the record shows only that the defendant does not remember what occurred during his case, he has failed to make a prima facie showing that his right to counsel has been violated. A claim of a violation on a collateral attack must provide facts demonstrating defendant did not know or understand information that should have been provided to him. In this case, Van Asten’s claim is that he simply cannot recall what happened, which is not sufficient to sustain a violation of the right to counsel. Id., ¶ 40.
2013 WI App 22
Issue: Did police have probable cause to search the trunk of Lefler’s vehicle after arresting him for operating while under the influence of an intoxicant?
Holding: Yes, police had probable cause to search the trunk of Lefler’s vehicle incident to his OWI arrest.
After police arrested Edward Lefler for OWI, they proceeded to search the trunk of his vehicle. State v. Lefler, 2012AP224 (Wis. App. filed January 23, 2013), ¶1. At the time of the search, Lefler was a known suspect in a burglary case. Id. Accordingly, when police found tools suitable for committing the burglary, they questioned him about the incident and he confessed to committing the burglary. Id. Lefler appealed the trial court’s denial of his motion to suppress the evidence obtained from this search on the grounds that his OWI arrest was insufficient to give police probable cause to search the trunk of his vehicle. Id. The court of appeals affirmed the circuit court. Id.
Police arrested Lefler for OWI after observing him drive through a stop sign and exhibit signs of intoxication during field sobriety tests. Id. at ¶2. Before placing him under arrest, the officer, who was familiar with Lefler as a suspect in a burglary case, questioned him about the screwdriver sticking out of his pocket. Id. at ¶3. The officer also knew that Lefler was not in an occupation that would require the screwdriver, or any of the other “prying-type device[s]” in plain sight on Lefler’s car floor, so when Lefler gave an implausible excuse for the screwdriver’s presence, the officer suspected that Lefler had been involved in the recent burglary case. Id. The officer then placed Lefler under arrest and searched the trunk of his car. Id. at ¶4. Inside, police found tools that were reported as stolen. Id. When questioned about the tools, Lefler confessed to a string of burglaries. Id. Denying his later motion to suppress the evidence, the circuit court held that Lefler had no expectation of privacy in the trunk of his car incident to his OWI arrest. Id. at ¶5.
The court of appeals reviewed the argument in light of the Fourth Amendment (art. I, § 11 of the Wisconsin constitution) right to be free from unreasonable searches. Id. at ¶7. It stated that police may search a vehicle without a warrant when they have probable cause to believe it contains evidence of a crime. Id. This exists when they have sufficient facts to, “excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place to be searched.” Id. at ¶8 (quoting State v. Sloan, 2007 WI App 146, ¶23, 303 Wis. 2d 438, 736 N.W.2d 189). The court thus rejected Lefler’s argument that officers had no probable cause to believe that the trunk contained evidence of his OWI arrest because they already had probable cause to believe that it contained evidence of a separate burglary. Lefler at ¶¶9, 11. Simultaneously, the court declined to advance the argument made by both the circuit court and the state that Lefler had an expectation of privacy in the trunk of the vehicle at the time of arrest. Id. at ¶10.
Considering the elements of burglary (possession of a tool or device; the tool or device is suitable for use in breaking into a building; and intent to break into a building and steal movable property), the court found that officers had evidence of the first two elements from their own observations before searching the trunk of Lefler’s car. Id. at ¶12. Combined with the totality of the circumstances and the officer’s own personal knowledge of the situation, it concluded that a reasonable person could have an honest belief that Lefler would have evidence of the burglary in his trunk. Id. at ¶13. Noting that police need a reasonable basis to justify a search, and not necessarily one rooted in an ongoing arrest, the court affirmed Lefler’s conviction. Id. at ¶14.
2013 WI App 21
Issue: Is Waukesha County’s blanket bail condition requiring treatment and monitoring of second or subsequent OWI offenders constitutional?
Holding: The imposition of treatment and monitoring as a condition of Wilcenski’s bail was constitutional. However, a blanket bail policy constitutes an erroneous exercise of discretion.
Wilcenski challenges the constitutionality of Waukesha County’s mandatory drug and/or alcohol treatment program as a condition of bail for all charges of second or subsequent offense, as well as the court’s decision to condition his own bail on such a program. Id. Despite the fact that Wilcenski already completed his sentence, the court of appeals held that the appeal was not moot because it raised issues of constitutionality. Id. at ¶2. Ultimately, the court affirmed the trial court’s decision to condition bail on Wilcenski’s participation in an alcohol treatment program because the judge made a proper individualized determination of his bail conditions. However, agreeing that a blanket bail condition was improper, the court provided guidance that a blanket bail policy “constitutes an erroneous exercise of discretion.” Id. at ¶3.
After being arrested for second-offense OWI, Wilcenski moved the court to allow him to forego the alcohol treatment program as a condition of bail. Id. at ¶6. He argued that the program violated his right to medical privacy and his right to be free from unreasonable searches. Id. He also argued that a blanket requirement violated the individualized determination requirement of bail. Id. Although the court denied his motion, it reviewed the allegations of his case to conclude that the treatment was reasonably necessary to protect the community from the potential of him operating a vehicle while intoxicated. Id. at ¶7.
To evaluate the facial challenge Wilcenski raised to the program’s constitutionality, the court adopted a standard of review that presumed the program to be constitutional unless Wilcenski could prove that the program could not be constitutional under any circumstances. Id. at ¶8 (citing Dane Cnty. DHS v. P.P., 2005 WI 32, ¶17, 279 Wis. 2d 169, 694 N.W.2d 344). As conditions of bail are discretionary decisions that circuit courts are authorized to make, the court of appeals asked whether the program constituted an erroneous exercise of discretion. Wilcenski at ¶9. The court noted that a circuit court properly exercises discretion when it considers the individual facts of a case, and, “[s]o long as a circuit court considers the individual circumstances of each case, a court may require participation in the pretrial program as a condition of release without violating a defendant’s constitutional rights.” Id. at ¶¶9, 10. Thus, finding no otherwise unconstitutional invasions of privacy, the court held that Wilcenski’s invasion of privacy challenge to the program was irrelevant. Id. at ¶13. It similarly dismissed his challenge that the program constituted an unreasonable search in violation of the Fourth Amendment. Id. at ¶14.
Addressing the discretion that circuit courts have to set nonmonetary conditions of bail, the court relied on State v. Braun, 152 Wis. 2d 500, 449 N.W.2d 851 (Ct. App. 1989):
“The term “discretion” contemplates a reasoning process that depends on the facts in the record and yields a conclusion based on logic and founded on a proper legal standard. Coming to the same conclusion for the same blanket reason in every case despite the facts of each case does not satisfy this definition.”(emphasis in original).
Under this principle, the court agreed with the State that an alcohol treatment program may be an appropriate condition of bail for some individuals charged with second or subsequent offense OWI, but not without first taking individual circumstances into account. Wilcenski at ¶17. Accordingly, a blanket condition of bail could not satisfy this judiciary duty. Id. The court upheld the trial court’s determination that Wilcenski’s bail should be conditioned upon his participation in an alcohol treatment program because the trial court clearly reviewed Wilcenski’s case and made an individualized determination that such a program was necessary to protect the community. Id. at ¶¶18, 20. However, as a final guidance to the county, the court of appeals stated that courts do not properly exercise their judicial function if they make decisions based only upon the class of defendants brought before them. Id. at ¶19.
(Editor's Note: Although this is a non-OWI case, it is included for the issues it addresses that are prevalent in OWI cases)
2013 WI App 17
Issue: Did a single defective tail light bulb give police probable cause to stop Brown’s vehicle for a defective tail light when the other two bulbs in the light were functioning?
Holding: The trial court erred in finding that police had probable cause to stop Brown’s vehicle; the stop was therefore unlawful and the evidence obtained as a result should be suppressed.
Brown appealed his conviction of possession of a firearm by a felon on the grounds that police did not have probable cause to stop him and search his vehicle, rendering the resulting evidence unlawfully obtained. State v. Brown, 2011AP2907 (Wis. App. filed January 15, 2013), ¶1. The court of appeals agreed that the police lacked probable cause to stop his vehicle, and so reversed his conviction. Id
On July 3, 2010, two Milwaukee police officers stopped the car in which Brown was a passenger, believing that the car’s driver-side tail light was defective. Id. at ¶4. At trial, the parties disputed whether a bulb in the driver-side tail light was supposed to be lit, but the court, finding that the officers credibly believed that the tail light was defective, concluded that their belief gave them probable cause to stop the vehicle. Id. at ¶¶6-8. After stopping the vehicle, they searched it and found a .38 caliber revolver under the front passenger seat. Id. at ¶2. As Brown was on extended supervision after a felony armed robbery conviction, the State filed a complaint on July 7, 2010 charging him with felony possession of a firearm. Id. Brown plead guilty to the charge at a January 2011 hearing, and later filed a postconviction motion to suppress the evidence as obtained from an unlawful stop. Id. at ¶¶9, 10.
In his postconviction motion, Brown challenged the officer’s probable cause to stop the vehicle. Id. at ¶10. He argued that, even if a single bulb in the car’s tail light was unlit, the officers could not have credibly believed it to be a violation of Wis. Stat. § 347.13(1) (2009-10), because the statute simply requires both tail lights to be “in good working order.” Id. The trial court denied the motion, reaffirming its prior finding that the officers reasonably believed that the tail light was inoperable or defective. Id. at ¶11.
On appeal, the court agreed with Brown. Id. at ¶13. The court noted that the proper legal standard for a reasonable search or seizure under the Fourth Amendment (art. I, § 11 of the Wisconsin Constitution) is whether officers have reasonable suspicion that a violation has been or will be committed or if they have probable cause to believe that a traffic violation has occurred. Id. at ¶14 (citing State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d 569). The court reviewed de novo the question of whether the officers’ misinterpreted Wis. Stat. § 347.13(1) (2009-10). Brown, at ¶17. Specifically, the court asked whether the officer’s observation that one of three bulbs on the driver-side tail light was unlit could give the officers probable cause to believe that the tail lights were not in “working order” as required by Wis. Stat. § 347.13(1). Id. at ¶19. Because the statute did not demand that the tail light be fully functional, but only in “good working order” and able to designate the rear of the vehicle, the court held that the two out of three functioning bulbs clearly satisfied the statutory requirement. Id. at ¶21. The court concluded that the officers mistakenly believed the law required all of the tail lamp light bulbs to be lit and a lawful stop cannot be predicated upon a mistake of the law. Id.