The cases listed below will be heard in
the Wisconsin Supreme Court Hearing Room, 231 East, State Capitol.
This calendar
includes cases that originated in the following counties:
Dane
Florence
Marinette
Milwaukee
Walworth
Waukesha
TUESDAY,
APRIL 17, 2012
9:45 a.m.
11AP1112 - Milwaukee
Journal Sentinel v. City of Milwaukee
10:45 a.m. 10AP2514-CR - State
v. Scott E. Ziegler
1:30
p.m. 10AP2762 - Wisconsin
Industrial Energy Group v. Public Service Commission
WEDNESDAY,
APRIL 18, 2012
9:45
a.m. 10AP2801-CR - State
v. Michael L. Frey
10:45 a.m. 10AP505-CR - State v. Randy L.
Martin
TUESDAY, APRIL 24,
2012
9:45
a.m. 10AP557-CR - State
v. Joseph C. Miller
10AP1812 - State
v. Dimitrius Anagnos
The Supreme Court calendar may change between
the time you receive this synopsis and when the cases are heard. It is suggested that you confirm the time and
date of any case you are interested in by calling the Clerk of the Supreme
Court at 608-266-1880. That office will also have the names of the attorneys
who will be arguing the cases.
Radio and TV, and print media wanting to take
photographs, must make media requests 72 hours in advance by calling Supreme
Court Media Coordinator Rick Blum at 608-271-4321. Summaries provided are not
complete analyses of the issues presented.
WISCONSIN
SUPREME COURT
TUESDAY,
APRIL 17, 2012
9:45
a.m.
In this
bypass of the District I Court of Appeals (headquartered in Milwaukee), the
Supreme Court reviews a decision by Milwaukee County Circuit Court, Judge
Thomas R. Cooper, presiding. A party may
ask the Supreme Court to take jurisdiction of an appeal or other pending Court
of Appeals’ proceeding by filing a petition to bypass pursuant to sec. (Rule)
809.60, Stats. A matter appropriate for bypass usually meets one or more of the
criteria for review, sec. (Rule) 809.62(1), Stats., and one the Court feels it
will ultimately choose to consider regardless of how the Court of Appeals might
decide the issues.
2011AP1112 Milwaukee
Journal v. City of Milwaukee
This case examines whether previous
Supreme Court decisions authorize government authorities to charge for the
staff time required to separate and redact confidential information from public
records.
More specifically, the Milwaukee Journal Sentinel asks whether
the language from the Osborn v. Bd. of Regents of University of Wisconsin
System, 2002 WI 83, 254 Wis. 2d 266, 647 N.W.2d 158 and WIREdata, Inc.
v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736 decisions
created a new standard for charging fees under the Open Records Law.
Some background: Reporters from
the Journal Sentinel requested access
to Milwaukee Police Department records that contain some confidential
information. The city agreed to disclose the requested records but required the
newspaper to pay in advance the city’s estimated costs of separating and
redacting confidential information.
As part of one request, reporter
Ben Poston requested police computer-aided dispatch records in 14 crime
categories for a two-week period during March 2010. He later amended that request to include “any
incident reports related to” the dispatch records for that period. The city
identified 2,312 dispatch records and 743 incident reports responsive to
Poston’s request, and required prepayment of $2,081.80 for locating and copying
those records. After discussions with police officials, Poston withdrew his
request for all related incident reports, and the city agreed to produce a CD
containing a summary of each computer-aided dispatch call for the five
specified crimes and time period. The
city charged $10 for the CD and $100.30 for the computer programming time
required to locate the responsive dispatch records.
Following his receipt of the
spreadsheet listing by number all the responsive dispatch records and incident
reports, Poston requested and was provided an opportunity to inspect 100 of the
incident reports he had selected from the summary.
The city did not charge for the
staff time required to review and redact these reports. However, when the newspaper requested the
opportunity to specify and inspect 100 additional incident reports, the city
said it would require the newspaper to pay all of its “actual costs of
complying with” that request. The city said it would require prepayment of
$601.80 for processing this request, since it took 15 staff hours at $40.12 per
hour to prepare the first 100 reports for Poston’s inspection.
The other record request at issue
was made by reporter Gina Barton. She asked for police computer-aided dispatch
records for sexual assaults, as well as a subset of related incident reports
“for all call types including rape, attempted rape, sexual assault and
attempted sexual assault for the calendar year 2009.” The city produced a
spreadsheet summary of the dispatch records in response, in the same format
provided to Poston, except the location address had been redacted from the
summary to protect victim privacy.
Barton then narrowed her request
for incident reports to include only the Incident Summary from the face page of
each report. The city estimated it would cost $3,516.75 to comply with the
amended request – $126.75 for copying and $3,390 to review and redact the face
page of the 507 responsive incident reports before disclosure.
The city relied on the Osborn
and WIREdata decisions as authority for requiring the newspaper to pay
for the staff time required to review and redact the records before disclosure.
It said city staff would be required to review each incident report, assess the
status of each case, and redact non-disclosable information, such as social
security numbers, financial account numbers and juvenile victim information, at
a direct and actual cost of $40.12 per hour.
The newspaper filed suit,
demanding judgment “[c]ompelling the defendants to permit the newspaper
forthwith to inspect and copy the requested records without pre-payment of any
fee for complying with their duty to separate and redact confidential
information under Wis. Stat. § 19.3 6(6)....”
The newspaper did not dispute the city’s charges for copying or location
fees under Wis. Stat. § 19.35(3)(a) and (c).
The city moved for summary
judgment, and the circuit court agreed with the city. The circuit court
concluded that the Milwaukee Police were entitled to charge for all “actual,
necessary and direct costs incurred by the department in complying with the two
public records requests, including the actual costs of staff time to review and
redact confidential information included within the responsive records.”
The newspaper appealed,
contending that the city’s arguments and the circuit court’s ruling misconstrue
the Supreme Court’s rulings, defy “fundamental principles of statutory
interpretation commanding judicial deference to legislative policy choices, as
well as the separation of powers dictated in the Wisconsin Constitution.” They assert that the Supreme Court should
reverse the circuit court and tell the city that only the Legislature can
provide the relief it seeks.
A decision by the Supreme Court
could help clarify the effect of previous decisions related to charges for
processing open records requests.
WISCONSIN
SUPREME COURT
TUESDAY,
APRIL 17, 2012
10:45
a.m.
This is
a certification from the Wisconsin Court of Appeals, District II (headquartered
in Waukesha). The Court of Appeals may certify cases that it believes
cannot be resolved by applying current Wisconsin law. The Wisconsin Supreme
Court, as the state’s preeminent law-developing court, often accepts such
certifications from the Court of Appeals. This case originated in Waukesha
County Circuit Court, Judge Ralph M. Ramirez, presiding.
2010AP2514-CR
State
v. Ziegler
This certification from the
District II Court of Appeals examines whether there was sufficient evidence to
convict the defendant of interference with child custody. The Supreme Court is
asked to review the Court of Appeals’ decision in State v. Bowden, 2007
WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332 and Wis. Stat.
§ 948.31(2), which deals with criminal charges for interference with
custody of children.
Some background: Scott E. Ziegler
appealed his conviction on one count of repeated sexual assault of a child, one
count of interference with child custody, two counts of child enticement, one
count of second-degree sexual assault by use of force, two counts of child
abuse, and seven counts of second-degree sexual assault of a child. The charges
stem from his interactions with several teenage girls he met at a store he
owned in downtown Waukesha that sold drug paraphernalia, sex toys, and
pornography. Ziegler was sentenced to 35 years of initial confinement and 25
years of extended supervision.
Ziegler raises several issues on
appeal, but this certification addresses only his argument that there was
insufficient evidence to convict him for interference with child custody. That
conviction was based on a time when he allowed a runaway minor to stay with him
for several days. At the time, he was a stranger to the mother of the child,
who therefore did not give him permission to take or look after her daughter.
Ziegler argues that based on the
language in Bowden, the conviction for interference with child custody
must be overturned because he never had “initial permission” from the child’s
mother. The state argues that the
“initial permission” language in Bowden is dicta and the plain language
of § 948.31(2) does not contain any “initial permission” requirement.
District II notes that §
948.31(2) states that “whoever causes a child to leave, takes a child away or
withholds a child for more than 12 hours from the child’s parents ... without
the consent of the parents, the mother or the father with legal custody, is
guilty of a Class I felony.” District II
agrees with the state that there is nothing in the statutory language to
indicate that in order to withhold custody from a parent, a defendant must have
had “initial permission” from a parent to take the child.
District II says Bowden’s
interpretation of the statute appears to impermissibly add language to the
statute and add an element to the crime.
It notes, however, that despite its disagreement with Bowden’s
interpretation, it is bound by Bowden unless the language at issue is
dicta.
District II goes on to say it did
not intend for its reasoning in Bowden to be dicta. It says it is left with two options, either
follow Bowden and express its disagreement with it or certify the issue to the
Supreme Court. District II says following
Bowden in this case would require it to overturn a conviction that it
believes is statutorily sound. It notes although three other issues are raised
on appeal, it does not believe it could resolve the appeal without deciding the
Bowden/interference with child custody issue.
In addition to challenging the
sufficiency of the evidence to support the conviction for interference with
child custody, the appeal raises three other issues: (1) whether the trial
court erred in failing to dismiss as multiplicitous five counts of the criminal
information, which alleged multiple counts of second-degree sexual assault of a
child; (2) whether the defendant is entitled to a new trial because the
introduction of his mug shot before the jury prejudiced his right to a fair
trial; and (3) whether the defendant is entitled to a new trial because the
trial court failed to conduct a pretrial necessity inquiry regarding the use of
a stun belt.
TUESDAY,
APRIL 17, 2012
1:30
p.m.
This is
a certification from the Wisconsin Court of Appeals, District IV (headquartered
in Madison). The Court of Appeals may certify cases that it believes cannot
be resolved by applying current Wisconsin law. The Wisconsin Supreme Court, as
the state’s preeminent law-developing court, often accepts such certifications
from the Court of Appeals. This case originated in Dane County Circuit
Court, Judge John C. Albert, presiding.
2010AP2762 Wis. Industrial Energy Group v.
PSC
This
certification involves a dispute over the Wisconsin Public Service Commission’s
(PSC) approval process and whether a certificate of public convenience and
necessity was needed for a Wisconsin public utility to construct a wind
electric generating facility in Minnesota.
Specifically, the District IV
Court of Appeals asks the Supreme Court to review if the PSC erred in
concluding that a Wisconsin public utility may construct an out-of-state large
electric generating facility with a capacity greater than 100 megawatts without
such a certificate.
Some background: In June of 2008,
Wisconsin Power and Light Company filed an application with the PSC to
construct a 200 megawatt wind electric generating facility in Minnesota, to be
known as the Bent Tree Wind Farm. The
Minnesota public utilities commission also investigated and approved the
project under Minnesota law.
After requesting comments
addressing whether it should review Wisconsin Power and Light’s application
under § 196.49, the certificate of authority statute, or under 196.491, the
more demanding certificate of public convenience and necessity statute, the PSC
concluded by a two-to-one majority that it was appropriate to proceed under § 196.49. A contested case proceeding was held in April
of 2009, and on July 30, 2009, the PSC unanimously approved the construction.
On April 30, 2010, Wisconsin
Power and Light filed for approval to increase its electric rates by re-opening
its prior year rate case for the limited purpose of presenting the costs of,
among other things, the Bent Tree Wind project. After a contested case
proceeding, the PSC unanimously approved recovery of the costs associated with
the Bent Tree Wind project.
Wisconsin Industrial Energy
Group, Inc. and Citizens Utility Board, rate payer advocacy organizations with
members who are customers of Wisconsin Power and Light, petitioned Dane County
Circuit Court to review the PSC’s decisions.
The circuit court denied the
petition for review; the Industrial Energy Group and Citizens Utility Board
appealed.
District IV notes that the
consumers take the position that rate payer protection criteria is mandatory in
large facility approval situations because large facilities inherently have
greater potential to significantly affect rate payers. District IV says the question arises whether
the legislature intended to give the PSC the discretion to approve a large
facility without considering rate payer protection criteria. The consumers argue
there is no apparent reason why rate payers should lose their mandatory
safeguard when a large facility is built out of state.
District IV says it is left with
two problematic interpretations in resolving this appeal. It says one view would apply § 196.491 to the
wind farm because it is sufficiently large, but that would bring into play some
specific § 196.491 requirements that cannot be literally applied to an
out-of-state facility. It says this view
would treat similar facilities the same way for purposes of rate payer
protection, regardless of where a facility is located. District IV says the contrary view would
avoid misfits in some of the subsections of § 196.491, but that would deprive
rate payers of mandatory protections and would produce a seemingly illogical
distinction based on a facility’s location.
District IV notes that in this
case it looks like the PSC did more than was necessary under § 196.49 but did
less than would be required under § 196.491.
WISCONSIN
SUPREME COURT
WEDNESDAY,
APRIL 18, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which affirmed a Florence County Circuit Court
decision, Judge Leon D. Stenz, presiding.
2010AP2801-CR
State
v. Frey
This criminal case examines
whether there are limitations on the way in which a dismissed charge can be
used by a sentencing court and whether a trial court must provide prior notice
to a defendant that it might consider dismissed charges in fashioning a
sentence.
Some background: The state
initially charged Michael L. Frey with two counts of sexual assault involving
16-year-old girls, two counts of child enticement, and two counts of delivering
marijuana.
First, it alleged that Frey had
engaged in forcible sexual intercourse with one victim who testified at the
preliminary hearing that Frey had pushed her down onto the floor, removed her
pants and forced himself on her. Another victim said Frey had given her pills
that had caused her to fall asleep and that when she awoke, Frey was pulling
his hand out of her pants.
After a pretrial ruling by the
trial court, Frey and the state reached a plea agreement. In exchange for the
state “dismissing outright” the sexual assault charge involving one girl and
the two counts of child enticement, Frey pled no contest to the sexual assault
charge involving the other girl and to the two marijuana delivery counts. The circuit court accepted the pleas and
imposed consecutive sentences totaling 24 years’ initial confinement and seven
years’ extended supervision.
The issue in Frey’s appeal is the
circuit court’s consideration at sentencing of the charges dismissed outright,
especially the charge that he had engaged in forcible intercourse with one of
the girls.
The Court of Appeals said that at
the sentencing hearing, the circuit court considered the facts relating to the
sexual assault of both girls, including those “dismissed” under the plea
agreement, in order to assess Frey’s character and the pattern of his behavior.
The Court of Appeals said that the circuit court inferred that Frey drugged the
one girl for the purpose of sexually abusing her. It rejected Frey’s contention that the crime
consisted only of sexual contact, not intercourse, which Frey described as a
mitigating circumstance.
Frey asks the Supreme Court to
clarify what is meant by “dismissed outright” and how a circuit court may
consider such charges at sentencing. He
says that there is confusion about what the term means.
Although Frey acknowledges that
this court has already specifically held that dismissed outright charges could
be considered by a sentencing judge, Elias v. State, 93 Wis. 2d 278,
285, 286 N.W.2d 559 (1980), he asserts that the fact that a defendant must
agree to have a read-in charge considered by the sentencing court must mean
that the defendant is not agreeing to have the court consider a charge that is
dismissed outright.
Frey
also contends that he should have been given notice of the potential use of the
dismissed charge prior to sentencing. He claims that if he had received such
notice, he would have proceeded to trial or vigorously challenged the
accusations in the dismissed charges before sentencing.
WEDNESDAY,
APRIL 18, 2012
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed a Milwaukee County Circuit Court
decision, Judge Kevin E. Martens, presiding.
2010AP505-CR
State
v. Martin
In this case, the Supreme Court
reviews several issues related to Miranda warnings:
-
Whether the Court of Appeal’s newly
created exception to Miranda – that warnings
are not required
if the police questions are
designed to prevent a false confession – is a valid exception to Miranda;
-
Whether police statements, such as those
in this case, are express questioning or the functional equivalent of
interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980)., and
whether express questioning about the suspect’s guilt is subject to Innis’s
additional requirement that the police conduct is reasonably likely
to elicit an incriminate response, and;
-
If,
in deciding whether
custodial interrogation occurred, courts
should consider the
entirety of the police and suspect interaction, or only
part of it.
Some background: On Nov. 14,
2008, Milwaukee police officers observed an altercation between Randy L. Martin
and another driver at a red light.
Martin exited his car, yelled in the direction of a car ahead, and walked
toward the car. The other driver stepped
out. Martin pulled from his coat pocket
what looked like a weapon, pointed it at the other driver and said, “I have
something for you.” The other driver
motioned to the officer.
Martin put the object inside his
pocket and walked back to his car. The
officer promptly arrested Martin for disorderly conduct. In searching him, the officer recovered an
expandable baton from Martin’s front coat pocket and a knife from his
waistband.
An officer searched Martin’s car
and asked the passenger, LeRoy Henry, to step out. The officer found a loaded .22‑caliber
handgun inside a plastic storage drawer located under the front passenger
seat.
No Miranda warnings were
given before what happened next, giving rise to the issues raised in the
petition to the Supreme Court:
(Milwaukee
Police) Officer (Hollis) Smith showed the weapon to Martin and Henry. He then asked Martin and Henry whether either
of them owned the gun. Both denied any
knowledge of it. Officer Smith then
turned to handcuff Henry. As Martin saw
this happening, he asked Smith why he was arresting Henry. Smith explained that he was arresting Henry
for carrying a concealed weapon. Martin
asked the officers if they would let Henry go if Martin said the gun was
his. Officer Smith replied: “I don’t want you to say it’s yours if it’s
not. I just want the truth, is the gun yours.”
Martin responded, “yeah, it’s mine if you let my uncle go.” Officer Smith then asked Martin to describe
the weapon. Smith said he did so to
prevent Martin from falsely confessing.
Martin correctly described the
gun as a black .22-caliber hand gun.
According to Smith, the caliber would not have been obvious to someone
who was not closely familiar with the gun.
Martin was charged with being a felon in possession of a firearm and for
carrying a concealed weapon. After the
trial court denied Martin’s suppression motion, his statements and the gun were
admitted at trial. The jury found Martin
guilty on both counts.
On appeal, Martin argued the
trial court erroneously denied his suppression motion because (1) the officer
asked questions likely to elicit incriminating responses while he was in police
custody without giving Miranda warnings; (2) the conversation with
Martin was an “interrogation” for Miranda purposes even if Martin had
initiated it; and (3) the resulting error was not harmless.
Because there was no dispute that
Martin was in custody when he claimed the gun was his and that he had not
received Miranda warnings, the Court of Appeals said the sole issue was
whether Smith had “interrogated” Martin.
See State v. Fischer, 2003 WI App 5, ¶¶21-23, 259 Wis. 2d 799,
656 N.W.2d 503. Fischer says
that a custodial interrogation under Miranda “generally means
questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his or her freedom of action in any
significant way.”
The Court of Appeals ruled that
Martin was not interrogated for Miranda purposes and the admission of
his statements at trial was proper as a matter of law.
The state contends the Court of
Appeals merely applied long standing principles to the unique facts before
it. It says the Court of Appeals
properly deferred to the trial court’s not clearly erroneous finding that the
officers did not ask questions likely to elicit an incriminating response.
The state claims the officers’
words and actions “were only in response to questions asked by Martin why his uncle was being
arrested; and to questions asked by
Martin whether, if Martin were to admit the gun was his, would police then
let his uncle go.” The state says that
based on these not clearly erroneous facts, there was no constitutional
violation of Miranda.
TUESDAY,
APRIL 24, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which affirmed a Marinette County Circuit Court
decision, Judge Tim A. Duket, presiding.
2010AP557-CR
State
v. Miller
In this criminal case, the Supreme
Court examines whether anonymous tips provided reasonable suspicion for police
officers to initiate a stop of Joseph C. Miller’s vehicle under State v.
Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106 and State v.
Richardson, 156 Wis. 2d 128, 456 N.W.2d 830 (1990).
Some background: Miller pleaded
no contest to possessing cocaine with intent to deliver (five to 15 grams), as
party to a crime.
Officer Rick Berlin obtained a
number of tips regarding Miller’s drug sales. The first four tips were insufficient
to provide reasonable suspicion to initiate a stop. The first was from an inmate facing parole
revocation who claimed that he had been using and selling drugs with Miller. The inmate stated that someone from Milwaukee
was delivering crack cocaine to Miller in Marinette. Although Berlin conducted surveillance of
Miller’s home, no suspicious activities were observed.
Several months later, in the
summer of 2008, Berlin conducted some additional surveillance after a series of
anonymous calls alleged Miller was engaged in selling drugs from various
locations. Berlin was unable to corroborate the tips.
In August 2008, Berlin received a
phone call from a person asking to remain anonymous. The caller told Berlin that Miller and/or
Ryan Kowalski were planning to drive to Milwaukee after getting off work at
11:00 that evening to buy between $5,000 to $10,000 worth of heroin, cocaine
and Oxycontin. The caller stated the two
would drive in Kowalski’s black Ford Explorer rather than Miller’s green pickup
truck. Also, the caller believed Miller
and Kowalski would need to be back around 2 p.m. or 3 p.m. the next day for
work.
When Berlin saw Kowalski’s
Explorer in the driveway the next morning, he contacted the anonymous caller
using the call back feature on his cell phone.
The tipster said he would call back if he had any more information. At about 4:30 the same afternoon, the caller
contacted Berlin to report that Miller had left at 2 p.m. alone to pick up
drugs in Milwaukee and was driving the black Explorer. Miller was expected back at 11 p.m. The officer drove past Kowalski’s residence
and the Explorer was not visible. Surveillance was set up along the highway to
Milwaukee. The officers observed the
vehicle near Oconto at 10:30 p.m. and pulled it over when it entered Marinette
County.
Miller challenged the stop as
being unsupported by reasonable suspicion.
His suppression motion was denied.
On appeal, Miller argued that the
series of tips received by the police were of such low reliability that even
taken together they were insufficient to satisfy the threshold for an
investigative stop. The Court of Appeals
said the quality and quantity of the information within the police officer’s
possession are inversely proportional under the totality of evidence analysis.
The less reliable the source of the particular tip, the more information will
be required to reach the threshold of reasonable suspicion. See Williams, 241 Wis. 2d 631,
¶22.
The Court of Appeals said the
first tip provided by the inmate was of low reliability due to the inmate’s
questionable motivations, the time which had passed, and the fact that the
information could not be contemporaneously corroborated. The next three tips were of low reliability
due to the anonymous source, the lack of detail, and the police were unable to
verify it. The Court of Appeals
concluded that the final tip, while anonymous, was traceable through the cell
phone and provided considerably more verifiable details.
Miller argues that the Court of
Appeals seems to hold that a court may consider unreliable information in
deciding whether there is reasonable suspicion, so long as the information has
not been affirmatively proven false. He
argues such a holding would reward law enforcement’s failure to investigate a
tip because, so long as the tip is not proven to be false, it can be considered
against the suspect rather than disregarded.
The state contends the Court of
Appeals applied well-established case law to the facts and correctly determined
that the anonymous tipster provided an ample basis for the lawful stop of
Miller’s vehicle. The state says the
Court of Appeals based this holding on the totality of the circumstances,
taking into account that the tipster provided verifiable details and accurately
predicted future behavior. The state
says the court added the prior weak tips, which by themselves fell short of
providing reasonable suspicion, but could nonetheless buttress the final strong
tip which was the main impetus for the stop.
TUESDAY,
APRIL 24, 2012
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in
2010AP1812 State
v. Anagnos
This case examines whether a
deputy had reasonable suspicion to pull over a vehicle, and whether the
driver’s refusal to take a chemical test was lawful because the deputy
allegedly did not have reasonable suspicion to stop the vehicle.
More specifically, the state asks
the Supreme Court whether the issue of reasonable suspicion to stop a vehicle
can be raised in a refusal hearing by a person who has refused to submit to
chemical testing under Wisconsin’s implied consent law, Wis. Stat.
§ 343.305, which, if determined favorably to the person, results in no
revocation of the person’s operating privilege.
Some
background: At approximately 1:15 a.m., while on routine patrol, Deputy Garth
Grami noticed Dimitrius Anagnos’s vehicle pull out of a parking lot and turn
left, crossing a divided highway barrier to proceed northbound on Highway
120. The deputy believed the barrier was
approximately four to five inches high and not the type of barrier vehicles
would normally cross in making a turn.
The deputy testified that the vehicle then accelerated at a high rate of
speed before coming to a stop at a red light in the left-hand turn lane, while
the deputy’s vehicle was in the right-hand turn lane. When the light turned green, the deputy
observed the vehicle rapidly accelerate and turn left, without using its turn
signal. The deputy then pulled the
vehicle over. The driver, Anagnos, was
arrested for operating while intoxicated, first offense.
Anagnos
refused to submit to chemical testing pursuant to § 343.305. A notice of intent to revoke his operating
privilege was filed. Anagnos requested a
refusal hearing at which the defense counsel stipulated that the arresting officer
complied with the informing the accused requirements. Anagnos wanted to raise
the limited issue of whether the deputy had reasonable suspicion to stop his
vehicle.
The
court questioned whether reasonable suspicion to stop was an issue in a refusal
hearing. The court indicated it would convert the hearing to a suppression
hearing. The state initially objected that there was nothing to suppress, but
ultimately consented to the court conducting the suppression hearing after
Anagnos stipulated that the deputy complied with § 343.305(4) and Anagnos
refused the test.
Following
the evidentiary hearing, the circuit court concluded the deputy did not have
reasonable suspicion to stop Anagnos’ vehicle and, therefore, lacked probable
cause to arrest him for operating a vehicle while intoxicated (OWI). The circuit court suppressed all evidence
obtained as a result of the stop. It concluded that Anagnos’s refusal to submit
to a chemical test was reasonable.
On
appeal, the state argued that even if the traffic stop was not justified, the
circuit court was not entitled to inquire into the lawfulness of the stop at a
refusal hearing. The state also argued
that the deputy who arrested Anagnos had reasonable suspicion to stop the
vehicle. The Court of Appeals rejected
these arguments and affirmed, concluding that Anagnos broke no traffic laws and
there was no testimony that the deputy suspected Anagnos of driving under the
influence.
The
Court of Appeals noted the state had not challenged the circuit court’s fact
findings. Therefore, the appellate court
concluded the circuit court properly suppressed all of the evidence obtained as
a result of the stop.
The
Court of Appeals explained that without reasonable suspicion or probable cause
to pull over his vehicle, the deputy had no authority to require Anagnos to
submit to a chemical test.
The
state argues that the Court of Appeals’ expansion of issues conflicts with 25
years of decision relying on the formulation in State v. Nordness, 128
Wis. 2d 15, 33-34, 381 N.W.2d 300 (1986) case.
The state contends that a refusal
hearing is civil in nature. See State
v. Krause, 2006 WI App 43, ¶9, 289 Wis. 2d 573, 712 N.W.2d 67. It notes that the standard of probable cause
determinations at a refusal hearing is different than at a suppression hearing,
which is a criminal matter. See State
v. Wille, 185 Wis. 2d 673, 679, 518 N.W.2d 235 (Ct. App. 1994). It says the Court of Appeals’ interpretation
is contrary to the purpose of the implied consent law and would dramatically
alter the scope of a refusal hearing.
In his response, Anagnos contends
the Court of Appeals’ decision is consistent with the Nordness
case. He says that § 343.305(9)(a)5
permits courts during a refusal hearing to determine whether the person was
lawfully placed under arrest for OWI. He
says since a person cannot be lawfully arrested for OWI without first having
reasonable suspicion to stop the vehicle, lower court’s decision is proper.