WISCONSIN SUPREME COURT CALENDAR

AND CASE SYNOPSES

APRIL, 2012

 

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WISCONSIN SUPREME COURT

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.

WISCONSIN SUPREME COURT

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WISCONSIN SUPREME COURT

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. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WISCONSIN SUPREME COURT

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 Waukesha), which affirmed a Walworth County Circuit Court decision, Judge Robert J. Kennedy, presiding.

 

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.