State v. Dean M. Blatterman , 362 Wis. 2d 138 ( 2015 )

2015 WI 46
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2107-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Dean M. Blatterman,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 354 Wis. 2d 325, 847 N.W.2d 427)
(Ct. App. – Unpublished)
OPINION FILED: May 5, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 4, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: William E. Hanrahan
JUSTICES:
CONCURRED: ZIEGLER, J., ROGGENSACK, C.J. (joining section
II) and PROSSER, J.
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by David H. Perlman, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief by Marcus J.
Berghahn and Hurley, Burish & Stanton, S.C., Madison, and Jonas
B. Bednarek and Bednarek Law Office, S.C., Madison. Oral
argument by Jonas B. Bednarek.
2015 WI 46
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2107-CR
(L.C. No. 2013CT418)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. MAY 5, 2015
Dean M. Blatterman, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a decision
of the court of appeals1 that reversed the circuit court's2
ruling that admitted test results from a blood draw conducted
after police transported Dean M. Blatterman to a hospital.
Officers conducted an investigatory stop of Blatterman's vehicle
that was grounded in a call from Blatterman's wife. Police were
concerned with possible carbon monoxide poisoning and possible
1
State v. Blatterman, No. 2013AP2107-CR, unpublished slip
op. (Wis. Ct. App. Apr. 24, 2014).
2
The Honorable William E. Hanrahan of Dane County
presiding.
No. 2013AP2107-CR
intoxication when they stopped him. After being stopped,
Blatterman did not comply with police orders. Also, he
complained of chest pain. Based on their observations and his
wife's concerns, police transported Blatterman to a hospital for
medical assessment and then conducted a legal blood draw. In
addition, before transport, an officer checked Blatterman's
driving record and learned that he had three prior operating
while intoxicated (OWI) convictions. This reduced his threshold
for a prohibited alcohol concentration3 (PAC) from 0.08% to
0.02%.4 Results of the blood test demonstrated Blatterman had
operated his vehicle with a PAC.
¶2 We conclude that Blatterman's stop and detention
satisfied the reasonableness requirement of the Fourth Amendment
of the United States Constitution and Article I, Section 11 of
the Wisconsin Constitution because they were supported by
reasonable suspicion to conduct an investigatory detention.
Blatterman's arrest, which occurred when Deputy James Nisius
transported Blatterman to the hospital, satisfied the
3
Wisconsin Stat. § 340.01(1v) (2011–12) defines alcohol
concentration relative to blood volume as "grams of alcohol per
100 milliliters of a person's blood." All subsequent references
to the Wisconsin Statutes are to the 2011-12 version unless
otherwise indicated.
4
Wisconsin Stat. § 340.01(46m)(c) defines prohibited
alcohol concentration as "an alcohol concentration of more than
0.02" for persons who have three or more "prior convictions,
suspensions or revocations, as counted under s. 343.307(1)."
There is no dispute that Blatterman was subject to the .02 PAC
standard under § 340.01(46m)(c).
2
No. 2013AP2107-CR
reasonableness requirement of the Fourth Amendment of the United
States Constitution and Article I, Section 11 of the Wisconsin
Constitution because Deputy Nisius then had probable cause to
arrest Blatterman. Furthermore, the transportation to the
hospital was lawful as a community caretaker function of law
enforcement. Accordingly, we reverse the court of appeals
decision5 that reversed the circuit court's denial of
Blatterman's motion to suppress.
I. BACKGROUND
¶3 On March 19, 2013, Deputy Nisius of the Dane County
Sheriff's Department and several other officers received a
dispatch that advised Nisius and the other officers that it had
been reported to law enforcement that Blatterman was bringing
gas into his house through a stove or fireplace to try to blow
up the house or light it on fire. The complainant was
Blatterman's wife. While Nisius was responding to the call,
dispatch updated Nisius that Blatterman was leaving the house in
a white minivan, with a specific license plate number. Dispatch
informed Nisius that Blatterman was possibly intoxicated and
had, in the past, mentioned "suicide by cop."
¶4 Soon thereafter, Nisius observed Blatterman's white
minivan approaching him. Nisius allowed the minivan to pass
him, made a U-turn, and followed Blatterman.
5
Blatterman, No. 2013AP2107-CR, unpublished slip op., ¶34.
3
No. 2013AP2107-CR
¶5 Blatterman did not violate any traffic laws. Nisius
did not immediately stop the van because Blatterman may have
been intoxicated, allegedly tried to ignite his house, and had
previously mentioned suicide by cop. Instead, he contacted
other officers in order to conduct a high-risk stop.6
¶6 When other officers arrived, Nisius turned on his red
and blue lights and the van pulled over. Other officers pulled
up next to Nisius's vehicle on each side, bringing the total
number of officers involved and squad cars present to three.
The back-up officers opened their doors, drew their weapons, and
pointed them at the van. Nisius directed Blatterman to turn off
the vehicle, to open the driver's side window, and to put his
hands outside.
¶7 Instead, Blatterman immediately opened the driver's
side door and began walking toward the officers with his hands
in the air. Blatterman's actions were contrary to the
instructions yelled by all of the officers. One of the back-up
officers transitioned from his duty weapon to a Taser, and told
Blatterman that he would use the Taser on him if he did not stop
walking. Blatterman stopped, approximately six to eight feet
away from the bumper of Nisius's squad car. A back-up officer
instructed Blatterman to turn away and get down onto the ground.
Blatterman did not turn away, but did kneel down. Two back-up
6
High risk stops involve officers stopping a vehicle in a
safe manner when someone in the vehicle may present harm to
himself, others, or involved officers.
4
No. 2013AP2107-CR
officers forced Blatterman to the ground. Nisius handcuffed
Blatterman and searched him for weapons. After the search,
Nisius asked if Blatterman was okay. Blatterman said that his
chest hurt, and the officers requested emergency medical
services (EMS).
¶8 Blatterman was wearing only a short-sleeve shirt and
jeans with boots despite the cold weather at the time of the
stop. Nisius smelled alcohol on Blatterman and noticed his eyes
were watery. The officers placed Blatterman in the back of
Nisius's squad car because it was "freezing" outside. The back
doors of the squad car did not open from the inside. EMS
arrived several minutes later, but Blatterman refused medical
attention.
¶9 Nisius considered Blatterman's possible carbon
monoxide poisoning, his chest pain, that he was potentially
suicidal, and decided Blatterman "should get checked out at the
hospital." Nisius asked Blatterman what hospital he wanted to
go to and Blatterman responded that his doctor was associated
with St. Mary's. After EMS was finished and before Blatterman
was moved from the scene of the stop, Nisius checked
Blatterman's driving record. He found that Blatterman had three
prior OWI convictions.7 Nisius also was concerned that
7
Nisius testified "That [Blatterman] had two prior or three
prior convictions for OWI." The circuit court found that when
Nisius ran Blatterman's driving record, he found three prior OWI
convictions. We uphold the circuit court's findings of fact
unless they are clearly erroneous. State v. Pinkard, 2010 WI
81, ¶12, 327 Wis. 2d 346, 785 N.W.2d 592.
5
No. 2013AP2107-CR
Blatterman was intoxicated because of "his strange behavior by
not responding to officers who are pointing weapons on you or at
you," the odor of alcohol, watery eyes, and information from
dispatch that he may be intoxicated.
¶10 Nisius took Blatterman to St. Mary's, which was
approximately ten miles from the scene of the stop. He informed
the staff that his reasons for bringing Blatterman to the
hospital were physical and psychological medical concerns, and
that he would "potentially [have] a need for a phlebotomist to
do a legal blood draw." While Blatterman remained handcuffed,
St. Mary's staff examined him for potential carbon monoxide
poisoning and chest pain and did not find any medical concern.
The assessment included questions about whether Blatterman was
suicidal. Blatterman denied being suicidal and claimed his wife
was just trying to get him in trouble.
¶11 After the medical assessment was completed, Nisius
removed Blatterman's handcuffs and had him perform field
sobriety tests in the exam room. Hospital staff drew
Blatterman's blood. The test of Blatterman's blood sample
showed his blood alcohol concentration was 0.118%, well over the
threshold of 0.02% for the PAC imposed by his prior OWI
convictions.
¶12 Blatterman was charged with OWI, fourth offense, in
violation of Wis. Stat. § 346.63(1)(a) and Wis. Stat.
§ 346.65(2)(am)(4). Blatterman also was charged with a PAC,
fourth offense, in violation of § 346.63(1)(b) and
§ 346.65(2)(am)(4). Because this was Blatterman's fourth
6
No. 2013AP2107-CR
offense under § 346.65(2)(am)(4) and Wis. Stat. § 939.60, the
crime was a misdemeanor.
¶13 Blatterman moved for suppression of the blood test
results, claiming that his transportation to the hospital
amounted to an arrest unsupported by probable cause. The court
considered whether the transport was within the vicinity under
State v. Quartana, and whether Nisius's purpose in transporting
Blatterman was reasonable. State v. Quartana, 213 Wis. 2d 440,
570 N.W.2d 618 (Ct. App. 1997). The court concluded ten miles
was within the vicinity. See id. at 446-47. As for reasonable
suspicion for the stop and transport, the court noted that
dispatch said Blatterman was filling a house with gas, he
possibly was intoxicated, and he had talked about suicide by cop
in the past. The court noted that after stopping Blatterman,
"there was nothing that the defendant did that would dispel the
notion that it was——that it was safe for the officers to
interact with the defendant," because Blatterman did not follow
instructions. The court also noted that Blatterman's complaints
of chest pain, his wearing a short-sleeve shirt without a jacket
in cold weather, as well as Nisius's belief that Blatterman may
have exposed himself to carbon monoxide supported transport to
the hospital. The court concluded that the officer's actions
were objectively reasonable. The circuit court denied
Blatterman's motion to suppress the blood test results and he
pled guilty to the OWI charge.
¶14 Blatterman appealed. The court of appeals focused
primarily on whether transportation outside the vicinity of the
7
No. 2013AP2107-CR
stop transformed the initial investigatory detention into a "de
facto arrest" in violation of the Fourth Amendment. State v.
Blatterman, No. 2013AP2107-CR, unpublished slip op., ¶18 (Wis.
Ct. App. Apr. 24, 2014). The court of appeals held that
Blatterman's transportation to the hospital was not within the
vicinity, exceeded the scope of investigatory detention, and
violated Blatterman's Fourth Amendment rights. Id., ¶¶27, 33.
¶15 The State petitioned for review, which we granted.
II. DISCUSSION
A. Standard of Review
¶16 We review the circuit court's denial of Blatterman's
motion to suppress. When we review a decision on a motion to
suppress evidence, we uphold a circuit court's findings of
historical fact unless they are clearly erroneous. State v.
Pinkard, 2010 WI 81, ¶12, 327 Wis. 2d 346, 785 N.W.2d 592.
However, we review the application of constitutional principles
to those facts independently, as questions of law. Id.
Accordingly, whether there was probable cause for arrest or
whether an officer's community caretaker function satisfies the
Fourth Amendment and Article I, Section 11 of the federal and
state Constitutions are questions for our independent review.
Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 189,
366 N.W.2d 506 (Ct. App. 1985); State v. Kramer, 2009 WI 14,
¶16, 315 Wis. 2d 414, 759 N.W.2d 598.
B. Investigatory Detention
¶17 We assume without deciding that there was not
sufficient evidence to support probable cause to arrest
8
No. 2013AP2107-CR
Blatterman when the officers stopped his vehicle. However, the
officers' temporary investigative stop was a seizure within the
meaning of the Fourth Amendment and Article I, Section 11 of the
federal and state Constitutions. See State v. Arias, 2008 WI
84, ¶29, 311 Wis. 2d 358, 752 N.W.2d 748; State v. Williams,
2001 WI 21, ¶18, 241 Wis. 2d 631, 623 N.W.2d 106. Accordingly,
the State bears the burden of proving that the seizure complied
with the Fourth Amendment and Article I, Section 11. See State
v. Harris, 206 Wis. 2d 243, 263, 557 N.W.2d 245 (1996).
¶18 Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), a police
officer may, under certain circumstances, temporarily detain a
person for purposes of investigating possible criminal behavior
even though there is not probable cause to make an arrest. Id.
at 22; State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377
(1972). The Wisconsin Legislature codified the Terry
constitutional standard in Wis. Stat. § 968.24. When we
interpret § 968.24, we rely on Terry and the cases following it.
State v. Jackson, 147 Wis. 2d 824, 830-31, 434 N.W.2d 386
(1989).
¶19 According to Wis. Stat. § 968.24, an officer may
conduct a temporary investigatory detention when "the officer
reasonably suspects that [a] person is committing . . . a
crime." § 968.24. Here, dispatch informed the officers that
according to Blatterman's wife, Blatterman had attempted to blow
up their home by drawing gas into the house and that he may be
intoxicated. The officers reasonably suspected that Blatterman
9
No. 2013AP2107-CR
had committed a crime. Accordingly, § 968.24 authorized the
officers to temporarily detain Blatterman for questioning.
¶20 Working from our conclusion that the officers'
temporary detention of Blatterman was supported by reasonable
suspicion, we next consider whether the length of the stop was
reasonable. See Florida v. Royer, 460 U.S. 491, 499 (1983)
(stating that unreasonably prolonged detentions may violate the
Fourth Amendment absent probable cause). We must "guard against
police conduct which is overbearing or harassing, or which
trenches upon personal security without the objective
evidentiary justification which the Constitution requires."
Terry, 392 U.S. at 15. "[T]he police [may not] seek to verify
their suspicions by means that approach the conditions of
arrest." Royer, 460 U.S. at 499. Consequently, the detention
"must be temporary and last no longer than is necessary to
effectuate the purpose of the stop." Id. at 500.
¶21 In determining whether the length of a stop is
permissible, it is "appropriate to examine whether the police
diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which time it
was necessary to detain the [person]." United States v. Sharpe,
470 U.S. 675, 686 (1985). "In making this assessment, courts
should not indulge in unrealistic second-guessing. In assessing
a detention's validity, courts must consider the totality of the
circumstances——the whole picture, because the concept of
reasonable suspicion is not readily, or even usefully, reduced
to a neat set of legal rules." State v. Wilkens, 159 Wis. 2d
10
 No. 2013AP2107-CR
618, 626, 465 N.W.2d 206 (Ct. App. 1990) (internal quotation
marks and citations omitted).
¶22 In the instant case, the duration of Blatterman's stop
was reasonable. Nisius diligently pursued his investigation.
He called an officer at Blatterman's residence for further
information; he checked Blatterman's driving record; and he
interacted with Blatterman due to what appeared to be an
emerging medical concern. He also sought medical attention for
Blatterman and waited for EMS and EMS's interaction with
Blatterman. Medical attention is a valid reason to extend an
investigatory detention. State v. Colstad, 2003 WI App 25, ¶17,
260 Wis. 2d 406, 659 N.W.2d 394.
¶23 In Colstad, a chaotic accident scene required the
attention of the police officer who stopped Colstad. Id.
Colstad had to wait 30 to 45 minutes for questioning to resume.
Id. The court of appeals held the length of detention was
reasonable and noted that the officer spent considerable time
providing medical assistance to the accident victim and
investigating the scene. Id. Similarly, here, time spent
waiting for and attempting to provide medical assistance to
Blatterman did not cause the length of the stop to become
unreasonable.
¶24 Blatterman's stop and detention were supported by
reasonable suspicion and lasted a reasonable length of time. We
next consider whether Nisius's transportation of Blatterman was
within the vicinity of the stop and therefore, within the scope
of an investigatory detention. Quartana, 213 Wis. 2d at 446.
11
No. 2013AP2107-CR
We also note that the express language of Wis. Stat. § 968.24,
provided in full below,8 authorizes police to question a suspect
"in the vicinity where the person was stopped" during the course
of an investigatory detention. The police may, where reasonable
grounds exist, "move a suspect in the general vicinity of the
stop without converting what would otherwise be a temporary
seizure into an arrest." Id. Therefore, when a person who is
temporarily detained for investigation pursuant to a Terry stop
and is then moved to another location, courts conduct a two-part
inquiry: "First, was the person moved within the 'vicinity' [of
the stop]? Second, was the purpose in moving the person within
the vicinity reasonable?" Id.
¶25 In Quartana, the court of appeals referred to a
dictionary to define "vicinity" to mean "a surrounding area or
district" or "locality." Id. (quoting Webster's Third New
International Dictionary: Unabridged 2550 (1976)). The court
concluded that the officer's transportation of Quartana between
his house and the accident scene one mile away was within the
8
Wis. Stat. § 968.24 provides:
Temporary questioning without arrest. After having
identified himself or herself as a law enforcement
officer, a law enforcement officer may stop a person
in a public place for a reasonable period of time when
the officer reasonably suspects that such person is
committing, is about to commit or has committed a
crime, and may demand the name and address of the
person and an explanation of the person's conduct.
Such detention and temporary questioning shall be
conducted in the vicinity where the person was
stopped.
12
No. 2013AP2107-CR
"surrounding area" or "locality." Id. at 447. The court noted
that the accident scene was within walking distance of the home,
even in the winter, and that Quartana had initially walked from
the scene to his home. Id. at 444, 447.
¶26 In the case now before us, Nisius transported
Blatterman from where he was stopped to a hospital ten miles
away. We conclude that ten miles is too distant a
transportation to be within the vicinity so long as the
temporary detention is supported by no more than a reasonable
suspicion.9 A transportation of ten miles from the place of the
stop is not within "a surrounding area or district," or the
"locality." See id. at 446 (quoting Webster's Third New
International Dictionary: Unabridged 2550). We decline to
determine the precise outer limits of the "vicinity" for
purposes of transportation during an investigatory detention.
¶27 Unpublished cases interpreting Quartana, while not
precedential, support our interpretation that the vicinity is
less than a ten-mile distance. See State v. Burton, No.
2009AP180, unpublished slip op., ¶¶14–15 (Wis. Ct. App.
Sept. 23, 2009) (concluding officer's transport of defendant
eight miles from accident scene to hospital to continue OWI
investigation, while handcuffed, was not within the vicinity);
9
The circuit court concluded that ten miles was within the
vicinity. While the circuit court characterized this conclusion
as a finding of fact, we conclude that it was a conclusion of
law, which we review independently. Pinkard, 327 Wis. 2d 346,
¶12.
13
No. 2013AP2107-CR
State v. Doyle, No. 2010AP2466–CR, unpublished slip op., ¶13
(Wis. Ct. App. Sept. 22, 2011) (concluding that four mile
transportation was "at the outer limits of the definition of
'vicinity'").
¶28 Since Nisius transported Blatterman beyond the
vicinity of the original stop, we need not inquire whether
Nisius's purpose in moving Blatterman was reasonable.10 See
Quartana, 213 Wis. 2d at 446. Furthermore, because transporting
Blatterman to the hospital was not in the vicinity of the Terry
stop, in order to be lawful, it must have been supported by
probable cause to arrest or by a reasonable exercise of the
community caretaker function.11
C. Probable Cause to Arrest
¶29 Given our conclusion that Blatterman's transportation
was outside the scope of a temporary investigatory detention,
our next inquiry is whether Nisius's transportation of
Blatterman was supported by probable cause to arrest. It is
necessary to determine when the arrest occurred because
"[p]robable cause to arrest . . . refers to that quantum of
evidence within the arresting officer's knowledge at the time of
10
We note that the parties' arguments seem to assume that
there was a hospital that was closer than ten miles from the
location of the traffic stop in which to address Blatterman's
emerging medical issues.
11
We do not address a circumstance wherein exigent
circumstances would bear on the reasonableness of a defendant's
transportation during a Terry stop.
14
No. 2013AP2107-CR
the arrest that would lead a reasonable law enforcement officer
to believe that the defendant was operating a motor vehicle [at
a prohibited alcohol concentration]."12 State v. Lange, 2009 WI
49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551.
1. Timing of arrest
¶30 In Wisconsin, the test for whether a person has been
arrested is whether a "reasonable person in the defendant's
position would have considered himself or herself to be 'in
custody,' given the degree of restraint under the
circumstances." State v. Swanson, 164 Wis. 2d 437, 447, 475
N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes,
2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277. "The circumstances
of the situation including what has been communicated by the
police officers, either by their words or actions, shall be
controlling under the objective test." Id.
¶31 Blatterman argues that his transportation to the
hospital while handcuffed amounted to an arrest. Although the
use of handcuffs is certainly restrictive, it "does not
necessarily render a temporary detention unreasonable [or
transform a] detention into an arrest." State v. Pickens, 2010
WI App 5, ¶32, 323 Wis. 2d 226, 779 N.W.2d 1. However, for such
measures to be reasonable, they must be justified by particular
12
State v. Lange, 2009 WI 49, 317 Wis. 2d 383, 766 N.W.2d
551, is grounded in "operating while under the influence of an
intoxicant." Id., ¶19. Blatterman was arrested for both OWI
and PAC. Our probable cause analysis focuses on the PAC
violation.
15
No. 2013AP2107-CR
circumstances, such as the risk of harm to the officers. See
State v. Vorburger, 2002 WI 105, ¶65, 255 Wis. 2d 537, 648
N.W.2d 829.
¶32 Here, Blatterman repeatedly failed to follow the
officers' instructions, and dispatch informed the officers that
Blatterman had mentioned suicide by cop, causing concern that
their interactions with him could escalate into a violent
confrontation. Therefore, the use of handcuffs and detention in
the squad car are not sufficient to transform Blatterman's
investigatory detention into an arrest. Furthermore, even
though the officers approached Blatterman at gunpoint, this did
not transform the investigatory stop into an arrest. Jones v.
State, 70 Wis. 2d 62, 70, 233 N.W.2d 441 (1975) (explaining that
an officer drawing a weapon during a Terry stop does not
transform the stop into an arrest).
¶33 Though Blatterman's handcuffing and detention alone
did not transform his temporary investigatory detention into an
arrest, we conclude Blatterman was arrested at the time of his
transportation to the hospital. Upon transportation, a
reasonable person in Blatterman's position would have believed
that he was in custody due to an arrest because his
transportation was involuntary, and he had experienced a
significant level of force and restraint since the initial stop.
See Vorburger, 255 Wis. 2d 537, ¶68 (concluding that "we use an
objective test, assessing the totality of the circumstances, to
determine whether a seizure has escalated into an arrest");
State v. Burton, No. 2009AP180, unpublished slip op., ¶19 (Wis.
16
No. 2013AP2107-CR
Ct. App. Sept. 23, 2009) (concluding "[a] reasonable person
would [understand] that the level of restraint, duration of
custody, and diminishing potential for release amounted to a
formal arrest").
2. Probable cause
¶34 Warrantless arrests are unlawful unless they are
supported by probable cause.13 Lange, 317 Wis. 2d 383, ¶19.
"Probable cause to arrest . . . refers to that quantum of
evidence within the arresting officer's knowledge at the time of
the arrest that would lead a reasonable law enforcement officer
to believe that the defendant was operating a motor vehicle [at
a prohibited alcohol concentration]." Id. "The burden is on
the state to show [it] had probable cause to arrest." Id.
¶35 In determining whether probable cause exists, we
examine the totality of the circumstances and consider whether
the police officer had "facts and circumstances within his or
her knowledge sufficient to warrant a reasonable person to
conclude that the defendant . . . committed or [was] in the
process of committing an offense." State v. Richardson, 156
Wis. 2d 128, 148, 456 N.W.2d 830 (1990). The probable cause
requirement "deals with probabilities" and must be sufficient
13
State v. Secrist, 224 Wis. 2d 201, 209, 212, 589 N.W.2d
387 (1999) ("Under both the Fourth Amendment and Article I, § 11
of the Wisconsin Constitution, probable cause must exist to
justify an arrest. . . . Probable cause is the sine qua non of
a lawful arrest.") (internal quotation marks and citation
omitted).
17
No. 2013AP2107-CR
"to lead a reasonable officer to believe that guilt is more than
a possibility." Borzyskowski, 123 Wis. 2d at 189; accord State
v. Drogsvold, 104 Wis. 2d 247, 254, 311 N.W.2d 243 (Ct. App.
1981). This standard is case-specific: "[t]he quantum of
information which constitutes probable cause to arrest must be
measured by the facts of the particular case." State v. Paszek,
50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971) (citing Wong Sun v.
United States, 371 U.S. 471 (1963)).
¶36 Police may properly consider prior convictions in a
probable cause determination. State v. Goss, 2011 WI 104, ¶24,
338 Wis. 2d 72, 806 N.W.2d 918 (evaluating probable cause to
request a preliminary breath test); Lange, 317 Wis. 2d 383, ¶33
(evaluating probable cause to arrest). Prior convictions are
especially relevant in this case because the statute reduced the
PAC threshold applicable to Blatterman from 0.08% to 0.02%
alcohol concentration. Goss, 338 Wis. 2d 72, ¶24; Wis. Stat.
§ 340.01(46m)(c) (defining PAC as more than 0.02% for
individuals with three or more prior convictions).
¶37 Here, Nisius checked Blatterman's driving record,
which showed three prior OWI convictions that lowered
Blatterman's PAC threshold to 0.02%. Wis. Stat.
§ 340.01(46m)(c). Nisius observed Blatterman's repeated failure
to follow the officers' orders. Nisius also knew, from
dispatch, that Blatterman possibly was intoxicated. Once
officers had restrained Blatterman, Nisius detected the odor of
alcohol on Blatterman's person and observed his watery eyes.
18
No. 2013AP2107-CR
¶38 By the time Nisius transported Blatterman to the
hospital, Nisius had ascertained Blatterman's prior OWI
conviction record and, together with information from dispatch
and his own observations, had established probable cause to
arrest Blatterman for a 0.02% PAC violation. Accordingly,
Blatterman's arrest when he was transported to the hospital was
lawful and did not violate his rights under the Fourth Amendment
and Section I, Article 11 of the federal and state
Constitutions. See Lange, 317 Wis. 2d 383, ¶19.
D. Community Caretaker Exception
¶39 The federal and state Constitutions protect persons
against unreasonable seizures. Arias, 311 Wis. 2d 358, ¶13. We
"have recognized that a police officer serving as a community
caretaker to protect persons and property may be
constitutionally permitted to perform" seizures without probable
cause. Pinkard, 327 Wis. 2d 346, ¶14 (citing Cady v.
Dombrowski, 413 U.S. 433, 448 (1973)); accord Kramer, 315
Wis. 2d 414, ¶18. A law enforcement officer exercises a
community caretaker function, rather than a law enforcement
function, when an "officer discovers a member of the public who
is in need of assistance." Kramer, 315 Wis. 2d 414, ¶32. It is
the State's burden to prove that the officer's conduct is a
reasonable community caretaker function. Id., ¶17.
¶40 In the case before us, we discuss the applicability of
the community caretaker exception as an alternative ground for
the officer's transportation of Blatterman to the hospital,
assuming arguendo, that the officer's arrest of Blatterman was
19
No. 2013AP2107-CR
unsupported by probable cause. We "interpret the provisions of
the Fourth Amendment and Article I, Section 11 as equivalent in
regard to community caretaker analyses." Id., ¶18. Therefore,
"we look to the United States Supreme Court's interpretation of
the community caretaker exception." Pinkard, 327 Wis. 2d 346,
¶14 (citing Kramer, 315 Wis. 2d 414, ¶18).
¶41 The community caretaker exception has its origins in
Cady. In Cady, Dombrowski's car was disabled by an accident and
sitting on the side of a road. Cady, 413 U.S. at 435-36. The
responding officers knew Dombrowski was a Chicago police officer
and believed he was required to carry a service revolver at all
times. Id. at 436. The officers conducted a warrantless search
"to protect the public from the possibility that a revolver
would fall into untrained or perhaps malicious hands." Id. at
443. The Court upheld the warrantless search, providing the
following rationale:
Local police officers, unlike federal officers,
frequently investigate vehicle accidents in which
there is no claim of criminal liability and engage in
what, for want of a better term, may be described as
community caretaking functions, totally divorced from
the detection, investigation, or acquisition of
evidence relating to the violation of a criminal
statute.
Id. at 441. Soon after, we first applied the community
caretaker exception in Bies v. State, 76 Wis. 2d 457, 251 N.W.2d
461 (1977). In Bies, we noted that "[a]s a general matter
[checking noise complaints] is probably more a part of the
community caretaker function of the police which, while perhaps
20
No. 2013AP2107-CR
lacking in some respects the urgency of criminal investigation,
is nevertheless an important and essential part of the police
role." Id. at 471.
¶42 In Kramer, we adopted a three-component test for
evaluating potential community caretaker functions. Kramer, 315
Wis. 2d 414, ¶21. When the State asserts a community caretaker
function as the basis for a seizure, the circuit court must
determine: "(1) that a seizure within the meaning of the
[F]ourth [A]mendment has occurred; (2) if so, whether the police
conduct was [a] bona fide community caretaker [function]; and
(3) if so, whether the public . . . interest outweigh[s] the
intrusion [on] the privacy of the individual." Id. (quoting
State v. Anderson, 142 Wis. 2d 162, 169, 417 N.W.2d 411 (Ct.
App. 1987)). We now apply the Kramer test.
1. Seizure
¶43 A seizure within the meaning of the Fourth Amendment
occurred here. We assume for the purposes of this discussion
that the officer did not have probable cause to arrest
Blatterman at that time. See Vorburger, 255 Wis. 2d 537, ¶68.
Accordingly, our discussion of the community caretaker exception
focuses on whether the officer was exercising a community
caretaker function at the time of Blatterman's transportation.
However, as we explain further below, the officer began
exercising his community caretaker function earlier in his
interaction with Blatterman and therefore, our community
caretaker analysis begins before Blatterman's transportation.
21
No. 2013AP2107-CR
2. Bona fide community caretaker function
¶44 The second component in reviewing whether an officer
was acting as a community caretaker requires the officer to be
engaged in a bona fide community caretaker function if the
officer's conduct is to be upheld. Kramer, 315 Wis. 2d 414, ¶23
(citing State v. Kelsey C.R., 2001 WI 54, ¶35, 243 Wis. 2d 422,
626 N.W.2d 777). In evaluating this component, we examine the
totality of the circumstances as they existed at the time of the
police conduct. Id., ¶30 (citing Cady, 413 U.S. at 440). We
have rejected the contention that community caretaker functions
must be totally independent from the detection, investigation,
or acquisition of evidence relating to the commission of a
crime. Id. Rather, we have concluded that "in a community
caretaker context, when under the totality of the circumstances
an objectively reasonable basis for the community caretaker
function is shown, that determination is not negated by the
officer's subjective law enforcement concerns." Id.
¶45 Here, we conclude that the officer was engaged in a
bona fide community caretaker function. The officer began to
exercise his community caretaking function shortly after he
stopped Blatterman's vehicle. Our conclusion is based on the
circuit court's findings of fact14 that dispatch informed the
officer that Blatterman attempted to blow up his house by
14
The circuit court did not decide whether Blatterman's
transport to the hospital was undertaken as a community
caretaker function, but the court did find that the officer's
medical concern for Blatterman was justified.
22
No. 2013AP2107-CR
filling it with gas, that Blatterman may be intoxicated, and
that Blatterman had, in the past, talked of suicide by cop.15
The circuit court also found that Blatterman exhibited erratic
and disoriented behavior, he complained of chest pain, and he
was wearing only a short-sleeve shirt and jeans in very cold
weather.
¶46 The officer kept Blatterman handcuffed, placed him in
the back of a squad car, called EMS, and transported Blatterman
to the hospital after he refused EMS attention. The handcuffs
kept Blatterman from hurting himself or others if concerns about
his mental state were correct. Placing Blatterman in the back
of a squad car kept him out of the cold weather. Calling EMS to
assess his medical condition and transporting him to the
hospital also addressed the officer's concerns about
Blatterman's possible carbon monoxide poisoning, his self-
reported chest pain, his possible alcohol use, and his mental
health. The totality of circumstances demonstrates that the
officer's actions were undertaken as community caretaker
15
Wisconsin's emergency detention statute, Wis. Stat.
§ 51.15, authorizes police officers to take an individual into
custody if they have "cause to believe that the individual is
mentally ill" and if that individual has demonstrated "[a]
substantial probability of physical harm to himself or herself"
or "[a] substantial probability of physical harm to other
persons." § 51.15(1)1.-2. Though neither party addressed this
statute, it is worth noting that according to Horngren, police
action pursuant to § 51.15 is a community caretaker function.
State v. Horngren, 2000 WI App 177, ¶11, 238 Wis. 2d 347, 617
N.W.2d 508.
23
No. 2013AP2107-CR
functions, directly related to concern for Blatterman's physical
and mental health. See Kramer, 315 Wis. 2d 414, ¶30.
¶47 We conclude that although Nisius held subjective law
enforcement concerns, as we have explained above, those
subjective concerns did not negate the objectively reasonable
basis for a community caretaker function. Id. Officers may
base their actions simultaneously on law enforcement and
community caretaker functions. We have repeatedly explained
that officers are charged with both law enforcement and
community caretaker functions as part of their service of the
public. Pinkard, 327 Wis. 2d 346, ¶53; Kramer, 315 Wis. 2d 414,
¶32.
As an officer goes about his or her duties, an officer
cannot always ascertain which hat the officer will
wear——his law enforcement hat or her community
caretaker hat. . . . Accordingly, the officer may
have law enforcement concerns, even when the officer
has an objectively reasonable basis for performing a
community caretaker function.
To conclude otherwise would ignore the
multifaceted nature of police work and force police
officers to let down their guard and unnecessarily
expose themselves to dangerous conditions.
Kramer, 315 Wis. 2d 414, ¶¶32-33. Accordingly, we conclude that
the officer was engaged in a bona fide community caretaker
function when he transported Blatterman to the hospital.
3. Reasonableness balance
¶48 We now consider the third component: "whether the
officer's exercise of a bona fide community caretaker function
was reasonable." Id., ¶40 (citing Kelsey C.R., 243 Wis. 2d 422,
24
No. 2013AP2107-CR
¶35). We consider the third component by "balancing a public
interest or need that is furthered by the officer's conduct
against the degree of and nature of the restriction upon the
liberty interest of the citizen." Id. (citing Arias, 311
Wis. 2d 358, ¶32). "The stronger the public need and the more
minimal the intrusion upon an individual's liberty, the more
likely the police conduct will be held to be reasonable." Id.,
¶41. We balance these interests by weighing four factors:
(1) the degree of the public interest and the
exigency of the situation; (2) the attendant
circumstances surrounding the seizure, including time,
location, the degree of overt authority and force
displayed; (3) whether an automobile is involved; and
(4) the availability, feasibility and effectiveness of
alternatives to the type of intrusion actually
accomplished.
Id. (quoting Kelsey C.R., 243 Wis. 2d 422, ¶36).
a. public interest and exigency
¶49 The first factor is "the degree of the public interest
and the exigency of the situation." Id. An individual's
physical and mental health status is an issue of public interest
and presents an exigency when an officer reasonably determines
that physical or mental health could be in jeopardy. See
Pinkard, 327 Wis. 2d 346, ¶¶47-48.
¶50 In Pinkard, officers entered a residence when two
occupants were unconscious. Id., ¶5. In weighing public
interest and exigency as a factor to determine whether exercise
of the community caretaker function was reasonable, we
considered the medical consequences of officers not exercising
25
No. 2013AP2107-CR
the community caretaker function. Id., ¶¶47-48. "If Pinkard
and his companion had been suffering from a cocaine overdose, a
reasonable inference based on these facts, the officers were
presented with a significant exigency, for every passing minute
could have been the difference between life and death." Id.,
¶47. Similarly, here, the officer reasonably inferred that
Blatterman could have been suffering from carbon monoxide
poisoning or other serious illness, given the information from
dispatch that he had been exposed to some kind of gas and his
own statement that he had chest pain.
¶51 In State v. Horngren, 2011 WI App 177, 238 Wis. 2d
347, 617 N.W.2d 508, officers entered a residence in response to
a call that an individual there was threatening to commit
suicide. Id., ¶2. When the court of appeals weighed public
interest and exigency as a factor to determine whether exercise
of the community caretaker function was reasonable, the court
stated that "the public good involved preventing a suicide, and
securing medical assistance for a troubled individual. . . .
The exigency of such a situation is obvious." Id., ¶¶14-15.
¶52 In the case now before us, the officer knew of
Blatterman's previous remarks about suicide by cop. Though the
circumstances here differ from the threats of suicide in
Horngren, nevertheless they evidence a similar public interest
at stake and exigency presented to the officer. The public has
a substantial interest in police ensuring the well-being and
safety of citizens who may be suffering from health concerns
that present exigencies. Accordingly, the first factor favors
26
No. 2013AP2107-CR
the conclusion that the officer reasonably performed his
community caretaker function.
b. attendant circumstances
¶53 In considering the second factor, whether the time,
location, and degree of authority and force displayed were
appropriate under the circumstances, we refer to the information
available to the officer at the time of the investigatory stop
and observations by the officer subsequent to the stop. In
Pinkard, we "first note[d] that the officers did not control the
time of day or location," but were responding to a phone call.
Pinkard, 327 Wis. 2d 346, ¶49. Similarly, here, Blatterman's
seizure stems from Nisius being dispatched in response to a
phone call by Blatterman's wife.
¶54 Nisius and the other officers undeniably displayed
overt authority and force when they stopped Blatterman and
handcuffed him. This initial show of authority, exerted by
three officers who were involved in the investigatory stop, was
based on reasonable suspicion.16 Nisius placed Blatterman,
handcuffed, in the back of his squad car while he waited for EMS
16
The involvement of several officers during the stop does
not foreclose their exercise of a community caretaker function.
In Pinkard, we held that officers reasonably exercised their
community caretaker function when they entered and searched a
residence for two unconscious individuals. Pinkard, 327 Wis. 2d
346, ¶2. After receiving an anonymous tip about the unconscious
individuals, an officer thought the residence sounded like a
"drug house." Id., ¶54. We held that sending five officers
from the unit that performed narcotics investigations "was a
reasonable precautionary measure to prepare for another
eventuality." Id.
27
No. 2013AP2107-CR
because it was very cold outside and Blatterman was wearing a
short-sleeve shirt and jeans without a jacket or coat.
Blatterman was transported to the hospital, following his
refusal to accept medical treatment from EMS, because Nisius
remained concerned. His concern was reasonable given
Blatterman's wife's report that he had attempted to blow up his
house by drawing gas inside; he possibly was intoxicated; he may
have had thoughts of suicide; he failed to follow the officer's
directives; and he had chest pain.
¶55 The degree of force and display of authority were
reasonable given the officer's concerns for Blatterman's
physical and mental health. Therefore, we conclude that the
second factor favors the conclusion that the officer reasonably
performed his community caretaker function.
c. vehicle
¶56 The third factor addresses whether a person's privacy
interests were being invaded while he or she was in a vehicle.
Here, Blatterman's comments that his chest hurt could evidence a
heart condition, and his wife had reported that he may have been
drunk. Medical assessment of both concerns was required because
if Blatterman were to have a heart attack or was intoxicated, he
could cause harm to other drivers, as well as to himself. See
Kramer, 315 Wis. 2d 414, ¶44. Furthermore, "a citizen has a
lesser expectation of privacy in an automobile." State v.
Ziedonis, 2005 WI App 249, ¶31, 287 Wis. 2d 831, 707 N.W.2d 565.
Accordingly, this factor weighs in favor of the conclusion that
the officer reasonably performed a community caretaker function.
28
No. 2013AP2107-CR
d. alternatives
¶57 Under the fourth factor, "we consider the feasibility
and availability of alternatives" to taking Blatterman to the
hospital. Kramer, 315 Wis. 2d 414, ¶45. Blatterman argues that
calling the EMS was sufficient to address any medical concern.
However, this alternative, which stops short of Nisius
transporting Blatterman to the hospital, fails to acknowledge
the circumstances surrounding Blatterman's stop. At the time
that officers took Blatterman into custody, he had refused to
comply with the officers' commands; the officers also were
concerned about possible carbon monoxide poisoning, possible
suicidal thoughts, and his chest pain.
¶58 As we have explained previously, "[p]rinciples of
reasonableness demand that we ask ourselves whether 'the
officers would have been derelict in their duty had they acted
otherwise.'" Pinkard, 327 Wis. 2d 346, ¶59 (quoting State v.
Deneui, 775 N.W.2d 221, 239 (S.D. 2009)) (additional internal
quotation marks omitted). For example, if the officer, despite
the information relayed by dispatch and his observations of
Blatterman during the investigatory stop, had facilitated no
medical assessment and Blatterman or another member of the
community were injured, Blatterman and others would have
understandably viewed the lack of medical assessment as shoddy
police work. Id. That Blatterman did not require treatment at
the hospital for any physical or mental health issue is not
relevant to our consideration. See id. (stating "'that, as it
turned out, no one was injured is of no moment'") (quoting State
29
No. 2013AP2107-CR
v. Hedley, 593 A.2d 576, 582 (Del. Super. Ct. 1990)). Hindsight
is often 20/20. Based on the circumstances relevant to this
inquiry, we conclude that the fourth factor also weighs in favor
of concluding that the officer reasonably exercised his
community caretaker function.
¶59 We conclude that the officer was engaged in a bona
fide community caretaker function and that he exercised the
community caretaker function reasonably under the totality of
the circumstances. Therefore, Nisius's transportation of
Blatterman to the hospital was a lawful community caretaker
function.
III. CONCLUSION
¶60 We conclude that Blatterman's stop and detention
satisfied the reasonableness requirement of the Fourth Amendment
of the United States Constitution and Article I, Section 11 of
the Wisconsin Constitution because they were supported by
reasonable suspicion to conduct an investigatory detention.
Blatterman's arrest, which occurred when Nisius transported
Blatterman to the hospital, satisfied the reasonableness
requirement of the Fourth Amendment of the United States
Constitution and Article I, Section 11 of the Wisconsin
Constitution because Nisius then had probable cause to arrest
Blatterman. Furthermore, the transportation to the hospital was
lawful as a community caretaker function of law enforcement.
Accordingly, we reverse the court of appeals decision that
reversed the circuit court's denial of Blatterman's motion to
suppress.
30
No. 2013AP2107-CR
By the Court.—The decision of the court of appeals is
reversed.
31
No. 2013AP2107-CR.akz
¶61 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion. I write further to briefly explain why
the officer here was not required to first administer a
preliminary breath test ("PBT") to Dean Blatterman in order to
have his blood tested at the hospital.1 I also concur and write
separately to further discuss why odor alone establishes
probable cause to arrest and test a serial offender, like
Blatterman, who smells of intoxicants and is driving. We took
this case to do more than apply previously existing probable
cause principles. We accepted review in this case to decide
whether there is probable cause to arrest and test a driver, who
is subject to the .02% alcohol concentration limit,2 based upon
odor of alcohol alone.
1
Blatterman's blood draw occurred before the United States
Supreme Court's decision in Missouri v. McNeely, 569 U.S. ___,
133 S. Ct. 1552 (2013). In McNeely the United States Supreme
Court held that "the natural metabolization of alcohol in the
bloodstream [does not present] a per se exigency that justifies
an exception to the Fourth Amendment's warrant requirement for
nonconsensual blood testing in all drunk-driving cases."
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1556 (2013).
Thus, under McNeely, "[i]n those drunk-driving investigations
where police officers can reasonably obtain a warrant before a
blood sample can be drawn without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they
do so." Id. at 1561 (citation omitted). A warrantless blood
draw is constitutional under McNeely if justified by exigent
circumstances. State v. Tullberg, 2014 WI 134, ¶¶41-51, 359
Wis. 2d 421, 857 N.W.2d 120. However, we need not determine
whether exigent circumstances justified Blatterman's blood draw
because he does not rely on McNeely. Further, the good faith
exception to the exclusionary rule would apply because the blood
draw occurred before McNeely. See State v. Kennedy, 2014 WI
132, ¶¶35-37, 359 Wis. 2d 454, 856 N.W.2d 834; State v. Foster,
2014 WI 131, ¶¶47-58, 360 Wis. 2d 12, 856 N.W.2d 847.
2
"Alcohol concentration" means "[t]he number of grams of
(continued)
1
No. 2013AP2107-CR.akz
¶62 Why is it important to address this issue? The courts
and law enforcement face these real life determinations when
evaluating whether probable cause to arrest exists for a .02%
prohibited alcohol concentration ("PAC") offense, especially in
light of Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552
(2013). For example, what if the officer had sought a warrant
to draw a suspected .02% PAC offender's blood based upon odor
alone? Does probable cause exist or not? What if a law
enforcement officer had asked a suspected offender——known to be
a repeat operating-while-intoxicated ("OWI") offender, subject
to a .02% PAC legal limit and smelling of intoxicants——to submit
to a PBT, and the PBT was refused? Would the suspect be free to
leave? Are officers on scene always required to obtain a PBT
from a suspected .02% PAC offender? If a PBT is refused, is
that, coupled with odor, enough for probable cause? What if the
officer does not have a PBT device? Are officers without the
lawful ability to pursue whether such chronic offenders are
committing the crime of operating with a .02% PAC or above?3
What exactly is required to establish probable cause for the
stand-alone crime, operating in violation of a .02% PAC limit?
We should explain what we expect of our law enforcement and the
courts. Now is the time to answer those pressing questions. I
would conclude that odor of intoxicants alone establishes
alcohol per 100 milliliters of a person's blood" or "[t]he
number of grams of alcohol per 210 liters of a person's breath."
Wis. Stat. § 340.01(1v)(a), (b).
3
Contrary to Wis. Stat. §§ 346.63(1)(b) and 340.01(46m)(c).
2
No. 2013AP2107-CR.akz
probable cause for the crime of operating with an alcohol
concentration of .02% or above.
¶63 I reach my conclusion because the legislature has
spoken by enacting legislation that prohibits a serial OWI
offender, like Blatterman, from operating a motor vehicle with
this exceedingly small amount of alcohol, .02%, in his system.
The legislature essentially imposed an absolute sobriety
standard by adopting the .02% limit for serial OWI offenders
while they are operating a motor vehicle.4 The legislature did
not set such an extraordinarily low legal limit for first,
second, or third offenders. In fact, most drivers are subject
to a PAC legal limit of .08%, not a limit of .02%. Blatterman,
however, was subject to this low legal limit, .02%, because he
had three prior OWI-related convictions.5 When officers
encountered him driving on March 19, 2013, knowing that he was
subject to a .02% PAC legal limit and that he smelled of
4
"Beginning on January 1, 2001, [1999 Wis.] Act 109
require[d] that drivers with three or more prior convictions may
not exceed an absolute sobriety standard of .02 BAC. (A BAC of
.02 is considered 'absolute sobriety' because of the limitations
in breath testing devices and the fact that the slight alcohol
content of mouthwash or some medications can influence a test.)"
Legislative Briefs, OWI Laws Revised, LB-00-7, at 1 (July 2000),
available at http://legis.wisconsin.gov/lrb/pubs/lb/00lb7.pdf.
The Legislative Reference Bureau's "statements carry some
weight" and its "analyses are entitled to consideration."
Schilling v. State Crime Victims Rights Bd., 2005 WI 17, ¶22
n.7, 278 Wis. 2d 216, 692 N.W.2d 623 (citation omitted).
5
OWI-related convictions include "prior convictions,
suspensions or revocations, as counted under [Wis. Stat.
§] 343.307(1)." See Wis. Stat. § 340.01(46m)(c). Specifically,
Blatterman previously violated the OWI laws once in 1991 and
twice in 1992, which makes the present offense a fourth offense.
3
No. 2013AP2107-CR.akz
intoxicants, the officers were not wrong to pursue whether
Blatterman was operating with a PAC. I would not limit this
case to a discussion of probable cause for Blatterman. This
court's role is not that of error correcting. We accept cases to
discuss broader issues. I would do so and conclude that those
serial offenders, such as Blatterman, who are subject to a .02%
PAC limit, may be arrested and tested if they are operating a
motor vehicle and smell as if they have been drinking alcohol.
In other words, courts and law enforcement should know that
probable cause, for these serial offenders, is established based
upon odor of intoxicants alone.
I. THE OFFICERS HAD PROBABLE CAUSE TO ARREST AND TEST
BLATTERMAN UNDER THE FACTS OF THIS CASE
¶64 Blatterman's traffic stop was not an ordinary OWI
investigation. Blatterman was pulled over because his wife
called police to report that he had driven away from their house
after he tried to blow it up or start it on fire by drawing in
carbon monoxide. She also reported that he might be intoxicated
and that he had mentioned "suicide by cop" in the past.
Officers subsequently found Blatterman's vehicle and performed a
"high risk" traffic stop. Immediately after being pulled over,
Blatterman exhibited odd and potentially dangerous behavior.
Contrary to the officers' orders, Blatterman exited his vehicle
and began to approach the officers. He was wearing jeans,
boots, and a short-sleeve shirt without a coat, although the
temperature outside was freezing cold. Even more curiously,
Blatterman continued walking toward the officers despite the
fact that the officers were pointing guns at him and had ordered
4
No. 2013AP2107-CR.akz
him to stop moving. His behavior was consistent with a desire
to die through "suicide by cop." Blatterman finally stopped
walking when he was six to eight feet from the front squad car.
The officers told him to turn away and get onto the ground, but
he continued facing the officers and knelt down. The officers
then put Blatterman to the ground and handcuffed him. Deputy
James Nisius later testified that "I smelled alcohol on him when
I got up close to him."6
¶65 After Blatterman was placed in handcuffs, he told the
officers that his chest hurt. Based on his chest pain, the
officers were reasonably concerned that he may have impending
health issues. Due to his wife's report that he had mentioned
"suicide by cop" in the past and that he had been drawing carbon
monoxide into the house, the officers were reasonably concerned
that he may have been suicidal. Clearly, the officers were
concerned about Blatterman's well-being. The officers then
summoned emergency medical services ("EMS") to evaluate
Blatterman's health, namely, his chest pain. In the meantime,
the officers placed Blatterman in the back of a squad car, as he
was not dressed appropriately for the cold weather. When EMS
arrived, Blatterman refused attention. After EMS talked to
Blatterman, but before leaving the scene of the traffic stop,
Deputy Nisius checked Blatterman's driving record and discovered
that Blatterman, who smelled of intoxicants, had three prior
6
This quote comes from Deputy Nisius's testimony at a
hearing on Blatterman's suppression motion, held on July 22,
2013.
5
No. 2013AP2107-CR.akz
OWI-related convictions and was therefore subject to a PAC legal
limit of .02%. Deputy Nisius subsequently transported
Blatterman to a hospital for an evaluation regarding his chest
pain. Once at the hospital, Deputy Nisius informed the hospital
staff that Blatterman had chest pain, was possibly suicidal, and
had been exposed to carbon monoxide. Deputy Nisius also told
the hospital staff, "there's potentially a need for a
phlebotomist to do a legal blood draw."7 Hospital staff examined
Blatterman and found no concern with his chest pain. Blatterman
told hospital staff that he was not suicidal. Deputy Nisius
then removed Blatterman's handcuffs and administered field
sobriety tests in the hospital examination room.8 Hospital staff
drew Blatterman's blood.9 Blatterman's blood test results
revealed that he had a blood alcohol concentration of .118%,
well over the .02% limit to which he was subject while driving.
¶66 Under the facts of this case, the officers could not
be expected to request a PBT before transporting an offender
like Blatterman to the hospital. Officers stopped Blatterman in
response to a serious domestic complaint. Although he was
driving normally, Blatterman exhibited undeniably strange,
7
This quote comes from Deputy Nisius's testimony at a
hearing on Blatterman's suppression motion, held on July 22,
2013.
8
The record does not reflect why Deputy Nisius removed
Blatterman's handcuffs and administered field sobriety tests,
and the record does not reflect how Blatterman performed on the
tests.
9
This blood draw occurred before the United States Supreme
Court's decision in Missouri v. McNeely. See supra note 1.
6
No. 2013AP2107-CR.akz
disobedient, and volatile behavior. He exited his vehicle after
being told not to do so. He then walked straight toward the
officers, who were pointing guns at him, after being told not to
do so. He was wearing a short-sleeve shirt without a coat in
freezing cold weather. His unusual behavior was consistent with
the unusual behavior reported by his wife. In light of
Blatterman's strange behavior and reported past remark about
"suicide by cop," the officers had plenty of reason to take him
into custody. Blatterman was also complaining of chest pain.
The officers were certainly reasonable to transport him to the
hospital and not administer any tests at the scene——even a PBT.
To require an officer to ignore these facts and request a PBT,
instead of responding to the immediate needs of the situation at
hand, is inconsistent with our case law and common sense.10
¶67 In the case at issue, these legitimate concerns alone
support the officers' decision to transport Blatterman to a
hospital for testing without first requesting that he submit to
a PBT. Should officers be expected to request a PBT breath
sample from a driver who smells of alcohol, is subject to a .02%
PAC legal limit, acts very strangely, is potentially dangerous,
10
Standard field sobriety tests are not required in order
to arrest a suspect for an OWI-related offense. Tullberg, 359
Wis. 2d 421, ¶40 & n.22. A PBT is not required either. See
Cnty. of Dane v. Sharpee, 154 Wis. 2d 515, 519, 453 N.W.2d 508
(Ct. App. 1990) ("There is no question that, absent the
preliminary breath test, probable cause existed for the
arrest."); Cnty. of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603
N.W.2d 541 (1999) ("An officer may request a PBT to help
determine whether there is probable cause to arrest a driver
suspected of OWI . . . ." (emphasis added)).
7
No. 2013AP2107-CR.akz
and has chest pain? No. Our precedent does not require a PBT
under these circumstances, and the majority opinion is correct
not to require that here. However, we did not accept review of
this case to recite existing precedent or to apply previously
existing probable cause principles. Hence, I engage in the
following analysis to address the more pressing issue——why we
accepted review.
II. AN OFFICER HAS PROBABLE CAUSE TO ARREST AND TEST
A MOTORIST IF THE MOTORIST EMITS AN ODOR OF INTOXICANTS
AND THE OFFICER KNOWS THE MOTORIST IS SUBJECT TO A PROHIBITED
ALCOHOL CONCENTRATION LEGAL LIMIT OF .02%
¶68 I write separately because I conclude that odor of
intoxicants alone is sufficient to establish probable cause to
arrest and further test an operator of a motor vehicle when the
officer knows that the operator has three or more previous OWI-
related convictions. When practical, a PBT will be a useful
tool in determining whether to arrest and further test. In
general, PBTs serve to bolster the probable cause analysis.
However, a PBT is not always required and if it is refused by
the chronic offender who is required not to exceed a .02% PAC
while driving, I would conclude that probable cause to arrest
exists based upon odor alone. Field sobriety tests may also be
administered, but are not required, for the seemingly obvious
reason that in order to exceed the .02% PAC legal limit, the
operator need not exhibit any indicia of intoxication or
impairment. Because the law requires that this class of serial
drunk drivers maintain an alcohol concentration of less than
.02% if operating a motor vehicle, probable cause must exist
8
No. 2013AP2107-CR.akz
based on the odor of alcohol alone. These repeat drunk drivers
are already on notice that they place themselves at great risk
of arrest if they ingest any amount of alcohol and get behind
the wheel.
¶69 The law concerning probable cause is not new.
Probable cause is required for an arrest to be valid. State v.
Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999) (citing
State v. Mitchell, 167 Wis. 2d 672, 681, 482 N.W.2d 364 (1992)).
"Probable cause to arrest is the quantum of evidence within the
arresting officer's knowledge at the time of the arrest which
would lead a reasonable police officer to believe that the
defendant probably committed or was committing a crime." Id.
(citations omitted). "There must be more than a possibility or
suspicion that the defendant committed an offense, but the
evidence need not reach the level of proof beyond a reasonable
doubt or even that guilt is more likely than not." Id. (citing
Mitchell, 167 Wis. 2d at 681-82). Probable cause to arrest
depends on the totality of the circumstances. State v. Kennedy,
2014 WI 132, ¶21, 359 Wis. 2d 454, 856 N.W.2d 834. An officer
may have probable cause to arrest a person for an OWI-related
offense without administering a PBT.11 See Cnty. of Dane v.
11
There are many reasons why an officer might not request a
PBT. Perhaps a motorist who is suspected of committing an OWI-
related offense is unconscious or otherwise incapable of
submitting to a PBT. See State v. Disch, 129 Wis. 2d 225, 236,
385 N.W.2d 140 (1986) (holding that the defendant was not
conscious enough to give or withhold consent to submit to
testing under Wis. Stat. § 343.305, Wisconsin's implied consent
law). Perhaps the motorist is in need of medical care. See
Tullberg, 359 Wis. 2d 421, ¶¶48-51 (upholding a blood draw of a
suspected drunk driver who was hospitalized and in need of a CT
(continued)
9
No. 2013AP2107-CR.akz
Sharpee, 154 Wis. 2d 515, 519, 453 N.W.2d 508 (Ct. App. 1990)
("There is no question that, absent the preliminary breath test,
probable cause existed for the arrest."); Cnty. of Jefferson v.
Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999) ("An officer
may request a PBT to help determine whether there is probable
cause to arrest a driver suspected of OWI . . . ." (emphasis
added)).
¶70 Given that a law enforcement officer must have
probable cause in order to arrest, it is important to pay heed
to the elements of the PAC offense and then evaluate what
quantum of evidence satisfies probable cause for each element.
This crime is not complex. The legislature enacted Wis. Stat.
§ 346.63(1)(b), which has only two elements: (1) operating a
motor vehicle; (2) with a PAC. See State v. Alexander, 214
scan). Perhaps the motorist is hospitalized and receiving
medical attention. See State v. Seibel, 163 Wis. 2d 164, 182-
83, 471 N.W.2d 226 (1991) (upholding a blood draw of a suspected
drunk driver who was receiving treatment at a hospital for an
automobile accident). Perhaps the motorist is seriously
injured. See State v. Wille, 185 Wis. 2d 673, 678-79, 682-85,
518 N.W.2d 325 (Ct. App. 1994) (upholding a blood draw of a
suspected drunk driver who was admitted to an emergency room for
injuries sustained in an automobile accident). Perhaps officers
will encounter an accident scene that possibly resulted from
drunk driving but they may not immediately know the identity of
the driver responsible for the accident. See State v. Gracia,
2013 WI 15, ¶¶6-7, 40-41, 345 Wis. 2d 488, 826 N.W.2d 87
(upholding the arrest of a suspected drunk driver who fled the
scene of an automobile accident); see also Tullberg, 359
Wis. 2d 421, ¶¶12-16 (explaining that the defendant and a
passenger in his truck falsely told a detective that the
defendant had not been driving his truck when it was involved in
an OWI-related accident). For these reasons and many more, an
officer might choose not to request a PBT.
10
No. 2013AP2107-CR.akz
Wis. 2d 628, 651, 571 N.W.2d 662 (1997); Wis JI——Criminal 2696.
If a person has "3 or more prior convictions, suspensions or
revocations, as counted under [Wis. Stat. §] 343.307(1)," his or
her PAC is .02%. Wis. Stat. § 340.01(46m)(c).
¶71 Specifically, the legislature has determined that for
this unique group of repeat drunk drivers, .02%, not .08%, is a
PAC. See 1999 Wis. Act 109, §§ 16d, 16e.12 In adopting such a
low legal limit, the legislature essentially required absolute
sobriety of this group of drivers. The Legislative Reference
Bureau has explained that "Act 109 require[d] that drivers with
three or more prior convictions may not exceed an absolute
sobriety standard of .02 BAC. (A BAC of .02 is considered
'absolute sobriety' because of the limitations in breath testing
devices and the fact that the slight alcohol content of
mouthwash or some medications can influence a test.)"
Legislative Briefs, OWI Laws Revised, LB-00-7, at 1 (July 2000),
available at http://legis.wisconsin.gov/lrb/pubs/lb/00lb7.pdf.
¶72 Operating a motor vehicle with a PAC is a stand-alone
crime. See Wis. Stat. § 346.63(1)(b). As for the first
element, if one is driving, probable cause undoubtedly exists
with respect to this element. The second element becomes the
issue before the court. What information would lead a
reasonable police officer to believe that the defendant's
12
The 02% PAC legal limit took effect on January 1, 2001.
See 1999 Wis. Act 109, § 91. This court decided Renz in 1999,
and the traffic stop at issue in that case occurred in 1996,
several years before the .02% PAC legal limit took effect. See
Renz, 231 Wis. 2d at 296.
11
No. 2013AP2107-CR.akz
alcohol concentration probably is .02% or above? Not much. In
my view, odor of intoxicants must be sufficient. No other
indicia of intoxication can be required to establish probable
cause for this crime for which intoxication has no significance.
Clearly, the legislature did not contemplate intoxication or
impairment when it chose .02% as the legal limit. As the court
in State v. Goss aptly recognized, "[t]he ordinary investigative
tools employed in an investigation of an OWI case with a .08 PAC
standard are of little or no use where the PAC standard is [.02]
because the ordinary physical indications of intoxication are
not typically present in a person with that level of blood
alcohol content." State v. Goss, 2011 WI 104, ¶27, 338
Wis. 2d 72, 806 N.W.2d 918.
¶73 Simply stated, a person can commit a PAC offense
without being or appearing intoxicated or impaired. A person
who is subject to a .02% PAC legal limit could rarely, if ever,
exhibit any sign of intoxication or impairment when operating
with a PAC. To require more than odor of an intoxicant would
require more than is legislatively contemplated.
¶74 Specifically, an operator who is subject to this low
legal limit can certainly reach a .02% PAC without exhibiting
any of the traditional indicia of intoxication. See State v.
Muehlenberg, 118 Wis. 2d 502, 505, 347 N.W.2d 914 (Ct. App.
1984). In other words, such a prior offender need not be
intoxicated or otherwise impaired in order to be in violation of
the PAC law. Id.; see also State v. Bohacheff, 114 Wis. 2d 402,
414, 338 N.W.2d 466 (1983). For these offenders, the
12
No. 2013AP2107-CR.akz
legislature must have intended that odor of intoxicants alone
raises a red flag. A PAC violation is "highly plausible" when a
person who is subject to a PAC legal limit of .02% operates a
motor vehicle and smells of alcohol. Goss, 338 Wis. 2d 72, ¶26.
An officer certainly has probable cause to arrest when a law
violation is "highly plausible." See Secrist, 224 Wis. 2d at
212 (citation omitted) (explaining that probable cause to arrest
requires more than suspicion or a possibility, but the evidence
need not establish that guilt is more likely than not). Indeed,
in Secrist we held that probable cause to arrest may be based on
odor. See id. at 217-18 ("We hold that the odor of a controlled
substance may provide probable cause to arrest when the odor is
unmistakable and may be linked to a specific person or
persons . . . ."). To conclude that the odor of alcohol alone
establishes probable cause to arrest and test an offender who is
subject to a .02% PAC limit, is to afford proper deference to
the legislature's determination that operating with even the
smallest amount of alcohol——an alcohol concentration of .02%——is
prohibited for those serial drunk drivers.
¶75 Thus, the legislature has spoken and set a
particularly low PAC limit for a driver who has three or more
prior OWI-related convictions. In other words, the legislature
sent a strong message to those serial offenders not to drink and
drive. Those serial offenders who want to test what amount of
alcohol they can have and not reach .02% do so at great risk.
Those drivers know that they place themselves at great risk of
arrest if they have any alcohol in their system and get behind
13
No. 2013AP2107-CR.akz
the wheel. If this court were to conclude that more than the
odor of intoxicants is required to arrest a motorist subject to
a .02% PAC legal limit, we would undermine, if not invalidate,
the .02% PAC offense as a stand-alone crime. See Wis. Stat.
§§ 346.63(1)(b), 340.01(46m)(c). Our court is to listen to the
policy choices of the legislature, and here the law is clear.
¶76 Blatterman argues that Goss requires a PBT under all
circumstances. It does not. In fact, Goss supports the
conclusion that I reach today. The sole question before the
Goss court was whether the officer had probable cause to request
a PBT. Goss, 338 Wis. 2d 72, ¶2. The court concluded that a
PBT may be requested of a prior offender who is subject to a
.02% PAC legal limit based upon odor alone. Id., ¶¶2, 25-27.
The Goss court did not address whether a PBT was required in
order to arrest someone for a PAC offense. The Goss court did
not decide what happens if the operator refuses a PBT. Under a
natural extension of Goss, an officer has probable cause to
arrest a driver who smells of alcohol and is subject to a PAC
legal limit of .02%, even if the driver does not exhibit strange
behavior like Blatterman did. Although Blatterman is correct
that probable cause to request a PBT is a lower standard than
probable cause to arrest,13 his grounds for arguing that odor
13
Probable cause to request a PBT requires "'a quantum of
proof that is greater than the reasonable suspicion necessary to
justify an investigative stop, and greater than the "reason to
believe" necessary to request a PBT from a commercial driver,
but less than the level of proof required to establish probable
cause for arrest.'" State v. Goss, 2011 WI 104, ¶25, 338
Wis. 2d 72, 806 N.W.2d 918 (quoting Renz, 231 Wis. 2d at 317).
14
No. 2013AP2107-CR.akz
alone is not probable cause to arrest a .02% PAC offender are
not particularly persuasive.14 Although those two standards are
different, each standard is satisfied by the odor of alcohol on
a driver who is subject to a .02% PAC legal limit.
¶77 Finally, I address why, even if we were to conclude
that odor alone is sufficient in .02% PAC cases, law enforcement
will most often resort to using a PBT first, if practicable. As
a practical matter, an officer will likely request a PBT from a
driver who smells of alcohol and who is subject to a PAC legal
limit of .02%. Goss allows officers to do so based on odor
alone. Requesting a PBT can help to resolve doubt as to whether
such a driver has a .02% PAC or above. If the PBT results
reveal that a motorist does not have a PAC, the officer may
release the motorist, save time, and proceed onto other duties.
An officer would not likely prefer to arrest such a driver, go
through the required paperwork, transport the suspect to
testing, perhaps spend time and significant resources to get a
search warrant from a judge, sit at a hospital waiting for a
14
It may be worthwhile to spend a few moments considering
the facts of Goss and the case now before the court. Goss and
Blatterman were both pulled over for reasons unrelated to
suspicion of OWI. Neither Goss nor Blatterman were originally
being investigated for OWI. Each of them was placed in a squad
car for reasons unrelated to suspicion of OWI. Officers began
to suspect both Goss and Blatterman of a PAC violation after
placing them in squad cars. In each of the cases, the officers
knew that the defendant was subject to a .02% PAC legal limit
before requesting sobriety testing. In Goss the officer
requested Goss to submit to a PBT, the results of which
indicated that further testing could be pursued. In the present
case, the officers did not ask Blatterman to submit to a PBT——
for good reason (see section I of this concurrence.).
15
No. 2013AP2107-CR.akz
blood draw, and all the time take one more officer off the
street, when a PBT is a quick and easy tool at the officer's
disposal. The practical nature of a PBT being used in most
circumstances involving such a driver is apparent. Although
Goss does not require an officer to request a PBT before
arresting a driver who smells of alcohol and is subject to a PAC
legal limit of .02%, Goss certainly instructs that an officer is
allowed to do so. I have no doubt that law enforcement will
most often request that a suspected .02% PAC offender submit to
a PBT in lieu of all that ensues when someone is otherwise taken
into custody.
¶78 When we decline to answer the issues for which we
accepted review in this case, we leave significant uncertainty
for the courts and law enforcement. We should answer whether
odor of intoxicants alone is probable cause to arrest those
operators who are subject to a .02% PAC legal limit. If the
officers had requested that Blatterman submit to a PBT, what
would have happened if he refused? Goss does not answer that;
we should. Could a driver like Blatterman, who exhibited very
odd and potentially dangerous behavior, avoid being arrested and
tested for a PAC violation because a PBT was not administered?
Goss does not answer that; we should. Law enforcement and the
courts could benefit from us answering whether odor alone is
sufficient to establish probable cause for these serial
offenders.
¶79 Although I join the majority opinion, I write
separately to explain that Deputy Nisius had probable cause to
16
No. 2013AP2107-CR.akz
arrest and test Blatterman based on the facts of this case. I
would further conclude that odor of intoxicants alone
establishes probable cause sufficient to arrest and test
operators of motor vehicles who are subject to the .02% PAC
legal limit. For the foregoing reasons, I respectfully concur.
¶80 I am authorized to state that Justice DAVID T. PROSSER
joins this concurrence and that Chief Justice PATIENCE DRAKE
ROGGENSACK joins section II of this concurrence.
17
No. 2013AP2107-CR.akz
1