State v. Terry M. Peterson, Jr. ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 20, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2021AP161-CR Cir. Ct. No. 2016CF104
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
TERRY M. PETERSON, JR.,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Vernon County:
DACRY JO ROOD, Judge. Affirmed.
Before Blanchard, P.J., Kloppenburg, and Graham, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP161-CR
¶1 PER CURIAM. Terry M. Peterson, Jr. appeals a judgment
convicting him of operating a motor vehicle while intoxicated (OWI) as a fifth
offense. Peterson argues that the circuit court erred in denying his motion to
suppress evidence on the ground that the procedure used to obtain a telephonic
search warrant for a blood draw following his arrest for OWI and his refusal to
submit to chemical testing of his blood did not comport with the requirements of
WIS. STAT. § 968.12(3) (2021-22).1 Specifically, Peterson asserts that the State’s
reconstruction of unrecorded portions of the telephonic warrant application was
inadequate and violated his constitutional rights. We conclude that the search
warrant was valid and that the State adequately reconstructed the record to reflect
the issuing judge’s considerations at the time of the warrant application, with the
result that he fails to show a violation of his constitutional rights. Accordingly, we
affirm.
BACKGROUND
¶2 The facts pertinent to this appeal are undisputed. In September 2016,
Officer Josiah Gjefle of the Viroqua Police Department initiated a traffic stop after
seeing a vehicle weaving several times and discovering that the driver’s license of
the vehicle’s registered owner was revoked. Gjefle noticed an odor of intoxicants
coming from the vehicle’s driver, Peterson, when speaking with him pursuant to the
stop. Gjefle also observed that Peterson’s eyes were bloodshot and glassy and his
speech was slurred. Peterson admitted that he had been drinking alcohol earlier that
night.
1
All references to the Wisconsin Statutes are to the 2021-22 version.
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No. 2021AP161-CR
¶3 Peterson performed inadequately on field sobriety tests and provided
a preliminary breath test sample with a .165 result. Gjefle arrested Peterson for
OWI and took him to the hospital for a blood draw. After Gjefle read him the
Informing the Accused form, Peterson refused to consent to chemical testing. Gjefle
then completed a search warrant affidavit to obtain a sample of Peterson’s blood,
and Gjefle contacted Vernon County Circuit Court Judge Michael J. Rosborough by
telephone to complete the warrant application procedure.
¶4 Although the telephonic search warrant application should have been
recorded, Gjefle’s conversation with Judge Rosborough related to the warrant
application was not recorded. However, Gjefle’s body camera was activated
throughout and recorded his side of the conversation in its entirety. Judge
Rosborough issued the warrant, Peterson’s blood was drawn, and the test results
indicated that Peterson’s blood alcohol concentration was significantly above the
legal limit.
¶5 The State charged Peterson with several driving offenses, including
OWI with a minor in the vehicle as a fifth offense. Peterson filed a motion to
suppress, which raised several arguments related to the propriety of the arrest and
search warrant application process. The State filed a written response to Peterson’s
motion, accompanied by a transcript of the attempt by Gjefle and Judge Rosborough
to reconstruct the conversation they had regarding the search warrant application.
The warrant application had occurred more than two years before Gjefle and Judge
Rosborough attempted to reconstruct the record and, during the reconstruction,
Gjefle and Judge Rosborough both acknowledged that they had no independent
recollection of the search warrant application. However, they attempted to
reconstruct the record to reflect the conversation that they would have had regarding
Peterson’s refusal based on their standard procedures. Gjefle also reviewed his
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No. 2021AP161-CR
police report following Peterson’s arrest and a transcript of his body camera
recording in preparation for the reconstruction.
¶6 After conducting an evidentiary hearing, the circuit court found the
body camera footage of Gjefle’s side of the conversation “very compelling.” The
court further observed that Gjefle had been placed under oath at the beginning of
the conversation, and that it could clearly recognize Judge Rosborough’s “voice on
two occasions” during the course of the conversation. The court put weight on the
facts that Judge Rosborough had granted search warrants in his capacity as judge
for over thirty years and that questions asked by a judge during a search warrant
application are “fairly routine.”
¶7 The circuit court concluded that the reconstruction was adequate, and
it denied Peterson’s suppression motion. Distinguishing Peterson’s case from those
in which evidence suppression was appropriate, the court reiterated its view that the
presented body camera footage “rescue[d] this case” and that Peterson’s due process
rights were not violated by the warrant application process. The court also declined
to find a violation of Peterson’s constitutional right to appellate review, noting the
referenced body camera footage allowed an appellate court “to discern the
considerations by Judge Rosborough based on the responses to his questions by
Officer Gjefle.”
¶8 Although Peterson raised several arguments in his suppression
motion, he renews on appeal only one—his position that the blood evidence should
be suppressed because the warrant application process was improper. Specifically,
Peterson argues on appeal that his due process rights were violated because the
warrant application conversation between Gjefle and Judge Rosborough was not
recorded in its entirety.
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No. 2021AP161-CR
DISCUSSION
¶9 “In reviewing a motion to suppress, we uphold the circuit court’s
findings of fact unless they are clearly erroneous, and review the application of
constitutional principles to those facts de novo.” State v. Grady, 2009 WI 47, ¶13,
317 Wis. 2d 344, 766 N.W.2d 729. “Suppression is only required when evidence
has been obtained in violation of a defendant’s constitutional rights or if a statute
specifically provides for the suppression remedy.” State v. Raflik, 2001 WI 129,
¶15, 248 Wis. 2d 593, 636 N.W.2d 690 (citations omitted). There is no statutory
provision for suppression as a remedy for failure to comply with WIS. STAT.
§ 968.12, which governs the issuance of search warrants. Therefore, the only issue
is whether the alleged failure to comply with the statutory procedure violated one
of Peterson’s constitutional rights. See Raflik, 248 Wis. 2d 593, ¶¶15-16
(identifying three potential constitutional violations in this context: a violation of
the Fourth Amendment “in its own right”; the lack of “probable cause on the record
to support the warrant and the Fourth Amendment’s probable cause requirement
would arguably not be met”; and a violation of “the Fourteenth Amendment due
process right to meaningful judicial review and her right to a meaningful appeal
under Article I, Section 21 of the Wisconsin Constitution.”).
¶10 The procedures for obtaining a telephonic search warrant are set forth
in WIS. STAT. § 968.12(3). Under para. (a), “[a] search warrant may be based upon
sworn oral testimony communicated to the judge by telephone, radio or other means
of electronic communication.” See § 968.12(3)(a). If the testimony is
communicated through telephonic means, “The person who is requesting the
warrant shall prepare a duplicate original warrant and read the duplicate original
warrant, verbatim, to the judge. The judge shall enter, verbatim, what is read on the
original warrant.” See § 968.12(3)(b). Subsection (3)(d) allows a judge to take
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No. 2021AP161-CR
sworn testimony over the phone to support the issuance of a warrant, and in that
event “[t]he judge or requesting person shall arrange for all sworn testimony to be
recorded either by a court reporter or by means of a voice recording device.” See
§ 968.12(3)(d).
¶11 While a complete search warrant application transcript “guarantees
that the defendant has the opportunity to analyze the proceedings of the trial court
and to challenge any errors,” a violation of WIS. STAT. § 968.12(3)(d) does not
automatically constitute a constitutional violation triggering evidence suppression.
Raflik, 248 Wis. 2d 593, ¶¶31, 39. Rather, “a reconstructed warrant application
may serve as a functional equivalent of the record of the original application. Such
a reconstruction, when made appropriately, can protect the defendant’s right to a
meaningful appeal, as well as the defendant’s ability to challenge the admission of
evidence in a suppression hearing.” Id., ¶39.
¶12 In Raflik, an officer called in a telephonic search warrant application
and the judge took testimony over the phone, but the call was mistakenly not
recorded. Id., ¶¶5-6. The officer and the judge got together the next day and
reconstructed the officer’s testimony. Id., ¶¶7-10. Our supreme court determined
that the warrant process fulfilled all the requirements of the Fourth Amendment, and
that the reconstruction of the warrant application process adequately protected
Raflik’s right to judicial review. Id., ¶21. As the court explained, “[t]he essential
thing is that proof be reduced to permanent form and made a part of the record,
which may be transmitted to the reviewing court.” Id., ¶28 (citation omitted).
¶13 The Raflik court pointed to several facts to support its conclusion.
Specifically, the court noted that: (1) the reconstructed testimony was short and
involved only one witness; (2) the facts described during the reconstruction “were
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No. 2021AP161-CR
uncomplicated and easily remembered” by the witness; (3) the facts set forth in the
reconstruction were corroborated by the witness’s affidavit and other documents
filed during the original warrant application; (4) the reconstruction occurred the day
after the original warrant application; and (5) all the participants involved in the
original warrant application were available to the circuit court when the record was
reconstructed. Raflik, 248 Wis. 2d 593, ¶¶42-43.
¶14 Here, as in Raflik, Gjefle’s sworn testimony to support the warrant
application was short, with the phone conversation lasting only approximately three
minutes and, similarly, involving only one witness. Further, the facts recited during
the reconstruction were simple, and were easily remembered by Gjefle after he
refreshed his recollection with the body camera recording of his portion of
conversation, which represented the vast majority of the pertinent discussion
between Gjefle and the judge. The facts were also corroborated by the body camera
recording and by Gjefle’s affidavit, which had been filed simultaneously with the
warrant application. Finally, as in Raflik, every person involved in the original
warrant application process (here, Gjefle and Judge Rosborough) was available to
the circuit court when the record was reconstructed. Under these circumstances, the
reconstruction was sufficient to provide Peterson with the right to meaningful
judicial review both in the circuit court and on appeal. See Raflik, 248 Wis. 2d 593,
¶21.
¶15 Peterson emphasizes that over two years passed between the warrant
application and the reconstruction of the record. As part of this argument, he notes
that the Raflik court took into consideration the short passage of time between the
events and argues that the passage of time here makes a proper record reconstruction
“impossible as a matter of law.” Apart from his assertion, however, Peterson
provides no authority for this proposition. Although it is true that the reconstruction
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No. 2021AP161-CR
in Raflik occurred the day after the warrant application in that case, Peterson fails
to demonstrate why the delay in this case makes the reconstruction “impossible” or
even unreliable.
¶16 We conclude that, under the circumstances here, the gap between the
warrant application and reconstruction does not negate the adequacy of the
reconstruction. The conversation at issue was a total of only three minutes long and
one side of the conversation was completely recorded. Moreover, the side that was
recorded was that of Gjefle, who did most of the talking and provided the majority
of the content during the conversation. Finally, as the circuit court found, the officer
and the judge were discussing a rather routine type of search warrant; it follows that
the judge, based on his then-thirty years on the bench, had substantial experience in
considering similar search warrant applications and as a result had a firm idea of the
types of questions that he would ask an officer seeking a warrant of this type.
¶17 Peterson concedes that Gjefle had probable cause to obtain the
warrant in question and that the scope of the warrant was appropriate. However, he
argues that the fact that the entire warrant application process was not recorded
violates his due process rights because, without the complete recording, “[he] cannot
fully evaluate … Judge Rosborough’s neutrality.” Peterson’s due process argument
fails on its merits.
¶18 First, Peterson identifies nothing in the record to support an inference
that Judge Rosborough acted unfairly. Without any evidence to the contrary, we
presume that judges act “fairly, impartially, and without bias.” State v. Goodson,
2009 WI App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d 385. Given this presumption
and the lack of record support to the contrary, there is no basis from which to
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No. 2021AP161-CR
conclude that Judge Rosborough was biased or unfair, or even that he misunderstood
any facts.
¶19 Second, as we have explained, the body camera footage and Gjefle’s
sworn affidavit are sufficient for both the circuit court and this court on appeal to
conclude that the warrant was properly granted. See Raflik, 248 Wis. 2d 593, ¶42.
Under these circumstances, we conclude that the reconstruction of the record
adequately protected Peterson’s “right to a meaningful appeal, as well as [his] ability
to challenge the admission of evidence in a suppression hearing.” See id., ¶39. In
other words, the reconstruction did not violate Peterson’s due process rights.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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