State v. Green
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The Supreme Court affirmed the decision of the court of appeals summarily affirming the judgment of the circuit court granting the State's motion to dismiss the operating while intoxicated (OWI) count against Defendant and entering judgment against Defendant on the count of operating with a prohibited alcohol concentration (PAC), holding that there was no error.
The circuit court issued a search warrant to draw Defendant's blood based on the affidavit of a police officer. Defendant's blood was drawn, revealing a blood alcohol level of an amount well above the legal limit. The State charged Defendant with fourth offense OWI, fourth offense PAC, and resisting an officer. After the circuit court denied Defendant's motion to suppress a jury found Defendant guilty of OWI and PAC. The circuit court dismissed the OWI count and entered judgment on the PAC count. The court of appeals affirmed. The Supreme Court affirmed, holding that the warrant was supported by probable cause.
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2022 WI 41 SUPREME COURT OF WISCONSIN CASE NO.: 2019AP2150-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Valiant M. Green, Defendant-Appellant-Petitioner. REVIEW OF DECISION OF THE COURT OF APPEALS (No Cite) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: June 15, 2022 March 8, 2022 Circuit Kenosha Bruce E. Schroeder JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by Jay R. Pucek, assistant state public defender. There was an oral argument by Jay R. Pucek, assistant state public defender. For the plaintiff-respondent, there was a brief filed by John A. Blimling, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by John A. Blimling. 2022 WI 41 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP2150-CR (L.C. No. 2014CF594) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, v. JUN 15, 2022 Valiant M. Green, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant-Petitioner. HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion. REVIEW of a decision of the Court of Appeals. ¶1 United BRIAN States HAGEDORN, Constitution J. The provides Fourth in Affirmed. Amendment relevant to part: the "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . ."1 After Valiant M. Green was arrested for operating while intoxicated (OWI), law enforcement obtained a warrant 1 to draw his blood. Green See also Wis. Const. art. I, § 11. now argues the facts No. supporting cause. that warrant were insufficient to 2019AP2150-CR find probable We disagree. ¶2 When we examine whether a warrant issued with probable cause, we review the record that was before the warrant-issuing judge. State v. Ward, 2000 WI 3, ¶27, 231 Wis. 2d 723, 604 N.W.2d 517. Specifically, we look at the affidavits supporting the warrant application and all reasonable inferences that may be drawn from the facts presented. review is not independent; we Id., ¶¶26, 28. defer to the However, our warrant-issuing judge's determination "unless the defendant establishes that the facts are clearly finding." Id., examining all affidavits, evidence of ¶21. the "there a insufficient Probable facts is crime to a and fair will be support cause a exists inferences probability found in a probable cause where, after drawn that from the contraband particular or place." Illinois v. Gates, 462 U.S. 213, 238 (1983). ¶3 Here, the circuit court issued a search warrant to draw Green's blood based on the affidavit of Kenosha Police Officer Mark Poffenberger.2 pre-printed document with The affidavit took the form of a blank Officer Poffenberger completed. spaces and check-boxes that It stated that around 1:19 p.m. on May 25, 2014, Green "drove or operated a motor vehicle at driveway of [Green's home address]"——the underlined portion being part of the preprinted form, and the remainder Officer The Honorable Bruce E. Schroeder of the Kenosha County Circuit Court signed the warrant and presided over all the circuit court proceedings relevant to this appeal. 2 2 No. Poffenberger's handwritten addition. provided additional facts. Several 2019AP2150-CR checked boxes First, Green was arrested for the offense of "Driving or Operating a Motor Vehicle While Impaired as a Second Wis.Stats." or Subsequent Offense, contrary to chapter 346 Second, Green "was observed to drive/operate the vehicle by" both "a police officer" and "a citizen witness," whose name was written in by Officer Poffenberger. A third checked box was labeled "basis for the stop of the arrestee's vehicle was," and Officer Poffenberger supplied "citizen statement" by hand. ¶4 The affidavit also described Green's statements and the officer's observations. According to Officer Poffenberger's handwritten note, Green "admitted to drinking alcohol at the house." And Officer Poffenberger checked several boxes noting that when he made contact with Green, he observed a strong odor of intoxicants, red/pink and glassy eyes, an uncooperative attitude, slurred speech, and an unsteady balance. Finally, Officer Poffenberger checked boxes indicating that Green refused to perform preliminary Accused' field breath sobriety test, tests, and Statement . . . and was has refused to "read the refused to submit to a 'Informing the submit the to chemical test requested by the police officer." ¶5 blood. After the warrant issued, medical staff drew Green's It revealed a blood alcohol level of 0.214 g/100 mL, an 3 No. amount well above the legal limit.3 2019AP2150-CR The State charged Green with fourth offense OWI, fourth offense operating with a prohibited alcohol concentration (PAC), and resisting an officer. Green moved to suppress the results of the blood draw on the grounds that the warrant was deficient. motion. The circuit court denied the It concluded that even if the court erroneously issued the warrant (the court thought it had), the error did not merit suppression.4 PAC. At trial, the jury found Green guilty of OWI and The circuit court granted the State's motion to dismiss the OWI count and entered judgment against Green on the PAC count. The court of appeals summarily affirmed, holding the circuit court properly issued the warrant in the first place.5 We granted Green's petition for review. Because Green had "3 or more prior convictions, suspensions or revocations," his legal limit was 0.02. Wis. Stat. § 340.01(46m)(c) (2013-14). 3 All subsequent references to the Wisconsin Statutes are to the 2013-14 version. The circuit court's later disagreement with its own decision to issue the warrant does not change the scope of our review or our deference to its decision to issue the warrant. "[W]e are confined to the record that was before the warrantissuing commissioner" and give "[g]reat deference . . . to the warrant-issuing commissioner's determination of probable cause." State v. Kerr, 181 Wis. 2d 372, 378-79, 511 N.W.2d 586 (1994). This deferential standard "is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Massachusetts v. Upton, 466 U.S. 727, 733 (1984); see also United States v. Curry, 538 F.3d 718, 729 (7th Cir. 2008) (giving deference to the warrant issuing judge but not the judge reviewing the decision to issue the warrant). 4 State v. Green, No. 2019AP2150-CR, unpublished order (Wis. Ct. App. Mar. 31, 2021). 5 4 No. ¶6 2019AP2150-CR Before us, Green continues to argue the warrant was issued without probable cause. He focuses not on the indicia of intoxication, but the location where he operated his vehicle. Green's main argument is that the handwritten word "driveway" on the form alleges only that he drove within the confines of his driveway. This matters because the statute criminalizing OWI and PAC offenses——Wis. Stat. § 346.63(1)(a), (1)(b)——does "not apply to private residences." parking areas Wis. Stat. § 346.61. at . . . single-family Rather, the laws apply "upon highways"6 and "premises held out to the public for use of their motor vehicles." Id. Green's driveway is not a highway nor is it a held out to the public for motor vehicle use.7 because Green operating would his not vehicle on have committed an OWI his driveway, Green or Thus, PAC contends by the affidavit alleged only noncriminal activity and fell short of showing probable cause that any criminal activity occurred. ¶7 Green's inferences from argument the fails, affidavit however, support that Green drove on a public road. needed. finding reasonable probable cause And that's all that is "Probable cause is not a technical, legalistic concept Highways and bridges on also "includes agreement for § 346.01(1m). 6 because are defined as "all public ways and thoroughfares the same." Wis. Stat. § 340.01(22). A highway a private road or driveway that is subject to an traffic regulation enforcement." Wis. Stat. See City of La Crosse v. Richling, 178 Wis. 2d 856, 85860, 505 N.W.2d 448 (Ct. App. 1993) (analyzing whether a tavern's parking lot was held out to the public for motor vehicle use). 7 5 No. but a flexible, particular conclusions Higginbotham, (quoting common-sense 162 measure about human Wis. 2d 978, another source). So of the 2019AP2150-CR plausibility behavior." 989, 471 when we State N.W.2d 24 examine a of v. (1991) warrant application, the "test is not whether the inference drawn is the only reasonable inference." Ward, 231 Wis. 2d 723, ¶30. Rather, the "test is whether the inference drawn is a reasonable one." Id. ¶8 This warrant passes the test. Following the pre-printed word "at" is space for a location, which Officer Poffenberger identified as the driveway of Green's residential address. officer's addition of the It is reasonable to read the phrase "driveway of [residential address]" to refer to a specific location on the road, much like an intersection would provide a similarly specific location. The affidavit does not say Green's driving occurred merely in his driveway, but at his driveway——a location that can reasonably be read to refer to a position on the road adjacent to his driveway. Other portions of the affidavit are consistent with this reading. The affidavit points to two witnesses who observed Green "drive/operate the vehicle": and a named citizen witness.8 citizen that statement; occasioned a someone call to a police officer And the stop was occasioned by a besides the the police. officer saw Viewing something the entire See Florida v. J.L., 529 U.S. 266, 270 (2000) (noting the reliability of "a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated"). 8 6 No. 2019AP2150-CR affidavit together, a judge could reasonably infer that Green operated his vehicle on the road while intoxicated, not solely in his driveway. drawn, but it This "is not the only inference that can be is certainly a reasonable one." Ward, 231 Wis. 2d 723, ¶30. ¶9 Examining the totality of the facts laid out in the affidavit, we conclude Green has not met his burden to show the affidavit was probable cause. clearly insufficient to support a finding of Accordingly, Green's challenge to the warrant and motion to suppress the evidence obtained thereby fails.9 By the Court.——The decision of the court of appeals is affirmed. Because we determine the search warrant properly issued, we do not address the State's arguments that suppression would not be an appropriate remedy if the warrant were deficient. 9 7 No. ¶10 ANN WALSH BRADLEY, J. (dissenting). 2019AP2150-CR.awb Green's Fourth Amendment right protecting him against unreasonable searches was violated when law enforcement drew his blood based on a search warrant that wholly lacked probable cause. The existence of probable cause to show that a crime was committed is not a mere technicality. Rather it is basic to our Fourth Amendment protections. ¶11 the Confronted with the absence of probable cause here, majority contrives to manufacture its presence. The affidavit in support of the warrant said that Green drove his car while intoxicated "at his driveway." But this isn't a crime. The law requires that one drive on a highway,1 and Green's private requirement. ¶12 driveway obviously does not meet that See Wis. Stat. § 346.61. In retrospect, even the warrant-issuing judge in this case acknowledged that the facts alleged in the affidavit in support of the search warrant did not amount to probable cause. He recognized that "I did make an error in not frankly asking the officer" for "more data." to ¶13 Failing to acknowledge what in retrospect was apparent the warrant-issuing judge, the majority nevertheless seemingly shrugs off this essential requirement and forges ahead to reach its inexorable conclusion. has not met his burden to show It determines that "Green the affidavit was clearly Throughout this opinion, I use "highway" as a catchall to refer to the public ways and thoroughfares upon which Wisconsin's operating while intoxicated laws apply. See Wis. Stat. § 340.01(22). 1 1 No. 2019AP2150-CR.awb insufficient to support a finding of probable cause." Majority op., ¶9. ¶14 The majority errs in at least two respects. First, it insists that it is reasonable to draw several inferences from the affidavit despite the fact that the affidavit has a glaring omission: it contained no indication that a crime had been committed at all. ¶15 Second, the majority disregards this court's decision in State v. Tye, which addressed an analogous scenario resulting in the suppression of evidence when an essential search warrant requirement was lacking. N.W.2d 473. 2001 WI 124, 248 Wis. 2d 530, 636 The existence of probable cause to believe a crime has been committed "is so basic to the Fourth Amendment that the Court simply can't look at" the lack of it "as a technical irregularity defendant." ¶16 not affecting the substantial rights of the Id., ¶14. Contrary to the majority, I conclude that the probable cause requirement should not be so readily subverted and that the results of this unlawful search should have been suppressed. Because the majority manufactures probable cause and in the process disregards an essential search warrant requirement, I respectfully dissent. I ¶17 Valiant Green was arrested for operating vehicle while intoxicated outside his home in Kenosha. op., ¶3. a motor Majority Upon his arrest, the officer requested a breath test from Green, which he refused. Id., ¶4. 2 The officer then sought No. a search warrant to draw Green's blood 2019AP2150-CR.awb and submitted an affidavit in support of the warrant, which was a fill-in-theblank form.2 was Id., ¶3. preprinted on "[D]rove or operated a motor vehicle at" the affidavit, after which the handwrote in "driveway of [Green's home address]." ¶18 The affidavit also indicated, officer Id. without further explanation, that the "basis for the stop of the arrestee's vehicle" was a citizen statement and that Green admitted to drinking alcohol at the house. certain boxes on the Id., ¶¶3-4. pre-printed form, In checking off the officer marked various indicators of intoxication, including that the odor of intoxicants was "strong," that Green's eyes appeared "red/pink" and "glassy," that Green's speech was "slurred," and that Green was uncooperative and unsteady. signed the search Green's blood. warrant, Id., ¶4. The reviewing judge authorizing the police to draw At the hospital, the same officer who applied for the warrant also executed it, and as a result, medical staff completed a blood draw. ¶19 (OWI) Green and was operating Id., ¶5. charged with a with operating prohibited (PAC), both as a fourth offense. Id. while alcohol intoxicated concentration He moved to suppress the results of the blood draw, arguing that the warrant application did not provide probable cause. suppression sufficient facts to support a finding of The circuit court denied the motion, but at the hearing, the same judge who issued the warrant The search warrant at issue is attached as an appendix to this dissent. 2 3 No. 2019AP2150-CR.awb recognized that "I did make an error in not frankly asking the officer" for "more data."3 ¶20 Id. At trial, the jury found Green guilty of OWI and PAC. On appeal, the court of appeals summarily affirmed, determining that the circuit court properly issued the warrant because the word "at" in the affidavit could mean Green was operating a vehicle on a public road "near" his driveway. State v. Green, No. 2019AP2150-CR, unpublished order, at 3-4 (Wis. Ct. App. Mar. 31, 2021). determining that A majority of this court now affirms, "reasonable inferences from the affidavit support finding probable cause that Green drove on a public road." Majority op., ¶7. II ¶21 The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect against unreasonable searches and seizures. 2001 WI 98, constitutional ¶16, 245 Wis. provisions 2d require 206, that State v. Eason, 629 N.W.2d 625. a search warrant issue unless there is a finding of probable cause.4 Both not "Fourth I agree with the majority that the circuit court's later disagreement with its own decision to issue the warrant does not change the nature and scope of our review. See majority op., ¶5 n.4. However, I find it persuasive that even the warrantissuing judge acknowledged that the facts alleged in the affidavit in support of the search warrant did not amount to probable cause. 3 The Fourth Amendment of the United States Constitution provides: 4 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no 4 No. Amendment rights personal are security, indispensable personal to liberty the and 2019AP2150-CR.awb full enjoyment private of property." State v. Scull, 2015 WI 22, ¶19, 361 Wis. 2d 288, 862 N.W.2d 562 (quotation omitted). ¶22 It is true that our review of a decision to issue a warrant is guided by deference to the warrant-issuing judge's determination. See majority op., ¶2; State v. Ward, 2000 WI 3, ¶21, 231 Wis. 2d 723, 604 N.W.2d 517. However, "Deference to the magistrate . . . is not boundless." United States v. Leon, 468 U.S. 897, 914 (1984). The majority hides behind deference contrary to the command that "reviewing courts will not defer to a warrant based on an affidavit magistrate with a substantial existence of probable cause." that does basis for not provide determining the the Id. at 915 (quotation omitted). A ¶23 First, the majority errs by drawing several inferences from an affidavit that does not allege a crime has actually been committed. Majority op., ¶¶7-8. Wisconsin's OWI laws apply only to highways and "premises held out to the public for use of their motor vehicles." Wis. Stat. § 346.61. Such laws explicitly do not apply to "private parking areas" at single- Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added). Article I, Section 11 contains identical language. of 5 the Wisconsin Constitution No. family residences. apply to private Id. 2019AP2150-CR.awb ("Sections 346.62 to 346.64 do not parking areas and "Private at farms or single-family residences."). ¶24 "Highway"5 specially defined § 340.01(22), (46). in the road Wisconsin or driveway"6 Statutes. Wis. are Stat. Simply put, operating a motor vehicle while intoxicated on a private driveway at a single-family residence like Green's is not a crime under Wisconsin law.7 See City of Kenosha v. Phillips, 142 Wis. 2d 549, 556, 419 N.W.2d 236 (1988) (rejecting an argument that OWI laws apply "even on home driveways or in the garages of private persons"). Probable cause does not exist where no crime has been alleged. Thus, we owe no deference here where the affidavit fails to provide a substantial cause. for determining the existence of probable See Leon, 468 U.S. at 915. ¶25 highways insists basis Despite the fact that the OWI statutes apply only on and not private roads that the handwritten or driveways, "driveway" could the majority "refer to a specific location on the road, much like an intersection would "'Highway' means all public ways and thoroughfares and bridges on the same . . . but does not include private roads or driveways as defined in sub. (46)." Wis. Stat. § 340.01(22) (emphasis added). 5 Wis. Stat. § 340.01(46) provides, "'Private road or driveway' is every way or place in private ownership and used for vehicular travel only by the owner and those having express or implied permission from the owner . . . ." 6 There is no question that "Green's driveway is not a highway nor is it held out to the public for motor vehicle use," as even the majority acknowledges. Majority op., ¶6. 7 6 No. provide a similarly specific location." 2019AP2150-CR.awb Majority op., ¶8. But the affidavit did not say "at the intersection" or "on the road adjacent to the driveway." The majority would have us believe that "at the driveway" does not mean what it says. How can it be reasonable to infer that a crime has been committed when the only reasonable inference that can be drawn from the affidavit is that Green was operating a vehicle at his own driveway? ¶26 Perhaps aware that "at the driveway" does not equate to a highway, the majority points to other facts alleged in the affidavit in support of its conclusion. It offers the following facts as a basis for reasonably inferring the location necessary to establish probable cause. That is, that Green was operating on a highway and not his private driveway: 7 No. Facts 2019AP2150-CR.awb Reasonable inference from this fact that Green was operating a vehicle on a highway There is no reference by either witness regarding location, other than "at the driveway." Green was observed to drive/operate the vehicle by both a police officer and citizen witness. Majority op., ¶8. The basis for the stop was a citizen's statement. Id. The name of the citizen witness was written on the affidavit. Id., ¶3. The basis for the stop does not reference the location. The name of the citizen witness provides no information about location. Green admitted to drinking at the house. Id., ¶4. The admission only references Green's private home as the location. The officer observed Green exhibit indicators of intoxication. Id. Green refused to perform field sobriety tests or submit to a breath test. Id. The observation says nothing about location. ¶27 them The refusals indicate nothing regarding location. What do all of these facts have in common? indicates that Green was observed anywhere other than his private driveway. operating None of a vehicle The majority's math doesn't add up——zero plus zero plus zero still equals zero. The majority pulls the reasonableness of its inferences out of thin air, seemingly assuming the existence of probable cause by the sole fact that law enforcement applied for a warrant. ¶28 Given the brevity of the majority opinion, there is an apparent limit to the analytical gymnastics that the majority is willing to driveway" engage somehow in, does endeavoring not really to mean explain what it that "at says. the Such flimsy rationale is inadequate when the court is depriving a defendant of a constitutional right. 8 Why would the officer No. 2019AP2150-CR.awb write in the word "driveway" if that is not precisely where Green was operating his vehicle? ¶29 All we can glean from the affidavit was that Green may have been drunk in his driveway, which is obviously not a crime. If Green had officer's been driving handwritten on a inclusion highway of the near word his home, "driveway" the would have been completely unnecessary. ¶30 court Admittedly probable cause is a low standard, but the needs at committed. least Here the something majority to show attempts that to a crime was manufacture that something out of nothing. B ¶31 Second, the majority disregards this court's decision in State v. Tye. must be In Tye, the court reviewed whether evidence suppressed affirmation when required constitutions. an by affidavit both the 248 Wis. 2d 530, ¶3. lacks the federal oath and or state In that case, the court determined "that the total absence of any statement under oath to support a affirmation search warrant requirement of violates both the the explicit federal oath and or state constitutions and that the warrant therefore is constitutionally infirm." ¶32 Id. In so concluding, the Tye court explained that "[t]his court has long recognized an oath or affirmation as an essential prerequisite to obtaining a valid search warrant under the state constitution." Id., ¶13. It further reasoned that "failure to swear to the information upon which a warrant is obtained cannot 9 No. 2019AP2150-CR.awb be dismissed as a mere failure to comply with a technicality" and "the oath or affirmation requirement 'is so basic to the Fourth Amendment that the Court simply can't look at it as a technical irregularity not affecting the substantial rights of the defendant.'" Id., ¶14 (citation omitted). Accordingly, "The warrant was facially defective because no sworn affidavit was attached." ¶33 to the Id., ¶5. If the oath or affirmation requirement is so essential Fourth Amendment, why isn't requirement equally as essential? more than the probable cause Both the state and federal constitutions contain just an oath requirement. They say no warrant shall issue but upon probable cause, supported by oath or affirmation. § 11; U.S. Const. amend. IV. The or affirmation Wis. Const. art. I, court's reasoning in Tye applies equally to the probable cause requirement here. ¶34 Like the oath or affirmation requirement, the probable cause requirement is "so basic to the Fourth Amendment that the Court simply can't look at it as a technical irregularity not affecting the substantial rights of the defendant." Tye, 248 Wis. 2d 530, ¶14. As was the result in Tye, the good faith exception apply does not and suppression is the appropriate remedy here because without the fulfillment of this essential search warrant requirement, "it is plainly evident that magistrate or judge had no business issuing a warrant." a Id., ¶24. ¶35 Green's Fourth Amendment right protecting him against unreasonable searches was violated 10 when the police drew his No. 2019AP2150-CR.awb blood based on a warrant that wholly lacked probable cause. The results of this unlawful search should have been suppressed. And even if suppression of the blood evidence would lead to results that may appear to the court as "unjust or contrary" to the state's policies on operating while intoxicated, "that does not give this court the leeway" to deprive Green of his constitutional right to be free from unreasonable searches. See Phillips, 142 Wis. 2d at 560. ¶36 For the foregoing reasons, I respectfully dissent. 11 No. 1 2019AP2150-CR.awb No. 1 2019AP2150-CR.awb No. 1 2019AP2150-CR.awb
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