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COURT OF APPEALS
DECISION
DATED AND FILED
March 10, 2011
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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Waupaca County,
Plaintiff-Respondent,
v.
Heather M. Krueger,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Waupaca County: JOHN
P. HOFFMANN, Judge. Affirmed.
¶1 LUNDSTEN, J. Heather
Krueger was convicted of operating a motor vehicle while under the influence of
an intoxicant. She complains that the
circuit court erroneously denied her suppression motion. More specifically, Krueger argues that she
was unlawfully detained by a citizen and that this unlawful detention should
result in the suppression of all subsequently obtained evidence of her
intoxicated driving. I disagree and,
therefore, affirm the circuit court.
Background
¶2 In August 2009, Krueger was driving on a rural road in Waupaca County.
A citizen named Sparks
was driving behind Krueger. Sparks observed Krueger
cross the center line many times, including times she obstructed oncoming
traffic in the opposite lane. Sparks called 911, and
then took action to force Krueger to stop.
He activated strobe lights he used in his off-road towing business, he
drove past Krueger, he positioned his vehicle in front of hers, and he slowed
down, eventually forcing Krueger to a stop.
Sparks
got out of his vehicle, went to Krueger’s driver’s side window, reached in, and
took Krueger’s keys. Sparks refused to return the keys, and waited
for police to arrive.
¶3 After the police arrived on the scene, an officer smelled a
heavy odor of intoxicants coming from within Krueger’s vehicle, and observed
that Krueger’s eyes were bloodshot and glossy.
The officer had Krueger perform field sobriety tests, after which
Krueger was placed under arrest and transported to the county jail, where she
consented to a breath test. The breath
test revealed that Krueger’s blood alcohol content was .19%.
¶4 Krueger moved to suppress all evidence obtained after Sparks forced her vehicle
to a stop. The circuit court denied the
suppression motion.
Discussion
¶5 Krueger seeks suppression of evidence of her intoxicated
driving obtained after she was stopped by Sparks,
a citizen acting on his own with no law enforcement involvement. Krueger asserts that, under the applicable
common law, Sparks
acted illegally and his illegal actions require suppression of evidence, just
as if a police officer had stopped her illegally. Krueger is mistaken. The legality of Sparks’s actions do not matter for purposes of
analyzing whether suppression is required under the Fourth Amendment. As we explained in State v. Butler,
2009 WI App 52, ¶12, 317 Wis.
2d 515, 768 N.W.2d 46, review denied,
2009 WI 99, 319 Wis. 2d 213, 775 N.W.2d 101 (No. 2008AP1178-CR), Fourth
Amendment protections apply only to government action.
¶6 In Butler, a private
security guard saw Butler
driving recklessly in a parking lot. The
security guard detained, handcuffed, and searched Butler.
The guard called the police when he discovered that Butler was wearing an empty gun holster. Police officers who arrived on the scene found
a loaded pistol in Butler’s
glove compartment. Id., ¶¶4-6. Among other arguments, Butler contended that suppression was
required because the security guard acted unlawfully. We explained that it was not necessary to resolve
whether the guard acted lawfully in detaining Butler because the guard did not act in
concert with the government. Id., ¶12. We wrote:
“unless state-action is involved, a defendant detained by another
citizen has no right to suppress the fruits of the citizen’s search.” Id. It follows that Krueger is not entitled to
suppression here because Sparks, like the
security guard in Butler,
acted on his own.
¶7 Krueger points to language in Butler stating: “We leave for another day whether a citizen
is privileged to detain another whom he or she sees breaching the peace by
doing something that is not a ‘crime’ ....”
Id. Krueger says that day has come, suggesting
that we must reverse the suppression order because here it is plain that Sparks acted illegally. But Krueger misunderstands why we left that
question for another day. She seemingly
fails to appreciate the meaning of the “because” clause in the full sentence in
Butler:
We leave for another day whether a citizen is
privileged to detain another whom he or she sees breaching the peace by doing
something that is not a “crime,” however, because
unless state-action is involved, a defendant detained by another citizen has no
right to suppress the fruits of the citizen’s search.
Id. (emphasis added). The reason that there was no need to resolve
the legality of the citizen stop in Butler
was precisely because the stop was made by a citizen acting apart from the
government.
¶8 I note that, before the circuit court and this court, Krueger
is not alone in her misunderstanding.
There and here, the State also seems to believe that it matters whether
citizen Sparks
acted lawfully. In this regard, a brief
discussion of our decision in State v. Keith, 2003 WI App 47, 260
Wis. 2d 592, 659 N.W.2d 403, is appropriate.
¶9 In Keith, a police officer outside his
jurisdiction stopped a suspected drunk driver.
Id.,
¶2. The defendant, Keith, argued that
all evidence obtained as a result of the stop must be suppressed because: (1) the officer had no authority to act as a
police officer outside his jurisdiction; (2) the officer was acting as a private
citizen; and (3) the stop was illegal because a private citizen may not detain
a suspect based on mere reasonable suspicion of a crime. Id.,
¶7. In sum, Keith argued that he had
been illegally stopped by a private citizen and this illegal citizen action
required suppression. Rejecting this
argument did not require resolving whether the “citizen” acted illegally. And, the reason was the same as in Butler—the absence
of an alleged constitutional violation. Although
not expressly stated in Keith, the underlying reasoning was
the same as in Butler,
that the defendant had failed to allege illegality by a government actor. Addressing two of the cases that Krueger
relies on here, the Keith panel wrote:
We acknowledge that at least
two prior Wisconsin decisions seemingly
support the type of analysis suggested by Keith. See State v. Slawek, 114 Wis. 2d 332, 338 N.W.2d 120 (Ct. App. 1983) (police
officers outside their jurisdiction arrested defendant after observing him
commit a burglary); City of Waukesha v. Gorz, 166 Wis. 2d 243, 479 N.W.2d 221 (Ct. App. 1991)
(officer outside his jurisdiction stopped a suspected drunk driver). However, neither case holds that suppression
is required merely because a police officer acts without authority outside his
or her jurisdiction and neither case suggests any reason to ignore the
well-established rule that suppression is required only when evidence is
obtained in violation of a constitutional right or in violation of a statute
providing suppression as a remedy. See [State v. Raflik, 2001 WI
129, ¶15, 248 Wis.
2d 593, 636 N.W.2d 690].
Keith, 260 Wis. 2d 592, ¶9. We might have added, as we later did in Butler,
that “unless state-action is involved, a defendant detained by another citizen
has no right to suppress the fruits of the citizen’s search.” Butler, 317 Wis. 2d 515, ¶12.
¶10 For the reason above, I affirm the circuit court.
By the Court.—Judgment affirmed.
This opinion will not be published. Wis.
Stat. Rule 809.23(1)(b)4.