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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.