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COURT OF APPEALS DECISION DATED AND FILED July 7, 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 from a judgment of the circuit court for Jefferson County:� william f. hue, Judge.� Affirmed.�
�1������� LUNDSTEN, J.[1] Karla Raue appeals a judgment convicting her of operating a motor vehicle while under the influence of an intoxicant and for operating a motor vehicle with a prohibited alcohol concentration.� Raue argues that the circuit court erred when it denied her motion to suppress.� In particular, Raue argues that she was unlawfully detained by a private citizen and that, as a result, all subsequently obtained evidence of her intoxicated driving should have been suppressed.� I disagree and affirm.
Background
�2������� While at a bar in Jefferson County, a patron observed Karla Raue, who was also present at the bar, exhibit signs of intoxication, such as stumbling when she walked.� Raue at some point left the bar, and the bar patron followed her out.� The patron saw Raue get into a car parked outside of the bar and back the car into another vehicle parked nearby.� Raue nonetheless proceeded to back out onto the roadway and to drive to a nearby intersection, where she came to a stop at a stop sign.� At this point, the bar patron approached Raue in her car, opened the driver�s side door, shut off Raue�s car, and took her keys.� The patron then reentered the bar, taking Raue�s car keys with him.�
�3������� The police were contacted and, on arriving, an officer found Raue sitting in her car, with the car turned off.� The officer obtained evidence of Raue�s intoxication, and Raue was cited for operating a motor vehicle while under the influence of an intoxicant and for operating a motor vehicle with a prohibited alcohol concentration.�
�4������� Raue moved to suppress the evidence of her intoxication for a violation of her Fourth Amendment rights based on the bar patron�s actions.� The State argued that the patron�s actions did not implicate Raue�s Fourth Amendment rights, and the circuit court agreed.� The court also offered what was essentially an alternative reason to reject Raue�s suppression motion when it concluded that the patron�s actions did not constitute a citizen�s arrest.� Accordingly, the court denied the motion to suppress.� Raue was found guilty after a court trial, and she appeals.�
Discussion
�5������� Raue seeks suppression of the evidence of her intoxicated driving based on the actions of the bar patron.� As Raue puts it, the bar patron was acting as a �private citizen.�� Raue believes that she was unlawfully seized by the bar patron and assumes that any evidence obtained as a result must be suppressed under the Fourth Amendment.� Specifically, Raue argues:� �Because the actions of the citizen opening Ms. Raue�s vehicle, turning it off, removing the keys and taking possession of the keys until officers showed up amounted to a seizure, and because the citizen did not have the requisite level of probable cause to effectuate the seizure, the defendant�s motion for suppression of evidence should have been granted.��
�6������� Raue�s argument addresses the circuit court�s alternative reason for denying her suppression motion, but ignores the circuit court�s primary reason for denying it�that Raue did not have a right to suppression of the evidence based on non-government actions.� The circuit court was correct.�
�7������� The legality of the bar patron�s actions do not matter for purposes of analyzing whether suppression is required under the Fourth Amendment.� That is because, as explained in State v. Butler, 2009 WI App 52, 317 Wis. 2d 515, 768 N.W.2d 46, Fourth Amendment protections only apply where there is government action.� See id., �12.�
�8������� In Butler, a private security guard saw Butler driving recklessly in a parking lot.� Id., �4.� The security guard detained, handcuffed, and searched Butler, and then called the police after discovering that Butler was wearing an empty gun holster. �Id.� Police officers who arrived on the scene found a loaded pistol in Butler�s glove compartment.� Id., ��5-6. �Among other arguments, Butler contended that suppression of the gun evidence was required because the security guard acted unlawfully.� Id., ��8, 11. �We explained that it was not necessary to resolve whether the security guard acted lawfully in detaining Butler because the security guard did not act in concert with the government.� See id., ��12-14.� We observed that ��the Fourth Amendment applies only to government action�� and that �unless state-action is involved, a defendant detained by another citizen has no right to suppress the fruits of the citizen�s search.� �Id., �12 (citation omitted).
�9������� It follows that Raue is not entitled to suppression regardless whether the bar patron acted improperly because the patron�s actions, like the security guard�s actions in Butler, did not implicate Raue�s Fourth Amendment rights.�
�10����� Raue�s argument based on City of Waukesha v. Gorz, 166 Wis. 2d 243, 479 N.W.2d 221 (Ct. App. 1991), misses the mark.� Raue cites this case for the proposition that a private citizen may only make a citizen�s arrest in certain circumstances, and then Raue proceeds to argue that the bar patron�s actions constituted an improper citizen�s arrest.� As explained above, this line of argument is irrelevant to suppression because there is no government action that could support suppression.� See State v. Keith, 2003 WI App 47, �9, 260 Wis. 2d 592, 659 N.W.2d 403 (explaining that nothing in Gorz changes �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�). �
�11����� For the reason discussed, I affirm the circuit court.
����������� By the Court.�Judgment affirmed.
����������������������� This opinion will not be published.� Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(c) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.