|
COURT OF
APPEALS DECISION DATED AND
RELEASED November
14, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-2006
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
GLENN
R. REETZ,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Marquette County: RICHARD O. WRIGHT, Judge. Affirmed.
EICH,
C.J.[1] Glenn R. Reetz appeals from a judgment
finding him guilty of operating a motor vehicle while intoxicated.[2] After being involved in an accident, Reetz
walked home and was later found there by police, who eventually arrested and
charged him.
Reetz's
appeal is confined to the trial court's denial of his motion to suppress all
evidence relating to his arrest, which he claimed was illegal.[3] He argued, in essence, that the officers had
unlawfully entered the home to effectuate his arrest.
The
trial court ruled that the police had Reetz's wife's consent to enter the home
and that, in any event, no arrest occurred at that time. Reetz appeals.
Two
police officers testified at the suppression hearing. The first, Marquette County Deputy Sheriff Jeff Tomlin, stated
that he found Reetz's car at the scene of a one-car accident and that emergency
personnel at the scene said they had seen Reetz walk away. According to Tomlin, he and another deputy,
Gary Skolarz, went to Reetz's home—which was about two miles from the accident
scene—and explained the situation to Reetz's wife, who "offered to let us
in and to search for him." After
an unsuccessful search of the house, the officers returned to the accident
scene. Feeling that Reetz was somewhere
in the area, Tomlin returned to the Reetz home, arriving there only about ten
minutes after he and Skolarz had left.
Walking around the house, Tomlin saw Reetz inside and radioed Skolarz,
who arrived within minutes. Without
knocking or otherwise making their presence known, the two men walked into the
house through the unlocked front door and entered the kitchen where Reetz was
standing with his wife. Reetz, wet and
muddy from the rain, was drinking from a bottle of schnapps, which Skolarz
asked him to put down. Tomlin told
Reetz he was "needed" at the accident scene and that he and Skolarz
would like to "escort" him back in their squad car. Reetz agreed and, after changing his
clothes, left with the officers.
Both
officers stated that they did not inform Reetz he was under arrest or give him
any Miranda warnings while at the house—although both stated that
he was being "detained."
Reetz
testified that he was standing in his kitchen when Skolarz suddenly appeared
there and told him in a "real loud" voice to put down the bottle he
was drinking from. He said that both
Tomlin and Skolarz told him they would handcuff him "if he gave them any
trouble," and that one of the officers followed him "partway down the
hallway" when he went to another room to change his clothes before
accompanying them to the scene. He said
they never gave him "any choice" as to whether he could or could not
go with them. On cross-examination,
Reetz acknowledged that neither deputy had ever said he was under arrest and
that neither imposed any physical force whatsoever on him—or even touched him,
other than to help him into the car.
Reetz's
wife's testimony was much the same as Reetz's.
She stated that the officers told him he would be cuffed if he gave them
any trouble[4] and that
they did not give him any "choices" other than to accompany them to
the accident scene.
At
the conclusion of the testimony, Reetz argued that his arrest was unlawful and
should be suppressed because the officers, lacking a warrant, had illegally
entered his house. The State contended
that the officers' conduct at Reetz's house did not meet the legal definition
of an "arrest," and that they were properly in the house pursuant to
the consent obtained from Reetz's wife on their first visit to the
premises.
The
trial court agreed with the State, holding that Reetz's wife's earlier consent
to the search of their home carried over to the officers' second visit and,
further, that no arrest had occurred.[5] Then, based on the parties' stipulation as
to the requisite facts, Reetz was found guilty of driving while intoxicated,
reserving his suppression arguments for appeal.
Whether
an arrest has occurred depends on "whether a reasonable person in the
defendant's position would consider himself or herself to be `in custody,'
given the degree of restraint under the circumstances." State v. Swanson, 164 Wis.2d
437, 446-47, 475 N.W.2d 148, 152 (1991).
"The circumstances of the situation including what has been
communicated by the police officers, either by their words or actions, shall be
controlling under the ... test. The
officers' unarticulated plan is irrelevant in determining the question of
custody." Id. at
447, 475 N.W.2d at 152.
The
defendant in Swanson, after being involved in an automobile
accident, was approached by police, who asked him for his license and, smelling
intoxicants on his breath, "directed him ... to the squad car," for
the purpose of administering field sobriety tests. Swanson, 164 Wis.2d at 442, 475 N.W.2d at 150. Arriving at the squad car, the officers
searched the defendant for weapons, finding a packet of controlled substances
in his pocket. Id. At that moment the officers received an
emergency call. They immediately
arrested the defendant, cuffed him, placed him in the car and left the scene. Id. at 442-43, 475 N.W.2d at
150-51. The defendant moved to suppress
the fruits of the search and the State, opposing the motion, argued that the
search was proper because it was incident to the defendant's arrest. The supreme court rejected the State's
argument, holding that no arrest had occurred because, under the circumstances
of the case, at the time the defendant was searched a reasonable person in the
defendant's position would not have believed he or she was being taken into
custody. Id. at 449, 475
N.W.2d at 153.
In
so ruling, the Swanson court emphasized that the defendant
"was never told that he was under arrest nor given any Miranda
warnings, and not handcuffed," and that "[n]o force, threats, or
weapons were used by the officers ...."
Id. at 448, 475 N.W.2d at 153. The court also noted that several cases in Wisconsin and elsewhere
involving "far more intrusive circumstances than this"—cases where
the police had drawn their weapons or used handcuffs or physical force against
the defendant—have refused to find an arrest.
Id. (citing United States v. Laing, 889 F.2d
281, 285 (D.C. Cir. 1989), cert. denied, Martin v. United States,
494 U.S. 1008 (1990); United States v. Glenna, 878 F.2d 967, 972
(7th Cir. 1989); United States v. Taylor, 716 F.2d 701, 709 (9th
Cir. 1983); Jones (Hollis) v. State, 70 Wis.2d 62, 233 N.W.2d 441
(1975)).
Our
consideration of the facts and circumstances of this case in light of these
rulings leads us to a similar conclusion.
The officers did not tell Reetz he was being arrested, use physical
force or handcuffs, draw weapons, give orders (except perhaps to put down the
bottle of schnapps), or either threaten or undertake other forms of
coercion. We are satisfied that, on
this record, Reetz was not under arrest at any time while in his house or
leaving it to accompany the officers to the accident scene.
Because
we so hold, whether the officers had consent to re-enter the house is
immaterial to Reetz's appeal from the denial of his suppression motion. His motion was solely one challenging the
legality of his purported arrest, and that is all that is before us. Nothing in the record suggests that the
police seized physical evidence from the house—or from Reetz's person—while
they were inside, much less that any such evidence was used against him. Indeed, Reetz stipulated that the evidence
gathered much later in the evening, including the blood-alcohol tests, was
sufficient to support the finding of guilt on the charge of driving while
intoxicated. In other words, even if he is correct in arguing that the officers
lacked consent to enter the house a second time, which we do not here decide,
there is nothing to suppress.[6]
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Judge Donn Dahlke denied Reetz's suppression
motion, and Judge Richard O. Wright signed the order of judgment, which was
stayed pending this appeal.
[3] His motion to the trial court, entitled
"Motion to Suppress Unlawful Arrest," sought "an Order
dismissing this action on the grounds the Court lacks jurisdiction because the
defendant has been brought before the Court as a result of an illegal
arrest." At the hearing on his
motion, he asked the court to grant his "motion to suppress based on
unlawful arrest ...," and he renews the request "[t]hat [the] entry and
the resulting arrest of the defendant was in violation of his fourth amendment
protections and must be suppressed."
[4] Deputy Tomlin testified that he did not
recall making such a statement, and Skolarz was not questioned on the
subject.
[5] The court's ruling, in its entirety, follows:
[T]he Court does
believe that [the officers] did have consent and they definitely had consent
when they went in the first time. I
think the Court would think that would be continuous for certainly a short
period of time. If I go visit
somebody's house and they invite me in, and I get inside, sitting down and I
say I forgot my cigarettes, and I go out to the car, and come back in, I don't
necessarily knock and get readmitted again.
I don't know what period of time this involved, but I do feel it would
certainly cover the period of time in question here. They do have consent.
I don't feel there
was an arrest. The deputies allowed the
defendant to go to his room without following him right in there. And as to the going to the scene, the wife's
testimony, exactly as I have it here, states that they said they would like him to come down to the scene with
him. There does not appear to be any
... forceful orders.