COURT OF
APPEALS DECISION DATED AND
RELEASED January
30, 1997 |
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
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No. 96-2131-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Appellant,
v.
DANIEL
B. KNUTSON,
Defendant-Respondent.
APPEAL
from judgment of the circuit court for Grant County: JOHN R. WAGNER, Judge. Affirmed.
VERGERONT,
J.[1] The State of Wisconsin appeals the
trial court's decision granting Daniel Knutson's motion to suppress the results
of a blood test on the ground that it was incident to an unlawful arrest
because there was no probable cause to arrest Knutson for driving while under
the influence of an intoxicant. We
conclude that the State did not establish that there was probable cause to
arrest Knutson and therefore affirm.
The
pertinent evidence in this case is undisputed.
The evidence presented to the trial court consisted of the reports of
Robert Bloyer and Troy Hunzeker, both deputy sheriffs of the Grant County
Sheriff's Department. These reports
present the following facts. Bloyer was
dispatched to a traffic accident on County Trunk Highway F in Stitzer, Wisconsin. Fire department personnel were already at
the scene of the accident. A damaged
jeep vehicle was sitting in a driveway just off the highway. There were two injured persons, one sitting
along the highway shoulder and the other laying in the ditch line. Bloyer first talked to the person on the
shoulder, who identified himself as Bob Fuchs and said the vehicle was
his. When asked what happened, Fuchs
looked at Bloyer and said he was not driving; he then stated they were coming
from Fennimore, got here, and he did not know how it happened. Bloyer concluded that Fuchs was intoxicated
because his eyes were red and glassy, there was a strong odor of intoxicants
from Fuchs' breath, and Fuchs was constantly trying to move or get up even
though he was complaining that his leg was sore.
Bloyer
then went over to the person lying down, later identified as Knutson. Bloyer noticed a strong odor of intoxicants
as he approached Knutson. A woman was
with Knutson, holding his head and talking to him, but it did not look as
though he was responding. She told
Bloyer that she was ahead of the jeep and remembers seeing only a cloud of dust
as the jeep went off the road; she could not tell who was driving. Knutson had a severe head wound and his eyes
were closed. There were several people
around Knutson so Bloyer did not try to talk to him.
According
to Bloyer's report, he called Hunzeker by radio and asked him to meet the
ambulance at Lancaster Hospital for the purpose of drawing blood incident to an
arrest for the charge of causing injury by intoxicated use of a motor
vehicle. According to Hunzeker's
report, Bloyer asked him to go to the hospital and gain information related to
two males who were being transported by rescue squad and their involvement in
the accident. When Hunzeker arrived at
the hospital, he talked to Knutson, who was conscious. Hunzeker asked Knutson who was driving. Knutson said, "Who the hell are
you?" Hunzeker explained who he
was and that he was there to assist in the accident investigation. Hunzeker smelled a strong odor of
intoxicants on Knutson's breath.
Hunzeker asked again who was driving and Knutson stated, "I
wasn't." Hunzeker asked who was
and Knutson responded "Joe [Fuchs' middle name]. I wasn't driving."
Hunzeker
then went to talk to Fuchs, identified himself and asked who was driving. Fuchs said Knutson was driving. Hunzeker smelled intoxicants on Fuchs'
breath. Hunzeker told Fuchs that
Knutson had said he (Fuchs) was driving.
Fuchs replied that he was not taking the rap on this one. Hunzeker advised Fuchs that he was under
arrest for causing injury by intoxicated use of a motor vehicle. Fuchs stated he understood why he was being
arrested but he was not the driver.
Hunzeker then went back to Knutson and told him that Fuchs had said that
he (Knutson) was driving. Knutson said
he was not the driver. Hunzeker
informed Knutson that he was under arrest for causing injury by intoxicated use
of a motor vehicle. Blood was drawn
from each individual and the tests results showed that Knutson had a blood
alcohol content of .280 percent and Fuchs had a blood alcohol concentration of
.255 percent.[2]
Knutson
was charged with operating a motor vehicle while intoxicated, second offense,
in violation of §§ 346.63(1)(a) and 346.65(2)(b), Stats.; operating a motor vehicle with a prohibited blood
alcohol concentration, second offense, in violation of §§ 346.63(1)(b) and
346.65(2)(b); and operating after revocation, third offense, in violation of
§ 343.44(1) and (2)(c)1, Stats. Knutson moved to suppress the blood test
results, arguing that there was no probable cause to conclude that Knutson,
rather than Fuchs, was driving the vehicle.
The trial court granted the motion, concluding that probable cause under
these circumstances required that there be a way of "distinguishing one
from the other [Fuchs and Knutson]."
On
appeal, the State argues that Fuchs' statement that Knutson was driving
provides probable cause to believe the Knutson was driving. The State acknowledges that the same
argument can be made with respect to Fuchs--that Knutson's statement that
Fuchs' was driving provides probable cause to arrest Fuchs. The State contends that under these
circumstances, "common sense and public policy" support arresting
both. According to the State, the
officers should not be encouraged to arrest neither and they should not be
encouraged to arrest one of the two, because if it is the wrong one, the
"culprit goes free" without the blood alcohol test results. Knutson responds that because Fuchs was also
a suspect, Fuchs' statement identifying Knutson was unreliable and therefore
insufficient to establish probable cause that Knutson was driving.[3] Although we conclude the trial court
properly granted Knutson's motion, we do not adopt Knutson's analysis.
The
taking of a blood sample is a search and seizure within the meaning of the
Fourth Amendment of the United States Constitution. State v. Bentley, 92 Wis.2d 860, 863-64, 286 N.W.2d
153, 155 (Ct. App. 1979). Such a search
may be conducted incident to a lawful arrest, provided certain other conditions
are met. State v. Bohling,
173 Wis.2d 529, 537, 494 N.W.2d 399, 401, cert. denied, 510 U.S. 836
(1993). Whether, based on undisputed
facts there is probable cause to arrest Knutson presents a question of law,
which we review de novo. See State
v. Riddle, 192 Wis.2d 470, 475, 531 N.W.2d 408, 410 (Ct. App. 1995).
Probable
cause exists where the totality of circumstances within the arresting officer's
knowledge at the time of the arrest would lead a reasonable officer to believe
that the defendant probably committed a crime.
Id. at 476, 531 N.W.2d at 410. While the circumstances within the arresting officer's knowledge
need not be sufficient to make the defendant's guilt more probable than not,
the defendant's guilt must be more than a mere possibility. Id. Probable cause is neither a technical nor a legislative concept;
rather it is a "flexible, common sense measure of the plausibility of
particular conclusions about human behavior." State v. Petrone, 161 Wis.2d 530, 547-48, 468
N.W.2d 676, 682, cert. denied, 502 U.S. 925 (1991).
We
agree with the State that Fuchs' statement identifying Knutson as the driver
was not insufficient to constitute probable cause simply because Fuchs was also
a suspect. However we do not agree with
the State that the proper analysis limits consideration to Fuchs' statement
that Knutson was driving. At the time
Hunzeker arrested Knutson, the totality of the circumstances within Hunzeker's
knowledge included more than Fuchs' statement:
they also included the facts that Knutson had told Hunzeker that Fuchs
was driving and that, after confronting Fuchs with Knutson's statement and
hearing Fuchs' denial that he was driving, Hunzeker arrested Fuchs.[4]
The
State does not contend that any information within Hunzeker's knowledge
indicated that Knutson rather than Fuchs was driving. The State's argument is that Hunzeker did not have information
sufficient to lead him to form a reasonable belief as to which one was driving,
but that this was not necessary in order to have probable cause to arrest
Knutson. The State points out that
probable cause requires simply that it be more than a "mere
possibility" that Knutson was driving.
Again, the State is not taking all the circumstances within Hunzeker's
knowledge into account. It is more than
a mere possibility that either Knutson or Fuchs was driving--in fact, it is a
certainty based on this record that one or the other was driving--but it is
impossible that both were driving.[5]
We
agree with the trial court that probable cause in this case means that Hunzeker
must have a reasonable basis for believing that probably Knutson rather than
Fuchs was driving. The State does not
point to any evidence that would show such a basis. Since neither Bloyer nor Hunzeker testified, the only record is
their reports. We have examined these
carefully and conclude they do not contain evidence that Hunzeker had
information that formed a reasonable basis for believing that probably Knutson
rather than Fuchs was driving.
The
State points out that Bohling holds that the dissipation of
alcohol from a person's blood stream constitutes a sufficient exigency to
justify a warrantless blood draw under certain circumstances. Bohling, 173 Wis.2d at 547,
494 N.W.2d 399 at 406. We agree that a
warrant was not needed in order to draw Knutson's blood. However, probable cause to arrest was
necessary. Neither Bohling
nor any other authority cited by the State suggests that the standard for probable
cause is affected by the need to draw a blood sample before alcohol in the
bloodstream dissipates.
We
agree with the State that driving while intoxicated is a serious offense. However, we do not agree with the State that
our result encourages officers in a situation such as this to either let both
persons go or make a choice between the two that could be erroneous. There are a number of pieces of information
that might provide a reasonable basis to believe that one person rather than
the other was probably driving in a case such as this. These include the demeanor of each person
when being interviewed, the location of each person at the scene of the
accident in relation to the vehicle, ownership of the vehicle, and the nature
and locations of the injuries of each person in relation to the damage to the
vehicle. Further inquiry of each person
or of others might provide additional information. Of course, even with this information, it is conceivable that an
officer could arrest one of the two and later discover evidence that the other
was driving. But we may not modify the
requirements of the Fourth Amendment to guarantee that such a result never
occurs.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] We do not summarize other events occurring
after the arrest, as those are not relevant to the determination of probable
cause.
[3] Knutson does not contend that there was no
probable cause to believe that he was intoxicated. Therefore we focus only on whether there was probable cause to
believe that he was driving.
[4] Although any information that Bloyer gave
Hunzeker in the phone call could also be considered as circumstances within
Hunzeker's knowledge, see State v. Mabra, 61 Wis.2d 613,
625, 213 N.W.2d 545, 551 (1974), the reports do not indicate that Bloyer told
Hunzeker that Fuchs owned the vehicle or provided Hunzeker with any other
information that Hunzeker might have relied on in making either arrest.
[5] The trial court properly noted that the
analysis in this case is different from a case in which "cocaine [is]
sitting on the night table between two beds [with a person in each
bed]." In that case, depending on
all the circumstances, there might be probable cause to believe that both
persons possessed the cocaine. For the
same reason, analogies to cases in which there are a number of persons in a
vehicle containing a controlled substance are not sufficiently close to the
facts of this case to be helpful.