COURT OF APPEALS DECISION DATED AND RELEASED October 24, 1995 |
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. 95-1704-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHERYL BRAUN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Reversed and cause remanded with
directions.
SULLIVAN,
J. Cheryl Braun appeals from a judgment of conviction, upon a guilty
plea, for operating an automobile while under the influence of an
intoxicant. She seeks review whether
the trial court erred in denying her motion to suppress evidence because the
evidentiary record at the suppression hearing does not support a finding that
the police had probable cause to arrest her.
The State concedes that the record does not support the trial court's
finding of probable cause for Braun's arrest.
Accordingly, this court must reverse the judgment of conviction and
remand the matter to the trial court with directions to hold further
evidentiary hearings on the issue of the police's probable cause to arrest
Braun.[1]
The following testimony
was provided at the suppression hearing.
On August 12, 1994, City of Oak Creek police officers responded to a
call that a person was passed out behind the wheel of her automobile while
parked in the lot of a fast-food restaurant.
The police found Braun with her head back against the headrest of her
car, either asleep or passed out, with the car door locked, the engine running,
and the car stereo playing. Police
pounded on the window and awakened Braun; however, while she fumbled around
with her purse to locate her driver's license, the police detected the odor of
intoxicants on her breath. One of the
officers testified he wanted to “find out whether she was sleeping on the lot
or passed out or hurt.” At the
suppression hearing, the State never introduced any evidence on how or why
Braun was arrested.
Nevertheless, the trial
court found both that officers had reasonable suspicion to stop Braun, and that
they had probable cause to arrest her.
The trial court then denied the suppression motion, Braun pleaded guilty
to the charge, and the trial court sentenced her. Braun appeals from the judgment of conviction.
Braun argues that the
trial court erred in denying the suppression motion because there was no
evidence presented by the State to support the officer's probable cause to
arrest Braun. The facts are undisputed
and, accordingly, whether the police had probable cause to arrest Braun is a
question of law that this court reviews de novo. State v. Truax, 151 Wis.2d
354, 360, 444 N.W.2d 432, 435 (Ct. App. 1989).
The prosecution has the
burden of establishing probable cause for a warrantless arrest under both
Article I, Section 11 of the Wisconsin Constitution and the Fourth Amendment to
the United States Constitution. See,
e.g., Lerox v. State, 58 Wis.2d 671, 682, 207 N.W.2d 589, 596
(1973). The State concedes “that the
record does not contain enough factual basis for the Trial Court to find that
the defendant was arrested based on probable cause that she operated a motor
vehicle while intoxicated.” The State
acknowledges that: “Whether based on a misunderstanding of the issues requested
to be addressed in the motion or an excessive inclination towards judicial
economy, the prosecutor's questioning reached only the issue related to the
initial contact with Braun and could not be used by the Trial Court to justify
the arrest of the defendant.”
Based upon the State's
concession to its own error, we reverse the judgment of conviction and remand
the matter to the trial court for further evidentiary hearings on Braun's
motion to suppress. Based upon these additional
hearings, the trial court shall make specific factual findings and conclusions
on whether the police had probable cause to arrest Braun.
By the Court.—Judgment
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.