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  • WisBar News
    September 24, 2014

    No Probable Cause for Arrest: Appeals Court Reverses OWI Conviction

    Sept. 24, 2014 – A conservation warden made an arrest without probable cause, a state appeals court has ruled, despite the state’s argument that Thomas Anker was only temporarily detained before his arrest for operating a vehicle while intoxicated.

    Thus, in State v. Anker, 2014AP353-CR (Sept. 16, 2014), a three-judge panel for the District III Wisconsin Court of Appeals reversed Anker’s conviction, his sixth OWI offense, because the evidence in the case should have been suppressed.

    On remand, though, the state will have an opportunity to argue that it legally obtained evidence based on the independent source doctrine and the inevitable discovery doctrine, issues the circuit court did not consider in the fact-finding process.

    Conservation warden James Horne was on duty in Shawano when heard dispatch say an injured person was seen headed into some woods. Horne jumped in his unmarked truck and started looking for the injured person. He spotted an individual exit and reenter some woods near a Wal-Mart that was close to the scene of the accident.

    Horne parked his car in the Wal-Mart parking lot and waited. At some point, a citizen approached Horne and told him he saw an accident nearby and saw someone involved run into the woods. Soon after, Anker emerged from the woods with a bloodied face.

    Horne approached Anker on foot and told him to stop. Anker kept walking until Horne said he was under arrest. Horne handcuffed Anker and told him they would wait for police. Horne told dispatch he had Anker in custody. He said Anker seemed drunk.

    When police arrived, Anker was booked on drunk driving charges, his sixth offense. Anker filed a motion to suppress all evidence, arguing that the conservation warden did not have probable cause to arrest him.

    However, the trial court ruled that probable cause supported the arrest, denied the motion, and gave Anker a six-year sentence after Anker pled no contest.

    However, the appeals court reversed. The three-judge panel concluded that Horne did not have probable cause to arrest Anker, and overturned the conviction judgment.

    The appeals court noted that citizens are protected from unreasonable searches and seizures by requiring law enforcement officers to have probable cause to make arrests.

    The officer must have evidence to suggest the person probably committed the crime, the appeals panel explained. In determining when a person is arrested, courts also look at whether a reasonable person would believe they were in police custody.

    On appeal, the state did not argue that Horne had probable cause and thus conceded that point. Instead, the state argued that Horne was never arrested.

    The state viewed Horne’s apprehension of Anker as a Terry stop, usually associated with a stop and frisk, which does not require probable cause. It only requires a “reasonable suspicion” that a crime is afoot. The appeals panel did not agree.

    “Here, the circuit court determined Anker was arrested during the initial moments of his encounter with Horne,” wrote Reserve Judge Thomas Cane. “That conclusion is unassailably correct. Anker was ordered to stop, told he was under arrest, forcibly handcuffed, and taken to Horne’s vehicle to be given over to investigating authorities.”

    The appeals panel also noted that Terry, codified at Wis. Stat. section 968.24, allows police to stop someone based on reasonable suspicion, but the officer must first identify him or herself as a law enforcement officer. Horne was a conservation warden.

    “Nothing in the record establishes that Horne identified himself as a law enforcement officer before telling Anker he was under arrest, nor do the facts in any way suggest Anker would have had prior notice Horne was a law enforcement officer,” Cane wrote.

    Finally, the state argued that even it was an arrest and there was no probable cause, the independent source doctrine and the inevitable discovery doctrine apply. That is, the evidence obtained was obtained legally and independently of the arrest and would have been discovered anyway, so the evidence was not “fruit of the poisonous tree.”

    On this argument, the appeals court remanded the case, concluding the state did not make those arguments and the circuit court never made factual findings on that issue.

    “The State simply wishes for us to assume all the evidence it would have introduced at trial is admissible,” wrote Judge Cane, who admonished the state on several occasions.

    “If the court concludes neither the independent source nor inevitable discovery doctrines apply, it shall grant Anker’s suppression motion,” Judge Cane explained.

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