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COA: There was reasonable suspicion for stop, man on ground with deputy’s knee on his back being handcuffed wasn’t arrested

Dane County v. Damian A. Bethke, 2017AP1284, 5/31/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Bethke was acquitted of his OWI charge, so this is an appeal only of his refusal, and his claim is that the officer who detained him violated his Fourth Amendment rights.

He got his pickup stuck in a snowbank while driving home from a bar on an early morning in January, and he started to walk home. Around the same time, somebody reported a missing person who drove a very similar pickup, and officers converged on the scene. On his walk, Bethke fell through some ice into a pond, but pulled himself out. He eventually came to a residence, and when he saw the lights of a squad car, he went running out of the residence toward it, “drenched [and] shaking uncontrollably,”  “waving [my] arms over [my] forehead.”

The officer responded by asking, over his squad’s loudspeaker, if Bethke had been driving the truck. When Bethke answered that he had, the officer ordered him to the ground, put a knee in his back, and handcuffed him. He kept Bethke in the cuffs until another trooper arrived, at which point he and the other trooper helped him remove his clothes and helped him to an ambulance.

The court first concludes Bethke’s having driven the truck that was stuck in the snow provided reasonable suspicion:

When a vehicle is found stuck in a snow bank by the side of a road and appears to have been left unattended, it is reasonable for an officer to suspect that the last driver of the vehicle committed a traffic violation, absent evidence of extenuating facts. See WIS. STAT. § 346.13(3) (deviating from designated lane); WIS. STAT. § 346.57(2) (driving too fast for conditions); WIS. STAT. § 346.89(1) (inattentive driving); WIS. STAT. § 346.62 (negligent operation of a motor vehicle). And here there was no evidence of extenuating facts. There were alternative possible scenarios that would have involved no traffic violation—for example, hitting a patch of black ice that the driver could not have anticipated. However, “police officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.” See Waldner, 206 Wis. 2d at 59.

(¶12).

The court also rejects Bethke’s argument that the circumstances of his detention made it an arrest, such that probable cause, rather than reasonable suspicion, was required:

The question is not what Bethke subjectively believed about his status at the time that the trooper ordered him to the ground and handcuffed him. Instead, the test is objective, asking what a reasonable person in Bethke’s shoes would have recognized about his status under the circumstances. I conclude that a reasonable person would have recognized that the trooper was not arresting him, but instead executing on-the-spot safety decisions driven by unanswered questions. Was this the missing man, or instead someone who played a role in causing the man to go missing? Why was he wearing drenched, heavy clothing during the early morning hours of a cold winter day? Why had the drenched man, whether he was the missing man or not, emerged from a residence? Was he alone?

(¶17).

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