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Contact with suspected drunk driver wasn’t a seizure; and if it was, it was lawful

State v. Mary G. Zinda, 2016AP455-CR, District 2, 9/7/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Two police officers approached Zinda as she got out of her car on her own driveway, but this did not amount to a seizure under the Fourth Amendment. And even if it was a seizure, it was supported by reasonable suspicion to investigate whether Zinda was operating while intoxicated.

After getting a citizen tip about a possible drunk driver and unsuccessfully trying to locate the suspected car on the road, a police officer went and parked at the residence of the car’s registered owner. When the suspected car showed up, the officer approached and the driver, Zinda, got out. A second officer who had briefly followed Zinda and seen no concerns about her driving also got out and approached Zinda’s car. Zinda appeared confused and had the odor of intoxicants about her. The officer had her do field sobriety tests and ultimately arrested her for OWI. (¶¶3-9).

Relying on County of Grant v. Vogt, 2014 WI 76, 356 Wis. 2d 343, 850 N.W.2d 253, the court of appeals holds Zinda wasn’t seized until police asked her to do field sobriety tests:

¶18     Here, the encounter with [Chief] Wallis occurred in the middle of the day, a less intimidating time to be approached by police than 1:00 a.m., as in Vogt. Zinda cites the fact the interaction took place on her private property instead of on public property as support for her position that she was seized immediately upon Wallis’ initial contact with her; however, we have no reason to view this fact in the manner she does, especially since she does not develop an explanation of this point. Based upon case law, however, the position seems stronger that a reasonable person in Zinda’s position would have felt more comfortable, and less intimidated, on her home turf. See State v. Kilgore, 2016 WI App 47, ¶25, 370 Wis. 2d 198, ___ N.W.2d ___ (“[W]hen ‘a person is questioned on his [or her] own turf … the surroundings are not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation.’” (citations omitted))….

¶19     Furthermore, the undisputed testimony is that Wallis did not order Zinda to exit her vehicle, instruct her to do anything before exiting, make any commands, point a weapon at her, or “do anything towards her at all,” and neither Wallis nor [Officer] Parkhurst had their emergency lights activated. When Wallis approached Zinda, who had exited her vehicle, he stood far enough off the side of the vehicle so that Zinda would be able to pass by. Parkhurst also approached the vehicle and stood near the front on the driver’s side, but Wallis’ testimony established that there was room for Zinda to “have gone forward around the vehicle.” When Zinda did begin to walk past Wallis, he detected the odor of intoxicants and thereafter temporarily detained—seized—Zinda for the purpose of performing field sobriety tests. Considering Vogt, we conclude she was not seized until this temporary detention, and thus the Fourth Amendment was not implicated until this point. Zinda does not dispute that Wallis had reasonable suspicion to temporarily detain her once he detected the odor of intoxicants.

In any event, the officers had reasonable suspicion to seize Zinda even before smelling the intoxicants:

¶23    …. Dispatch informed Wallis that a 911 caller, who identified herself to dispatch… and was following Zinda, reported that Zinda “had either gone off the road or nearly gone off the road, and that basically the driving was erratic.” Dispatch also informed Wallis the suspect vehicle had exited Highway 16, made a U-turn, and got back onto Highway 16. Further, as Wallis exited his vehicle after Zinda pulled into the driveway, Zinda, whom he recognized from prior contacts, “looked somewhat confused.” Based upon this evidence, we believe Wallis had reasonable suspicion to temporarily freeze the situation to investigate.

Zinda also argued the Confrontation Clause may have been violated because the circuit court listened to a 911 recording, which had been introduced by the state at the suppression hearing, outside of the hearing. The court refuses to consider this argument, though, because Zinda fails to cite to case law or develop legal arguments to show how the court’s actions violated the Confrontation Clause. In addition, the circuit court informed the parties it would listen to the recording outside of the hearing and their presence, and Zinda raised no Confrontation Clause objection to the court’s plan of action, so she also forfeited that argument by failing to raise it before the circuit court. (¶1 n.2).

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