Schultz was convicted of operating a motor vehicle with a prohibited alcohol content 2nd offense. He sought suppression of his blood test results on the grounds that the warrant-issuing judge lacked probable cause, or alternatively, that Officer Halfmann’s application omitted facts that would have undermined a finding of probable cause. On appeal, Schultz lost both arguments.
The court of appeals held that the information presented (by telephone) to the warrant-issuing judge satisfied probable cause because:
After being sworn in by Judge English, Halfmann read from the standard form affidavit she had filled out. As relevant here, in the moments before 4:58 a.m. on January 19, 2016, 5 Halfmann informed Judge English that based upon their own observations during their investigation, she and lieutenant Borgen learned: Schultz “did drive or operate a motor vehicle” “[o]n the 19th day of January, 2016, at or about 2:00 a.m.,” which vehicle was in an accident; they knew that Schultz was driving or operating the vehicle because “the person’s [Schultz’s] vehicle was observed in [the] accident” and Schultz’s injuries were consistent with “him operating the vehicle”; and Schultz “[a]dmitted to consuming intoxicant[s].” Halfmann then informed Judge English of significant, detailed facts observed during contact with Schultz, including Schultz’s poor performance on field sobriety tests, that indicated Schultz was intoxicated.6 Based upon the totality of the circumstances presented by Halfmann’s testimony to Judge English, Judge English had a substantial basis for concluding Schultz had been operating a motor vehicle while intoxicated and/or with a prohibited alcohol concentration, justifying his issuance of the search warrant authorizing a draw and testing of Schultz’s blood. Op. ¶8.
The court of appeals further found that if Officer Halfmann had included the allegedly missing facts from her application, they would have made the probable cause finding stronger, not weaker.
Schultz’s motion represents that Halfmann’s report indicates she never stopped to directly inspect the rolled-over vehicle before heading to Schultz’s residence and locating him there; however, when Halfmann found Schultz intoxicated in bed, he had blood in his nose, “fresh abrasions” to his lower back, and blood on his boxer shorts in the area of his lower back. Although Schultz denied having been in a crash, in light of the totality of the circumstances, the fact that Schultz was found in bed in this condition would have suggested otherwise to Judge English. And as the circuit court noted at the suppression hearing, Schultz’s denials as to having been in the crash at all, which would have seemed contrary to his physical appearance, would have indicated Schultz was conscious of his guilt and therefore strongly suggested Schultz was driving the vehicle himself. This is so especially due to the fact there was no indication anyone else might have been in the vehicle at the time of the crash. Had Halfmann represented to Judge English that Schultz denied having been in a crash or operating the vehicle, Judge English likely would have viewed such denials similarly to how the circuit court viewed them at the motion hearing, as being “self-serving.” See State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125 (concluding that one “is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause”). Op. ¶12.