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Detention by security guards doesn’t count as part of prolonged stop

County of Winnebago v. Joshua R. Hunter, 2014AP2628, 4/1/15, District 2 (1-judge opinion, ineligible for publication); click here for docket and briefs

Hunter sought suppression of evidence supporting his conviction for OWI, and with a prohibited alcohol concentration, because law enforcement detained him for an unlawful length of time. His motion failed based on the court of appeals’ reading of the not-so-clear testimony at the suppression hearing.

You’ll just have to read the decision to appreciate the fuzziness of the testimony by the sheriffs and Hunter. The court of appeals, deferring to the circuit court’s finding of facts, held that security guards at the Experimental Aircraft Association convention stopped Hunter’s car. They told a deputy that he appeared to be intoxicated. Hunter then sat for 5 to 10 minutes until the deputy finished another matter, then he began the OWI investigation, which involved a short additional delay until another deputy arrived to perform the field sobriety tests.

The waiting game was just fine for two reasons. First, the detention by EAA guards didn’t count. “Because Fourth Amendment protection only applies to government action, see State v. Butler, 2009 WI App 52, ¶12, 317 Wis. 2d 515, 768 N.W.2d 46, we conclude that this detention of Hunter by EAA security guards is of no constitutional consequence because it was not performed by law enforcement officers.” Slip op. ¶ 15. Second, the OWI investigation began when the first deputy observed Hunter’s slurred speech and glassy eyes, not when the second deputy conducted FSTs. According to the court of appeals, the first deputy “diligently” pursued a means of investigation. Slip op. ¶ 15.

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