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Officer reasonably assumed that the car’s owner was driving

State v. Travis Daniel Thom, 2014AP613-CR, District 3, 9/9/14 (1-judge; ineligible for publication); case activity

A police officer reasonably assumed a car was being driven by the owner where there was no additional information suggesting someone else was driving.

An officer doing license plate checks noticed a car that came back registered to Thom. The officer was familiar with Thom from post contacts, but he couldn’t tell for sure if Thom was driving, as all he could see was that the driver was a short-haired male. A driver’s license check on Thom showed he had an occupational license prohibiting him from driving past 10:00 p.m. Because it was midnight, the officer stopped the car. (¶¶3-5).

The stop was reasonable under State v. Newer, 2007 WI App 236, ¶¶7-8, 306 Wis. 2d 193, 742 N.W.2d 923, which held it is reasonable to assume that the person driving a particular vehicle is that vehicle’s owner unless the officer “comes upon information” suggesting the registered owner is not actually driving the vehicle—for instance, if “the vehicle’s driver appears to be much older, much younger, or of a different gender than the vehicle’s registered owner[.]” The state didn’t have to prove that the officer was unaware of additional facts suggesting Thom was not the driver or that the officer’s observations were consistent with Thom’s appearance, and in any event, “because Thom was actually driving the vehicle, it would have been impossible for Olson to observe anything about the driver’s appearance that was inconsistent with Thom’s appearance.” (15).

The court also rejects Thom’s argument that the circuit court should have held an evidentiary hearing before finding evidence from the warrantless, nonconsensual blood draw conducted before Missouri v. McNeely, 133 S. Ct. 1552 (2013), was admissible under the good-faith exception to the exclusionary rule. Thom didn’t specifically request such a hearing, so the argument’s forfeited; and in any event there is no need for such a hearing, as the good-faith exception hinges on reasonable, objective reliance on pre-McNeely law, not on the deputy’s subjective reliance. (¶¶16-23).

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