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SCOW will decide whether warrant application showed probable cause where it didn’t describe a crime

State v. Valiant M. Green, 2019AP2150, petition for review of a summary order of the court of appeals granted 9/14/21; case activity (including briefs)

Issue presented (from the petition):

Did the affidavit in support of that search warrant fail to state probable cause to believe that Mr. Green had committed a crime and thus require suppression of the blood test result?

Green’s neighbor called police and said Green was drunk and driving his truck. The responding officer saw Mr. Green in his truck in his own driveway; Green performed some maneuvers in the driveway but did not, while the officer was there, enter the road. Green displayed various indicia of intoxication and was arrested. The officer sought a warrant to take his blood. The warrant application was a pre-printed, fill-in-the-blank form. One of the blanks to be filled in was that the arrestee “drove or operated a motor vehicle at _____________”; the officer filled in this blank with “driveway of 3207 45 Street.”

It’s a crime to drive drunk, but only if one does so on a public highway or on other premises held out for public use. See Wis. Stat. §§ 346.61 and 340.01(22). So if the warrant application conveyed only that Green was operating his truck in his own driveway, it didn’t supply probable cause. The court of appeals–contrary to the circuit court and the state’s concession on appeal–concluded that the officer’s phrase “driveway of 3207 45 Street” could reasonably convey “on the public highway near the driveway of 3207 45 Street.” Green’s petition acknowledges that in reviewing a warrant, an appellate court affords great deference to the warrant-issuing judge. See State v. Marquardt, 2001 WI App 219, ¶13, 247 Wis. 2d 765, 635 N.W.2d 188. But, he says, while “reasonable inferences” must be drawn in favor of probable cause, it’s not reasonable to posit that the officer’s use of the word “driveway” didn’t actually mean “driveway.” We’ll see what SCOW makes of it.

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