Search & Seizure – Denial of Motion to Suppress without Evidentiary Hearing
¶6 Regarding the applicability of [State v.] Garner [, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996) to the present case, we find no published cases applying Garner’s modified Nelson test to a pretrial motion to suppress anything other than witness identification evidence. However, nothing in the rationale of Garner would appear to limit Garner to witness identification evidence, and the supreme court in Velez has already expanded Garner to apply its modified Nelson test to pretrial motions other than those to suppress evidence. Moreover, Rice does not explain why Garner should not apply to his pretrial suppression motion, and we are not aware of any principled reason it should not. Accordingly, we apply the Garner standard in reviewing the circuit court’s order denying Rice’s pretrial motion to suppress without an evidentiary hearing.
The court goes on to conclude — on the basis of documentation that Rice was required to submit in support of his request for a suppression hearing — that the stop was justified under the community caretaker doctrine, ¶¶13-26. The court separately determines that the arrest was supported by probable cause; the court rejects as “lack(ing) specificity” Rice’s claim that the HGN test was “administered improperly,” ¶30.
The result is highly problematic. Because it’s a one-judge appeal panel, the decision can’t be published — but it can now be cited for its persuasive effect; can, and will, be given the recurrent nature of the problem. So some extended commentary follows.
Reliance on Garner, which dealt with a motion to suppress identification, is misplaced: the ID movant bears an initial burden of persuasion to establish some taint in the identification process, e.g., State v. Hall, 196 Wis.2d 850, 878-79, 540 N.W.2d 219 (Ct. App. 1995), reversed on other grounds, 207 Wis.2d 54, 557 N.W.2d 778 (1997) (“Once the defendant meets his or her burden of showing that the identification was the product of an impermissibly suggestive procedure, the burden shifts to the State …”), while the state bears the burden from the outset on a warrantless search. It makes sense to require a movant who bears the burden of proof to assert those facts which will arguably satisfy that burden. But it doesn’t logically follow that a movant who does not actually bear the burden of proof similarly plead facts which might refute the opponent’s burden. Rather than explore this crucial distinction, the court of appeals merely noted that “the supreme court in Velez has already expanded Garner to apply its modified Nelson test to pretrial motions other than those to suppress evidence,” ¶6. But Velez in fact underscores the distinction: Velez bore the burden of proof on the matter for which he sought an evidentiary hearing, and thus that case does not support the court’s conclusion here.
A bit oddly, the court doesn’t cite § 971.30(2)(c), which mandates that pretrial motions “(s)tate with particularity the grounds for the motion and the order or relief sought.” While at first blush that requirement might seem to support the court’s conclusion, deeper inspection shows the contrary. “The rationale underlying § 971.30’s particularity requirement is notice — notice to the nonmoving party and to the court of the specific issues being challenged by the movant. Both the opposing party and the circuit court must have notice of the issues being raised by the defendant in order to fully argue and consider those issues,” State v. Caban, 210 Wis. 2d 597, 605-06 16, 563 N.W.2d 501 (1997). The pleading requirement, then, relates to notice of the theory or theories in support of suppression. The question should be, therefore, whether the state has adequate notice of the basis asserted for suppression, enough to insure that the state can adduce evidence satisfying its burden of persuading the court that the warrantless search and seizure was reasonable. See also People v. Williams, 20 Cal.4th 119, 130-31, 873 Cal. Rptr. 275, 973 P.2d 52 (1999) (“[D]efendants must specify the precise grounds for suppression of the evidence in question.… Defendants need only be specific enough to give the prosecution and the court reasonable notice.…”). Recent examples of inadequately pleaded suppression motion: State v. Roth, OR App No. A138078, 6/9/10 (“no appellate decision to date has held that a motion to suppress that implies–but does not expressly assert–that a challenged search was conducted without a warrant, is sufficient, without more, to satisfy the requirements of UTCR 4.060”); State v. Wilson, Del. Super. Ct. No. 0802030960, 5/23/08 (evidentiary hearing required only if suppression motion “alleges facts that, if proved, would require the grant of relief. Factual allegations that are general and conclusory or based upon suspicion and conjecture will not suffice.” LaFave and other treatises cited.)
Search & Seizure – Community Caretaker
Seizure upheld under community caretaker doctrine, court stressing:
¶21 … First, the public interest in providing assistance to a motorist who appeared to be unconscious and in clearing a public right-of-way weighs heavily in favor of officer intervention. Second, the surrounding circumstances supported the seizure. It was late at night, the motor vehicle was sitting with the motor idling in a traffic lane of a parking lot, and the motorist, who appeared to be passed out, failed to respond to the officer’s repeated efforts to get his attention. Despite Rice’s arguments to the contrary, the degree of overt authority used by the officer—specifically, activating her emergency lights—was appropriate and a reasonable safety measure under the circumstances. Third, the claimed exercise of the community caretaker function involved an automobile. See Cardwell v. Lewis, 417 U.S. 583, 590-91 (1974) (persons have a lower expectation of privacy in a vehicle than in their home). Finally, the circumstance of a vehicle parked in the right-of-way under the control of an unresponsive individual called for the officer to stop and investigate; there were no other feasible, less intrusive alternatives to the officer’s actions under the circumstances.
The court does, though, acknowledge “that an officer’s subjective intent in stopping or detaining an individual was and continues to be a factor in determining whether an officer’s actions constitute a bona fide community caretaker function at the time the circuit court issued its decision,” ¶24.