Follow Us

Facebooktwitterrss
≡ Menu

Search & Seizure – Community Caretaker; Attenuation Doctrine – Witness Statements

State v. Ricky O. Halverson, 2011AP240-CR, District 2, 9/14/11

court of appeals decision (1-judge, not for publication); for Halverson: Walter R. Andrew; case activity

Officer, whose investigation of single-car crash led him to Halverson’s home, wasn’t properly engaged in community caretaker exercise when he took Halverson into custody, supposedly for his own good, ¶¶8-14. Community caretaker test, State v. Kramer, 2009 WI 14, ¶21, 315 Wis. 2d 414, 759 N.W.2d 598, recited;  State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, applied and followed. Principal point in controversy: whether Halverson was so intoxicated that the officer needed to take him into protective custody, ¶10.  The trial court resolved this issue factually, finding that although Halverson was “heavily intoxicated,” there was no evidence “to suggest that Halverson was so intoxicated as to justify Cates taking him into custody for his protection,” ¶11. The court of appeals defers to this finding (in no small part because it was based on the trial court’s review of a police video that the State neglected to place in the appellate record, ¶11 n. 2), and thus affirms the trial court’s suppression of evidence.

The court, citing Ultsch, stresses “that stricter scrutiny is applied to an encounter in the home, as opposed to a police encounter with an individual in a vehicle,” ¶14. The intrusion on Halverson’s privacy rights in his own home was “substantial,” the countervailing public interest in that intrusion, “minimal,” id. Note, though, that the officer’s intrusion itself might be thought minimal (he “stepped one foot inside the residence and was just inside the doorway when he handcuffed Halverson[]”) – might, except that the relevant analysis is binary, not sliding scale; either an entry occurred or it didn’t, a foot is as good as a mile. State v. Johnson, 177 Wis. 2d 224, 232, 501 N.W.2d 876 (Ct. App. 1993) (“Without question, Officer Klug’s step into the threshold, preventing Johnson from closing the door, was an entry. … Even extending only from the tips of his toes to the balls of his feet, it fixed the ‘first footing’ against which the United States and Wisconsin Supreme Courts warned.”).

Statements made by various witnesses who showed up at the scene were traceable to the illegal search and seizure, hence are suppressed.

¶16      The question is whether the statements made by Halverson’s friends and the tow truck driver were obtained by exploitation of his unlawful detention or by means sufficiently distinguishable to be purged of the primary taint.  See State v. Simmons, 220 Wis. 2d 775, 781, 585 N.W.2d 165 (Ct. App. 1998) (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)).  The three factors relevant to determining whether the causal chain is sufficiently attenuated so as to dissipate the taint of the illegal conduct were set forth in Brown v. Illinois, 422 U.S. 590, 603-04 (1975):  the temporal proximity of the official misconduct, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct.  See State v. Walker, 154 Wis. 2d 158, 186-87, 453 N.W.2d 127 (1990) (citing the Brown analysis as the proper test in attenuation cases); Simmons, 220 Wis. 2d at 781.  It is the State’s burden to prove attenuation.  State v. Phillips, 218 Wis. 2d 180, 204-05, 577 N.W.2d 794 (1998).

¶17      The circuit court found that the statements made by the tow truck driver and Halverson’s friends were obtained by exploitation of Halverson’s unlawful seizure.  We agree.  As the court noted in its decision, Halverson had the right to, and did, ask Cates to leave his property. Cates should have left upon Halverson’s request but did not.  Instead, Cates unlawfully seized Halverson, “gets him in the squad” and then “just stand[s] around.”  While standing around, Cates accumulated evidence against Halverson for OWI.  The facts surrounding Cates’s encounters with the witnesses support the circuit court’s determination.  The circuit court found that after Halverson asked Cates to leave his property, it was “quite a while” before the tow truck driver appeared at Halverson’s residence.  In addition, Cates testified that Halverson was detained in the squad car in his own driveway for a total of thirty to forty-five minutes.  While Cates indicated a willingness to turn Halverson over to his friends due to his intoxicated condition, Cates’s testimony reflects that the focus of the discussions with Halverson’s friends and tow truck driver was the accident.  We conclude, as did the circuit court, that the witness statements were obtained by Cates through the exploitation of Halverson’s unlawful detention.

While there’s no reason to doubt this result, on these facts, it oughtn’t be assumed that taint analysis is precisely the same for witness statements as the defendant’s. United States v. Ceccolini, 435 U.S. 268, 278 (1978) (“In short, since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.”). Implicit in the court’s analysis here: a very direct link was established between illegal police conduct and witness statements.

Facebooktwitterlinkedinmail
{ 0 comments… add one }

Leave a Comment