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Stop converted to arrest where police moved OWI suspect 10 miles to hospital before performing sobriety tests

State v. Dean M. Blatterman, 2013AP2107-CR, District 4, 4/24/14 (one-judge; ineligible for publication), petition for review granted 9/24/14, reversed, 2015 WI 46; case activity

You don’t see this very often.  The court of appeals just reversed a circuit court decision denying a motion to suppress evidence of intoxication.  The police performed field sobriety and blood tests after moving the suspect out of the general vicinity of the stop.  This converted the stop into an arrest for which there was no probable cause.

An officer stopped the minivan Blatterman was driving after receiving a dispatch that Blatterman had tried to light a house on fire and that he was drunk.  The police proceeded cautiously because Blatterman had a reputation for “suicide by cop” (intentionally engaging in life-threatening behavior to induce the cops to shoot you).  Long story short, after stopping Blatterman, the police detected the odor and physical signs of intoxication and called an ambulance.  Blatterman refused medical treatment, but the officer thought he really needed to get checked out for possible carbon monoxide poisoning, for being a suicide risk, and for chest pain, so he drove Blatterman to a hospital 10 miles away.  There the officer performed field sobriety tests and ordered a blood draw which prompted a charge of OWI with a PAC.

The court of appeals’ decision turned on § 968.24 and State v. Quartana, 213 Wis. 2d 440, 570 N.W.2d 618 (Ct. App. 1997). An officer exceeds the scope of a permissible investigative stop when he: (1) moves the suspect outside the vicinity of the stop; and (2) lacks a reasonable purpose for doing so. Quartana, 213 Wis. 2d at 446. Here the officer tripped on (1).

Slip op. ¶26      In this appeal, Deputy Nisius transported Blatterman from the scene of the stop to a hospital ten miles away.  The State contends that the hospital was within the vicinity of the stop.  The State’s argument fails for two reasons.  First, the State does not support the argument with citation to any controlling legal authority.  See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).  Second, unpublished cases interpreting Quartana, while not controlling legal authority, contradict the State’s argument.  See State v. Burton, No. 2009AP180, unpublished slip op. ¶¶14-15 (WI App Sept. 23, 2009) (concluding that transportation of the defendant from the scene of the stop to a hospital eight miles away was not within the vicinity); State v. Doyle, No. 2010AP2466-CR, unpublished slip op. ¶13 (WI App Sept. 22, 2011) (concluding that transportation of the defendant from the scene of the stop to a police station approximately three to four miles was within the vicinity, but acknowledging “that three to four miles is at the outer limits of the definition of ‘vicinity.’”).  The State fails to identify controlling legal authority that would allow for those “outer limits” to be extended to ten miles.  I therefore conclude that Blatterman was not moved within the vicinity when Nisius transported him to the hospital.

Slip op. ¶27      Because I conclude that Blatterman was not moved within the vicinity when Nisius transported him to the hospital, I do not reach the second factor of Quartana’s two-part test, which asks whether the purpose in moving the suspect within the vicinity was reasonable.  See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (when a decision on one issue is dispositive, we need not reach other issues raised).

The court of appeals is correct that a number of unpublished appellate decisions interpret and apply Quartana, and none of them say moving a suspect 10 miles qualifies as staying within the “vicinity” of a stop.” See e.g.  State v. Adrian (1.5 blocks okay); State v. Doyle  (3-4 miles okay).  See also State v. Kelesahl, 2008AP2493-CR (finding a Quartana violation due to nature and length of stop).

 

 

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