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Telephonic warrant for OWI blood draw satisfied § 968.12(3)

State v. Roberto F. Orozco-Angulo, 2014AP1744-CR, District 2, 4/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The procedure used to obtain a telephonic search warrant for a blood draw following Orozco-Angulo’s arrest for OWI and his refusal to submit to a blood test complied with the requirements of § 968.12(3) and therefore suppression of the evidence was not appropriate.

Officer Garcia stopped Orozco-Angulo based on a citizen tip of erratic driving and Garcia’s own observations of lane straddling. Deputy Stenulson assisted and ultimately arrested Orozco-Angulo. After observing the usual indicia of intoxication, he was arrested and asked to consent to a blood draw. He refused, so police sought a warrant. Stenulson used a blank affidavit form to dictate the basis for the warrant to Thompson, another officer, who filled out the blank affidavit form on his squad computer and then e-mailed it to the duty judge. Stenulson called the judge, who reviewed the e-mailed document, asked Stenulson some questions, and issued the warrant. (¶¶2-5, 8).

Orozco-Angulo complains that the process didn’t comply with § 968.12(3)(b) and (d), which require, respectively, that the officer read the warrant verbatim to the judge and that all parties contributing to the warrant be sworn. Here, Stenulson didn’t read a paper copy of the warrant verbatim given that the judge had the emailed copy; and Thompson, the scrivener-cop, and Garcia weren’t sworn. The court isn’t persuaded:

¶11     Thompson did not apply for the warrant, Stenulson did. Stenulson was the arresting officer. Stenulson saw all the indicia of intoxication listed on the affidavit for the warrant, with the exception of the two items regarding an officer and a witness seeing Orozco-Angulo drive. Stenulson swore to the judge over the phone that the information he provided in the application for the warrant in his affidavit and verbally was true and correct…. Thompson was a mere scrivener; he contributed no testimony and did not need to be sworn. Orozco-Angulo points to no information in the application that came from Thompson.

¶12     Garcia did supply information, which Stenulson references in his testimony. Garcia is the officer who first saw Orozco-Angulo driving after the information came from dispatch about a possibly intoxicated driver in that area. However, the statute specifically allows for the person applying for the warrant to give testimony upon information and belief. Wis. Stat. § 968.12(2); see also State v. Beal, 40 Wis. 2d 607, 614, 162 N.W.2d 640 (1968). There was no error in the inclusion of information obtained from Garcia without Garcia swearing under oath to the application.

As to the failure to read the warrant, the court invokes State v. Raflik, 2001 WI 129, 248 Wis. 2d 593, 636 N.W.2d 690, which held that suppression for noncompliance with a statutory warrant requirement is available only if the noncompliance also violated a constitutional right:

¶14     …. First, regarding Stenulson’s not reading a paper manifestation of the document, Stenulson had a blank form of the standard form “AFFIDAVIT IN SUPPORT OF OWI SEARCH WARRANT.” Stenulson dictated to Thompson which boxes to check on that form. Thompson then e-mailed the form to the judge. The statute allows for a search warrant to be “based upon sworn oral testimony communicated to the judge by telephone, radio or other means of electronic communication.” Wis. Stat. § 968.12(3)(a); … Stenulson testified that he had previously read the form document, he dictated to Thompson the specific content describing the facts that made up probable cause in Orozco-Angulo’s case, and he swore to Judge Carter regarding the truth of the contents of the document and his testimony. Ultimately, Stenulson signed the document as the affiant three times: once on the affidavit, and in two different places on the return form. There was no error in Stenulson not viewing a completed paper representation of the warrant application.

¶15     Second, regarding Stenulson’s not reading the document verbatim to the judge over the phone, when Stenulson called, the judge had the standard form search warrant for taking of a blood sample following an arrest and refusal to submit to a blood draw. The judge read and electronically signed the warrant. Stenulson received and executed the warrant. Later that same morning, Stenulson returned the signed certification to the court, showing that the warrant had been executed and that the officer was in possession of the blood sample. The resulting record of the signed warrant, the signed return certification, and the signed affidavit preserves the policies of judicial integrity and the right to judicial review. Raflik, 248 Wis. 2d 593, ¶21. There was no constitutional violation requiring suppression….

Orozco-Angulo also argued he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978), because there was no evidence of deliberate falsehood or reckless disregard for the truth in preparing the warrant. The alleged falsehood was that a checked box on the warrant indicated the citizen tipster “observed” him driving, when in fact the tipster merely described his vehicle, without describing the driver. (¶17). But based on the tipster’s description, Garcia pursued a vehicle and, when he pulled it over, Orozco-Angulo was the driver. “Checking the box on the form affidavit that says ‘was observed to drive/operate the vehicle by a citizen witness,’ is not even a discrepancy, much less a false statement that was made knowingly and intelligently or with reckless disregard for the truth.” (¶17). Thus, Orozco-Angulo wasn’t entitled to a Franks hearing.

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