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COA finds intoxicated driver was not subjected to “constructive arrest” and affirms denial of motion to suppress

City of Hartford v. Edward H. White, 2023AP1813 & 2023AP1814, 6/5/24, District II (1-judge decision, ineligible for publication); case activity

Although White tries to argue that he was under an unconstitutional constructive arrest when initially seized for suspicion of an OWI offense, COA finds his arguments unavailing and affirms.

Officers observed White’s vehicle make an illegal U-turn followed by two “left-of-center” violations at around 2:00 A.M. (¶3). He also failed to pull over as requested and only stopped once he had pulled up in front of a garage door. (Id.).Concerned by White’s failure to promptly pull over, the officers conducted a “high-risk stop” which involved using a PA system to command White to exit the car. (¶4). Ultimately, however, the officer “accepted” White’s explanation that he had merely been looking for a safe place to pull over. (Id.). The officer also “grabbed” White’s wallet from his pocket during this initial part of the encounter. (Id.).

Things went predictably downhill for White from there. Given his slurred speech, odor of intoxicants, admission of drinking, and failure on the field sobriety tests, White was arrested for an OWI offense. (¶5). He then filed a motion to suppress, arguing that the “high-risk stop” was actually a constructive arrest and, therefore, the ensuing field sobriety test results were inadmissible. (¶6). The circuit court denied the motion and White appeals. (Id.)

Assessing the totality of the evidence, COA holds that a reasonable person would not have believed themselves to have been in custody under these facts. (¶19). While there were multiple officers involved, that fact is unpersuasive given that the officers in question did not “swarm about White; two took the lead while the others held back.” (¶14). Moreover, usage of the “high-risk” protocol was insufficient to transform this temporary detention into a constructive arrest. (¶16). Finally, the officer’s decision to seize White’s wallet, under these facts, was also a reasonable component of this seizure given that it was taken as a “safety precaution” because the officer did not know what was in White’s pockets. (¶18). COA therefore distinguishes its prior decision in State v. Luebeck, which held that police violated the Fourth Amendment when they continued to retain a motorist’s license after the investigation was concluded and no reasonable suspicion to continue holding that person existed. (Id.).

Although White loses out on the claim for which he appealed, the case does contain something of a quirky defense win, however, as no party to litigation appears to have noticed that the circuit court unlawfully entered convictions for both the OWI and the PAC. (¶20). (COA uses the term “OUI”). Accordingly, COA  remands with directions to dismiss the OWI. (Id.).

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