The circuit court held that police lacked probable cause to arrest Strawder for OWI and suppressed the resulting evidence, including her breath test results. The state appealed, claiming the circuit court’s factual findings and analysis were so lacking the court of appeals should review the factual record ab initio. The court of appeals thinks the trial court did the proper analysis and made sufficient factual findings, but disagrees with its legal conclusion. In the facts as found by the trial court, the court of appeals sees probable cause to arrest, and thus reverses and remands for the prosecution to continue.
The state’s argument that the trial court failed to consider the totality of the circumstances depends, the court of appeals says, on taking a single phrase–“the only thing”–out of context. (¶12).
As to the state’s complaint about inadequate factual findings, the court of appeals says that
[w]hen the circuit court “fails to make any findings of fact” this court can examine the factual record ab initio to “decide as a matter of law whether the evidence constitutes probable cause.” State v. Williams, 104 Wis. 2d 15, 21-22, 310 N.W.2d 601 (1981).
A word of caution to the practitioner: that Williams quote–and the law it seems to lay out–was new to On Point. It turns out Williams was talking about “probable cause” in the context of a circuit court’s decision to bind a defendant over for trial. As far as we can tell it’s never before been cited in talking about probable cause in the Fourth Amendment context; it’s not clear that it applies.
In any case, the court of appeals opines that the trial court did a good enough job finding facts, but also that these facts constituted probable cause for arrest:
Based on the information available to Officer McLean, a reasonable officer would believe that Strawder was operating her vehicle under the influence of an intoxicant. The facts suggesting that Strawder was operating her vehicle while intoxicated are the following: the time of day, that Strawder was coming from a party where she admitted she had been drinking after initially denying she consumed any alcohol; the five out of six clues indicating impairment observed during the HGN field sobriety test; and that the direction of Strawder’s travel was inconsistent with her intended destination. Together these facts would lead a reasonable police officer to believe that Strawder was probably operating her vehicle under the influence. See Lange, 317 Wis. 2d 383, ¶38.