State v. Thomas J. Anker, 2014 WI App 107; case activity
If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.
Anker was convicted of OWI (6th offense) and injuring another person by operating a vehicle while intoxicated. He ran from the accident and into a nearby woods. An on-duty conservation warden who had heard about the accident saw Anker, barefoot and injured, leaving the woods. That’s when the warden ordered Anker to stop, told him he was under arrest, handcuffed him, and took him to his truck to wait for the police. Anker moved to suppress evidence gathered as a result of the arrest because the State had lacked probable cause.
On appeal, the State never argued that it did have probable cause, which means it conceded the point under Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). So the issue boiled down to whether the warden’s detention of Anker amounted to a Terry stop justified under the lower, reasonable suspicion standard. The answer? No! Said the court of appeals:
Under similar facts in Young, 294 Wis. 2d 1, ¶¶24-25, our supreme court determined the defendant was arrested when he was “physically detained and handcuffed” following a scuffle because the action “clearly restrained Young’s liberty, led to a custodial arrest, and culminated in prosecution.” See also Terry, 392 U.S. at 16 (An arrest in the traditional sense involves a detention that eventuates in a “trip to the station house and prosecution for crime.”). Slip op. ¶17
The State weakly responds by deconstructing the totality of the circumstances and attacking each individual fact suggesting an arrest. Stripping each fact of context and then dismissing it as if it were the sole fact suggesting an arrest had taken place is neither analytically honest nor persuasive. Nonetheless, the inevitable conclusion is that Anker was arrested even using the State’s piecemeal approach. Slip op. ¶18 (citation omitted).
To the State’s claim that the warden was only making a “show of authority” and had misspoken when he said “under arrest” the court of appeals held that “words cannot be so easily dismissed as a misstatement. A law enforcement officer’s statements are a critical factor in assessing how a reasonable person would view the encounter.” Slip op. ¶19.
To the State’s point that handcuffs don’t necessarily transform a Terry stop into an arrest, the court of appeals replied “true” but “handcuffs are a key fact strongly suggesting to a reasonable person that he or she has been arrested . . . ” Slip op. ¶20.
And to the State’s contention that the warden was only tying to “freeze the situation” until the police arrived, the court of appeals said the record contains no evidence that Anker was trying to flee. Slip op. ¶23. Furthermore:
Wisconsin’s codification of Terry, Wis. Stat. § 968.24, permits a law enforcement officer to stop a person for a reasonable period of time based on reasonable suspicion “[a]fter having identified himself or herself as a law enforcement officer.” Not only does the State fail to cite this statute, its argument directly contravenes it. Nothing in the record establishes that [the warden] identified himself as a law enforcement officer before telling Anker he was under arrest, nor do the facts in any way suggest Anker would have had prior notice Horne was a law enforcement officer. The State’s argument that the encounter was a valid Terry stop is without record support and contravenes state law. Slip op. ¶25.
The court seemed especially ticked off by the State’s “cursory argument, without any record or legal citations to support it,” that the evidence gathered after Anker’s arrest was independent and would have been discovered anyway. Slip op. ¶25. It declined the State’s invitation “to assume all the evidence it would have admitted at trial is admissible, despite never identifying the evidence in its brief nor explaining why the evidence was also lawfully obtained or would have been discovered in the absence of Anker’s arrest.” Slip op. ¶26.
Despite the thrashing, the State walked away with a partial victory. The court of appeals “remanded the case to the circuit court to take evidence and make factual findings on the State’s bungled appellate effort to invoke the “independent source” doctrine and the “inevitable discovery” doctrine.
I had to snort when I saw “We will not abandon our neutrality to develop arguments for the parties….” (¶13), since I have been on the wrong end of a bunch of COA opinions where the court did just that: develop arguments not made by the state or the trial judge just to uphold the conviction. This was a District III case, and my practice tends to be more in District IV, but it was still nice to see some acknowledgement that the COA really should not be in the business of doing the lawyering for the state.