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Courts may reopen suppression hearings to give State 2nd kick at meeting burden of proof

State v. Jesse U. Felbab, 2017AP12-CR, 8/2/17, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

If at first you don’t succeed, try, try, try again. That’s surely the State’s take away from this decision. Deputy Schoonover stopped Felbab for erratic driving and determined that field sobriety tests and a drug-detecting dog were in order, so he called for a back up.  This led to the State charging Felbab with possession of THC. He moved to suppress.  Before giving its decision, the court told the parties that it would be willing to grant a motion to reopen if the losing party wanted to enter more evidence into the record. Hint. Hint.

The court then granted suppression because the State had failed to carry its burden of proving that the initial stop was not unreasonably extended. The State moved to reopen to offer more evidence on the duration of the stop. The court held a second suppression hearing 4 months later and guess what? The State proved that the call for a back up extended the stop by 11 minutes. Suppression denied.

On appeal, Felbab challenged the decision to reopen the case and lost because:

¶10 A court may, on its own motion or on the motion of the parties, “reopen [a case] for further testimony in order to make a more complete record in the interests of equity and justice.”  See State v. Hanson, 85 Wis. 2d 233, 237, 270 N.W.2d 212 (1978).  “[A] litigant has no strict right to reopen a case for the purpose of introducing additional evidence,” but the circuit court has the power to reopen in its sound discretion.  State v. Vodnik, 35 Wis. 2d 741, 746, 151 N.W.2d 721 (1967).  An appellate court will only reverse a court’s decision to reopen a matter if “there [is] no reasonable basis for that decision.”  Stivarius v. DiVall, 121 Wis. 2d 145, 157, 358 N.W.2d 530 (1984) (citing Wisconsin Public Serv. Corp. v. Krist, 104 Wis. 2d 381, 395, 311 N.W.2d 624 (1981)).  Indeed, even “when a circuit court does not explain its reasons for a discretionary decision, we may search the record to determine whether it supports the court’s decision.”  Ulrich v. Zemke, 2002 WI App 246, ¶20, 258 Wis. 2d 180, 654 N.W.2d 458.
¶11 Although Felbab chastises the circuit court for not explaining its decision in greater detail, our own independent review reveals that the circuit court stated its reasons for reopening the case on several occasions during the second suppression hearing.  The court explained that it could not make an informed decision without testimony on the timeframe:  “The law says that I’m required to consider the length of the stop and what amount of time is permissible….  [T]here was no time frame, and as a result I couldn’t make a finding.”

It is one thing for a court to reopen a case on its own motion or to grant a motion to reopen due to newly-discovered evidence. But telling the party that it is about to rule against how to snatch victory from the jaws of defeat seems more like placing a thumb on the scales of justice–especially since the State bore the burden of proof. Why didn’t the State address the duration of the stop at the original suppression hearing? The decision doesn’t say but the answer seems to be that it dropped the ball. The court of appeals does not cite a case with a similar procedural history. The closest is Hanson but it does not do the trick. There, after the State rested, the court on its open motion reopened the case because it wanted additional expert testimony on an issue. The trial court could have taken that approach here. Or it could have asked questions at the suppression hearing. It could have granted suppression and let the State think to move to reopen the hearing. Instead, the trial court basically told the State how to do its job and gave it a second chance.

Felbab challenged the extension of the stop and lost on that issue too.

¶14 Taking both hearings together, it is clear that Schoonover had reasonable suspicion to extend the stop, which lead to Felbab’s arrest.  Schoonover observed several specific, articulable facts—the erratic driving patterns including driving on the shoulder, the freshly-lit cigarettes, the bloodshot eyes, and the unusual explanation of Felbab’s whereabouts—which, based upon his training and experience, gave rise to a reasonable suspicion that Felbab was operating while under the influence of drugs . . .

¶15 We similarly conclude that the duration of the extension was reasonable in light of the timeline established at the second hearing.  The circuit court found that the stop was only extended by eleven minutes, during which time the second officer traveled to the scene—a necessary step in confirming or dispelling the deputy’s suspicion that the driver was intoxicated.  This short duration is completely reasonable under the circumstances, and Felbab does not contend otherwise.





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