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Defense win: taking man from home in squad, leaving him cuffed inside for 30 minutes was unlawful arrest

State v. Nicholas Anthony Stilwell, 2022AP1839, 7/20/23, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

This case has facts remarkably like those of State v. Cundy, a recommended-for-publication case the court of appeals decided the week before. Police received a report of a hit-and-run of a parked vehicle, and learned the truck that did the hitting and running was registered to Stilwell. They went to Stilwell’s apartment and found the truck parked nearby. They buzzed Stilwell and he answered the door. They eventually entered the apartment and determined, including by the use of a PBT, that Stilwell was intoxicated, though he denied having driven his truck. They cuffed him, told him he was being “detained,” and took him to the crash scene, where after about 30 minutes they secured other evidence that Stilwell had driven his truck; they thus arrested him.

The OWI charge that resulted is still pending in the circuit court. This is, instead, an appeal of Stilwell’s license revocation, and it turns on the same issue we usually see in OWI appeals: whether the police violated Stilwell’s Fourth Amendment rights. The court notes the rule of Cundy: just as police may not enter a home without consent to make a routine felony arrest, they also may not enter to perform a temporary, Terry-type investigative stop. But the parties here didn’t brief whether the police actions inside Stilwell’s home were lawful, and the court says the record on the point isn’t conclusive. No matter, though: the court agrees with Stilwell that the degree and length of his confinement during the “temporary” detention amounted to an arrest for which police lacked probable cause:

Our supreme court recently discussed the nature of Terry stops in State v. Genous, 2021 WI 50, 397 Wis. 2d 293, 961 N.W.2d 41. There, the court described such stops as “brief” and “limited” detentions that “usually involve[] only temporary questioning,” thus constituting “only a minor infringement on personal liberty.” Id., ¶7 (citation omitted). As the United States Supreme Court has explained, police may not “seek to verify their suspicions” through unreasonably prolonged detention or “means that approach the conditions of arrest.” Florida v. Royer, 460 U.S. 491, 499 (1983).

There was nothing that was “brief” or “limited” about the alleged “temporary detention” of Stilwell in this case. The officer left Stilwell alone in the back of his squad car for approximately thirty minutes, while the officer conducted an investigation. And the infringement on Stilwell’s personal liberty cannot be considered “minor”—Stilwell was handcuffed in the back of a locked squad car, under circumstances that appear for all intents and purposes to be comparable to the conditions of an arrest. Cf. Blatterman, 362 Wis. 2d 138, ¶¶30-33 (although police may have had a reasonable safety-related purpose for handcuffing Blatterman and restraining him in the back of a squad car based on specific facts that suggested he might pose a danger to police, the circumstances amounted to a custodial arrest because “the level of restraint, duration of custody, and diminishing potential for release amounted to a formal arrest” (citation omitted)).


The court dismisses as off-point the state’s resort to Navarette v. California, 572 U.S. 393 (2014), which held only that an officer with reasonable suspicion that a motorist is drunk need not delay stopping the vehicle to personally observe suspicious driving. Because the state doesn’t argue either that Stilwell wasn’t arrested, or that the police had reasonable suspicion, the court vacates the license revocation.

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