County of Calumet v. Lisa L. Dolajeck, 2014AP2100, District 2, 1/21/15 (one-judge opinion; ineligible for publication); case activity
The court of appeals here affirms a decision denying a motion to dismiss OWI charges and a motion to suppress evidence obtained during a traffic stop. It holds that the sheriff in this case had reasonable suspicion to make the stop, and nothing requires law enforcement officers to record a stop even if they have video cameras in their squad cars.
Dolajeck drifted across a the center line while driving down a two-lane highway. A sheriff stopped her, administered field sobriety tests and a preliminary breath test, which led to her arrest for drunk driving. The court of appeals’ analysis of the sheriff’s “reasonable suspicion” for stopping Dolajeck is predictable. Her weaving gave rise to a reasonable inference that she was driving impaired in violation of §346.63. Slip op. ¶8
The more interesting issue concerns Dolajeck’s motion to dismiss or suppress due to the sheriff’s failure to make a video recording of the events leading up to her arrest. He apparently pressed the wrong camera button when he observed her cross the center line. She framed the issue as whether the State failed to preserve exculpatory evidence. And the court of appeals held that the police have no duty to create documentary evidence.
Absent a statutory requirement or other mandatory duty, police have no duty to create documentary evidence and the failure in this case to make a recording is, at best, a topic for the defense’s cross-examination of Galipo. Even where such a duty to record exists, the failure to record does not automatically trigger evidence suppression or the more drastic remedy of dismissal. See e.g. State v. Jerrell C.J., 2005 WI 105, ¶57 n.14, 283 Wis. 2d 145, 699 N.W.2d 110. Dolajeck points to no cases on point to support her argument that the failure to make a videotape recording of a traffic stop mandates the dismissal of charges or suppression of evidence. Dolajeck’s argument fails legally and logically. Slip op. ¶10.