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Officer had probable cause to arrest defendant for OWI after a 1-minute interaction with him

State v. Timothy Edward Curtis, 2018AP920-CR, 4/2/19, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

The State charged Curtis with a 2nd offense OWI. He moved to suppress evidence obtained after his arrest on the grounds that the officer didn’t have probable cause for the arrest in the first place. He lost in the circuit court and in the court of appeals.

At the suppression hearing Officer Esler testified that he arrived at the scene of a hit-and run, spoke to 2 witnesses there and then saw another officer questioning Curtis less than one block away. Esler did not perform FSTs. After interacting with Curtis only 1 minute, he arrested him and took him to the hospital for a blood draw. Opinion, ¶3.

The question on appeal was whether, based on a totality of the circumstances, the officers had sufficient knowledge at the time of arrest that would lead them reasonably to believe that Curtis had committed or was committing a crime. State v. Lange, 2009 WI 49, 317 Wis. 2d 383, 766 N.W.2d 551.

¶7 . . . Esler had a reasonable belief that Curtis—the then-unidentified person to whom Poskozim was talking less than one block away—had been driving the truck involved in the hit-and-run. Esler was permitted to consider both hearsay information and the collective knowledge of other officers in determining whether probable cause existed. See State v. Wille, 185 Wis. 2d 673, 683, 518 N.W.2d 325 (Ct. App. 1994). At the scene of the incident, Esler learned from the combined information of two witnesses that a truck crashed into a stationary car and a tree, and that its driver fled the scene on foot. Furthermore, he knew that Poskozim had already stopped a suspect who was less than one block from the location of the incident and had come from its direction. The short lapse of time between Esler receiving the witnesses’ information, and Poskozim questioning Curtis a short distance from the incident, add to Esler’s reasonable belief that Curtis was the driver. Curtis also had blood on his person, and Esler could reasonably infer that blood could have been caused by an injury to Curtis during the hit-and-run.

¶8 Esler could also reasonably conclude that Curtis was under the influence of an intoxicant at the time he was involved in the hit-and-run. Esler observed indicia that provided him a reasonable belief that Curtis was under the influence of an intoxicant. “[F]actors sufficient to support a finding of probable cause have included bloodshot eyes, an odor of intoxicants, and slurred speech, together with a motor vehicle accident or erratic driving.” Kennedy, 359 Wis. 2d 454, ¶22 (collecting cases). Esler observed those same indicia here: Curtis had red eyes, smelled of intoxicating beverages, and was slurring his speech. In addition, Curtis had been involved in an incident in which his truck hit a vehicle, hit a tree, and then came to rest on top of a snowbank. We therefore determine that the facts of record supported probable cause to arrest Curtis for OWI.

The court of appeals added that Wisconsin does not require officers to perform FSTs before making an arrest. See Kennedy, 359 Wis. 2d 454, ¶21.  And it rejected Curtis’s reliance on the defense win in State v. Anker, 2014 WI App 107, 357 Wis. 2d 565, 855 N.W.2d 483, where it found the police lacked probable cause to arrest a defendant for OWI. See our post here. The court of appeals said that the officer in Anker did not observe the same level of intoxication that Officer Esler did here. Opinion, ¶14.

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