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SCOW: Moving suspect 10 miles to hospital exceeded permissible scope of investigative stop; but detention lawful because there was probable cause to arrest and community caretaker doctrine applied

State v. Dean M. Blatterman, 2015 WI 46, 5/5/15, reversing an unpublished court of appeals decision; opinion by Chief Justice Roggensack; case activity (including briefs)

Though police moved Blatterman beyond the “vicinity” of the traffic stop and therefore exceeded the permissible scope of the stop, the detention of Blatterman was nonetheless reasonable because police had probable cause to arrest him for OWI and, in the alternative, the detention was justified under the community caretaker doctrine.

An officer stopped the Blatterman after receiving a dispatch that he had tried to light a house on fire and that he might be drunk. The police did a “high-risk” stop because Blatterman had, in the past, mentioned “suicide by cop.” After being stopped Blatterman failed to follow orders and, after being cuffed, complained of chest pains. The police detected the odor of alcohol and physical signs of intoxication. There was also some concern Blatterman may have suffered carbon monoxide poisoning. The police called an ambulance, but Blatterman refused medical treatment. Because of the medical concerns the police decided to take Blatterman to a hospital 10 miles away. There the officer performed field sobriety tests and ordered a blood draw which led to charges of OWI and PAC. (¶¶3-12).

Like the court of appeals, the supreme court concludes that moving Blatterman 10 miles exceeded the permissible scope of the stop. Under § 968.24 and State v. Quartana, 213 Wis. 2d 440, 446, 570 N.W.2d 618 (Ct. App. 1997), an officer exceeds the scope of a permissible investigative stop when he: (1) moves the suspect outside the vicinity of the stop; and (2) lacks a reasonable purpose for doing so. Under the circumstances of this case, 10 miles was outside the vicinity of the stop:

¶26  In the case now before us, [Deputy] Nisius transported Blatterman from where he was stopped to a hospital ten miles away. We conclude that ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion.[9] A transportation of ten miles from the place of the stop is not within “a surrounding area or district,” or the “locality.” See id. at 446 [quoted source omitted]. We decline to determine the precise outer limits of the “vicinity” for purposes of transportation during an investigatory detention.

[9] The circuit court concluded that ten miles was within the vicinity. While the circuit court characterized this conclusion as a finding of fact, we conclude that it was a conclusion of law, which we review independently….

Because transporting Blatterman outside the vicinity of the stop converted the detention into an arrest, to be lawful the continued detention must have been supported by probable cause. Unlike the court of appeals, the supreme court decides the police did have probable cause to arrest Blatterman, and holds that under State v. Goss, 2011 WI 104, 338 Wis. 2d 72, 806 N.W.2d 918, prior OWI convictions can be factored into the probable cause to arrest determination:

¶37  Here, Nisius checked Blatterman’s driving record, which showed three prior OWI convictions that lowered Blatterman’s PAC threshold to 0.02%. Wis. Stat. § 340.01(46m)(c). Nisius observed Blatterman’s repeated failure to follow the officers’ orders. Nisius also knew, from dispatch, that Blatterman possibly was intoxicated. Once officers had restrained Blatterman, Nisius detected the odor of alcohol on Blatterman’s person and observed his watery eyes.

¶38  By the time Nisius transported Blatterman to the hospital, Nisius had ascertained Blatterman’s prior OWI conviction record and, together with information from dispatch and his own observations, had established probable cause to arrest Blatterman for a 0.02% PAC violation. Accordingly, Blatterman’s arrest when he was transported to the hospital was lawful ….

That’s enough to decide the matter, but the court goes further, concluding the transportation of Blatterman was justified by the community caretaker doctrine, under the three-component test from State v. Kramer, 2009 WI 14, ¶21, 315 Wis. 2d 414, 759 N.W.2d 598. (¶¶39-59).

A concurrence by Justice Ziegler, joined by Justice Prosser and Chief Justice Roggensack, would hold that “odor of intoxicants alone is sufficient to establish probable cause to arrest and further test an operator of a motor vehicle when the officer knows that the operator has three or more previous OWI-related convictions” (and is therefore subject to the 0.02 BAC limit). (¶¶68-77). The concurrence complains that because this was an issue on which review was granted, the court should decided it. (¶¶61-62, 78).

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