Does an affidavit supporting a warrant for a blood draw state probable cause where it alleges that the defendant “drove or operated a motor vehicle at driveway of [residential address]” and that the defendant “admitted to drinking alcohol at the house?” Writing for the majority, Justice Hagedorn answers “yes.” Justice A. W. Bradley, the sole dissenter, says “no.”
All the justices agree that the statute criminalizing OWI and PAC does not apply to private parking areas at single-family residences. Instead, it applies to highways and premises held out for public use. Wis. Stat. §346.61. Even the circuit court judge who issued the warrant later admitted that he had made a mistake.
Not so, says the majority. When examining a warrant for probable cause a court may draw reasonable inferences from the facts alleged. State v. Ward, 2000 WI 3, ¶30, 231 Wis. 2d 723, 604 N.W.2d 517. Here, a court could reasonably infer from the words “at driveway” that the defendant had driven while intoxicated on a highway.
¶8 Following the pre-printed word “at” is space for a location, which Officer Poffenberger identified as the driveway of Green’s residential address. It is reasonable to read the officer’s addition of the phrase “driveway of [residential
address]” to refer to a specific location on the road, much like an intersection would provide a similarly specific location. The affidavit does not say Green’s driving occurred merely in his driveway, but at his driveway——a location that can reasonably be read to refer to a position on the road adjacent to his driveway. Other portions of the affidavit are consistent with this reading. The affidavit points to two witnesses who observed Green “drive/operate the vehicle”: a police officer and a named citizen witness. And the stop was occasioned by a citizen statement; someone besides the officer saw something that occasioned a call to the police. Viewing the entire affidavit together, a judge could reasonably infer that Green operated his vehicle on the road while intoxicated, not solely in his driveway. This “is not the only inference that can be drawn, but it is certainly a reasonable one.” Ward, 231 Wis. 2d 723, ¶30.
The dissent argues the court owes no deference to, and cannot draw multiple inferences from, a warrant “based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause.” United States v. Leon, 468 U.S. 897, 915 (1984). Dissent, ¶¶22, 24. (Emphasis supplied). Why would the officer write “driveway” if that was not where the defendant was operating his vehicle?” If he were operating his car on the road adjacent to his home, the officer would not need to use the word driveway at all. Dissent, ¶¶28-29.
The dissent also notes that the violation of an essential search warrant requirement renders a warrant constitutionally infirm. That was the result in State v. Tye, 2001 WI 124, 248 Wis. 2d 530, 636 N.W.2d 473 where the warrant lacked the constitutionally required oath or affirmation. And it should be the result here where the warrant violated the probable cause requirement. The blood should have been suppressed. Opinion, ¶¶34-35.