State v. Anker
| Decision Date | 16 September 2014 |
| Docket Number | No. 2014AP353–CR.,2014AP353–CR. |
| Citation | 357 Wis.2d 565,855 N.W.2d 483 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Thomas J. ANKER, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Rex R. Anderegg of Anderegg & Associates, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Sarah L. Burgundy, assistant attorney general.
Before HOOVER, P.J., STARK, J., and THOMAS CANE, Reserve Judge.
¶ 1 Thomas Anker appeals a judgment of conviction for operating while intoxicated (sixth offense) and causing injury to another person by operation of a vehicle while intoxicated. After fleeing an accident, Anker was discovered by a conservation warden, James Horne, who ordered him to stop, placed him in handcuffs, told him he was under arrest, and escorted him to an unmarked vehicle. The circuit court found that Anker was arrested and that probable cause supported the arrest. Anker argues Horne lacked probable cause to arrest, and the circuit court therefore erroneously denied his suppression motion.
¶ 2 The State does not defend the circuit court's decision on the ground that Anker's arrest was supported by probable cause, thereby conceding the issue. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis.2d 97, 109, 279 N.W.2d 493 (Ct.App.1979) (). Instead, the State contends this case merely involves a temporary detention, or Terry stop, that was justified under the lower reasonable suspicion standard.1
¶ 3 We agree with the circuit court and Anker that under the totality of the circumstances, a reasonable person would believe that he or she was being placed under arrest by Horne. Accordingly, we conclude probable cause was the appropriate standard. Because the State concedes there was not probable cause for the arrest, we reverse the judgment of conviction.
¶ 4 However, the State contends the evidence gathered as a result of Anker's arrest need not be automatically suppressed. The State argues—albeit in cursory fashion—for application of the “independent source” and “inevitable discovery” doctrines, both of which render tainted evidence admissible within certain boundaries. Because we lack sufficient evidentiary facts to determine whether to apply the independent source or inevitable discovery doctrines, we remand to the circuit court for further proceedings.
¶ 5 The charges stemmed from events that occurred on November 11, 2012. Anker filed a suppression motion, asserting his arrest was not supported by probable cause. The circuit court held an evidentiary hearing, at which Horne appeared.
¶ 6 Horne testified he was on duty at his office in Shawano when he heard radio traffic about an injured person heading into the woods behind a nearby McDonalds. Horne decided to assist local law enforcement, patrolling the area in his unmarked Dodge pickup truck. He received a description of the individual and spotted a person in similar dress exit and reenter the woods just south of a Wal–Mart. Horne drove into the Wal–Mart parking lot and parked next to the building behind some vehicles. At some point, a citizen approached and told Horne he had witnessed an accident nearby and saw a person involved run into the woods toward Wal–Mart.
¶ 7 After the witness left, Horne saw the suspect—later identified as Anker—come out of the woods. Horne testified Anker “looked up both edges of the woods, walked out calmly to the grass next to the parking lot, and started to walk ... away from my location.” Anker was wearing a white T-shirt, had no shoes, and was bleeding from the head. Horne's uncontroverted testimony was that Anker did not see Horne initially.
¶ 8 Horne got out of his truck, walked up behind Anker, and asked Anker to stop. Anker turned around and “walked a little faster[,]” but did not run away. Horne then told Anker he was under arrest and ordered him to stop. Horne further testified:
He [Anker] kind of wondered why. In the meantime, I said, put your hands behind your back. And I put the handcuffs on him quickly. As I got one cuff on, he started to come around, so I grabbed the other arm and cuffed him. I said, let's just wait for the officers to arrive.
Horne took Anker back to his truck and called dispatch to inform them he had the suspect in custody. He asked Anker “why he was bleeding and running around in the woods without his shoes on a cold November day.” Anker responded that he fell down in the woods. Horne testified Anker appeared intoxicated.
¶ 9 The circuit court denied Anker's suppression motion. It determined that although Horne's subjective intent was to temporarily detain Anker until police arrived, his words and actions resulted in an arrest. However, the court concluded the arrest was supported by probable cause. Anker then pleaded no contest and was sentenced to three years' initial confinement and three years' extended supervision. He now appeals, challenging the denial of his suppression motion.
¶ 10 When reviewing a motion to suppress, this court employs a two-step analysis.2 State v. Dubose, 2005 WI 126, ¶ 16, 285 Wis.2d 143, 699 N.W.2d 582. We review a circuit court's findings of facts under the clearly erroneous standard, State v. Smiter, 2011 WI App 15, ¶ 9, 331 Wis.2d 431, 793 N.W.2d 920 (WI App 2010), with the court acting as the ultimate arbiter of witness credibility, Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 644, 340 N.W.2d 575 (Ct.App.1983). We review the circuit court's application of constitutional principles to the historical facts de novo. Smiter, 331 Wis.2d 431, ¶ 9, 793 N.W.2d 920.
¶ 11 Wisconsin's citizens are protected against unreasonable seizures by both the Fourth Amendment to the United States Constitution and article I, section eleven of the Wisconsin Constitution. See id., ¶ 10. These provisions “safeguard individuals' privacy and security against arbitrary governmental invasions, which requires striking a balance between the intrusion on an individual's privacy and the government's promotion of its legitimate interests.” State v. Sykes, 2005 WI 48, ¶ 13, 279 Wis.2d 742, 695 N.W.2d 277.
¶ 12 One way these provisions safeguard against governmental intrusion is by requiring probable cause to arrest. State v. Paszek, 50 Wis.2d 619, 624, 184 N.W.2d 836 (1971). “Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.” Id. Probable cause is to be judged by the totality of the circumstances within the officer's knowledge at the time of arrest, Sykes, 279 Wis.2d 742, ¶ 18, 695 N.W.2d 277, and on a case-by-case basis, see Paszek, 50 Wis.2d at 625, 184 N.W.2d 836.
¶ 13 Here, Anker argues his arrest was not supported by probable cause. The State does not directly respond to his argument, and therefore concedes the issue.See Charolais Breeding Ranches, 90 Wis.2d at 109, 279 N.W.2d 493. We will not abandon our neutrality to develop arguments for the parties, so we take the State's failure to brief the issue as a tacit admission that there was no probable cause for Anker's arrest. See Industrial Risk Insurers v. American Eng'g Testing, Inc., 2009 WI App 62, ¶ 25, 318 Wis.2d 148, 769 N.W.2d 82.
¶ 14 Instead, the State argues Anker was not arrested at all during his encounter with Horne. The State views the encounter as a Terry stop, which “usually involves only temporary questioning and thus constitutes only a minor infringement on personal liberty.” State v. Young, 2006 WI 98, ¶ 20, 294 Wis.2d 1, 717 N.W.2d 729. The standard for determining whether a person was lawfully seized for investigatory purposes is whether “police have reasonable suspicion that a crime has been committed, is being committed, or is about to be committed.” Id. In other words, a Terry stop is justified by less than probable cause.
¶ 15 Thus, the critical issue in this case is whether Anker was arrested or merely subjected to a brief investigative detention.3 Admittedly, “the distinction between an arrest and an investigatory stop is not of easy delineation.” Wendricks v. State, 72 Wis.2d 717, 723, 242 N.W.2d 187 (1976). Factual context is critical. Id. at 723–24, 242 N.W.2d 187. “The standard used to determine the moment of arrest is whether a reasonable person in the defendant's position would have considered himself or herself to be ‘in custody,’ given the degree of restraint under the circumstances.” State v. Kiekhefer, 212 Wis.2d 460, 485, 569 N.W.2d 316 (Ct.App.1997).4
¶ 16 Here, the circuit court determined Anker was arrested during the initial moments of his encounter with Horne. That conclusion is unassailably correct. Anker was ordered to stop, told he was under arrest, forcibly handcuffed, and taken to Horne's vehicle to be given over to investigating authorities.5 There was no ambiguity in the situation; a reasonable person in those circumstances would consider himself or herself under arrest. The arrest was unreasonable in the absence of probable cause.
¶ 17 An arrest is “ ‘inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows.’ ” Jones v. State, 70 Wis.2d 62, 68, 233 N.W.2d 441 (1975) (quoting State v. Beaty, 57 Wis.2d 531, 537, 205 N.W.2d 11 (1973) ). A reasonable person under the circumstances would not believe his or her detention was only temporary. Under similar facts in Young, 294 Wis.2d 1, ¶¶ 24–25, 717 N.W.2d 729, our supreme court determined the defendant was arrested when he was “physically detained and handcuffed” following a scuffle because the action “clearly restrained Young's liberty, led to a custodial arrest, and culminated in prosecution.” See also Terry, 392 U.S. at 16, 88 S.Ct. 1868 (...
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