State v. Blatterman

Citation362 Wis.2d 138,864 N.W.2d 26
Decision Date05 May 2015
Docket NumberNo. 2013AP2107–CR.,2013AP2107–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Dean M. BLATTERMAN, Defendant–Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner, the cause was argued by David H. Perlman, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant, there was a brief by Marcus J. Berghahn and Hurley, Burish & Stanton, S.C., Madison, and Jonas B. Bednarek and Bednarek Law Office, S.C., Madison. Oral argument by Jonas B. Bednarek.



¶ 1 We review a decision of the court of appeals1 that reversed the circuit court's2 ruling that admitted test results from a blood draw conducted after police transported Dean M. Blatterman to a hospital. Officers conducted an investigatory stop of Blatterman's vehicle that was grounded in a call from Blatterman's wife. Police were concerned with possible carbon monoxide poisoning and possible intoxication when they stopped him. After being stopped, Blatterman did not comply with police orders. Also, he complained of chest pain. Based on their observations and his wife's concerns, police transported Blatterman to a hospital for medical assessment and then conducted a legal blood draw. In addition, before transport, an officer checked Blatterman's driving record and learned that he had three prior operating while intoxicated (OWI) convictions. This reduced his threshold for a prohibited alcohol concentration3 (PAC) from 0.08% to 0.02%.4 Results of the blood test demonstrated Blatterman had operated his vehicle with a PAC.

¶ 2 We conclude that Blatterman's stop and detention satisfied the reasonableness requirement of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitutionbecause they were supported by reasonable suspicion to conduct an investigatory detention. Blatterman's arrest, which occurred when Deputy James Nisius transported Blatterman to the hospital, satisfied the reasonableness requirement of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution because Deputy Nisius then had probable cause to arrest Blatterman. Furthermore, the transportation to the hospital was lawful as a community caretaker function of law enforcement.

Accordingly, we reverse the court of appeals decision5 that reversed the circuit court's denial of Blatterman's motion to suppress.


¶ 3 On March 19, 2013, Deputy Nisius of the Dane County Sheriff's Department and several other officers received a dispatch that advised Nisius and the other officers that it had been reported to law enforcement that Blatterman was bringing gas into his house through a stove or fireplace to try to blow up the house or light it on fire. The complainant was Blatterman's wife. While Nisius was responding to the call, dispatch updated Nisius that Blatterman was leaving the house in a white minivan, with a specific license plate number. Dispatch informed Nisius that Blatterman was possibly intoxicated and had, in the past, mentioned “suicide by cop.”

¶ 4 Soon thereafter, Nisius observed Blatterman's white minivan approaching him. Nisius allowed the minivan to pass him, made a U-turn, and followed Blatterman.

¶ 5 Blatterman did not violate any traffic laws. Nisius did not immediately stop the van because Blatterman may have been intoxicated, allegedly tried to ignite his house, and had previously mentioned suicide by cop. Instead, he contacted other officers in order to conduct a high-risk stop.6

¶ 6 When other officers arrived, Nisius turned on his red and blue lights and the van pulled over. Other officers pulled up next to Nisius's vehicle on each side, bringing the total number of officers involved and squad cars present to three. The back-up officers opened their doors, drew their weapons, and pointed them at the van. Nisius directed Blatterman to turn off the vehicle, to open the driver's side window, and to put his hands outside.

¶ 7 Instead, Blatterman immediately opened the driver's side door and began walking toward the officers with his hands in the air. Blatterman's actions were contrary to the instructions yelled by all of the officers. One of the back-up officers transitioned from his duty weapon to a Taser, and told Blatterman that he would use the Taser on him if he did not stop walking. Blatterman stopped, approximately six to eight feet away from the bumper of Nisius's squad car. A back-up officer instructed Blatterman to turn away and get down onto the ground. Blatterman did not turn away, but did kneel down. Two back-up officers forced Blatterman to the ground. Nisius handcuffed Blatterman and searched him for weapons. After the search, Nisius asked if Blatterman was okay. Blatterman said that his chest hurt, and the officers requested emergency medical services (EMS).

¶ 8 Blatterman was wearing only a short-sleeve shirt and jeans with boots despite the cold weather at the time of the stop. Nisius smelled alcohol on Blatterman and noticed his eyes were watery. The officers placed Blatterman in the back of Nisius's squad car because it was “freezing” outside. The back doors of the squad car did not open from the inside. EMS arrived several minutes later, but Blatterman refused medical attention.

¶ 9 Nisius considered Blatterman's possible carbon monoxide poisoning

, his chest pain, that he was potentially suicidal, and decided Blatterman “should get checked out at the hospital.” Nisius asked Blatterman what hospital he wanted to go to and Blatterman responded that his doctor was associated with St. Mary's. After EMS was finished and before Blatterman was moved from the scene of the stop, Nisius checked Blatterman's driving record. He found that Blatterman had three prior OWI convictions.7 Nisius also was concerned that Blatterman was intoxicated because of “his strange behavior by not responding to officers who are pointing weapons on you or at you,” the odor of alcohol, watery eyes, and information from dispatch that he may be intoxicated.

¶ 10 Nisius took Blatterman to St. Mary's, which was approximately ten miles from the scene of the stop. He informed the staff that his reasons for bringing Blatterman to the hospital were physical and psychological medical concerns, and that he would “potentially [have] a need for a phlebotomist to do a legal blood draw.” While Blatterman remained handcuffed, St. Mary's staff examined him for potential carbon monoxide poisoning

and chest pain and did not find any medical concern. The assessment included questions about whether Blatterman was suicidal. Blatterman denied being suicidal and claimed his wife was just trying to get him in trouble.

¶ 11 After the medical assessment was completed, Nisius removed Blatterman's handcuffs and had him perform field sobriety tests in the exam room. Hospital staff drew Blatterman's blood. The test of Blatterman's blood sample showed his blood alcohol concentration was 0.118%, well over the threshold of 0.02% for the PAC imposed by his prior OWI convictions.

¶ 12 Blatterman was charged with OWI, fourth offense, in violation of Wis. Stat. § 346.63(1)(a) and Wis. Stat.§ 346.65(2)(am)(4). Blatterman also was charged with a PAC, fourth offense, in violation of § 346.63(1)(b) and § 346.65(2)(am)(4). Because this was Blatterman's fourth offense under § 346.65(2)(am)(4) and Wis. Stat.§ 939.60, the crime was a misdemeanor.

¶ 13 Blatterman moved for suppression of the blood test results, claiming that his transportation to the hospital amounted to an arrest unsupported by probable cause. The court considered whether the transport was within the vicinity under State v. Quartana, and whether Nisius's purpose in transporting Blatterman was reasonable. State v. Quartana, 213 Wis.2d 440, 570 N.W.2d 618 (Ct.App.1997). The court concluded ten miles was within the vicinity. See id. at 446–47, 570 N.W.2d 618. As for reasonable suspicion for the stop and transport, the court noted that dispatch said Blatterman was filling a house with gas, he possibly was intoxicated, and he had talked about suicide by cop in the past. The court noted that after stopping Blatterman, “there was nothing that the defendant did that would dispel the notion that it was—that it was safe for the officers to interact with the defendant,” because Blatterman did not follow instructions. The court also noted that Blatterman's complaints of chest pain, his wearing a short-sleeve shirt without a jacket in cold weather, as well as Nisius's belief that Blatterman may have exposed himself to carbon monoxide supported transport to the hospital. The court concluded that the officer's actions were objectively reasonable. The circuit court denied Blatterman's motion to suppress the blood test results and he pled guilty to the OWI charge.

¶ 14 Blatterman appealed. The court of appeals focused primarily on whether transportation outside the vicinity of the stop transformed the initial investigatory detention into a “de facto arrest” in violation of the Fourth Amendment. State v. Blatterman, No. 2013AP2107–CR, unpublished slip op., ¶ 18, 2014 WL 1622037 (Wis.Ct.App. Apr. 24, 2014). The court of appeals held that Blatterman's transportation to the hospital was not within the vicinity, exceeded the scope of investigatory detention, and violated Blatterman's Fourth Amendment rights. Id., ¶¶ 27, 33.

¶ 15 The State petitioned for review, which we granted.

A. Standard of Review

¶ 16 We review the circuit court's denial of Blatterman's motion to suppress. When we review a decision on a motion to suppress evidence, we uphold a circuit court's findings of historical fact unless they are clearly erroneous. State v. Pinkard, 2010 WI 81, ¶ 12, 327 Wis.2d 346, 785 N.W.2d 592. However, we review the application of constitutional principles to those facts independently, as questions of law. Id....

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