State v. Radder

• Decision Date: 16 May 2018
• Docket Number: Appeal No. 2016AP1954-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Dylan D. RADDER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

382 Wis.2d 749

915 N.W.2d 180

2018 WI App 36

STATE of Wisconsin, Plaintiff-Respondent,

v.Dylan D. RADDER, Defendant-Appellant.

Appeal No. 2016AP1954-CR

Court of Appeals of Wisconsin.

Submitted on Briefs October 25, 2017

Filed May 16, 2018

On behalf of the defendant-appellant, the cause was submitted on the briefs of Emily Bell and Andrew Mishlove of Mishlove & Stuckert, LLC of Glendale.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Douglass K. Jones and David H. Perlman, assistant attorney generals, and Brad D. Schimel, attorney general.

Before Reilly, P.J., Gundrum and Hagedorn, JJ.

HAGEDORN, J.

¶1 Dylan D. Radder was arrested for operating a motor vehicle while intoxicated (OWI), and he appeals from an order denying his amended pretrial motion to suppress. The circuit court concluded that the motion was not sufficiently particular and denied the motion without a hearing. The issue before us is whether the circuit court erred by not conducting an evidentiary hearing on the motion. Radder’s chief argument is that the pretrial pleading standards established in State v. Velez¹ are inapplicable, or at least significantly lower, on a motion to suppress evidence because the State bears the burden to show that warrantless searches and seizures are reasonable. We disagree. Velez sets forth the proper standards to determine whether a pretrial motion requires an evidentiary hearing, and Radder’s motion fails to satisfy these standards. Accordingly, we affirm.

BACKGROUND

¶2 On May 12, 2016, Radder was pulled over by Officer Mark Meyers of the New Holstein Police Department. According to the criminal complaint, Meyers informed Radder that he stopped Radder’s vehicle due to expired registration. Smelling "a strong odor of intoxicants," Meyers noticed a case of beer on the floor behind the driver’s seat, and two bottles from the case appeared to be open. At some point during the stop, Meyers performed a "Department of Transportation query" and discovered that Radder had been previously arrested for OWI.

¶3 Meyers asked Radder to exit his vehicle to administer the Standardized Field Sobriety tests—the horizontal gaze nystagmus

(HGN) test, the walk-and-turn test, and the one-leg-stand test. After Radder had exited the vehicle, Meyers questioned Radder about the beer. Radder responded "that he makes his own beer and that he did not consume the beer today." After observing "a total of six clues" of impairment during the HGN test, Radder was asked how much he had to drink, to which he responded he "had two Jack and Coke[s] and one shot." Meyers continued with the other two field sobriety tests and observed multiple "clues" of impairment. Then Meyers asked Radder to submit to a preliminary breath test (PBT) and again asked if Radder had been drinking. Radder admitted to stopping at a friend’s birthday party after work and reiterated that he had consumed two "Jack and Coke[s] and a mystery shot." The PBT result showed a 0.082% blood-alcohol concentration (BAC), above the prescribed limit of 0.08%. See WIS. STAT. § 340.01(46m)(a) (2015-16).²

¶4 Based on this information, Meyers arrested Radder for OWI. Radder’s blood was drawn (within three hours) at Calumet Medical Center and showed a BAC of 0.084%, consistent with the PBT. Radder was charged with OWI and operating with a prohibited alcohol concentration.

¶5 Radder then moved to suppress all evidence "derived from [an] unlawful stop, detention, and arrest" and requested an evidentiary hearing. The motion specifically averred that Meyers lacked reasonable suspicion to stop Radder’s vehicle in the first instance and had no authority to detain him thereafter without a warrant. Other than bare legal conclusions, the motion offered no support for these assertions. Radder further alleged that Meyers lacked probable cause to arrest him for OWI—again offering little in the way of detail or factual support. Instead, the motion generally asserted that there were insufficient indicia of impairment—whether through Radder’s driving or "behavior and demeanor." The motion also took aim at the administration of the field sobriety tests. The motion acknowledged that the walk-and-turn and one-leg-stand tests "may have some degree of general reliability," but averred that these tests were "improperly administered." The motion did not, however, give any details concerning how the tests were improperly administered. As to the HGN test, the motion asserted that the test is "inherently unreliable as it was improperly administered." The motion did not address the specific factual allegations of impairment detailed in the complaint or Meyers' suspicion that Radder’s registration was expired.

¶6 The State argued that the motion should be denied without a hearing on the grounds that it failed to "state with particularity" the grounds for the motion as required by WIS. STAT. § 971.30(2)(c). The circuit court agreed and denied the motion, explaining that "[t]he defense has chosen to file a boiler plate motion that fails to state any factual basis for the motion or how the legal grounds apply to the case."

¶7 Radder filed a motion for reconsideration and an amended motion. The amended motion to suppress was largely identical to Radder’s original motion supplemented with a few additional details. Regarding the initial stop, the motion maintained the generic assertion that Meyers had no "reasonable suspicion that [Radder] had committed any offense," now adding, "including the offense of expired registration." Regarding the OWI investigation and arrest, Radder’s amended motion added that he was not accused of any moving violations and only admitted to drinking quantities of alcohol which would not cause impairment or a prohibited alcohol concentration. The amended motion reiterated the assertion that the field sobriety tests had been administered improperly, but now added that "the HGN Test is an inherently unreliable test."³ The circuit court again denied the motion without a hearing. Radder sought leave to appeal, which we granted.⁴

DISCUSSION

¶8 WISCONSIN STAT. § 971.30(2)(c) provides that all motions shall "[s]tate with particularity the grounds for the motion and the order or relief sought." This requirement to "[s]tate with particularity" applies to both pretrial and postconviction motions. See State v. Allen , 2004 WI 106, ¶10, 274 Wis. 2d 568, 682 N.W.2d 433. The underlying rationale for the particularity requirement is to provide notice to both the nonmoving party and the court "of the issues being raised by the defendant in order to fully argue and consider those issues." State v. Caban , 210 Wis. 2d 597, 605-06, 563 N.W.2d 501 (1997). Requiring particularity in a defendant’s pretrial motion practice also conserves "scarce judicial resources by eliminating unnecessary evidentiary hearings when there may be no disputed facts requiring resolution, or when the facts would not warrant the relief sought even if proved." State v. Velez , 224 Wis. 2d 1, 12, 589 N.W.2d 9 (1999). This ensures that "the evidentiary hearing will serve as more than a discovery device." Id. Thus, a defendant is not entitled to an evidentiary hearing every time he or she makes a pretrial motion. Id. "An evidentiary hearing is necessary only if the party requesting the hearing raises a significant, disputed factual issue." Id. (quoting United States v. Sophie , 900 F.2d 1064, 1070 (7th Cir. 1990) ).

¶9 Radder argues that his amended motion was sufficiently particular to require an evidentiary hearing. Although he concedes that WIS. STAT. § 971.30(2)(c) requires his motion to "[s]tate with particularity the grounds for the motion and the order or relief sought," he maintains that the pleading standard is different for motions bringing Fourth Amendment challenges because the State bears the burden to show that a warrantless search or seizure was reasonable. He claims that the pleading standards set forth in Velez are inapplicable because "the particularity required of defendants where the state has the burden is lower" than that outlined in Velez , a case where the defendant had the burden of proof. Instead, in Fourth Amendment cases where the State bears the burden of proof at a suppression hearing, he claims that "the motion need only allege that the stop, detention, and arrest were without a warrant, and without reasonable suspicion for the initial stop or probable cause that the defendant had committed any offense." We disagree. Radder must satisfy the same pleading standard applicable in all pretrial motions, and merely alleging that he was stopped and arrested without a warrant does not cut it.

A. Pleading Standards for Pretrial Motion to Suppress

¶10 In Velez , our supreme court clarified that the legal standards governing postconviction motions are largely applicable to pretrial motions as well. See Velez , 224 Wis. 2d at 13, 589 N.W.2d 9 ; see also Allen , 274 Wis. 2d 568, ¶11, 682 N.W.2d 433. The analysis for postconviction motions proceeds in two parts. Under these standards—notably defined in Nelson v. State , 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and State v. Bentley , 201 Wis. 2d 303, 548 N.W.2d 50 (1996) —if a defendant’s motion "alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing." Velez , 224 Wis. 2d at 11, 589 N.W.2d 9 (citation omitted). This means alleging the "who, what, where, when, why, and how" to enable "reviewing courts to meaningfully assess a defendant’s claim." Allen , 274 Wis. 2d 568, ¶23, 682 N.W.2d 433. Whether a motion alleges sufficient, nonconclusory facts to require an evidentiary hearing is a question of law we review de novo. Velez , 224 Wis. 2d at 18, 589 N.W.2d 9.

¶11 Second, if the "defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief," then the...