State v. Rice, No. 2009AP1162 (Wis. App. 4/1/2010), 2009AP1162.

• Decision Date: 01 April 2010
• Docket Number: No. 2009AP1162.,2009AP1162.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Daniel J. Rice, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 1

State of Wisconsin, Plaintiff-Respondent, v. Daniel J. Rice, Defendant-Appellant.

No. 2009AP1162.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: April 1, 2010.

APPEAL from a judgment of the circuit court for Dane County: JOHN W. MARKSON, Judge. Affirmed.

¶ 1 HIGGINBOTHAM, J.¹

Daniel Rice appeals a judgment of conviction entered upon a guilty finding after a stipulated trial to the court for operating a motor vehicle while impaired (OWI) and operating a motor vehicle with a prohibited blood alcohol concentration (BAC), first offense. Prior to trial, Rice moved to suppress evidence obtained after an alleged unlawful stop and detention and an arrest without probable cause. Rice argues that the circuit court erred in denying his motion to suppress without an evidentiary hearing. We disagree and conclude, applying the standards enunciated in State v. Garner, 207 Wis. 2d 520, 533-34, 558 N.W.2d 916 (Ct. App. 1996), that the court did not erroneously exercise its discretion in denying Rice's motion without an evidentiary hearing. We therefore affirm.

BACKGROUND

¶ 2 Daniel Rice was found asleep at the wheel of his motor vehicle, with the engine running, in the parking lot of the University of Wisconsin Memorial Union by a University of Wisconsin police officer. The officer had contact with Rice, but only after extensive efforts to arouse him. Based on her observations of Rice, the field sobriety tests and the results of a preliminary breath test, the officer arrested Rice for OWI-first offense. Additional facts will be provided later in this opinion.

¶ 3 Rice moved to suppress evidence of his intoxication and requested an evidentiary hearing on the motion. Rice later amended his motion to suppress and included evidentiary submissions in support of his motion. The circuit court denied Rice's amended motion to suppress without an evidentiary hearing. Rice was found guilty of OWI and of having a blood alcohol concentration over the legal limit following a stipulated trial to the court. Rice appeals the court's order denying his motion to suppress without an evidentiary hearing and the judgment of conviction for OWI.

DISCUSSION

I. Legal Standard for Determining Whether an Evidentiary Hearing Is Required on a Pretrial Motion to Suppress Evidence

¶ 4 The issue on appeal is whether the circuit court improperly denied Rice's amended pretrial motion to suppress evidence without an evidentiary hearing. When addressing motions brought after a conviction, circuit courts apply the two-part test set forth in Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972), to determine whether the defendant is entitled to an evidentiary hearing. State v. Velez, 224 Wis. 2d 1, 17, 589 N.W.2d 9 (1999) (citing State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996)). To be entitled to a hearing on a postconviction motion, the defendant must allege facts in the suppression motion which would entitle the defendant to relief. Nelson, 54 Wis. 2d at 497-98; Garner, 207 Wis. 2d at 533. When the postconviction motion fails to allege sufficient facts entitling the defendant to relief, the circuit court may, within its discretion, deny the motion without an evidentiary hearing if the motion fails to allege sufficient facts to raise a question of fact; if the motion presents only conclusory allegations; or if the record conclusively demonstrates that the defendant is not entitled to a hearing. See Bentley, 201 Wis. 2d at 309-10.

¶ 5 In Garner, we considered the standard for determining when a defendant is entitled to an evidentiary hearing on a motion brought before trial to suppress witness identification evidence. We concluded that the Nelson test provided a good framework for evaluating Garner's motion, but concluded that Nelson alone "would not always be adequate to measure whether an evidentiary hearing is required for a pretrial motion to suppress identification." Garner, 207 Wis. 2d at 532-33. Thus, we applied a modified version of the Nelson test to the pretrial motion to suppress witness identification, stating that, in addition to meeting the requirements of Nelson, a court addressing a pretrial motion such as Garner's must

provide the defendant the opportunity to develop the factual record where the motion, alleged facts, inferences fairly drawn from the alleged facts, offers of proof, and defense counsel's legal theory satisfy the court of a reasonable possibility that an evidentiary hearing will establish the factual basis on which the defendant's motion may prevail.

Id. at 533. In Velez, the supreme court subsequently adopted the Garner analysis, applying Garner's modified Nelson test to a pretrial motion to dismiss a criminal complaint. See Velez, 224 Wis. 2d at 13.

¶ 6 Regarding the applicability of Garner to the present case, we find no published cases applying Garner's modified Nelson test to a pretrial motion to suppress anything other than witness identification evidence. However, nothing in the rationale of Garner would appear to limit Garner to witness identification evidence, and the supreme court in Velez has already expanded Garner to apply its modified Nelson test to pretrial motions other than those to suppress evidence. Moreover, Rice does not explain why Garner should not apply to his pretrial suppression motion,² and we are not aware of any principled reason it should not. Accordingly, we apply the Garner standard in reviewing the circuit court's order denying Rice's pretrial motion to suppress without an evidentiary hearing.

II. Standard of Review

¶ 7 We review de novo whether Rice's pretrial motion alleges sufficient facts to require an evidentiary hearing. See Velez, 224 Wis. 2d at 18. We review under the erroneous exercise of discretion standard the circuit court's denial of Rice's pretrial motion without an evidentiary hearing, taking into account whether the court fulfilled its obligation under Garner to ensure that Rice had a sufficient opportunity to develop the factual record supporting his motion. See id.; Garner, 207 Wis. 2d at 533.

III. Whether the Circuit Court Properly Denied Rice's Motion to Suppress Evidence Without an Evidentiary Hearing for Lack of a Legal Basis to Stop

¶ 8 The first issue is whether the officer had a lawful basis for stopping Rice. Our first task is to determine as a matter of law whether Rice's amended motion to suppress and the evidentiary materials submitted in support of the motion state sufficient facts to warrant an evidentiary hearing on this issue. Next, we consider whether the circuit court properly exercised its discretion in denying the amended motion without an evidentiary hearing on the legality of the stop.

A. The Motion Failed to Allege Sufficient Facts to Warrant an Evidentiary Hearing

¶ 9 Rice had three opportunities to persuade the court that it was reasonably possible that an evidentiary hearing would establish a factual basis upon which his motion to suppress would prevail. In his first motion, Rice alleged that the officer lacked reasonable suspicion to stop him. The court denied the motion based on its finding that the allegations were conclusory and devoid of facts to support either allegation. However, the court gave Rice an opportunity to renew his motion and to include additional materials for the court to consider.

¶ 10 Rice subsequently filed an amended motion to suppress and an affidavit from trial counsel averring that the motion was based on the police reports, a transcript of the police officer's statements at the administrative suspension review hearing, and counsel's review of the DVD recording of Rice's stop and arrest. In his amended motion, Rice alleged that the officer lacked reasonable suspicion to stop him and that the officer was not acting in her capacity as a community caretaker when she stopped him because the officer failed to inquire regarding his well being. He also alleged that the officer lacked probable cause to arrest him. Counsel, however, failed to attach some of the materials referred to in the affidavit with the amended motion to suppress. The court denied the suppression motion without an evidentiary hearing, but again said it would grant a hearing if Rice could point to additional facts supporting "a reasonable possibility that an evidentiary hearing would establish a factual basis for the motion."

¶ 11 Rice submitted a third motion to suppress and included the following submissions: a copy of the transcript from Rice's administrative review hearing and a copy of the police report prepared by the arresting officer, as well as copies of the breathalyzer test results, the citations issued to Rice, the Informing the Accused form signed by the police officer, the intoximeter report, the alcohol/drug influence report, notice of intent to suspend operating privilege form, the responsibility agreement form, and the DVD recording of Rice's arrest. After reviewing the amended motion and submissions, the circuit court issued a final decision denying Rice's motion without an evidentiary hearing.

¶ 12 Upon our independent review, we conclude that the amended motion and submissions fail to provide sufficient facts to warrant an evidentiary hearing under the first prong of the Nelson test. Rice's allegation that the officer lacked reasonable suspicion to detain him is conclusory and unsupported by facts. Similarly, Rice's allegation that his detention was not consistent with the community caretaker function is also conclusory and not supported by facts. Furthermore, Rice's suggestion that an officer must inquire as to a person's well-being to carry out a community caretaker function is not supported by reference to any legal authority and we know of no authority to support this contention. Because the amended motion to suppress does not allege sufficient facts, Rice has failed to meet his burden under the first prong of the Nelson test. We therefore turn to whether the court properly...