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Home / Bench Blog / BENCH BLOG: In first opinion as chief justice, Roggensack breaks little ground

BENCH BLOG: In first opinion as chief justice, Roggensack breaks little ground

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at jeandimotto@gmail.com.

In her first opinion identifying her as chief justice, Pat Roggensack merely applied known law rather than establishing or construing new law. She nonetheless wrote for a unanimous court.

The law applied concerns Terry stops, probable cause to arrest and law enforcement’s role as a community caretaker.

Officer-suspect interaction

The case of State v. Blatterman began with a wife’s anxious 911 call reporting that her husband, Dean Blatterman, was deliberately bringing gas inside their house using a stove or fireplace. Her suspicion, she told the dispatcher, was that he was trying to blow up the place, or at least light it on fire.

A sheriff’s deputy responded after learning that the husband had left the house in a white minivan, that he was quite possibly intoxicated and that he had in the past mentioned “suicide by cop.”

When the deputy saw a white minivan with a license plate number matching the one he had been told to look for, he called for backup to help him in what he deemed to be a high-risk stop. Even though he had noticed no traffic violation, he pulled over the van. Two other squads drew up on either side, and the officers drew their weapons and pointed them at the vehicle.

The lead deputy ordered Blatterman to turn the van’s engine off, open the driver’s side window and put his hands outside. Instead, Blatterman immediately opened the door and walked toward the officers with his hands up. After being threatened with a Taser, Blatterman stopped walking.

He was ordered to turn around and get on the ground. Blatterman did not turn around but did get on his knees. He was then forced to the ground and handcuffed. When asked if he was all right, he responded that he was suffering chest pains. The officers requested emergency medical services.

Because it was a “freezing” mid-March day and Blatterman was wearing only a short-sleeve shirt, jeans and boots, he was placed in the back of a squad vehicle while medical responders were en route. Not only did Blatterman remain cuffed but the squad vehicle’s back doors could not be opened from the inside. When the medical responders arrived, Blatterman refused their attention.

The officers were nonetheless concerned that Blatterman might be suffering from carbon-monoxide poisoning and should be checked out at a hospital. They were also anxious about his chest pains and the possibility that he was suicidal.

Moreover, the lead deputy strongly suspected that Blatterman was intoxicated. The deputy later reported that he had smelled alcohol on Blatterman’s breath, observed that his eyes were watery, received dispatch information suggesting that Blatterman was intoxicated and thought Blatterman responded strangely to officers’ orders — especially since guns had been pointed at him.

In addition, a record check revealed that Blatterman had three previous convictions for operating a vehicle while intoxicated, meaning that he was legally required to maintain “absolute sobriety,” which legislation has come to define as having a blood-alcohol level of .02 percent or less.

The lead deputy decided to take Blatterman to St. Mary’s Hospital, 10 miles away, because Blatterman told him his doctor was associated with St. Mary’s. After Blatterman was medically cleared, a blood sample was drawn, showing his blood-alcohol level was .118 percent.

Circuit court and Court of Appeals

Blatterman was thereafter charged with his fourth offense for operating while intoxicated and having a prohibited blood-alcohol content. He brought a motion to suppress the blood draw on the grounds that being taken to the hospital constituted an arrest without probable cause.

The motion was denied by Dane County Circuit Judge William Hanrahan, who found that the transport was reasonable and the 10-mile trip was “within the vicinity” of the stop.

In an unpublished opinion, though, the Court of Appeals reversed the lower court’s decision, finding that the 10-mile trip was in fact not in the vicinity of the stop. It instead concluded that the decision to take Blatterman to the hospital had converted the stop into a “de facto” arrest in violation of the Fourth Amendment.

Supreme Court decision

The Supreme Court, for its part, easily found that there was reasonable suspicion to justify the Terry stop of Blatterman’s van. It also concluded that the length of the stop was reasonable, noting that the only delay in the investigation had resulted from the wait for the arrival of emergency-medical personnel.

The Supreme Court, at the same time, agreed with the Court of Appeals that traveling 10 miles from the site of an investigatory stop would take someone outside the “surrounding area.” In an unpublished Court of Appeals case, eight miles had been found to be too distant. In another, even four miles was deemed to be “at the outer limits of the definition of vicinity.”

However, the Supreme Court differed from the Court of Appeals by analyzing whether Blatterman was under arrest at the time of his transport. The court concluded that a reasonable person in Blatterman’s position would think that he had been taken into custody. Blatterman, the Supreme Court explained, had been taken against his will and had experienced a “significant level of force and restraint” from the start of the stop.

The next question concerned whether — under the totality of circumstances — there was probable cause for the arrest. The Supreme Court answered in the affirmative, citing the results of a check of Blatterman’s record, the smell of alcohol on his person, his watery eyes, the dispatch information about his possible intoxication and his repeated failure to follow police orders. These facts constituted sufficient probable cause to justify an arrest for possible violation of the .02 blood-alcohol maximum.

The conclusions about the stop and arrest decided this case, but the Supreme Court nevertheless plunged into a lengthy, alternative analysis of the community-caretaker exception to the Fourth Amendment’s probable-cause requirement.

The analysis was straightforward, noting that the caretaker function is not incompatible with officers’ simultaneous duty to investigate crimes.

Concurrence

Justice Annette Ziegler wrote separately to say that the reason the court had accepted the case was to decide whether the odor of alcohol on breath is sufficient probable cause to arrest someone who has at least three prior convictions for operating while intoxicated. She put forward an argument that it should be, yet only two other justices joined the concurrence.

Commentary

The court demurred on the very issue that prompted it to take the case. Had even one more justice been persuaded to take up Ziegler’s position, this would have been a 4-3 decision that broke new ground.

As it is, the only new ground is insipid: a dictionary definition of “vicinity,” a determination that transporting someone 10 miles would take him outside that vicinity and a suggestion that a vicinity could not stretch more than four miles in any direction from a given spot.

The opinion read like one that would come from an error-correcting court.

Fully 10 pages of the 26-page decision are dicta about law enforcement’s community-caretaker function. If nothing else, the dicta provide an up-to-date educational excursion on one small slice of Fourth Amendment jurisprudence.


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