The Court of Appeals has once again taken up the circumstances in which a person can be considered to have been or not been arrested.
A Fond du Lac County sheriff’s deputy was dispatched in response to a report of a truck falling into a ditch. He determined that the truck had crossed the center line, gone through a driveway and crashed.
Michel Wortman was walking away from the scene. The deputy activated his patrol lights and pulled his squad car in front of Wortman to block his path.
He asked Wortman if he was the driver, if he was injured and how the accident had occurred. Wortman replied that he was the driver, that he was not injured and that he had fallen asleep while driving.
The deputy detected the smell of alcohol and noted that Wortman’s eyes were glassy. Wortman admitted he had been drinking.
Upon request, Wortman gave his driver’s license for identification. When the deputy told him to get in his squad car so they could return to the scene, Wortman did so without objection.
The deputy checked Wortman’s driving record, learning that his license was revoked, that he was on extended supervision, and that he had eight previous drunken-driving convictions with a blood alcohol limit of .02. He administered field sobriety tests; Wortman failed them.
Wortman was then placed under arrest.
Trial court proceedings
Wortman was charged with OWI, 9th offense, as well as bail jumping.
He brought a motion to suppress the statements he had made to the deputy, arguing that he was in custody from the moment the deputy had blocked his path and that he therefore should have been given Miranda warnings before being questioned.
Fond du Lac County Circuit Judge Dale English made three findings: Wortman was not in custody until he was actually arrested, that the deputy had reasonable suspicion to stop him and that the deputy had probable cause to arrest him.
Wortman pleaded no contest to the charge and was sentenced to 10 years of imprisonment.
Court of appeals
In an opinion written by Presiding Judge Paul Reilly, the court disagreed with Wortman’s argument that he was in custody before he was actually arrested.
Rather, the deputy’s actions in turning on his patrol lights, blocking Wortman’s path with the squad car, “inviting” him into the car to return to the scene and taking his driver’s license were part and parcel of an investigatory stop.
An investigatory stop with temporary questioning, also known as a Terry stop, is a minor infringement of personal liberty. Taking a suspect somewhere is within the scope of a Terry stop if it’s only for a short distance, within the vicinity and for a reasonable purpose.
The determinative factor to consider when ascertaining if a particular action was a Terry stop, rather than a formal arrest, is whether “a reasonable person in the defendant’s position would consider himself or herself to be in custody given the degree of restraint under the circumstances.”
Here, the drive from the spot where the deputy had found Wortman to the scene of the accident was a mere 100 yards. The investigation was based on the articulable facts of an accident and Wortman’s admissions to driving, falling asleep, and drinking, together with his glassy eyes and smelling of alcohol. The investigation continued based on Wortman’s record and took only 15 minutes.
Accordingly, the court concluded that a reasonable person in Wortman’s position would not have considered himself under arrest until he was formally arrested and handcuffed.
With this case, District 2 of the court of appeals has now – for the third time in less than 18 months –taken up the question of when a person can be considered to be in custody.
The court first considered this issue in the context of police questioning a suspect at his home.
Next, it looked at the circumstances of police questioning a suspect at a police station before the person was placed under arrest.
Now it has tackled police questioning a suspect during an investigatory stop.
In each case the defendant asserted that the police questions should not have been asked until after Miranda warnings had been given. But Miranda warnings are not triggered until arrest.
The line between temporary detention and formal arrest is therefore a crucial issue, one that is often misunderstood and heavily fact-dependent.
By analyzing the details of the surrounding circumstances in these three cases, the court performed its function of guiding judges and attorneys in this area of Fourth Amendment jurisprudence.
And when done clearly and succinctly, as in these cases, it’s a gift to legal readers.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]