OWI Appeal - Driving Too Slow or Stopping Is Grounds For Seizure Says Wisconsin

When it comes to the 4th amendment, it seems that merely driving a car is tantamount to reasonable suspicion to stop it in Wisconsin. Well not exactly, but close enough. In State of Wisconsin v. Slip Copy, 2011 WL 2899066 (Wis.App.), the officer observed a truck that drew his attention. The truck drew his attention because it was traveling “at an extremely low rate of speed, slowing to an almost near stop” at an intersection at which there were no signs to stop or yield. The truck then accelerated and reached a second intersection one block away, which also had no stop or yield signs, despite which the truck came “to a complete stop.” So far as the officer could observe, there was no other traffic or other reason for the driver of the truck to have slowed to a near stop at the first intersection or to have come to a complete stop at the second intersection.'

The officer testified that he became suspicious that the driver was impaired based on the following combined factors: the time of night (namely, “the early morning hours[,] right around bar time”), the extreme slowing at the first unmarked intersection, and the complete stop at the second unmarked intersection. On that basis, the officer decided to make a traffic stop to investigate further.

The appeals court herein found the stop legal. In rejecting the argument that the stop was unlawful since the driver had done nothing wrong, the court stated:

"These arguments ignore the rule that “police officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.” (citation) “[S]uspicious conduct by its very nature is ambiguous, and the [principal] function of the investigative stop is to quickly resolve that ambiguity.” Id. “Therefore, if any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.” Id. In other words, a Terry stop allows police to obtain more information, through temporary “seizure,” regarding potential alternative innocent explanations for suspicious behavior; the potential for discovery of innocent explanations does not foreclose the stop. It is often going to be the case that aberrant driving behavior could have resulted from one or more causes that do not represent a violation of any statute or ordinance. However, where a reasonable suspicion arises from a pattern of aberrant driving, such as that exhibited by Burch under these circumstances, police are permitted to infringe on the right of the driver to be free of stops and temporary detentions so that police can attempt to resolve the ambiguity by detaining the driver for that limited purpose in a limited manner."

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal of the Day (DAD)- Pretextual Inventory Search Causes Suppression

This case involves a search of a vehicle. In US v. Taylor, --- F.3d ----, 2011 WL 561979 (C.A.8 (Mo.)) Officer Gillespie and her partner responded to a request by a fellow officer to follow a truck and initiate a traffic stop if the driver, who officers later identified as Taylor, committed a traffic violation. Officer Gillespie was informed that Taylor was suspected of involvement in a narcotics transaction and that the narcotics were believed to be in his vehicle. Officer Gillespie observed Taylor fail to signal before changing lanes, and she initiated a traffic stop. When Taylor could not produce a valid insurance card, she arrested him and took him into custody.


Police towing policy dictated that when an individual is arrested for a traffic violation, the officer should give the individual the option to release the vehicle to another driver, allow the vehicle to be left at the scene, or drive the vehicle to the police station. Officer Gillespie did not provide Taylor with these options, however, because of another KCPD policy requiring the impoundment of a vehicle “when the vehicle is known or believed to have been used in the commission of a crime and has evidentiary value.” Based on this policy, Officer Gillespie decided to tow and search the vehicle.



Regardless of under what portion of the policy an impoundment occurs, KCPD policy further requires officers to complete a tow-in report when a vehicle is being towed. The tow-in report must include a “content inventory,” which is a “detailed inventory and listing of items located inside of the vehicle being towed.” When a towed vehicle contains “valuable property in large quantities,” officers must nevertheless generate a detailed inventory, using an additional form if more space is needed to list the contents of the vehicle. Upon searching Taylor's vehicle, Officer Gillespie discovered hundreds of tools, several pieces of equipment, as well as a plastic bag containing approximately 74 grams of powder cocaine, clothing, toiletries, and paper. In completing the tow-in report, Officer Gillespie did not itemize or list the hundreds of tools, but wrote “misc. tools” in the relevant section of the form.

On appeal, the court found that the inventory search was pretextual, especially in light of the officer's failure to specifically itemize all of the contents in the vehicle. It suppressed the evidence. The appeals court noted that:

The search of a vehicle to inventory its contents must nevertheless be reasonable under the totality of the circumstances, United States v. Hall, 497 F.3d 846, 851 (8th Cir.2007), and may not be “a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). The reasonableness requirement is met when an inventory search is conducted according to standardized police procedures, which generally “remove the inference that the police have used inventory searches as ‘a purposeful and general means of discovering evidence of a crime.’ “ Marshall, 986 F.2d at 1174 (quoting Colorado v.. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring)).

The court noted that "[g]iven the hundreds of tools in Taylor's truck, Officer Gillespie's description of “misc. tools” does not constitute a detailed, itemized inventory. Continuing, the court concluded:

Even if police fail to adhere to standardized procedures, the search is nevertheless reasonable provided it is not a pretext for an investigatory search. Hall, 497 F.3d at 852; see also Whren v. United States, 517 U.S. 806, 812 (1996) (noting that an officer's motive may invalidate objectively justifiable behavior in the context of an inventory search). “[S]omething else” must be present to suggest that the police were engaging in their criminal investigatory function, not their caretaking function, in searching the defendant's vehicle. Rowland, 341 F.3d at 780-81. Here, the “something else” is found in the officer's testimony at the suppression hearing. Officer Gillespie testified that the basis for the traffic stop, the arrest, the towing of the vehicle, and the inventory search was the officer's belief that Taylor had narcotics in his vehicle. She also testified that she would not have arrested Taylor, impounded his vehicle, or inventoried the contents of the truck if not for her belief that the vehicle contained evidence of a narcotics crime. This testimony leads us to conclude that the search was conducted because police believed they would find evidence of narcotics in Taylor's truck, and thus the inventory was merely a pretext for an investigatory search.

The dissent stated as follows:

I would hold that Officer Gillespie's good faith generic description of the contents of Taylor's van dispels any suggestion that it was an after-the-fact attempt to insulate the inventory search from a constitutional challenge. Accordingly, I would affirm the order denying the motion to suppress.

Fortunately, this justices 'blind' opinion was outnumbered.


Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal of the Day - When Car Mistakenly Pulls Over There is No Illegal Stop and Seizure

In State of Kansas v. Reiss, --- P.3d ----, 2010 WL 5129859 (Kan.App.), Rex Reiss had the misfortune to be driving one of two vehicles directly behind a blue pickup that had no lights. When an officer pulled behind the three vehicles to stop the one with no lights on, Reiss stopped directly behind the blue pickup. When the officer pulled his car right behind Reiss (there was no room between Reiss' truck and the blue pickup), Reiss immediately got out of the truck and began walking toward the police car, vehemently questioning what he'd done wrong. The officer then directed Reiss to go back to his car. When the officer finally approached, the interaction led to a drunk driving arrest. The district court held that Reiss had not been seized, even when the officer ordered Reiss back to his truck, because the officer was merely taking normal steps that a reasonable and cautious officer would take for safety when a single officer was on hand and more than one vehicle had stopped.

The Kansas court of Appeals discussed the law of search and seizure:

"In a voluntary encounter between a citizen and a police officer, the officer is free to ask questions even in the absence of any suspicion the citizen is up to no good. See State v. McGinnis, 290 Kan. 547, 552-53, 233 P.3d 246 (2010). But to stop a person traveling on the roadway, even briefly for the purpose of investigation (an “investigatory detention”), the officer must have reasonable suspicion that something's amiss, meaning an objective and specific basis for believing that the person being detained is involved in criminal activity. See State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3-5, 190 P.3d 234 (2008). And to arrest someone, the officer must meet an even higher standard: probable cause, which exists when a person of reasonable caution could conclude from the known facts that an offense has been or is being committed. State v. Fewell, 286 Kan. 370, Syl. & 4, 184 P .3d 903 (2008); Barriger, 239 P.3d at 1291."

Whether a person inadvertently stopped by police has been seized was a matter of first impression for Kansas. That issue, however, had been discussed extensively in a recent decision of the United States Court of Appeals for the Ninth Circuit, United States v. Al Nasser, 555 F.3d 722, 725-32 (9th Cir.2009). The Ninth Circuit concluded that a driver was not seized-and therefore no Fourth Amendment violation had occurred-when the driver stopped his vehicle because of police activity but the officers did not intend for that driver to stop. 555 F.3d at 731-32. The defendant in Reiss continued to argue that whether or not he was seized when he first pulled over, the encounter became a seizure when Officer Ritter ordered Reiss to return to his truck. The appeals court herein agreed with Reiss on this point:

"A seizure occurs when there is a show of authority by the officer that would communicate to a reasonable person that he or she is not free to leave and that person submits to the show of authority. Brendlin v. California, 551 U.S. 249, 254-55, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); State v. Morris, 276 Kan. 11, Syl. ¶ 5, 72 P.3d 570 (2003). Officer Ritter's forceful commands led Reiss to return to his truck. Because Reiss was clearly seized at that point and no incriminating evidence was obtained before then, we need not determine whether he had been seized when he initially pulled over, even though the officer hadn't intended to stop him."

In finding the seizure reasonable, the Kansas court stated as follows:

"Ritter said he was “concerned on what [Reiss'] purpose was” when Reiss approached the officer, and this caused the officer to proceed cautiously. When Ritter approached Reiss' truck, Ritter asked why Reiss had gotten out of his truck and for identification rather than simply telling Reiss he was free to leave. On these facts, however, we see nothing unreasonable about that. Given the aggressive approach Reiss had taken at the scene, Ritter was properly concerned about his safety and asking for identification in this circumstance was itself only a minimal intrusion. See Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v.. Diaz-Castaneda, 494 F.3d 1146, 1153 (9th Cir.), cert. denied 552 U.S. 1031 (2007).

Sometimes the fish jumps into the boat. Such was the case for Rex Reiss.


Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal of the Day (DAD) - Improper Seizure at Closed Business

In Sosa v. Texas, Not Reported in S.W.3d, 2011 WL 346215 (Tex.App.-Texarkana), the defendant was convicted of DWI after her motion to suppress was denied. Her sole issue on appeal was the propriety of the investigative detention. While on patrol, the arresting officer (Hill) observed the defendant (Sosa) parked at the entrance to DC Self Storage in Marshall, Texas, at approximately 10:45 p.m. Based on Hill's experience when Hill's mother had previously rented a unit from that storage facility, Hill believed the normal business hours of the storage facility were from 7:00 a.m. to 7:00 p.m. Hill proceeded past the storage facility and stopped on the side of the road. When Sosa did not enter after thirty to forty seconds, Hill turned around, activated his lights, and pulled in “behind her.” While conversing with Sosa, Hill detected the odor of alcohol on Sosa's breath and noticed that Sosa's speech was slurred. Subsequent investigation determined Sosa to be intoxicated. The first issue that needed resolution was whether the contact was a 'seizure' or whether it was an 'encounter', as the term was used in the opinion. The court found that the use of the lights, the blocking of the defendant's vehicle, and the officer's admission that the defendant was not free to leave were enough to establish that the contact was a 'detention':

In this case, Hill's show of authority was sufficient to communicate to a reasonable person that he or she was not free to leave the scene. Hill testified Sosa was not free to leave. Although the classification of an interaction is determined based on an objective standard and, therefore, the police officer's subjective opinion is not determinative, Hill's subjective opinion can be evidence that a reasonable person would not feel free to terminate the interaction. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (reasonable suspicion evaluated from objective perspective). The manner in which Hill parked his vehicle and the use of overhead emergency lights suggest the interaction was an investigative detention. Since Sosa was parked in front of the storage facility's gate, the position of Hill's vehicle effectively prevented her vehicle from moving. Sosa's vehicle seems to have been trapped between the storage facility's gate and Hill's vehicle. The Texas Court of Criminal Appeals has considered the fact that a police officer “ ‘boxed in’ Appellee's parked truck” in determining whether a seizure had occurred. See State v. Garcia-Cantu, 253 S.W.3d 236, 246 n. 44 (Tex.Crim.App.2008) (concluding trial court did not err in concluding reasonable person would not feel free to leave).

Although “[a]ctivation of overhead lights on a police vehicle does not necessarily make an encounter non-consensual,” the Texas Court of Criminal Appeals has noted: “The use of ‘blue flashers' or police emergency lights are frequently held sufficient to constitute a detention or seizure of a citizen, either in a parked or moving car.” Id. at 245 n. 43 (spotlight different from overhead lights); see Crain v. State, 315 S.W.3d 43, 52 (Tex.Crim.App.2010) (activation of overhead lights factor in concluding pedestrian was detained); Hudson v. State, 247 S.W.3d 780, 785 (Tex.App.-Amarillo 2008, no pet.) (activation of patrol car lights and police officer's order caused appellant to yield to show of authority); see Franks v. State, 241 S.W.3d 135, 142 (Tex.App.-Austin 2007, pet. ref'd) (mere activation of overhead lights at dark rest park was insufficient, by itself, to make initial interaction a detention). Franks is distinguishable in that, there, no evidence suggested that the position of the police car impeded Franks' ability to terminate the encounter. Franks, 241 S.W.3d at 142. Further, the police officer in Franks testified he activated the overhead lights to illuminate the rest area. Id. There is no evidence in this case that Hill activated his overhead lights to illuminate the storage facility's entry area. When asked whether the area “is fairly well lit,” Hill responded, “I'd say fairly. It's not as well lit as you get going on into town.”

Thereafter, the court then grappled with whether the detention was supported by reasonable suspicion. The State argued that the vehicle's remaining at the entrance of a closed business for 30-40 seconds, coupled with the officer's knowledge that thefts and break-ins had previously occurred there, gave rise to reasonable suspicion, and the court sub judice had agreed. However, the appellate court disagreed:

The noncriminal, not terribly unusual, nonrepetitive behavior observed in this case was insufficient to objectively support a belief that criminal activity was or soon would be afoot. The specific, articulable facts relied on by Hill are insufficient to create reasonable suspicion that criminal activity was occurring. All the facts indicate is that Sosa was present in front of a business late at night, after normal business hours, and that storage buildings are occasionally broken into. Hill failed to provide, under the totality of the circumstances, sufficient specific, articulable facts to create an objective manifestation that Sosa was, or was about to be, engaged in criminal activity. Hill's suspicion amounted to nothing more than a mere hunch. Deferring to the trial court's determination of historical facts, it was error to overrule Sosa's motion to suppress.

Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal of the Day - Attorney Advice Renders Illegal Search Admissible

In Anderson v. State of Alaska, --- P.3d ----, 2011 WL 255164 (Alaska App.) the driver was involved in an accident on a snowy day, where he struck and killed a pedestrian. The police transported the defendant to the station, and erroneously informed him that he was required to submit to drug and alcohol testing simply due to the fact that he had been in an accident. The defendant sought and obtained a consultation with an attorney, who advised the defendant to submit. The trial court found that they had illegally detained Anderson when they transported him to the police substation. However the trial judge concluded that Anderson's consultation with his attorney before providing the samples had insulated Anderson's consent from the officers' prior illegal conduct, and the consent was voluntary.

On appeal the appellate court agreed that the attorney's advice vitiated the illegality, and rendered the submission consensual:

The record thus shows that the police did not limit Anderson's time to consult with his attorney, and they allowed him to make other personal phone calls. There was an interval of approximately forty minutes between when the police first incorrectly asserted they had the legal authority to collect the blood and urine samples and when Anderson consented to provide the samples. Although this time interval was not great, the record supports Judge Swiderski's finding that Anderson had time to reflect on his decision to consent.

Interestingly, the court does not find that the attorney's advice to submit was patently incorrect:

The parties do not dispute that Butler is an experienced criminal defense attorney, and Anderson has not challenged the advice Butler gave him. Butler may have accurately advised Anderson that he was not required to provide blood and urine samples. But there were also significant advantages in having Anderson provide the samples if Anderson believed he was not impaired. Anderson had just hit and killed a pedestrian. It was in his interest to prove that he was not impaired at the time of the accident.

Perhaps because the court found that the defendants decision to submit might have been a calculated attempt towards exoneration, then the act of submission was considered voluntary. Perhaps if the defense attorney had admitted to his own erroneous understanding of the law, the result might have been different. At any rate, counsel should be extremely careful if they take a late-night call such as the above, to ensure that all possibilities are considered before advice is rendered.


Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI and blood draws by force?

Image by Subliminati via Flickr

A few weeks ago the Chicago Tribune reported that Rep. Keith Farnham, D-Elgin, introduced a bill to the Illinois House that authorizes police to use "all reasonable and necessary force" while executing a search warrant. If passed, this provision would apply to, among others, DUI suspects who refuse to submit to a search warrant for a sample of their blood. The current law requires that a person who has been involved in an accident causing serious injury or death must provide a sample of their blood, but it is silent as to the amount of force that can be used to require a suspect to comply. However, the failure to comply with a request for a breath test or blood draw does have ramifications: a refusal will result in an automatic 1-year drivers' license suspension. Of course, even if this law is enacted, it will have little practical effect, as Don Ramsell of our office explains in the article:

Defense attorney Donald Ramsell, who serves on the Illinois State Bar Association's traffic law committee, says the number who refuse is "minuscule." Ramsell says he's handled more than 13,000 DUI cases since 1986. "I have never had a single client in the face of a search warrant who has ever refused."

Nevertheless, the implications of the proposed law are disturbing, since a forced blood draw implicates fundamental privacy rights. Fortunately, as explained in the Chicago Tribune article, the proposed bill is likely unconstitutional:

The Farnham bill, though, is probably unconstitutional. Former Cook County Circuit Judge Daniel Locallo cites a 2005 ruling by the Illinois Supreme Court that a DUI defendant did not have the right to refuse such a test. But the court warned that its ruling "does not give law enforcement officers unbridled authority "...to use physical force in obtaining blood, urine and breath samples."

Let's hope that the proposed bill never sees the light of day. If, however, it does become law, then subsequent forced blood draws and the arrests resulting therefrom may set the ground work for an interesting and important constitutional challenge addressing one of our most basic rights: the right to be free from unlawful searches and seizures.

**Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now**