A recent decision by the Court of Appeals has for the second time instructed a trial court to revise it’s decision on an arrest of a defendant in a unique set of facts. From the Milwaukee Journal, December 14, 2015 By Bruce Vielmetti of the Journal Sentinel:
Dec. 14, 2015
Prosecutors and trial judges take note: Don’t flatly ignore the the Court of Appeals when it sends your case back. For the second time, a Shawano County man has won an order to suppress evidence against him in a repeat drunken driving crash that caused injuries to another driver, after prosecutors and a judge failed to follow appellate court instructions that may have saved the case. Thomas J. Anker, 47, was walking out of some woods in November 2012 when a conservation warden, who had heard radio call about a suspect leaving a scene of an earlier crash in the area, arrested him. Anker argued the warden had no probable cause for the arrest. Circuit Judge James Habeck denied a motion to suppress. Anker pleaded no contest and appealed the probable cause issue.
The state argued the warden didn’t need probable cause, since he didn’t arrest Anker, but only detained him temporarily. In its first decision, the Court of Appeals rejected that position. “There was no ambiguity in the situation; a reasonable person in those circumstances would consider himself or herself under arrest. The arrest was unreasonable in the absence of probable cause.”The warden said he had reports of an injured person entering some nearby woods, and he waited in a Walmart parking lot, in an unmarked pickup truck. He saw Anker walk from the woods in a t-shirt and stocking feet, bleeding from the head. The warden approached Anker, who didn’t run away, said he was under arrest and handcuffed Anker. The warden then walked Anker to the pickup where he radioed police investigating the crash. The first time, the Court of Appeals reversed Anker’s conviction, in part because the state failed to contest his argument that police lacked probable cause to arrest him. But the court instructed that on remand, the circuit judge should consider whether the evidence against Anker might be admissible under either of two other doctrines – inevitable discovery, or independent source. However, according to the court’s most recent opinion in the case, prosecutors, on remand, presented no evidence supporting admission under either doctrine. Instead, they offered more evidence to show there was probable cause, and Habeck again denied Anker’s motion to suppress. Again, he appealed. The state and trial judge “over stated the scope of the authority granted by this court’s mandate,” the court found. “Our conclusion that the arrest was made without probable cause is the law of the case.”
Maybe thinking all he need do was declare that the evidence would have been discovered, inevitably, Habeck cited that doctrine as an alternative ground when he ruled there was probable cause for Anker’s arrest. The problem? No record was built to support inevitable discovery. “The court’s speculation as to what could have been done cannot constitute evidence of what actually was done,” the appeals court said in its second ruling, earlier this month. The state, on the second appeal, tried to argue a third way around suppressing the evidence, the attenuation doctrine. The court found that failing too. For one, the issue hadn’t been raised before. Secondly, it failed two of the three factors relating to a successful attenuation argument. Prosecutors conceded there was a long time lapse and intervening circumstances working against attenuation, but argued that the evidence should still be allowed because there was “no improper purpose or flagrant misconduct.” That was an argument way too far for the court. Accepting the state’s argument, the court said, “would effectively eviscerate the exclusionary rule,” which prohibits use of evidence obtained through illegal police conduct.