author: BROWN, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Robert F. Hart, Defendant-Appellant.
    Court of Appeals

      No. 00-1444-CR.

      Submitted on briefs November 8, 2001.

      Decided November 21, 2001.

    2001 WI App 283
    (Also reported in 639 N.W.2d 213.)

      On behalf of the defendant-appellant,the cause was submitted on the brief of Jon Deitrich of Hynes & Associates, S.C. of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Mark A. Langholz, assistant district attorney.
    Before Brown, PJ., Anderson and Snyder, JJ.

       Petition to review denied 2-19-02.

   BROWN, PJ.

¶ 1. What we face in this case is an inebriated citizen whom an officer decided he would not arrest but could not safely release on the streets either. A protective frisk for weapons produced not a weapon but a marijuana pipe. The State contends the existence of probable cause for operating a vehicle while intoxicated (OWI) by itself is enough to justify the search, and the subsequent arrest was a mere formality. We agree there are circumstances when, based upon probable cause, an arrest is inevitable and therefore it is a mere formality whether arrest comes before or after the search. In this case, however, no arrest was going to occur at the time of the search. Therefore, we hold that the search was not a valid search incident to arrest. Because the pat-down was unconstitutional, the denial of the motion to suppress is reversed as far as the conviction for possession of drug paraphernalia is concerned. This court affirms a related conviction for operating while intoxicated, second offense, because that charge is not sufficiently connected to the illegal pat-down.

¶ 2. The facts in this case are not disputed. Robert F. Hart was stopped for speeding and suspicion of driving while intoxicated. Tests conducted at the scene, including a breath test, indicated that Hart was in fact intoxicated. Nevertheless, the officer exercised his discretion not to arrest Hart for OWI but to instead drive Hart to the police station where he could call for a ride home. Prior to placing Hart in the squad car, the officer initiated a pat-down pursuant to police department policy. Hart then reached into a pocket and threw an object into the grass. The officer retrieved a marijuana pipe, which Hart admitted belonged to him. At that point, the officer arrested Hart for possession of drug paraphernalia, handcuffed him and placed him in the squad car. The officer testified that he also arrested Hart for OWI either right before they left the scene or right after. At a hearing on Hart's motion to suppress the drug paraphernalia evidence, the trial court found that Hart was under arrest at the time of the search and that the pat-down was a lawful search incident to arrest. After the motion was denied, Hart pled guilty.

¶ 3. On appeal, Hart argues that the search cannot be justified as a search incident to arrest because there is no nexus between the fruits of the search and the probable cause used to justify the arrest. In other words, there was no basis for a search for evidence of the only crime then apparent, operating a vehicle while intoxicated. In a supplemental brief, the attorney general contends that so long as probable cause existed prior to the search and a formal arrest immediately followed, it is irrelevant that the search preceded the arrest. Alternatively, the district attorney argues that the drug paraphernalia is admissible either as the result of a limited Terry search or on the theory that Hart abandoned the pipe voluntarily.

¶ 4. When reviewing an order granting or denying a motion to suppress evidence, we will uphold a trial court's findings of fact unless they are clearly erroneous. State v. Secrist, 224 Wis. 2d 201, 207, 589 N.W.2d 387 (1999), cert. denied, 526 U.S. 1140 (1999). However, deciding whether a search is unreasonable under the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution is a question of law we review de novo. State v. Betterley, 191 Wis. 2d 407, 415-16, 529 N.W.2d 216 (1995).

¶ 5. Both sides use the case of State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991), to support their positions. There, Swanson was stopped for erratic driving and suspicion of driving while intoxicated. Id. at 442. Before placing Swanson in the squad car to take field sobriety tests, the officer performed a pat-down search and discovered marijuana on him. Id. Swanson was then arrested, handcuffed and placed in the back of the squad car. Id. at 442-43. The supreme court concluded that upon stopping Swanson for erratic and dangerous driving, the officer had detained him for only investigatory purposes as part of a routine traffic stop. Id. at 447-48. The court concluded that a reasonable person in Swanson's position, where he was merely asked to perform, field sobriety tests, was not told he was under arrest, was not given Miranda warnings and was not handcuffed, would not have believed that he or she was under arrest or in legal custody prior to the search. Swanson, 164 Wis. 2d at 448.

¶ 6. Swanson reiterated the test used to determine whether a person is under arrest. The test is "whether a reasonable person in the defendant's position would have considered himself or herself to be 'in custody,' given the degree of restraint under the circumstances." Id. at 446-47. If a person is not under arrest, it follows that a resultant pat-down may not be justified as a search incident to arrest.

¶ 7. Using the Swanson analysis, this court determines that the trial court was in error when it justified the pat-down based upon its conclusion that a reasonable person in Hart's position would have considered himself or herself under arrest because Hart was "not free to go." As Hart points out, the officer undisputedly told Hart that he was not under arrest and that he would be free to go home after he arranged for a ride. As this court views the undisputed evidence, both the officer and Hart understood that the officer had decided not to arrest him. Instead, the officer was acting as a "caretaker" to Hart by providing him with a safe means to arrive home. We conclude that any reasonable person in Hart's position would not have thought himself or herself to be under arrest.

¶ 8. The attorney general points out that what defeated the State in Swanson, the failure to arrest Swanson on charges for which they had probable cause, is present in this case and therefore the search is constitutional even though it preceded formal arrest. Furthermore, the attorney general argues, the officer's subjective reasons or motivation for the search are not binding on the court. See State v. Mata, 230 Wis. 2d 567, 574, 602 N.W.2d 158 (Ct. App. 1999). So long as probable cause existed, it should make no difference to the validity of the search if the officer did not intend to arrest Hart at the time of the pat-down. As we discuss below, we reject this reasoning because it fails to take into account the traditional concerns underlying the search incident to arrest cases.

¶ 9. An examination of the search incident to arrest cases reveals that the underpinning to these holdings is the circumstances that exist at the time of arrest. See United States v. Robinson, 414 U.S. 218, 234-35 (1973); Chimel v. California, 395 U.S. 752, 762-63 (1969). Warrantless searches incident to custodial arrest are traditionally justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into custody. United States v. Edwards, 415 U.S. 800, 802-03 (1974). Such exigent circumstances may exist even where the offense is relatively insignificant because "the defendant may use deadly force to escape [as] he fears the officer knows or may later discover that he is wanted for a much more serious crime." 3 Wayne R. LaFave, Search and Seizure § 7.1(b), at 443 n.60 (3d ed. 1996). Furthermore, the search may precede the arrest so long as the fruits of the search were not necessary to support probable cause to arrest. Swanson, 164 Wis. 2d at 450-51.

¶ 10. Exigent circumstances arise, therefore, because of the reasonable belief under which a police officer operates at the time of arrest. As the Supreme Court noted in Cupp v. Murphy, 412 U.S. 291 (1973):

Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest. The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession....
Where there is no formal arrest, as in the case before us, a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence on his person. Since he knows he is going to be released, he might be likely instead to be concerned with diverting attention away from himself.

Id. at 295-96 (citation omitted). This language assumes that when a reasonable police officer and defendant believe that arrest is inevitable, they will act as such. The subjective intent of the police officer as a reasonable person would understand it is the driving force in these situations. When the officer acts upon his or her belief that an arrest is going to be made, and communicates that belief by words or action to the defendant, then the exigent circumstances come into play. The defendant will be more likely to conceal evidence or escape or use violence when the defendant feels arrest is imminent. In such situations, the arrest itself is truly a mere formality; it was going to happen anyway and the prearrest search is justified by the concerns expressed in Cupp.

¶ 11. What happens, however, when the police officer does not intend to make an arrest? Here, it is clear there was no intent on the part of the police officer to search Hart incident to the inevitable formal arrest for OWI. Indeed, although there may have been probable cause, both parties were operating under the assumption that no arrest would occur. Therefore, none of the concerns that justify prearrest searches would come into play. The police officer had no reasonable belief that Hart would be motivated to conceal evidence or harm the officer.

¶ 12. On this interpretation of the facts and the case law, the attorney general cannot successfully argue that the subjective intent of the police officer is irrelevant. His intent not to arrest as he communicated it by words and deeds removed the Cupp concerns which traditionally justify the search as incident to arrest. We determine with respect to the formal arrest for drug paraphernalia, which occurred after the pipe was discovered, probable cause rests entirely on the pipe itself, which as fruit of an unlawful search must be suppressed.

¶ 13. We turn now to whether the pipe evidence may nonetheless be admissible as the result of a limited Terry search for weapons. The lawfulness of a Terry frisk turns on whether the officer had a reasonable belief that the suspect was armed and dangerous. Terry v. Ohio, 392 U.S. 1, 24 (1968). The reasonableness of a protective frisk is determined based upon an objective standard. That standard is "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety and that of others was in danger." Id. at 27. Wisconsin courts apply this standard in light of the totality of the circumstances. State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990). Among the factors to consider are the time of day, the high-crime nature of the area, and the defendant's nervousness. See State v. Morgan, 197 Wis. 2d 200, 211-15, 539 N.W.2d 887 (1995).

¶ 14. Some states have found that the "need to transport a person in a police vehicle in itself is an exigency which justifies a pat-search for weapons." People v. Tobin, 269 Cal. Rptr. 81, 85 (Cal. Dist. Ct. App. 1990); accord State v. Lombardi, 727 A.2d 670, 674 (R.I. 1999). In a recent Wisconsin Supreme Court decision, however, a plurality of the justices expressly declined to extend Terry to a police officer's general concern for safety whenever the officer transports a citizen in a police car. State v. Kelsey C.R., 2001 WI 54, ¶¶ 50, 91, 243 Wis. 2d 422, 626 N.W.2d 777.

¶ 15. In Kelsey C.R., police officers spotted Kelsey sitting alone after dark in a high-crime neighborhood. Id. at ¶ 1. After a brief discussion, the officers asked Kelsey to "stay put" while they approached her. Id. Kelsey fled; the officers chased and eventually caught her. Id. The officers contacted Kelsey's mother who asked them to bring her home. Id. at ¶ 6. Before placing her in the squad car, a female officer conducted a pat-down search for weapons and discovered a loaded handgun. Id. at ¶ 7. The State petitioned for a determination that Kelsey was delinquent based on her possession of a dangerous weapon. Kelsey moved to suppress the evidence, claiming lack of reasonable suspicion for the investigative detention. Id. at ¶ 8.

¶ 16. The supreme court identified three issues. One, did the police officers seize Kelsey when they told her to "stay put" but she ran away? Two, was the investigative detention after she fled based on a reasonable suspicion that she had committed, was committing, or was about to commit a crime? Three, was the pat-down search of Kelsey based on a reasonable suspicion that she may be armed and dangerous? Id. at ¶ 11. Apparently, all of the justices agreed that the officers did not seize Kelsey by telling her to "stay put." Id. at ¶ 33. The plurality held that the subsequent investigative stop was reasonable under Terry. See Kelsey C.R., 2001 WI 54 at ¶ 43. Finally, the plurality concluded that the same facts which justified the stop after the police chase also justified the frisk: namely, Kelsey's flight, her demeanor, the time of night and the neighborhood. Id. at ¶ 49.

¶ 17. The plurality specifically refused to adopt a blanket rule that a police officer may frisk a person just because the officer is going to place that person inside a police vehicle. Id. at ¶ 50. The two dissenting justices agreed that the so-called "search incident to squad car ride" exception was not consistent with Fourth Amendment case law requiring specific and articulable facts to support reasonable suspicion that a person may be armed and dangerous. Id. at ¶ 91. With five members of the court declining to adopt a per ser rule, the law in Wisconsin is that the need to transport a person in a police vehicle is not, in and of itself, an exigency which justifies a search for weapons.

¶ 18. In light of the supreme court's rejection in Kelsey C.R. of a "search incident to a squad car ride" exception, more specific and articulable facts must be shown to support a Terry frisk. Morgan, 197 Wis. 2d at 209. The record in this case offers no specific or articu-lable facts that would make a police officer reasonably fear for his or her safety. This was a routine traffic stop; it is not like those cases where an officer has confronted a person who is acting nervous or uncooperative, who is in a high-crime area late at night, or who has companions in the car. We conclude that the marijuana pipe may not be admissible as the result of a Terry search.

¶ 19. Before continuing this opinion, we must note that a routine pat-down of a person before a police officer places the person in a squad car is wholly reasonable. We recognize that police policy mandates pat-downs for the general safety of the officer. Nevertheless, evidence gleaned from such a search will only be admissible in court if there are particularized issues of safety concerns about the defendant.

¶ 20. The district attorney offers an alternative argument, one joined in by the attorney general. He contends that the marijuana pipe was not the result of a pat-down at all, but rather was the result of a voluntary act of abandonment by Hart. In other words, the district attorney asserts that the causal chain between the illegal search and the evidence sought to be excluded was broken by Hart's voluntary act.

¶ 21. Hart objects to the district attorney being able to make this argument on appeal when he did not argue it before the trial court. But we acknowledge that this court may affirm a conviction on a theory not raised by the State in the trial court. State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679 (Ct. App. 1985). We will therefore address this issue.

¶ 22. The district attorney correctly cites cases holding that a warrantless seizure of property whose owner has abandoned it does not violate the Fourth Amendment. State v. Bauer, 127 Wis. 2d 401, 407, 379 N.W.2d 895 (Ct. App. 1985). The district attorney has also cited California v. Hodari D., 499 U.S. 621 (1991), for the proposition that a person who throws something to the ground as he or she is being approached by the police will be deemed to have voluntarily abandoned it. But the district attorney has cited no case holding that when a person throws something to the ground "during" an illegal pat-down, it is a "voluntary" abandonment of property which is admissible in court.

¶ 23. We note there is a line of cases which views unlawful resistance to an unconstitutional stop as an intervening illegal act which can allow admissibility of evidence. Thus, if a defendant's response to an illegal pat-down" 'is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime' and any evidence uncovered by a search incident to that arrest is admissible against the defendant." United States v. Crump, 62 F. Supp. 2d 560, 568 (D. Conn. 1999) (citation omitted). This line of cases will not help the State in the instant case because it is clear that Hart was not' engaging in any separate criminal activity when he threw the marijuana pipe to the ground. The pipe was not thrown as a part of separate activity, but as a result of the illegal pat-down itself.

¶ 24. Our own research has uncovered cases that are fatal to the district attorney's contention. In Lawrence v. Henderson, 478 F. 2d 705, 708 (5th Cir. 1973), the court held that drug evidence found in a police car after an unlawful arrest could not have been voluntarily abandoned because the "abandonment" was compelled by the police misconduct. Two Indiana cases have concluded that where an improper frisk forced the defendant to abandon drugs, the evidence was not admissible. See Swanson v. State, 730 N.E.2d 205, 210 (Ind. Ct. App. 2000), transfer denied by 741 N.E. 2d 1253 (Ind. Sept. 5, 2000); State v. Pease, 531 N.E.2d 1207, 1210-12 (Ind. Ct. App. 1988); cf. In re Welfare of M.D.B., 601 N.W.2d 214, 218 (Minn. Ct. App. 1999) (where during course of illegal frisk defendant's gun fell to the ground, such evidence was suppressed), review denied (Jan. 18, 2000).

¶ 25. We conclude that Hart acted in response to the illegal pat-down. There was no distinct, separate crime or intervening illegal activity which attenuated the link between the discovery of the marijuana pipe and the illegal search. Therefore, the district attorney's abandonment theory cannot stand under these facts.

¶ 26. We must now impose an appropriate remedy. The pipe must be suppressed as the fruit of an illegal search. Hart also demands suppression of the chemical test of his blood because it was gathered after the pat-down. However, the officer had enough evidence to arrest Hart for OWI before the pat-down. It was that evidence which caused the officer to seek a chemical test of Hart's blood.

¶ 27. Fruit of the poisonous tree jurisprudence requires courts to decide whether the new evidence is gained by means sufficiently distinguishable from the illegal conduct in order to be purged of the primary taint brought about by the illegal activity. See Wong Sun v. United States, 371 U.S. 471, 488 (1963). One of the most fundamental questions to be asked in the analysis is what is "the purpose and flagrancy of the official misconduct?" Brown v. Illinois, 422 U.S. 590, 603-04 (1975). The poisonous fruit rule is an exclusionary rule designed to prevent the government from using evidence that is gained by illegal conduct. In any analysis, we must mark the point of diminishing returns of the deterrence principle inherent in the exclusionary rule. 5 LaFave, Search and Seizure, § 11.4(a), at 235 (3d ed. 1996). Here, the chemical test for blood, gathered after the pat-down, was the anticlimatic result of evidence gathered by the officer before the pat-down. In other words, the pat-down did not serve as a springboard for a prosecution that could not have taken place but for the illegal activity. We hold that the chemical evidence was gained as a result of evidence standing apart from the illegal conduct. Therefore, to exclude it would go beyond the deterrence principle discussed in Wong Sun.

¶ 28. This court concludes, therefore, that the denial of the motion to suppress is reversed in part. Upon remand, the trial court is directed to enter an order vacating the conviction for possessing drug paraphernalia and an order suppressing the marijuana pipe as evidence to be used in any subsequent prosecution for that charge along with any statements connected to that charge. The conviction for OWI, second offense, is affirmed.

By the Court. — Judgment and order affirmed in part; reversed in part and cause remanded with directions.

       This was originally a one-judge appeal and a brief on behalf of the State was filed by the district attorney. After this case was made a three-judge appeal, the attorney general filed a supplemental brief. Thus, in referring to the State's arguments, we will note whether the argument comes from the attorney general or the district attorney.

       Judge Arnold K. Schumann heard and decided the motion to suppress. Judge Mark S. Gempeler presided at the change of plea hearing and sentencing.

        Terry v. Ohio, 392 U.S. 1, 24 (1968).

        Miranda v. Arizona, 384 U.S. 436 (1966).

       The attorney general cites to language in State v. Mata, 230 Wis. 2d 567, 574, 602 N.W.2d 158 (Ct. App. 1999), for the proposition that an officer's subjective reasons for a search or arrest are irrelevant to the validity of the search or arrest. Actually, the circumstances in Mata reinforce the point we are making. In Mata, we held that so long as a police officer has probable cause, it does not matter whether, at the time of the search, the officer thinks he or she is searching pursuant to a limited Terry frisk or incident to arrest. Mata, 230 Wis. 2d at 574. In that case, the officer had probable cause from the moment he smelled marijuana emanating from the car. Id. at 572-73. The central point, for purposes of our discussion, is that from the moment he had probable cause, the officer in Mata conducted himself the way a reasonable officer would in the course of making an arrest, including gathering evidence to support the arrest. We find compelling the language of Justice Traynor in People v. Simon, 290 P.2d 531 (Cal. 1955):
      [I]f the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested.. . there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest.

        Id. at 533. In our case, unlike in Mata, the officer was entitled to make an arrest but chose not to; therefore, it was no longer reasonable to conduct himself as if an arrest was imminent. Indeed, by his own testimony, he was not acting as a reasonable officer would in the course of making an arrest; he was simply acting as a caretaker.

       The plurality relied on California v. Hodari D., 499 U.S. 621, 626 (1991), to hold that in order to effect a seizure, an officer must make a show of authority, and the citizen must actually yield to that show of authority. State v. Kelsey C.R., 2001 WI 54, ¶ 33, 243 Wis. 2d 422, 626 N.W.2d 777. Because Kelsey did not yield to the officer when he told her to "stay put," no seizure occurred until the officers caught her after she fled. Id. Neither the concurring or dissenting opinions disagreed with this portion of the plurality's decision.

       The concurring justices agreed that there was reasonable suspicion for the stop, but disagreed with the plurality's determination that the facts justified the pat-down because of insufficient evidence that Kelsey was armed and dangerous. Kelsey C.R., 2001 WI 54 at ¶ 52. Instead, the concurring justices would have justified the search based upon the need to transport Kelsey in the squad car, a need independent of any suspicion that she might be armed and dangerous. Id. at ¶ 54.


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Phonesavanh Vanmanivong, a/k/a Sing Chen, Defendant-Appellant.

    Court of Appeals

      No. 00-3257-CR.

      Submitted on briefs August 24, 2001.

      Decided November 21, 2001.

    2001 WI App 299
    (Also reported in 638 N.W.2d 348.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John J. Grau of Grau Law Office of Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christian R. Larsen, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, RJ., Brown and Snyder, JJ.

       Petition to review granted 1-29-02.

       Petition for cross-review denied 2-19-02.

   SNYDER, J.

¶ 1. Phonesavanh Vanmanivong, a/k/a Sing Chen, appeals eight judgments of conviction for delivery of cocaine. Vanmanivong argues that the trial court erroneously exercised its discretion in refusing to order the State to disclose the identities of two confidential informants. We agree that the trial court failed to follow the procedures of Wis. Stat. § 905.10(3)(b) (1999-2000) regarding the identity of confidential informants. However, confidential informants were present at only five of the eight drug buys in this matter; thus, the identity of said informants pertains only to those five transactions. We therefore affirm the three judgments of conviction unrelated to the confidential informants' identification, conditionally reverse the remaining five judgments of conviction, and remand this matter for proceedings consistent with this opinion.

FACTS

¶ 2. Police reports from approximately February 1999 through June 1999 describe several purchases of crack cocaine by undercover police officers from an Asian male known only as "Shorty." Two confidential informants who had purchased cocaine from "Shorty" in the past each introduced a separate undercover officer at different times to "Shorty" as a potential drug customer. These two officers were Special Agents Neil McGrath and Thomas Sturdivant.

¶ 3. Beginning February 18, 1999, Sturdivant began referring to "Shorty" ás a person named Pao Moua. In addition, McGrath positively identified a photograph of Moua as the person known as "Shorty" who had been selling him cocaine. After McGrath's identification, most of the subsequent case reports refer to "Shorty" as Moua and both names were used interchangeably.

¶ 4. However, in April 1999 the officers came to realize that "Shorty" could not be Moua because during the time when the drug transactions occurred, Moua had been incarcerated out of state. Both Sturdivant and McGrath then later identified Vanmanivong as "Shorty." Of the eight drug buys, a confidential informant was present for five of them: February 8, 1999 (Count 1), February 18, 1999 (Count 2), February 23, 1999 (Count 3), February 25, 1999 (Count 4), and March 5, 1999 (Count 5). Three of the drug buys — on March 11, 1999 (Count 6), on March 25, 1999 (Count 7), and on May 18, 1999 (Count 8) — were completed by the special agents without the assistance of the confidential informants.

¶ 5. Prior to trial, Vanmanivong filed a motion, pursuant to Wis. Stat. § 905.10(3)(b), for an order requiring the disclosure of the identities of the two confidential informants. As grounds for his motion, Vanmanivong argued that the informants would be able to provide testimony "necessary to a fair determination on the issue of guilt or innocence in this case." The State conceded that Vanmanivong met his minimal initial burden under § 905.10(3)(b) and acknowledged that the next step would be for the trial court to conduct an in camera inspection of the informants. The State offered to have the informants present to testify and identify Vanmanivong from a photo lineup, but the trial court declined to do so. The trial court wanted law enforcement to conduct the photo lineup and then submit affidavits to the court.

¶ 6. On July 29, 1999, the two informants provided interrogation-style affidavits to the court through a law enforcement officer. After receiving the affidavits, the trial court, on its own initiative and without consulting either the State or Vanmanivong's attorney, contacted law enforcement asking for further clarification.

¶ 7. The follow-up communication to the court consists of two memos from Detective Kirk Bloedorn. These documents are not affidavits, but unsworn memos from Bloedorn to the trial court. One memo explains the initial misidentification of "Shorty." The other memo addresses confidential informant cooperation with law enforcement officials.

¶ 8. At the October 22, 1999 hearing where the trial court made an oral ruling on Vanmanivong's motion, the court stated:

After reviewing the initial affidavits, I gained little understanding from what I had had originally in reviewing all of the reports, and I then requested further clarification from the investigative agency as to the informant's understanding or knowledge of the identity of the defendant, and I received a follow-up communication. ...
I have asked [the district attorney] whether there was any objection on behalf of the State of that being furnished to [defense counsel]. He says there has not, and that's been now given to [defense counsel]. My review of this affidavit, this statement, although not under oath, I'm satisfied provides the necessary trustworthiness. With that information it appears that the informants do not have any additional information as to the identity of the defendant.
The confusion that appears from the original identification ... is not activities that involve the confidential informants but apparently are activities that centered around the actions of law enforcement. With that clarification and my review of the documentation, I do not believe that the disclosure of the identity of the informants in this case would be necessary for a fair or complete determination of the issues, and the interests of justice does not require their disclosure at this point, so the request for disclosure is denied.

¶ 9. Vanmanivong was later convicted at a jury trial of all eight counts of delivery of cocaine as contained in the information. No indication of postconviction activity exists in the record.

DISCUSSION

¶ 10. In reviewing a trial court's decision under Wis. Stat. § 905.10(3)(b), we determine whether the trial court erroneously exercised its discretion. State v. Larsen, 141 Wis. 2d 412, 419, 415 N.W.2d 535 (Ct. App. 1987). Section 905.10(3)(b) reads in part as follows:

Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may he able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case ... and the federal government or a state or subdivision thereof invokes the privilege, the judge shah give the federal government or a state or subdivision thereof an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits but the judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the federal government or a state or subdivision thereof elects not to disclose the informer's identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge's own motion.

¶ 11. Wisconsin Stat. § 905.10 recognizes the State's privilege with respect to informers, the reality that informers are an important aspect of law enforcement and that the anonymity of informers is necessary for their effective use. State v. Outlaw, 108 Wis. 2d 112, 121, 321 N.W.2d 145 (1982). Section 905T0 does not place a significant burden upon the defendant seeking disclosure; he or she must only show that an informer "may be able to give testimony necessary" to a fair trial. Id. at 125.

¶ 12. Once this showing is made, "it behooves the state to either disclose the identity of the informer or avail itself of the opportunity to offer proof of what in actuality the informer can testify about." Id. at 126. This is the State's opportunity to demonstrate that the informer cannot give testimony necessary to a fair determination of the defendant's guilt or innocence. Id. The State may so demonstrate either by affidavits or testimony. Id. "The fact that affidavits are permitted for this purpose demonstrates that the trial judge's role is limited to the relevancy and admissibility of the testimony." Id.

¶ 13. The question for the judge is whether there is a reasonable probability that the informer can give the testimony necessary to a fair determination; there need not be proof positive, but there must be a showing that exceeds the standard of possibility initially put on the defendant. Id. at 127. The State must provide, by affidavit or in camera testimony, what the informer will say if called upon to testify. Id. No burden beyond the mere going forward with such evidence is placed upon the State. Id. This discharges the obligation of the State and insures a mechanism whereby the trial judge can determine whether the informer can give testimony necessary to the fair determination of guilt or innocence. Id. at 128. If the testimony is necessary for a fair trial, the balance is struck for disclosure; however, the process is one requiring the exercise of discretion by the trial judge. Id.

¶ 14. However, a trial court errs in the exercise of its discretion when it weighs the evidence revealed by the informer or views the case in hindsight. See id. at 132-33. What is, in fact, helpful to a defendant is not a decision that should be made by the trial judge under Wis. Stat. § 905.10(3)(b). Outlaw, 108 Wis. 2d at 133. The trial court's duty in the exercise of discretion is only to determine that the testimony the informer could give is relevant and admissible in respect to an issue material to the accused's defense and hence is reasonably necessary to a fair determination of guilt or innocence. Id. The judge's discretionary function under § 905.10(3)(b), if it cannot be said that the proferred testimony is incredible as a matter of law, is similar to that in any jury trial; the judge's duty is merely to determine competency, relevancy and admissibility. Outlaw, 108 Wis. 2d at 137-38.

¶ 15. Here, the State conceded that Vanmanivong met his minimal initial burden and acknowledged that the next step would be for the trial court to conduct an in camera inspection. The State offered to have the informants present to testify and identify Vanmanivong from a photo lineup, but the trial court declined to do so and elected instead to take affidavits from the confidential informants.

¶ 16. The two confidential informants provided interrogation-style affidavits to the court. However, the trial court determined that the affidavits were of little help to it. The trial court then, on its own initiative and without contacting either party's attorney, requested additional information from law enforcement. The State argues that the trial court acted appropriately in considering the unsworn material. We disagree. The trial court's actions directly contradict the plain provisions of Wis. Stat. § 905.10(3)(b).

¶ 17. Again, Wis. Stat. § 905.10(3)(b) states, "the judge may direct that testimony he taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit." The trial court had no authority under § 905.10(3)(b) to seek, ex parte, additional clarification from law enforcement. When the trial court found that the affidavits were unsatisfactory or insufficient to resolve the issue at hand, the next step under § 905.10(3)(b) would have been to conduct an in camera hearing to take testimony from the confidential informants to determine the competency, relevancy and admissibility of these witnesses' testimony. See Outlaw, 108 Wis. 2d at 137-38. We reject the State's contention that the trial court's failure to follow the strictures of § 905.10(3)(b) constitutes harmless error.

¶ 18. The State also argues that Vanmanivong waived his right to appeal this issue because he failed to object to the use of the unsworn materials. We disagree. The trial court's ruling indicates that a defense objection to the use of the unsworn material would have failed. ("My review of this affidavit, this statement, although not under oath, I'm satisfied provides the necessary trustworthiness. With that information it appears that the informants do not have any additional information as to the identity of the defendant.") In addition, Vanmanivong has no burden to insure that the trial court follows the law in exercising its discretion, and the trial court cannot exercise its discretion contrary to a clearly stated legal procedure.

¶ 19. We therefore conditionally reverse the five judgments of conviction (Counts 1-5) relating to the alleged drug buys in the presence of confidential informants, and remand this matter for compliance with the provisions of Wis. Stat. § 905.10(3)(b). The trial court must hold an in camera hearing and take the testimony of the two confidential informants regarding the identity of "Shorty" and the identity of the individual who sold drugs to the undercover officers. The trial court's duty is to determine whether the confidential informants' testimony is relevant and admissible with respect to an issue material to Vanmanivong's defense. Outlaw, 108 Wis. 2d at 132.

¶ 20. If the trial court determines that the confidential informants' testimony is not relevant and admissible with respect to an issue material to Vanmanivong's defense, the trial court may reinstate the judgments of conviction. If, however, the trial court determines that the confidential informants' testimony is relevant and admissible, the trial court must then determine if the disclosure of the informants' testimony is necessary to Vanmanivong's defense. Id. at 141; State v. Dowe, 120 Wis. 2d 192, 194-95, 352 N.W.2d 660 (1984). If the trial court determines that the confidential informants' testimony is relevant and admissible, and that the testimony is necessary to the defense, the confidential informant privilege ceases and Van-manivong is entitled to a new trial on these five counts. The State can then decide whether to disclose the confidential informants' identities and proceed with a new trial, or ask the trial court to dismiss these five charges. Wis. Stat. § 905.10(3)(b).

CONCLUSION

¶ 21. The trial court failed to follow the provisions of Wis. Stat. § 905.10(3)(b) regarding the identities of the confidential informants by accepting unsworn memos from law enforcement in lieu of conducting an in camera hearing after the affidavits from the confidential informants proved insufficient. However, confidential informants were present at only five of the eight drug buys in this matter; thus, the identity of said informants pertains only to those five transactions. We therefore affirm the three judgments of conviction (Counts 6-8) unrelated to the confidential informants' identification, conditionally reverse the remaining five judgments of conviction (Counts 1-5), and remand this matter for proceedings consistent with this opinion.

By the Court. — Judgments affirmed in part; reversed in part and cause remanded with directions.

       All statutory references are to the 1999-2000 version unless otherwise noted.

       From the interrogation-like nature of the affidavits, it appears that law enforcement conducted some type of photo lineup. However, the photos and the confidential informants' identification of "Shorty" from the photos are not included in the record.

       We note that there appear to be inconsistencies with the confidential informants' affidavits. In all the case activity reports filed by law enforcement, there are two confidential informants identified: DDI (Dangerous Drug Informant) #3444 and DDI #3432. However, these are not the identifying numbers on the affidavits. The affidavits list the informants' numbers as Cl #1010 and Cl #1068. No explanation is provided for the inconsistencies.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Walter W. Blanck Sr., Defendant-Appellant.

    Court of Appeals

      No. 01-0282-CR.

      Submitted on briefs October 17, 2001.

      Decided November 21, 2001.

    2001 WI App 288
    (Also reported in 638 N.W.2d 910.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael J. Backes of Law Offices of Michael J. Backes of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of William C. Wolford, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review denied 2-19-02.

   SNYDER, J.

¶ 1. Walter W Blanck, Sr. appeals from judgments of conviction for false imprisonment, kidnapping, battery, and three counts of second-degree sexual assault by threat or use of force or violence with a dangerous weapon. Blanck argues that his constitutional speedy trial and due process rights were violated by the six-year delay in charging him and therefore his judgments of conviction must be reversed. He further argues that he is entitled to a new trial in the interests of justice and pursuant to the "plain error" doctrine. We disagree with all of Blanck's contentions and affirm the judgments of conviction.

FACTS

¶ 2. During the course of October 3, 1990, Blanck called and visited A.H. in the Milwaukee area several times. At some point during one of the visits, Blanck offered to drive A.H. to a convenience store for cigarettes; A.H. agreed. After leaving the convenience store, Blanck informed A.H. that he had to drive to a friend's house in Mukwonago to drop off some money. A.H. informed Blanck that she needed to be home by the time her boyfriend came home from work. Blanck assured her that he would have her home on time.

¶ 3. Blanck then drove to Highway 164 in Wauke-sha county, where he stopped the car on the side of the road in a rural area. Blanck informed A.H. that he had to put money in the trunk and he insisted that she get out of the car with him. After A.H. walked to the back of the car, Blanck ordered her into the trunk. A.H. refused and the two struggled as Blanck attempted to force her into the trunk of the car. Blanck punched A.H. in the face more than once, grabbed her and threw her in the trunk of the car, slamming the lid down onto her head several times.

¶ 4. Blanck then proceeded to drive around with A.H. in the trunk of the car; A.H. was unsure where they were at any given time as Blanck drove her from one location to another, occasionally stopping the car, forcing her to remove clothing until she was completely nude, and threatening to kill her. At some point, Blanck taped her hands, mouth and eyes with duct tape. Blanck also used a baseball bat to sexually assault her. He urinated on her and repeatedly abused her, all the while continually threatening to kill her.

¶ 5. At approximately 12:40 a.m. on October 4, 1990, Blanck's car was pulled over by a Spring Grove, Illinois police officer in McHenry County, Illinois. During the course of the traffic stop, police heard A.H. scream and bang her head in the trunk. Illinois police officers found A.H. in the trunk, completely nude with duct tape around her head, covering both eyes and her nose area, mouth, chin and neck. Blanck was then arrested by Illinois law enforcement.

¶ 6. On October 10, 1990, Blanck was indicted in McHenry County, Illinois on three charges: aggravated kidnapping, attempted first-degree murder, and aggravated criminal sexual assault. At trial, Blanck was convicted of aggravated kidnapping and aggravated criminal sexual assault; he was sentenced to thirteen years in prison on the kidnapping charge and sixty years on the sexual assault charge, each sentence consecutive to one another, for a total of seventy-three years in prison.

¶ 7. Blanck appealed these convictions and on June 14, 1994, the aggravated criminal sexual assault charge was reversed and vacated; the Illinois appellate court ruled that the evidence was insufficient to establish jurisdiction on that charge. The aggravated kidnapping conviction was affirmed, but the thirteen-year prison sentence was vacated and the case was remanded to the trial court for resentencing.

¶ 8. At resentencing, on January 27, 1995, the trial court imposed the maximum thirty-year sentence on the aggravated kidnapping charge. Blanck again appealed, and on February 19, 1997, the Illinois appellate court ruled that the aggravated kidnapping sentence could not be increased on remand and the thirteen-year sentence was reinstated.

¶ 9. On March 20,1997, a criminal complaint was filed and a warrant issued in Waukesha County Circuit Court charging Blanck with false imprisonment, kidnapping, misdemeanor battery, and second-degree sexual assault in connection with the events in October 1990. At an extradition hearing in McHenry County, Illinois on July 2, 1997, Blanck entered a speedy trial demand and alleged that his speedy trial rights had been violated. Blanck was returned to Wisconsin and on July 18, 1997, and August 28, 1997, filed motions to dismiss the charges. On November 17, 1997, Waukesha County Circuit Court Judge Roger E Murphy denied the motions to dismiss. Blanck filed a motion for reconsideration, and on February 16, 1998, Judge Murphy again denied Blanck's motion.

¶ 10. On March 6, 1998, a preliminary hearing was held, having been delayed while the trial court ruled on Blanck's motions to dismiss, and Blanck was bound over for trial. On March 23,1998, an information was filed charging Blanck with false imprisonment, kidnapping, battery and three counts of second-degree sexual assault by threat or use of force or violence with the use of a dangerous weapon. On April 6, 1998, Blanck filed a motion to dismiss the new, additional charges in the information. This motion was denied by Judge Joseph E. Wimmer on July 21, 1998.

¶ 11. After several adjournments and substitutions of defense counsel, on November 4, 1999, Blanck was tried before Waukesha County Circuit Court Judge J. Mac Davis and was convicted by a jury of all counts in the information. Blanck was sentenced to the maximum penalty allowed by law on each count, consecutive to one another, for a total of sixty-seven years and nine months in prison. Blanck appeals. his judgments of conviction.

DISCUSSION

¶ 12. A defendant's claim that he or she was denied his or her right to a speedy trial or his or her due process rights raises constitutional issues that we review de novo. State v. Leighton, 2000 WI App 156, ¶ 5, 237 Wis. 2d 709, 616 N.W.2d 126, review denied, 2000 WI 102, 237 Wis. 2d 261, 618 N.W.2d 751 (Wis. July 27, 2000) (No. 99-2614-CR). The trial court's underlying findings of historical fact must be upheld unless they are clearly erroneous. Id. However, application of those facts to constitutional standards and principles is determined without deference to the trial court's conclusion. State v. Borhegyi, 222 Wis. 2d 506, 508-09, 588 N.W.2d 89 (Ct. App. 1998).

¶ 13. Blanck claims that the State violated his constitutional right to a speedy trial by waiting over six years after the criminal acts to arrest and charge him in this matter. Specifically, he argues that Waukesha county authorities became aware of the criminal allegations against him on October 4, 1990, but intentionally chose not to prosecute him until he was about to be released from prison almost seven years later, thereby intentionally violating his right to a speedy trial.

¶ 14. The right to a speedy trial is found in the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution. However, this case does not involve an alleged violation of a defendant's Sixth Amendment right to a speedy trial. Blanck's claim of a speedy trial violation centers on the delay between his arrest in Illinois in October 1990 and the filing of charges against him in Wisconsin in March 1997. The Sixth Amendment speedy trial right cannot be violated by a prearrest delay in charging. State v. Rogers, 70 Wis. 2d 160, 163, 233 N.W.2d 480 (1975).

¶ 15. The United States Supreme Court has stated that on its face, the protection of the Sixth Amendment is triggered only when a criminal prosecution has begun and extends only to those persons who have been accused in the course of that prosecution. United States v. Marion, 404 U.S. 307, 313 (1971). These provisions afford no protection to those not yet accused, nor do they require the government to discover, investigate, and accuse any person within any particular period of time. Id. Under no circumstances does the right to a speedy trial arise before there is a charge or arrest, even though the prosecuting authorities had knowledge of the offense long before. Id. at 319.

¶ 16. The Wisconsin Supreme Court has acknowledged the Marion proposition that the Sixth Amendment speedy trial provision applies only when the putative defendant in some way formally becomes the accused. State v. Lemay, 155 Wis. 2d 202, 209, 455 N.W.2d 233 (1990). The Wisconsin Supreme Court concluded that this interpretation was further supported by language in United States v. MacDonald, 456 U.S. 1, 6 (1982), which states that Marion "held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested or otherwise officially accused." Lemay, 155 Wis. 2d at 209.

¶ 17. In Borhegyi, we stated that "the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused." Borhegyi, 222 Wis. 2d at 510 (citation omitted). Blanck's position is, therefore, at odds with long-standing legislative and judicial constructions of the speedy trial provisions in both national and state constitutions. Marion, 404 U.S. at 319-20.

¶ 18. The law has provided other mechanisms to protect against possible prejudice resulting from the passage of time between crime and arrest or charge. Id. at 322. "[T]he applicable statute of limitations ... is . .. the primary guarantee against bringing overly stale criminal charges." Id. (citation omitted). Such statutes represent legislative consideration of the relative interests of both the State and a defendant in administering and receiving justice. Id. "These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced." Id. There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that preaccusation delays will prejudice the defense in a criminal case; statutes of limitation already perform that function. Id. at 323. There is no allegation before us that the charges against Blanck were filed outside the applicable statute of limitations.

¶ 19. Speedy trial concerns attach at the time a defendant formally becomes the accused — when the complaint and warrant are issued. Lemay, 155 Wis. 2d at 210. Due process rights, however, apply to time delays occurring within the preaccusation, investigatory period prior to the commencement of formal criminal proceedings. Id. Blanck argues that his due process rights were violated by the prearrest delay in charging him.

¶ 20. Statutes of limitation are the principal device to protect from prejudice arising from a lapse of time between the date of an alleged offense and an arrest; nevertheless, a statute of limitation is not the sole standard by which delay between the date of an alleged offense and an arrest is measured when considering a denial of due process. State v. Wilson, 149 Wis. 2d 878, 903, 440 N.W.2d 534 (1989). A delay between the commission of a crime and the subsequent arrest of a defendant may, under some circumstances, violate due process. United States v. Lovasco, 431 U.S. 783, 789-90 (1977).

¶ 21. The Marion Court held that the Due Process Clause of the Fifth Amendment would protect defendants who could show more than potential prejudice in the prearrest period, and would bar a prosecution where a defendant demonstrated that the prein-dictment delay caused substantial prejudice to his or her right to a fair trial and that the delay was an intentional device of the government to gain a tactical advantage over him or her. United States v. White, 470 F.2d 170, 174 (7th Cir. 1972).

¶ 22. Blanck, however, spends the majority of his brief addressing the four factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), to determine whether a Sixth Amendment speedy trial violation has occurred. It is not appropriate to use the Barker standards for a Sixth Amendment speedy trial violation to establish actual prejudice relating to a possible denial of due process and a fair trial in prearrest delay. Rogers, 70 Wis. 2d at 165. To establish a due process violation, a defendant must prove that actual prejudice has been suffered as a result of the delay, and must show that the government caused the delay for an improper purpose. See Lovasco, 431 U.S. at 790.

¶ 23. Blanck has neither alleged nor demonstrated that he suffered actual prejudice from the delay. The "possibilities of prejudice inherent in any extended delay are not enough in view of the statute of limitations to justify dismissal." Rogers, 70 Wis. 2d at 165. Blanck does not demonstrate how his ability to present a defense was hindered by the delay. "Self-serving assertions by a defendant based on mere speculation cannot serve as the grounds for a finding of actual prejudice." State v. Davis, 95 Wis. 2d 55, 60, 288 N.W.2d 870 (Ct. App. 1980).

¶ 24. Furthermore, Blanck has neither alleged nor demonstrated that his arrest was delayed for an impermissible purpose. He does not explain what advantage was gained or sought, nor can we discern any such advantage from the record. A "bare allegation of improper tactical purpose on the government's part is insufficient to establish a malevolent purpose." Id. at 62 (citation omitted). Blanck neither alleges nor proves actual prejudice or improper governmental motive.

¶ 25. Blanck also argues that he should be granted a new trial in the interests of justice, pursuant to Wis. Stat. § 752.35. He alleges that justice has miscarried because the precharging delay resulted in unconstitutional prejudice. We disagree.

¶ 26. Prior to an order of discretionary reversal pursuant to Wis. Stat. § 752.35, we must be able to conclude that because of an error it is substantially probable that a new trial would produce a different result. Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990). Blanek has failed to demonstrate that his constitutional rights have been violated, he has failed to show any actual prejudice as a result of the delay, and he has failed to show an improper purpose for the State's delay. There is no evidence in the record that a retrial would produce a different result.

¶ 27. Finally, Blanek argues that he should be granted a new trial pursuant to the "plain error" doctrine. First, the "plain error" doctrine is evidentiary, not constitutional, in nature. See State v. Seeley, 212 Wis. 2d 75, 81 n.2, 567 N.W.2d 897 (Ct. App. 1997). Furthermore, Blanck's argument on this issue consists of one sentence. This argument is not a developed theme reflecting legal reasoning, but instead is supported by only one general statement. We decline to review issues inadequately briefed. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). In addition, this court does not consider arguments broadly stated but not specifically argued. Fritz v. McGrath, 146 Wis. 2d 681, 686, 431 N.W.2d 751 (Ct. App. 1988).

CONCLUSION

¶ 28. While Blanek claims that the State violated his constitutional right to a speedy trial by waiting over six years after the criminal acts to arrest and charge him in this matter, case law is unequivocal in holding that the Sixth Amendment right to a speedy trial does not arise before there is a charge or arrest. While Blanck's due process rights may have been implicated in the precharging delay, he neither alleges nor proves actual prejudice from or improper motive for the delay. Furthermore, there is no evidence that a retrial would produce a different result in this matter, and the evidentiary rule of "plain error" is inapplicable here. We therefore affirm Blanck's judgments of conviction.

By the Court. — Judgments affirmed.

       Neither party has provided in the hriefs on appeal consistent citations to the record to corroborate the facts set out in those briefs but instead frequently cites to both parties' appendices. Such failure is a violation of Wis. Stat. Rule 809.19(1)(d) and (3) (1999-2000) of the rules of appellate procedure, which requires parties to set out facts "relevant to the issues presented for review, with appropriate references to the record." (Emphasis added.) An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). We therefore hold the parties to those facts undisputed in their briefs.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Blanck unsuccessfully sought interlocutory relief from this decision.

       WISCONSIN Stat. § 752.35 addresses discretionary reversal and states:
      In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.


author: PETERSON, J. Hoover, EJ.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Susan M. Goetz, Defendant-Respondent.
    Court of Appeals

      No. 01-0954-CR.

      Submitted on briefs October 29, 2001.

      Decided November 27, 2001.

    2001 WI App 294
    (Also reported in 638 N.W.2d 386.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Nila Jean Robinson of Robinson, Peterson, Berk & Cross, Appleton.
    Before, Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. The State appeals an order suppressing statements made by Susan Goetz during the execution of a search warrant. The State argues that law enforcement did not have to give Goetz her Miranda warnings because she was not in custody when she gave her statements. We agree and reverse the order.

BACKGROUND

¶ 2. On January 6, 2000, Oconto County sheriffs deputies executed a search warrant at Goetz's residence. The warrant authorized a search for evidence related to cultivating and processing marijuana.

¶ 3. Goetz was present when the warrant was executed. Upon entering the premises, deputy Dale Janus informed Goetz that they had a search warrant. He told Goetz that he wanted to talk with her, but that she was not under arrest. He also stated that he did not intend to arrest her unless she obstructed the search. Goetz understood.

¶ 4. Goetz was told to sit at the kitchen table, where Janus asked Goetz several questions. Goetz first said she had no knowledge of any marijuana on the premises. She then stated the deputies might find a small amount of marijuana and drug paraphernalia in the bedroom.

¶ 5. Janus accompanied Goetz to the bedroom to retrieve the marijuana and paraphernalia. Janus and Goetz then came back downstairs and Janus told Goetz to sit on a couch. Janus asked Goetz if she would sign a written statement. Goetz responded that she "didn't feel [she] should give him a statement without an attorney. ..." Another deputy then placed Goetz in handcuffs. The handcuffs were removed about an hour later when Goetz's children came home from school. Goetz was asked no further questions. At no time did the deputies read Goetz her Miranda rights.

¶ 6. During the search, the officers found approximately one pound of marijuana, scales, pipes, large amounts of currency, a firearm, and other items associated with controlled substances. Upon completing the search, the deputies left the premises. Goetz was not arrested. She was later charged with: (1) possession of a controlled substance with intent to deliver, contrary to Wis. Stat. § 961.41(lm), and (2) keeping a drug house, contrary to Wis. Stat. § 961.42(1).

¶ 7. Goetz moved to suppress the statements she made to deputy Janus on the grounds that she was not read her Miranda rights. The court granted the motion, concluding that Goetz was in custody at the time she gave her statements. The State then appealed.

STANDARD OF REVIEW

¶ 8. Whether a person is in custody for Miranda purposes is a question of law this court reviews independently. State v. Mosher, 221 Wis. 2d 203, 211, 584 N.W.2d 553 (Ct. App. 1998). We review with deference the circuit court's factual findings. Id. at 211-12. However, we independently determine whether, under the facts, Goetz was in custody at the time she made her statements. See id.

DISCUSSION

¶ 9. The circuit court suppressed Goetz's statements because she was placed in handcuffs. After pointing out that a deputy other than Janus had handcuffed Goetz, the court stated that it was "finding ... a custodial situation - not necessarily by what this officer, Mr. Janus, did, but what the other officer did when he put her in cuffs." Had the other deputy not placed handcuffs on Goetz, the court stated, "it would have been an entirely different outcome. . . ."

¶ 10. In order to protect a citizen's right against self-incrimination guaranteed by the Fifth Amendment, the United States Supreme Court held in Miranda that suspects must be read certain warnings before they are questioned. Miranda, 384 U.S. at 444. However, a suspect must be in custody in order to trigger the Miranda requirements. Id.

¶ 11. A person is in custody for purposes of Miranda if the person is either formally arrested or has suffered a restraint on freedom of movement of the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983). The test for custody is an objective one. See State v. Pounds, 176 Wis. 2d 315, 321, 500 N.W.2d 373 (Ct. App. 1993). Courts ask whether a reasonable person in the suspect's position would have considered himself or herself to be in custody. Id.

¶ 12. In Michigan v. Summers, 452 U.S. 692, 698 (1981), the Supreme Court held that detentions during the execution of a search warrant implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. These types of detentions are " 'substantially less intrusive' than an arrest." Id. at 702 (citation omitted). In other words, a suspect who is detained during the execution of a search warrant has not suffered a " 'restraint on freedom of movement' of the degree associated with a formal arrest[,]" and is thus not in custody for purposes of Miranda. Beheler, 463 U.S. at 1125 (citation omitted). Detention in a person's home "could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station." Id. at 702.

¶ 13. Setting aside for the moment the fact of the handcuffing, the record shows that Goetz was detained before and during the questioning, but she was not in custody. After the deputies came into the house to execute the search warrant, Janus told Goetz to sit at the kitchen table. He also told Goetz that she was not under arrest and was not going to be placed under arrest unless she interfered with the search. Goetz confirmed that she understood this. Janus asked if there were any drugs on the premises. Goetz stated that there was some marijuana and drug paraphernalia up in the bedroom. Janus then asked her to go get it and he accompanied her. Once they retrieved the marijuana and paraphernalia, Janus told Goetz to sit on a couch in the living room. This was not a situation where a reasonable person would have considered her freedom of movement to be restrained to the degree associated with a formal arrest.

¶ 14. In fact, the circuit court agreed. As it stated, if the other deputy had not handcuffed Goetz after the questioning, "it would have been an entirely different outcome. . . ." The question then is what effect handcuffing after questioning has on what a reasonable person would have thought during the questioning. The answer is that it can have no effect.

¶ 15. Handcuffing cannot operate retroactively to create custody for purposes of Miranda because a reasonable person's perception at the time of questioning cannot be affected by later police activity. "[I]t is a matter of logic unsound to say that what happens later has some bearing on how a reasonable person, would have predicted the situation at some earlier time." 2 Wayne R. LaFave, et al., Criminal Procedure, § 6.6(c) (2d ed. 1999).

¶ 16. Thus, Goetz was not in custody at the time of questioning simply because she was later handcuffed. A reasonable person's perception, in Goetz's position, could not be influenced by events that have not yet occurred.

¶ 17. Goetz was being lawfully detained while the warrant was being executed. The record does not suggest that, either before or during the questioning, Goetz's freedom of movement was restrained to a degree associated with a formal arrest. Only later, after she had given her statements, was she handcuffed. Based on Summers, we conclude that Goetz was not in custody at the time she gave her statements.

¶ 18. The dissent apparently concedes that under federal law Goetz was not in custody for Miranda purposes. However, the dissent urges that we utilize the Wisconsin Constitution to reach a different result. We are indeed free to do so. In fact, the dissent presents a compelling argument. The problem is that Goetz has not made that argument on appeal. We do not make a practice of developing arguments for appellants. State v. Gulrud, 140 Wis. 2d 721, 730, 412 N.W.2d 139 (Ct. App. 1987). Nor do we ordinarily consider arguments that are not specifically raised on appeal. Riley v. Town of Hamilton, 153 Wis. 2d 582, 588, 451 N.W.2d 454 (Ct. App. 1989). There is no reason to make an exception here.

By the Court. — Order reversed and cause remanded.

Hoover, EJ.

¶ 19. (dissenting). I conclude that reasonable people in Goetz's position would have believed they were in custody. I therefore would affirm.

¶ 20. It is first necessary to sample by way of illustration, rather than survey, some of the additional relevant facts. As the police were initially executing the warrant, an officer stood outside brandishing a firearm and threatening to shoot Goetz's dog, which had run out of the house in an attempt to attack a police dog at the scene. After the police entered Goetz's house, Goetz was given a copy of the search warrant, told to sit down and then interviewed for ten to fifteen minutes before she made the statements the circuit court suppressed. Goetz testified that she was told (1) where to sit, (2) where she was required to be, (3) when she could move and (4) where she could move.

¶ 21. It is well established that the police may constitutionally seize a person without transforming the seizure into custody for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). For example, in Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984), the Supreme Court held that persons temporarily detained pursuant to a routine traffic stop are not "in custody" for the purposes of Miranda. Relying on Berkemer, the seventh circuit held that Miranda warnings are not required where a suspect has been detained pursuant to a Terry stop. See United States v. Boden, 854 F.2d 983, 995 (7th Cir. 1988).

¶ 22. But I cannot subscribe to the cases that hold that a person who is "detained" during the execution of a search warrant is not in custody for purposes of Miranda. See Michigan v. Summers, 452 U.S. 692, 702 (1981) (absent special circumstance or prolonged restraint, detention during search warrant execution not "custody" because it was "substantially less intrusive" than an arrest); accord, United States v. Burns, 37 F.3d 276, 281 (7th Cir. 1994). These cases represent an erosion of rights that were fragile from their inception.

It is well-established that state courts, under state law, are always free to take a more expansive view of individual rights than do federal courts under federal constitutional law. See e.g., Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). See also Oregon v. Hass, 420 U.S. 714 (1975); Comment, Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324 (1982); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977); Comment, Rediscovering the Wisconsin Constitution: Presentation of Constitutional Questions in State Courts, 1983 Wis. L. Rev. 483 (1983).

State v. Kramsvogel, 124 Wis. 2d 101, 130, 369 N.W.2d 145 (1985) (Bablitch, J., dissenting).

¶ 23. The majority has correctly recited the law applicable to custody determinations. But I view as the touchstone the rule that, in deciding whether a suspect is in custody, courts look at "how a reasonable man in the suspect's position would have understood his situation." Berkemer, 468 U.S. at 442. This determination is based on the "totality of the circumstances." United States v. Fazio, 914 F.2d 950, 954 (7th Cir. 1990). "The accused's freedom to leave the scene and the purpose, place and length of interrogation are all relevant factors in making this determination." United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir. 1985).

¶ 24. The problem with Summers and Burns is that they depart from these very custody factors that they acknowledge, and replace them with such considerations as the comparatively nonthreatening nature of the detention, the intrusiveness relative to the search itself and minimal added public stigma. What do these have to do with how a reasonable person in the detainee's position would have understood his or her situation? I submit that these factors merely rationalize the fiction that reasonable people in Goetz's position would not perceive themselves to be in custody. We should be loath to indulge legal fictions to guide us to a result. They do not serve the law because they do not serve those who must abide by the law. Moreover, they compromise the rule of law because they are easily discerned as a lapse in analytical honesty, a legal shunt. We deceive ourselves if we believe that citizens will embrace our attempt to describe paste and declare it a diamond.

¶ 25. I would conclude that the invention I perceive in the Summers and Burns decisions compels their rejection under our state constitution's protection. I therefore respectfully dissent.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       The circuit court's findings of facts are minimal. However, the court's findings may be implicit in its decision. Schneller v. St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296, 311, 470 N.W.2d 873 (1991). The court found that a custodial situation existed because Goetz was placed in handcuffs. However, absent the handcuffs, the court indicated that Goetz was not in custody for Miranda purposes.

       Because it is unnecessary for our opinion, we do not address whether Goetz was in custody after she was handcuffed. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938).

       The State throws this evidence into the irrelevancy bin evidently because in its view this incident could not possibly inform on how a reasonable person would view his or her situation based upon the circumstances as a whole.

        Terry v. Ohio, 392 U.S. 1 (1968).

        See also, e.g., State v. Miller, 202 Wis. 2d 56, 65-66, 549 N.W.2d 235 (1996) (although First Amendment and art. I, § 18, serve same underlying purposes and are based on same precepts, Wisconsin's analysis of freedom of conscience as guaranteed by Wisconsin Constitution not constrained by boundaries of protection United States Supreme Court set for federal provision); State v. Mechtel, 176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993) (Wisconsin courts bound only by United States Supreme Court on questions of federal law.); State v. Eason, 2001 WI 98 ¶ 22, 245 Wis. 2d 206, 629 N.W.2d 625 (United States v. Leon, 468 U.S. 897 (1984), good faith exception recognized in Wisconsin, but only if State also demonstrates process used in obtaining search warrant included significant investigation and review by either police officer trained and knowledgeable in probable cause requirements or knowledgeable government attorney. This process, additional to that in Leon, required by art. I, § 11, of the Wisconsin Constitution.).


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Alisha M. Olson, Defendant-Appellant.
    Court of Appeals

      No. 00-3383-CR.

      Oral argument October 16, 2001.

    Decided November 28, 2001.

    2001 WI App 284
    (Also reported in 639 N.W.2d 207.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Elizabeth Cavendish-Sosinski and Daniel P. Fay of Oakton Avenue Law Offices, S.C., Pewaukee. There was oral argument by Daniel P Fay.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí James M. Freimuth, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by James M. Freimuth.

    Before Nettesheim, PJ., Brown and Anderson, JJ.
   ANDERSON, J.

¶ 1. Alisha M. Olson appeals from a judgment of conviction for party to the crime of burglary, contrary to Wis. Stat. §§ 943.10(l)(a) and 939.05(1) (1999-2000). On appeal, she challenges the trial court's order denying her motion to suppress statements made by her to a Waukesha county sheriffs detective during a traffic stop on the grounds that the stop was violative of her Fourth Amendment rights. Because we determine that the stop was constitutional, we disagree and affirm the judgment.

¶ 2. The facts are from the suppression hearing and are undisputed. On August 16, 1999, police officers from the Waukesha County Sheriffs Department were dispatched to the Sorgenfrei residence in the Town of Genesee to respond to a report of a burglary. While investigating the scene of the burglary, the officers received a radio call with information from We Tip, a crime stoppers-type hotline. The anonymous caller stated that his girlfriend had been involved in some burglaries with two other girls, namely, Olson and Jaclyn Falk. The officers then proceeded to Olson's residence, but she was not there. Her mother informed them that Olson was out with Falk and she paged Olson. Olson called her mother, but when her mother told her that some sheriffs officers wanted to talk to her, she hung up. She made several more calls to her mother asking if the officers were still there and informed her mother that she was not coming home with Falk. After one and one-half hours of waiting, the officers finally left the Olson residence.

¶ 3. During that time, the officers elicited information from Olson's mother. The previous evening, Falk had stayed over with Olson, and on the morning of August 16, 1999, the two had gotten up around 8:00 a.m. to go to court in Oconomowoc for an "underage ticket." They returned home and left again several times throughout the day, finally returning around 5:00 p.m. Olson's mother stated that they were using Olson's car that day. The Sorgenfrei burglary took place between 8:30 a.m. and 1:30 p.m. that day, and the officers concluded that Olson and Falk had the opportunity to commit the offense. Furthermore, the Sorgenfreis' daughter went to school with both Olson and Falk. The anonymous tipster recontacted the police on August 17.

¶ 4. On August 18, the case was assigned to Detective Richard Bach and he went to the Olson residence to try to talk to Olson. No one answered the door, but he noticed that her car was there. Bach called Olson's mother at work, and she explained that perhaps Olson was in the shower and could not hear that someone was at the door. Olson's mother said that if Olson's car was there, she probably was too, and she had to be to work by 10:00 a.m. Bach parked down the block to wait and see if Olson would leave. About fifteen minutes after Bach's call to her mother, Olson left home in her car. Shortly thereafter, Bach turned on his emergency lights and performed a traffic stop on Olson's car. Olson did not violate any traffic laws prior to the stop. During the stop, Olson made statements to Bach.

¶ 5. Olson filed a motion to suppress the statements she made to Bach during the traffic stop on the grounds that the stop was violative of her Fourth Amendment rights. The trial judge looked at the circumstances surrounding the traffic stop. He found that in looking at all of the facts, specifically the two anonymous tips, Olson's opportunity to commit the crime and her evasive behavior, Bach was justified in making the stop and that he had reasonable suspicion to investigate. Following the trial court's ruling, Olson entered a plea of guilty and a judgment of conviction was entered on November 9, 2000. On appeal, Olson now challenges the order denying her motion to suppress statements made during the traffic stop.

¶ 6. The Fourth Amendment protects the people from unreasonable searches and seizures. At the outset, we note that it has been "long acknowledged that 'stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief.'" Berkemer v. McCarty, 468 U.S. 420, 436-37 (1984) (citation omitted). Therefore, we need not determine whether the stop was a seizure, but rather whether the seizure was reasonable. Since the facts here are undisputed, we have only to review those facts to decide whether the constitutional requirement of reasonableness has been satisfied. State v. McGill, 2000 WI 38, ¶ 17, 234 Wis. 2d 560, 609 N.W.2d 795. The question is one of law and "therefore we are not bound by the trial court's decision on that issue." State v. Gruen, 218 Wis. 2d 581, 590, 582 N.W.2d 728 (Ct. App. 1998).

¶ 7. Under the Fourth Amendment, and the corresponding article I, section 11 of the Wisconsin Constitution, the constitutional imperative is that all seizures be objectively reasonable under the circumstances existing at the time of the seizure. State v. Rutzinski, 2001 WI 22, ¶ 13, 241 Wis. 2d 729, 623 N.W.2d 516. "[T]o pass muster under the Fourth Amendment and Article I, Section 11, an officer initiating an investigative stop must have, at a minimum, a reasonable suspicion that the driver or occupants of the vehicle have committed an offense." Rutzinski, 2001 WI 22 at ¶ 14. Reasonable suspicion must be based not on an "inchoate and unparticularized suspicion or 'hunch,'" but on "specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his [or her] experience." Terry v. Ohio, 392 U.S. 1, 27 (1968). "At the time of the stop, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, objectively warrant a reasonable person with the knowledge and experience of the officer" to believe that a crime has been, or is about to be, committed. Rutzinski, 2001 WI 22 at ¶ 14.

¶ 8. In the present case, we find sufficient facts to give rise to a reasonable suspicion that Olson had committed a crime. The Waukesha County Sheriffs Department did not pull Olson's name out of a hat. An anonymous caller to We Tip first made it suspect Olson. However, the two calls to the hotline were not the only facts stacking up against Olson. While talking to her mother, the officers discovered that Olson had the opportunity to commit the burglary. Finally, Olson's purposeful avoidance of the officers evidenced at least a guilty conscience. Although avoidance of the police and refusal to cooperate may be founded in wholly innocent intentions and without more do not create reasonable suspicion, Florida v. Bostick, 501 U.S. 429, 437 (1991), "cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion," Illinois v. Wardlow, 528 U.S. 119, 124 (2000). In addition to specific facts, "the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." Id. at 125. In looking at the totality of the circumstances, see Gruen, 218 Wis. 2d at 590, a reasonable police officer could reasonably suspect that Olson was somehow involved in the burglary.

¶ 9. However, the constitutional standard of reasonableness for a seizure is not met solely based on the presence of reasonable suspicion. See State v. Guzy, 139 Wis. 2d 663, 679, 407 N.W.2d 548 (1987). "[Tjhere is 'no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails.'" Terry, 392 U.S. at 21 (citation omitted). In evaluating the need to seize, the court must consider the governmental interests involved. Id. at 22. In Terry, the governmental interests were those of crime prevention and the need to temporarily freeze a situation to resolve ongoing, possibly criminal, ambiguities. See id. However, "[t]he factors in the balance may be somewhat different when a stop to investigate past criminal activity is involved rather than a stop to investigate ongoing criminal conduct." United States v. Hensley, 469 U.S. 221, 228 (1985).

¶ 10. Hensley involved the traffic stop of a suspected armed robher twelve days after the robbery took place. Id. at 223. Wanted flyers describing Hensley and his involvement in the crime were distributed to police departments in the Cincinnati metropolitan area, but until the chance encounter on the streets of a Cincinnati suburb, the police had been unable to locate him. Id. at 223-24. The Hensley Court noted several ways in which the governmental interests at play in investigative stops of suspects of past criminal activities differed from those cited in Terry. Hensley, 469 U.S. at 228.

As we noted in Terry, one general interest present in the context of ongoing or imminent criminal activity is "that of effective crime prevention and detection." A stop to investigate an already completed crime does not necessarily promote the interest of crime prevention as directly as a stop to investigate suspected ongoing criminal activity. Similarly, the exigent circumstances which require a police officer to step in before a crime is committed or completed are not necessarily as pressing long afterwards. Public safety may be less threatened by a suspect in a past crime who now appears to be going about his lawful business than it is by a suspect who is currently in the process of violating the law. Finally, officers making a stop to investigate past crimes may have a wider range of opportunity to choose the time and circumstances of the stop.

Hensley, 469 U.S. at 228-29 (citation omitted).

¶ 11. Despite these differences between ongoing and past criminal activities, the Hensley Court refused to require a finding of probable cause in order to make an investigatory stop of a suspect of a past crime reasonable. See id. at 229. There is a "strong government interest in solving crimes and bringing offenders to justice" which would be compromised if police could not make reasonable seizures in the absence of probable cause when investigating past crimes. Id. "Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large." Id. Especially when the police have been unable to locate the suspect, "[t]he law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes." Id.

¶ 12. As the Wisconsin Supreme Court stated in Guzy, the "fundamental question is at what point does the important societal interest in solving crime and bringing offenders to justice reasonably justify the specific intrusion on personal security." Guzy, 139 Wis. 2d at 676. In answering that question, both the facts and the circumstances of a case must be considered. Id. at 677. "Given a triggering fact or facts of suspicion, law enforcement officers and reviewing courts may also consider the circumstances that were present" in determining the balance struck between the interests of society and the individual. Id. at 679. "It is a rule of reasonableness: was the action of law enforcement officers reasonable under all the facts and circumstances present?" Id.

¶ 13. As previously stated, the facts of this case give rise to a reasonable suspicion that Olson was involved in the burglary. The anonymous tip first alerted the police of her possible involvement. A conversation with her mother revealed that she and Falk had had the opportunity to commit the crime as they came and went from the house several times that day. Finally, her refusal to cooperate with the police evidenced a guilty conscience. Taken as a whole, these facts are sufficient to support reasonable suspicion, and given these facts, it would have indeed been poor police work to not suspect Olson.

¶ 14. We then turn to the circumstances of this case. The police officers visited Olson's residence while she was out with Falk. Olson's mother paged her to request that she come home and speak with the officers. Olson refused to do so and proceeded to call her mother several times to determine if the police officers were still at the house. Olson was purposely not available to the officers at that time. Later, Bach returned to the house to try to get some answers from Olson. Those answers could have confirmed or denied Olson's involvement in the burglaries. He knocked on the door but there was no response. A call to Olson's mother revealed that Olson would soon be leaving the house to go to work. Olson had already demonstrated a blatant refusal to cooperate with the investigation. Bach knew that a traffic stop would restrict the movement of Olson for a. limited period of time in order to ask her a few questions. Given her penchant for stonewalling, we cannot say that this was an unreasonable action.

¶ 15. These circumstances parallel those in Hensley where the police had been unable to locate the suspect. Hensley, 469 U.S. at 229. Here, although the police had a good idea of where Olson was, her stonewalling made any attempt at voluntary conversation impossible. A traffic stop became a reasonable solution to further the investigation. We do not say that reasonable suspicion of a past crime always justifies a traffic stop. A seizure, especially in the traffic stop context, is a serious intrusion on an individual's liberty and must be objectively reasonable by Fourth Amendment standards. Courts must balance the intrusion on the individual against the governmental interests of the State. Here, the reasonable suspicion that Olson was involved in the burglary, the strong governmental interest in solving crimes, and the purposeful avoidance of the police by Olson make Bach's traffic stop a reasonable one under the facts and circumstances of this case. Accordingly, Olson's evidentiary challenge must fail, and any statements made by her during the traffic stop are admissible. We therefore uphold Olson's judgment of conviction.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.