On Point

State v. John R. Phelan,  2024AP777-CR, 8/14/25, District IV (recommended for publication); case activity

In a very complex analysis of the statutes which empower DNR wardens, COA holds that the warden in this case had authority to seize Phelan for suspected littering, validly detained him after obtaining probable cause that he possessed THC, but violated the law by conducting an investigation into an OWI.

A DNR warden, Volenberg, was on duty when he believed that he saw Phelan toss a can on the ground. (¶11). “This occurred on land that was not supervised, managed, and controlled by the DNR.” (Id.). Phelan drove away and the warden followed. (¶12). He observed poor driving that he believed to suggest that Phelan was impaired. (Id.). The warden seized Phelan on non-DNR land. (Id.). Upon contacting Phelan, the warden smelled the odor of burning marijuana. (¶13). The warden, observing what he believed to be additional indicia of impairment, commenced an OWI investigation. (¶14). In addition to administering FSTs and a PBT, the warden ultimately obtained a statement from Phelan in which he admitted to possessing marijuana in addition to consuming it earlier in the day. (¶17). The warden contacted local law enforcement, which resulted in an additional DRE test demonstrating alleged indicia of impairment. (¶19). Phelan was arrested and a follow-up blood test revealed the presence of THC. (¶22).

After an unsuccessful attempt to suppress the evidence after Phelan was seized, Phelan took the case to trial. (¶24). The jury convicted him of operating with a detectable amount of a restricted controlled substance as well as possession of drug paraphernalia. (¶25). On appeal, COA analyzes the following issues:

Authority to Seize Phelan to Investigate Suspected Littering

§ 29.921(1), the statute setting forth the arrest powers of DNR wardens, authorizes all DNR wardens to enforce the littering forfeiture under § 287.81(2)(a) via a series of cross-references. (¶31). And a separate statute specifies that, when enforcing one of the enumerated violations listed in the statute, such as littering, the warden is empowered to “make a thorough investigation[…].” (¶33). The fact that the littering violation did not occur on DNR land is irrelevant, as the statute “does not contain any pertinent geographic limitations on warden enforcement authorities.” Thus, the parties agree that the warden had the power to seize Phelan in order to investigate suspected littering. (¶35). This includes the power to detain Phelan for a reasonable amount of time, to demand his name, address, and an explanation of the alleged conduct. (Id.). 

Authority to Arrest Phelan

Skipping over the intervening OWI investigation momentarily, COA next holds that “by the the time the warden asked Phelan to get out of the pickup, the warden had authority to arrest Phelan for possession of marijuana […] and accordingly the authority to detain him pending the arrival of the deputies.” (¶38).

Specifically, § 29.921(5) authorizes “certified” wardens (wardens, like the one at issue here, who completed additional law enforcement training and therefore gain expanded statutory powers) the authority to “arrest a person who has committed a crime” in their presence. (¶39). COA therefore ultimately holds “that a certified warden is authorized to make an arrest if that warden has personally witnessed–based on any combination of the warden’s contemporaneous sensory perceptions, but based only on those contemporaneous perceptions–facts that objectively support probable cause to believe that the person has committed a crime, and not merely a civil law violation, in the warden’s presence.” (¶43).

Under State v. Secrist and State v. Moore, those conditions were satisfied when the warden smelled the odor of burning marijuana emanating from Phelan’s car. (¶57). While Phelan tries to argue for a more demanding standard in marijuana odor cases, COA holds that the evidence here–based on the testimony of this experienced law enforcement officer–was sufficient to support the suspicion of marijuana possession. (¶58).

Authority to Conduct Intervening Investigation

Although COA holds that the warden could detain Phelan pending the arrival of the deputies for suspected marijuana possession, it agrees that the warden exceeded his statutory authorization when he conducted a “solo investigation of suspected impaired driving.” (¶60). Although the statutory analysis is once again dense on this point, COA holds that the statutes are drafted to circumscribe the warden’s authority to conduct law enforcement investigations except in very specific circumstances. (¶61). It rejects the State’s invitation to impute a general investigatory power to wardens and therefore holds that the warden went beyond his statutory authority by administering FSTs and undertaking other common OWI investigative tasks. (¶67). Accordingly, that intervening evidence, including Phelan’s inculpatory statements, must be suppressed. (¶60). Although the statute does not specify suppression as a remedy, COA applies State v. Popenhagen to reach that result. (¶84).

Problematically for Phelan, however, COA sees no reason to suppress any of the evidence obtained after the deputies arrived to assist the warden. (¶81).This includes the blood draw evidence. (¶83).

Notably, COA observes that the State has not clarified what should happen on remand; accordingly COA reverses the suppression ruling and remands “for further proceedings consistent with this opinion.” (¶91).