COA holds that exclusionary rule does not apply to evidence of defendant’s flight from police after traffic stop was allegedly unlawfully extended.
State of Wisconsin v. Alsherrife Mire, 2024AP2481-CR, 2/4/26, District II (recommended for publication); case activity
In a decision recommended for publication, the COA affirmed the circuit court’s order denying the defendant’s motion to suppress the fruits of his allegedly unlawfully extended traffic stop because evidence of his flight from police was not derived from the stop.
Racine County Sheriff’s deputies stopped Alsherrif Mire for speeding. A deputy spoke with Mire, returned to his squad to complete the citation, returned to Mire and asked him to exit the vehicle to explain the citation. Mire refused to exit, the deputy told him he was required to exit, and Mire drove off. The deputies pursued him for three miles until the pursuit was called off; Mire reached a speed of 135 miles per hour. (¶ 2).
Mire was charged with second-degree recklessly endangering safety, attempting to flee or elude an officer, obstructing an officer, and disorderly conduct. He filed a motion to suppress and argued the traffic stop was unlawfully extended because the deputies only had reasonable suspicion for speeding and they asked Mire to step out of the vehicle to pursue an independent drug investigation with a canine unit. Mire asked the circuit court to suppress the evidence obtained as a result of his detention and all derivative evidence. (¶ 3). The circuit court denied the motion without conducting an evidentiary hearing because, even if the traffic stop was improperly extended, Mire did not have the right to flee police. (¶ 4).
Mire argued on appeal that the circuit court erred by denying his motion without an evidentiary hearing because it incorrectly determined suppression was not a remedy if the stop was unreasonably extended. (¶ 5).
The COA noted the circuit court was authorized to deny a suppression motion without an evidentiary hearing if the record “conclusively demonstrates” the defendant is not entitled to relief. (¶ 6). The COA considered Mire “to be under the mistaken belief that he had carte blanche authority to use any criminal means he wished in order to ‘escape’ from the traffic stop once – if – law enforcement crossed the line from a lawful detention to an unlawful one. That is not the law.” (¶ 7).
Citing its 2022 decision in Bourgeois, the COA held that evidence is “derivative” for purposes of the exclusionary rule if it is “later discovered by using evidence that was illegally obtained.” (¶ 10). The Court concluded “the evidence underpinning the charges of second-degree recklessly endangering safety, attempting to flee and elude an officer, obstruction of an officer, and disorderly conduct is neither ‘primary evidence’ seized during the allegedly unlawful detention nor ‘derivative evidence acquired as a result of’ the detention.” (¶ 11). Instead, Mire “created new criminal evidence” when he committed the offenses separate from the allegedly unlawful detention. (¶ 11).
Sadly, this is yet another example of a pro-prosecution decision.
In State v. Caban, 210 Wis. 2d 597, 605-06 ¶16, 563 N.W.2d 501 (1997) (“The rationale underlying § 971.30’s particularity requirement is notice — notice to the nonmoving party and to the court of the specific issues being challenged by the movant. Both the opposing party and the circuit court must have notice of the issues being raised by the defendant in order to fully argue and consider those issues.”). The pleading requirement, then, relates to notice of the theory or theories in support of suppression. Caban should be followed on this point, both because it is a supreme court, rather than court of appeals, case and also because it is a fourth amendment, rather than identification, case like State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996) (defendant isn’t entitled to an evidentiary hearing simply to search for something based on nothing more than hope or speculation. Id., at 533-34), which discussed a motion to suppress identification.
The question should be, therefore, whether the state has adequate notice of the basis asserted for suppression. This will insure that the state will be in a position to adduce evidence, if it can, satisfying its burden of persuading the court that the warrantless search and seizure was reasonable. See also People v. Williams, 20 Cal.4th 119, 130-31, 873 Cal. Rptr. 275, 973 P.2d 52 (1999) (“[D]efendants must specify the precise grounds for suppression of the evidence in question.… Defendants need only be specific enough to give the prosecution and the court reasonable notice.…”)