SCOW to assess the statutory authority of DNR wardens
State v. John R. Phelan, 2024AP777-CR, petition for review of an published court of appeals decision, granted 4/22/26; case activity
In a unique statutory construction case, SCOW will determine the scope of authority allocated to DNR wardens in enforcing the criminal law.
The State’s PFR presents three issues for SCOW’s review:
1. Did the court of appeals misinterpret Wis. Stat. § 29.921(5) in a manner that incorrectly circumscribes the Legislature’s grant of additional arrest authority to trained and certified wardens?
a. Did the court of appeals incorrectly interpret Wis. Stat. § 29.921(5)’s authorization for wardens to “arrest a person who has committed a crime in the presence of the warden” as applying only when a “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”?
b. Did the court of appeals misinterpret Wis. Stat. § 29.921(5) when it read the phrase “A warden may not conduct investigations . . . of state law” so broadly as to prohibit a warden who validly arrests a person from performing tasks attendant to an arrest, such as picking up and securing evidence?
c. Did the court of appeals misinterpret Wis. Stat. § 29.921(5) so as to prohibit a warden who is assisting another law enforcement agency at the other agency’s request from doing anything to actually assist such as taking photos, or collecting or securing evidence?2. Did the court of appeals incorrectly conclude that the remedy for a violation of Wis. Stat. § 29.921(5) by improperly conducting an investigation is suppression even though Phelan’s constitutional rights were not violated, Wis. Stat. § 29.921(5) says nothing about suppression for conducting an investigation, suppression is inconsistent with the statute’s objectives, and the circuit court did not determine that suppression was warranted?
3. Did the court of appeals properly vacate Phelan’s convictions without determining whether the error it identified affected Phelan’s substantial rights as Wis. Stat. § 805.18(2) requires?
(And we sometimes worry our issues statements are unnecessarily wordy!)
Phelan filed a response to the State’s petition, arguing that issues two and three were forfeited. Helping to nudge the case toward acceptance, the DNR also filed an amicus.
As we highlighted in our post on the case, this case applies to the unique situation where a DNR warden becomes involved in the investigation of a crime, such as an OWI. Phelan “succeeded” below by showing that the DNR warden exceeded his authority by conducting an OWI investigation, thereby winning suppression of evidence gathered during that investigation including the FST results, the PBT result, and any statements made by Phelan. However, his blood test result–showing the presence of an RCS in his blood–was not suppressed (as that evidence was not the product of the DNR warden’s unlawful investigation).
This leads into the funky posture. Phelan was acquitted of the OWI offense at trial. He was found guilty of the RCS. (He’s also found guilty of possession of paraphernalia, but confusingly, the opinion does not tell the reader where or how that evidence was discovered). Because the State was explicitly faulted for not developing a harmless error argument–and in fact conceded that, if evidence was suppressed, the case should be remanded for the circuit court to sort out–COA essentially punted the matter back to the circuit court to determine whether suppression of this evidence matters. That seems like the correct call, because there’s no discussion in this opinion as to whether the dispositive blood test evidence was in any way undermined at trial such that omission of the OWI evidence could have meaningfully impacted the jury’s assessment of that charge.
Yet, once COA accepted the State’s concession at oral argument that the case should “probably” be remanded, the State petitions, arguing that COA was wrong not to independently apply the harmless error rule as “required” by SCOW’s decision in State v. Harvey. Thus, while the case may not end up impacting Phelan, specifically, it turns out SCOW’s review might have ramifications for many criminal appeals involving alleged harmless error.