On Point: 4. Probable cause to arrest

State v. Justin Dennis Krizan, 2022AP1341-CR, 3/4/25, District III  (1-judge decision, ineligible for publication), case activity

Applying its recent holding in State v. Gore, 2025 WI App 11, ___ Wis. 2d ___, ___ N.W.3d ___ (see our post on Gore here), the COA concludes that Krizan’s consent to a blood draw was voluntary because he was not misinformed about the consequences of refusing to consent.

City of Delafield v. Shawn M. Office, 2024AP227, 2/26/25 District II (one-judge decision; ineligible for publication); case activity

COA affirms Office’s OWI 1st conviction, concluding that his arrest was supported by probable cause because sufficient evidence existed to reasonably believe that Office been driving while under the influence of an intoxicant.

State v. Mitchell D. Butschle, 2023AP2120-CR, 5/8/24, District II (one-judge decision, ineligible for publication); case activity

On appeal from a conviction for operating with a detectable controlled substance, the court rejects Butschle’s claims that police lacked probable cause to arrest. The court affirms because “there were enough indicators of impairment to satisfy probable cause to arrest, including (1) “a strong odor of alcohol,” (2) “Butschle’s eyes were bloodshot and glassy,” (3) “the stop occurred just after 2:00 a.m., which is bar time,” and (4) “Butschle failed the HGN test and showed balance indicators on the other two [FSTs].” Op., ¶¶10-11.

State v. Nicholas Allen Paulson, 2022AP186, 2/21/24, District III (1-judge decision, ineligible for publication); case activity

Although Paulson tries to establish that police did not have probable cause to arrest him despite, among other evidence, a PBT reading of .198, COA affirms.

State v. Ashley Rae Baker, 2022AP1587-CR, District II, 1-judge decision, ineligible for publication; case activity (including briefs)

The Fourth Amendment protects against guilt by association by requiring probable cause to arrest or search to be specifically linked to the individual defendant. See State v. Riddle, 192 Wis. 2d 470, 478, 531 N.W.2d 408 (Ct. App. 1995) (citing United States v. Di Re, 332 U.S. 581, 593 (1948). That probable cause exists to arrest one vehicle occupant does not mean probable cause exists to arrest another.

State v. Quaheem O. Moore, 2023 WI 50, 6/20/23, reversing an unpublished court of appeals decision; case activity (including briefs)

As many surrounding states continue to legalize marijuana–and with the explosion of CBD and other legal hemp-derived products throughout Wisconsin–some observers have questioned the continued viability of Fourth Amendment rules permitting intrusive law enforcement action when officers smell what they believe to be THC. However, because THC remains illegal under Wisconsin law, these arguments fail in light of well-settled Fourth Amendment principles.

State v. Linsey Nichole Howard, 2022AP1608-CR, District 2, 03/08/2023, (one-judge decision, ineligible for publication) case activity

Prior to pleading guilty to operating a vehicle with a restricted, controlled substance as a second offense, Howard filed a motion to suppress, claiming that the arresting officer lacked probable cause. The court of appeals affirms the denial of Howard’s motion based on the following circumstances: (1) she was driving at 12:53 a.m. without headlights on, (2) she was confused about where she was coming from and where she was going, (3) she appeared nervous, (4) she avoided eye contact, and (5) she failed the HGN field sobriety test (4) . (Opinion, ¶11).

State v. Quaheem O. Moore, 2021AP938-CR, petition for review of an unpublished court of appeals decision granted 12/21/22; reversed 2023 WI 50; case activity (including PFR, Response, and briefs)

Issues presented (from State’s PFR):

1. Did the court of appeals correctly read State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), to establish a standard of evidence for search and arrest based on the odor of a controlled substance that is more demanding than the constitutional standard of probable cause?

2. Did police have probable cause to search Moore incident to arrest under the totality of the circumstances, which included a “strong” odor of raw marijuana coming from the vehicle of which Moore was the sole occupant?

State v. Nicholas A. Conger, 2022AP844, 12/14/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

A cop stopped Conger’s vehicle for a broken high-mounted stop lamp. On approaching the vehicle, the officer would testify, he smelled intoxicants. He asked Conger what he was smelling, to which Conger replied “Probably the pot.” Conger then turned over a small amount of cannabis and an open can of Mike’s Hard Lemonade to the officer. He also said he’d had some alcohol. The officer asked Conger to perform field sobriety tests; Conger agreed and was ultimately arrested for, charged with, and convicted of operating with a detectable amount of a restricted controlled substance in his blood.

State v. Kallie M. Gajewski, 2020AP7-CR, District 3, 8/2/22 (not recommended for publication); case activity (including briefs)

Police arrested Gajewski in the curtilage of her home without a warrant and exigent circumstances. While this makes the arrest unlawful, the evidence obtained from the arrest is not subject to suppression because police had probable cause to arrest her.