State v. Cundy

409 Wis.2d 34

2023 WI App 41

995 N.W.2d 266

STATE of Wisconsin, Plaintiff-Respondent, v. Gregory L. CUNDY, Defendant-Appellant.

Appeal No. 2022AP540-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: March 9, 2023

Opinion Filed: July 13, 2023

On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas B. Aquino, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kieran M. O'Day, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Blanchard, P.J., Kloppenburg, and Graham, JJ.

KLOPPENBURG, J.

¶1 Gregory Cundy appeals the judgment convicting him, after a jury trial, of operating while intoxicated and obstructing an officer. Specifically, he challenges the circuit court's pretrial rulings denying his motions to suppress evidence and for reconsideration.

¶2 The charges arose from law enforcement's investigation of a hit-and-run collision. The investigating officer learned of a report that Cundy's vehicle hit a stationary vehicle while trying to park on the street in Mayville. The officer went to Cundy's single-family residence and questioned Cundy through the front doorway of the house. During the questioning, the officer denied Cundy's request to terminate the encounter, asked a few more questions, and then commanded Cundy to leave his home, placed Cundy in the officer's squad car, and drove Cundy to the scene of the hit-and-run. The witness who reported seeing the hit-and-run identified Cundy, who was sitting in the back seat of the squad car, as the driver of the vehicle that the witness saw hit the stationary vehicle, and the officer drove Cundy back to his home. After more questioning, the officer handcuffed Cundy and subsequently obtained a warrant for a blood draw.

¶3 On appeal, Cundy argues that he was seized when the officer denied his request to terminate the encounter with the officer at the doorway of his home and that he is entitled to suppression of all evidence derived from that seizure because: (1) the warrantless seizure violated his Fourth Amendment rights; and (2) the officer lacked probable cause to arrest him for a crime.

¶4 We conclude that, as Cundy argues and the State concedes, the officer seized Cundy at his home under the Fourth Amendment when the officer denied Cundy's request to terminate the encounter at the doorway of Cundy's home. We also conclude that the warrantless seizure violated the Fourth Amendment's protection against warrantless seizures of a person at the person's home. We further conclude that Cundy is entitled to suppression of all evidence derived from the seizure because the State does not dispute that the officer lacked probable cause to arrest Cundy for a crime. Further, the State does not refute Cundy's position that the evidence that must be suppressed includes all of Cundy's statements after the officer denied Cundy's request to terminate the encounter, the witness's initial and subsequent in-court identification of Cundy, and the results of the blood draw.

¶5 Accordingly, we reverse the judgment of conviction and remand for further proceedings.

BACKGROUND

¶6 At the hearing on Cundy's motion to suppress, the parties stipulated to certain facts, the officer and Cundy testified, the officer's squad car video was offered and received into evidence, and portions of the video were played. The following undisputed facts supporting the circuit court's factual findings are taken from the stipulated facts and evidence at the hearing.

¶7 At 9:35 p.m. on July 2, 2019, a person ("the witness") called the Mayville Police Department and reported having seen, about ten to fifteen minutes earlier, a vehicle back into a stationary vehicle on a street in Mayville and then drive away. The investigating officer arrived at the scene five minutes after the call was made. The officer talked to the witness, who said that he had seen a vehicle back up as if to park, while traveling at "idle speed," hit a parked car, and then drive away. The witness described both the driver and the vehicle that drove away, and provided what he said was its license plate. The officer learned that the license plate came back to a black Ford Fusion that was registered to Cundy. The officer drove to Cundy's single-family residence, which was a few blocks away, and arrived there about forty minutes after the collision reported by the witness had occurred.

¶8 The officer saw a black Ford Fusion fitting the description of the vehicle parked up against the garage, in front of another vehicle in the driveway, such that the Fusion would have arrived before the other vehicle. The officer walked up to and knocked on Cundy's front door. He ended up knocking for about two or three minutes. Cundy's partner answered the door and, in response to the officer's questions, told the officer that Cundy had been home for "a while ... longer than" a half hour and called Cundy to the door. Cundy came and stood in the doorway, holding the screen door open, and the officer stood on the front stoop facing Cundy. Cundy appeared to be groggy and slightly off balance, and had a strong odor of intoxicants, slurred speech, and glossy eyes. Cundy told the officer that he had not been driving on the street where the collision had occurred at the time of the collision, had been asleep in his chair, and had been home for a couple of hours. After two minutes of further questioning by the officer, Cundy asked, "Are we done here?" and the officer responded, "No, we're not." We pause to note that this is the moment when, the parties now agree, the officer seized Cundy.

¶9 The following exchange ensued:

Cundy: What's up?

Officer: Okay, an incident happened down there. Alright I'm trying to get your side of the story so I don't think you're just some person that would cause a disturbance and flee a scene. So I'm giving you the opportunity to tell me what happened.

Cundy: What disturbance?

Officer: Okay. You tell me. Cause you say you were sitting here but I've got somebody that puts you down there about a half hour ago.

Cundy: No, sir.

Officer: Okay not at all. Were you driving your vehicle at all during the last hour?

Cundy: No.

Officer: Okay. How much have you had to drink tonight?

Cundy: Quite a few.

Officer: Quite a few? Okay. So if I take you down by the witness, they're going to tell me nope that wasn't him?

Cundy: What's going on?

Officer: Okay, I'm gonna need you to step out here for me.

¶10 At this point the officer, as he later testified, "commanded" Cundy to "step out" of his home and Cundy complied. The officer took Cundy to the officer's squad car and placed Cundy in the back seat. The officer explained to Cundy that the officer would not be placing him in handcuffs. The officer then drove back to the scene of the collision and called the witness on the phone. The witness returned to the scene and identified Cundy as the driver of the car that had been in the collision and driven away.

¶11 The officer then drove Cundy back to his home and he and Cundy got out of the squad car. The officer resumed questioning Cundy about the collision and, after Cundy refused to perform field sobriety tests, arrested him for operating while intoxicated and placed him in handcuffs. Throughout the encounter, Cundy never admitted to driving the vehicle involved in the collision.

¶12 The officer subsequently applied for and obtained a warrant for a blood draw. In the application, the officer referred to Cundy's statements to the officer after the "Are we done here?" exchange and the witness's identification of Cundy.

¶13 The State charged Cundy with operating a vehicle while intoxicated and with a prohibited alcohol content, and with obstructing an officer. Cundy filed a motion to suppress, asserting that: (1) he was unlawfully seized without a warrant or probable cause at his home in violation of his Fourth Amendment rights; (2) the State obtained statements without providing the Miranda¹ warnings to him in violation of his Fifth Amendment rights; and (3) the witness's identification of Cundy was unduly suggestive in violation of his due process rights. ²

¶14 After the hearing on the motion, the circuit court ruled that the officer had reasonable suspicion to investigate Cundy for the hit-and-run and operating while intoxicated when the officer talked with Cundy at the doorway to Cundy's home, and that the investigation that justified the continuing detention lasted until the officer placed Cundy in handcuffs. On these grounds, the court denied Cundy's motion to suppress. Cundy filed a motion for reconsideration, which the court also denied.

¶15 At the jury trial that followed, the State introduced Cundy's statements to the officer before Cundy was handcuffed, the witness's identification of Cundy, and the results of the blood draw. The witness also identified Cundy at trial. The jury found Cundy guilty of all three charges. Cundy was convicted of the operating while intoxicated and obstructing charges, and the operating with a prohibited alcohol content charge was dismissed and read in at his sentencing.

¶16 Cundy appeals the denial of his pretrial motions to suppress and for reconsideration, seeking an order vacating his conviction because it is based on evidence that the circuit court should have suppressed. ³

DISCUSSION

¶17 As stated, Cundy argues that he was seized when the officer denied his request to terminate the encounter with the officer at the doorway of his home and that he is entitled to suppression of all evidence derived from that seizure because: (1) the warrantless seizure violated his Fourth Amendment rights; and (2) the officer lacked probable cause to arrest him for a crime.

I. Applicable Standard of Review and Legal Principles

¶18 "Whether evidence should be suppressed is a question of constitutional fact subject to a two-step inquiry."

State v. Wilson , 2022 WI 77, ¶17, 404 Wis. 2d 623, 982...