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Appeals Court upholds local OWI conviction

The state Court of Appeals affirmed a Waupaca County Circuit Court ruling that allowed evidence obtained from a citizen’s arrest to be used in a drunken driving case.

In August 2009, Adam Sparks, a 28-year-old construction worker from Rosholt, was northbound on County Road E in Helvetia when he observed an erratic vehicle in front of him. He passed the vehicle, then slowed down and forced it to stop.

The driver, Heather M. Krueger, 34, Ogdensburg, was subsequently cited for operating while intoxicated (OWI). A breath test found that Krueger had a 0.19 blood-alcohol level.

After she was convicted of OWI, Krueger’s attorney, John Miller Carroll, of Appleton, appealed the conviction on the grounds that the breath test constituted illegal evidence because Sparks was not authorized to pull her over.

“A citizen can make a felony arrest without a warrant based on probable cause, but can only make a warrantless arrest for a misdemeanor if the misdemeanor is committed in the citizen’s presence and constitutes a breach of the peace,” Carroll argued.

Under the Fourth Amendment, evidence obtained through warrantless searches cannot be used against a defendant.

In his decision, Court of Appeals Judge Paul Lundsten said, “Fourth Amendment protections only apply to government action.”

Lundsten cited the appellate court decision in State v. Butler as a precedent.

In May 2005, Paul A. Butler was convicted of illegal possession of a firearm by a felon in Milwaukee County and sentenced to 17 months in prison.

Butler appealed the case on Fourth Amendment grounds because he was initially detained, handcuffed and searched by a private security guard who saw Butler driving recklessly in a parking lot. The guard called police when he discovered that Butler was wearing an empty gun holster. The police then found a loaded pistol in Butler’s vehicle.

“Butler contended that suppression was required because the security guard acted unlawfully,” Lundsten wrote. However, “it was not necessary to resolve whether the guard acted lawfully in detaining Butler because the guard did not act in concert with the government.”

According to the State v. Butler decision, “Unless state-action is involved, a defendant detained by another citizen has no right to suppress the fruits of the citizen’s search.”

Lundsten said that it follows that Krueger is not entitled to suppression because Sparks, like the security guard in Butler, acted on his own.

Lundsten affirmed the circuit’s decision not to suppress the evidence and her OWI conviction stands.

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