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State v. Hansen3/16/2000
Swanson then escaped, see id. at 443, and the court concluded that it was not necessary to address whether the officers had probable cause to arrest Swanson for OMVWI, see id. at 453. But in a footnote, the last sentence of which is consistently cited in nearly all OMVWI appeals, the court said:
Clearly, the officers here did possess a reasonable suspicion that Swanson had committed a criminal act, either operating under the influence or reckless endangerment, but arguably lacked probable cause to arrest Swanson at the time of the search. The first indicia of criminal conduct included Swanson's unexplained erratic driving. The second indicia included the odor of intoxicants emanating from Swanson as he spoke. The third indicia included the approximate time of the incident, which occurred at about the time that bars close in the state of Wisconsin. Taken together, these indicia form a basis for a reasonable suspicion that Swanson was driving while intoxicated. See State v. Seibel, 163 Wis. 2d 164, 183, 471 N.W.2d 226 (1991), where we held that similar factors add up to a reasonable suspicion but not probable cause. Swanson, 164 Wis. 2d at 453 n.6.
. The difficulty caused by Swanson is that, contrary to the last sentence of footnote six, the supreme court in Seibel, 163 Wis. 2d at 183, did not hold that the facts in that case added up to reasonable suspicion but not probable cause. All that the court said was: "While none of these indicia alone would give rise to a reasonable suspicion that the defendant's driving was impaired by alcohol, taken together they gave the police reason to suspect that the defendant's driving was impaired by alcohol."
. Still, the supreme court held in Swanson that the Seibel factors do not add up to probable cause to arrest for OMVWI. The factors identified in Seibel were: (1) unexplained erratic driving that caused an accident; (2) a strong odor of intoxicants emanating from Seibel's traveling companions when Seibel and his companions had been traveling together between taverns; (3) a police chief's belief that he smelled an intoxicant on Seibel; and (4) Seibel's belligerent conduct and lack of contact with reality when he was at a hospital. Id. at 181-82.
. Usually, a defendant under suspicion of OMVWI will show indications of intoxication or fail field sobriety tests. Thus, in Wille, the defendant's erratic driving, odor of intoxicants and statement that he had to "quit doing this" resulted in probable cause to arrest. Wille, 185 Wis. 2d at 683. Here, Hansen exhibited two of those factors: erratic driving and odor of intoxicants. It is uncertain whether Wille would have been decided as it was had Wille not made his inculpatory statement at the hospital. Nor does State v. Kasian, 207 Wis. 2d 611, 558 N.W.2d 687 (Ct. App. 1996), present the minimal facts with which we are faced here. In Kasian, the defendant was involved in a one-car accident, had a strong odor of intoxicants about him, and exhibited slurred speech. Id. at 622. We concluded that this evidence gave the police probable cause to arrest Kasian. See id. Because he was unconscious, Hansen exhibited no slurred speech.
. The State seeks to substitute the discovered beer cans, the time of day and the officer's expertise for other factors missing here, but present in Kasian and Wille. We agree with the trial court that the presence of beer cans in the median adds little to a probable cause analysis. First, there is no direct connection between the beer cans and Hansen. But more importantly, the beer cans are only corroborative of the inference that Hansen consumed alcohol, a factor already shown by the odor of intoxicants emanating from him. In other words, we think t
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