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State v. Hansen3/16/2000
he State has shown that Hansen probably consumed some amount of an alcoholic beverage. The same is true of the time of day. A late Saturday evening accident suggests alcohol consumption, but that fact is again shown by the odor of intoxicants around Hansen. And though the officer's experience helped him conclude how the accident probably happened, experience will not substitute for evidence showing that Hansen probably consumed alcohol to a degree that rendered him incapable of safely driving.
. Were we writing on a clean slate, we might reach a different conclusion. But the most relevant explanation of probable cause in OMVWI cases are the four Seibel factors, which the supreme court said in Swanson were insufficient to constitute probable cause: (1) unexplained erratic driving; (2) a strong odor of intoxicants on travelling companions; (3) an odor of intoxicants on the defendant; and (4) belligerence and lack of contact with reality. Two of these factors were present in Hansen's arrest: a strong odor of intoxicants and erratic driving. Even assuming the slight evidence provided by the beer cans would be the equivalent of the evidence of Seibel's bar hopping, which it is not, and the officer's experience would be the equivalent of Seibel's belligerence and lack of contact with reality, which it is not, we are still left with Swanson's conclusion that the four Seibel factors are insufficient to support probable cause to arrest for OMVWI. We recognize that this is not what Seibel held, but we also recognize that this is what Swanson said that Seibel held. We are bound by supreme court decisions, see State v. Lossman, 118 Wis. 2d 526, 533, 348 N.W.2d 159 (1984), and if there is a conflict between two supreme court opinions, we follow that court's practice of following the most recent opinion, see Spacesaver Corp. v. DOR, 140 Wis. 2d 498, 502, 410 N.W.2d 646 (Ct. App. 1987). Swanson was decided after Seibel.
. The State recognizes the problem created by the "Swanson footnote." In effect, the State asks us to ignore or consider the footnote overruled by subsequent court of appeals cases. The State contends:
The Swanson case itself has been criticized, first in the case of State v. Wille, supra., and then again in the case of State v. Kasian, 207 Wis. 2d 611, 558 N.W.2d 687 (1996). Specifically, the "Swanson footnote" upon which the defendant relies has been criticized. Both the Wille and Kasian cases have corrected the Swanson footnote's broad assertions concerning what is or is not sufficient for probable cause.... The "Swanson footnote" is really just that: a footnote. It had nothing to do with the actual decision in the case and was gratuitous dicta. It held nothing.
. What the state is really arguing is that the court of appeals has either overruled the "Swanson footnote" or that alleged court of appeals criticism of the footnote has diminished its effect. We do not believe that this is possible. While there might be a conflict between Swanson, Wille and Kasian, where a supreme court opinion conflicts with a court of appeals opinion or opinions, we are to follow the supreme court opinion. See Madison Reprographics, Inc. v. Cook's Reprographics, Inc., 203 Wis. 2d 226, 238, 552 N.W.2d 440 (Ct. App. 1996). We are left, however, with the State's assertion that footnote six of Swanson is dicta.
. Even if a court's statement is not decisive to the primary issue presented, the statement may not be dictum. If a statement is plainly germane to a primary issue, it is not dictum. See State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981). Also:
It is deemed the doctrine of the cases is that when a court of last resort intentionally takes up, dis
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