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City of Sheboygan v. Zimbal9/8/2004
Jason R. Zimbal appeals his conviction for operating with a prohibited blood alcohol concentration and the circuit court's order denying his motion to suppress evidence.*fn2 He argues that the police did not have probable cause to arrest him and that his seizure must fall based on case law prohibiting officers from going inside a home when there is no warrant, no exigent circumstances and no consent. We hold that there was probable cause. We further hold that the case law Zimbal relies upon for his illegal seizure theory is inapplicable to this case. We affirm.
. We first address the issue of probable cause to arrest. A City of Sheboygan police officer, responding to a hit-and-run of an unattended vehicle, talked to a witness who had heard the crash from his upstairs apartment. The witness identified himself and advised the officer that he ran outside to see if it was his vehicle that was hit and observed a dark-colored truck parked in the alley. The witness saw a male subject get out of the truck to look at the car that was hit; the male subject said something and then got back in the truck and drove up onto the grass of a neighbor's house. At that point, a "bunch of people got in the car, and the truck left." The witness was able to get the license number of the truck. He was also able to describe the subject as being tall, thin, and dark haired and he "thought the subject was definitely under twenty-one and intoxicated."
. The officer ran a check of the license plate, which came back as listed to a female party by the last name of Zimbal. A further record search revealed prior vehicle contact history involving Jason Zimbal, age seventeen. The officer called the Zimbal home, spoke with a female who answered, advised her of the hit-and-run and asked if her son, Jason, had had the truck, to which the female replied, "yes." The officer then asked if the truck was home and received an affirmative response. The officer then advised that she was going to come over to the house.
. The officer arrived at the house and wanted to speak with Jason, but was rebuffed for a period of time. We will get to that shortly. What is important for probable cause purposes is that before Jason presented himself outside of the home to the officer, his mother advised the officer that there was a delay because Jason had urinated on a chair due to his level of intoxication. Jason was arrested when he appeared on the porch.
. Jason first argues that the trial court failed to decide whether there was probable cause even though the issue was raised in his motion papers and was an issue specifically voiced by his counsel in open court. We agree. It was raised; it was argued and the trial court did not address it. Still, the absence of such finding does not require reversal because whether probable cause existed is a question of constitutional fact that we review independently. See State v. Secrist, 224 Wis. 2d 201, 208, 589 N.W.2d 387 (1999). So it does not matter that the trial court did not address the issue. This is especially so where the historical facts are not disputed, but the legal result of those facts are at issue. The trial court's failure to address the issue is a nonstarter.
. As to whether there was probable cause, we conclude that there was. Jason makes no argument in his appeal brief as to why probable cause did not exist except to refer us to his arguments to the court and his trial brief. So, we went back to the transcript on his motion to suppress and found that his sole reason for objecting to probable cause was his belief that the government "didn't obtain specific information in regard to [Jason's] impairment.... Just the general opinion that [the] person appears to have
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