Petition for Writ of Certiorari — Andrew H. Zoellick, Petitioner v. Wisconsin

Supreme Court briefJul 10, 2023

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Text

No.

In the

Supreme Court of the United States

ANDREW H. ZOELLICK,

Petitioner,

STATE OF WISCONSIN,

Respondent.

On Petition for a Writ of Certiorari to the

Wisconsin Supreme Court

PETITION FOR WRIT OF CERTIORARI

DENNIS M. MELOWSKI

Counsel of Record

CHRISTOPHER A. MUTSCHLER

MELOWSKI & SINGH, LLC

524 South Pier Drive

Sheboygan, WI 53081

Tel. 920.208.3800

June 30, 2023

QUESTION PRESENTED FOR REVIEW

Whether the absence of any jurisprudential

definition of the term “totality,” as applied to the totality

of the circumstances test under the Fourth Amendment,

has led to the degradation of the test to the point where

innocent factors which mitigate against findings of

reasonable suspicion and probable cause are, despite

their countervailing and counter-indicative nature,

wholly discounted leaving only incriminating facts to be

weighed?

PARTIES

The parties identified in the caption are all those

involved in the proceedings in the court from whose

judgment review is sought.

CORPORATE DISCLOSURE

Corporate disclosure pursuant to SCR 14.1(b)(ii)

is not warranted as there are no corporations which are

a party to this action.

DIRECTLY RELATED PROCEEDINGS

Pursuant to SCR 14.1(b)(iii), the following are the

list of directly related proceedings relative to this case:

Wisconsin Supreme Court

Appellate Case No. 2021AP2204-CR

State of Wisconsin v. Andrew H. Zoellick

Date of Entry of Judgment: April 18, 2023

Wisconsin Court of Appeals

Appellate Case No. 2021AP2204-CR

State of Wisconsin v. Andrew H. Zoellick

Date of Entry of Judgment: November 23, 2022

Circuit Court for Winnebago County

Circuit Court Case No. 20-CF-637

State of Wisconsin v. Andrew H. Zoellick

Date of Entry of Judgment: December 16, 2021

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No other matters arose from, or are pending in,

any related action or proceeding.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ 6-8

CITATIONS OF REPORTS ........................................... 9

BASIS FOR JURISDICTION ......................................... 9

CITATIONS OF AUTHORITY ............................... 10-12

STATEMENT OF THE CASE ................................ 13-15

ARGUMENT............................................................ 16-49

THE TOTALITY OF THE CIRCUMSTANCES

TEST HAS BEEN TRANSMOGRIFIED INTO

NOTHING MORE THAN AN EXAMINATION

INCULPATING

FACTS

WITHOUT

CONSIDERATION OF THOSE FACTS WHICH

MITIGATE

AGAINST

REASONABLE

SUSPICION OR PROBABLE CAUSE. ............. 16

Introduction. ................................. 16

The Unreasonableness of Weighing

Only Those Facts Which Support an

Inculpating

Inference

Without

Considering Countervailing Facts

Under What Should Be the “Totality”

of the Circumstances. .................... 19

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II.

The Fourth Amendment Standard in

General. ................................................... 19

The “Totality of the Circumstances” Test. ..

................................................................. 21

THE EROSION OF THE TOTAILTY OF THE

CIRCUMSTANCES TEST LED TO THE

COURTS IN THIS MATTER ABUSING THE

FOURTH

AMENDMENT’S

REASONABLE

SUSPICION STANDARD. ................................ 34

Statement of the Facts Relevant to the

Question Presented. ................................. 34

The Abuse of the Totality of the

Circumstances Test in This Case. ........... 38

CONCLUSION ............................................................. 48

APPENDIX ................................................................. 100

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TABLE OF AUTHORITIES

U.S. Constitution

U.S. Const. amend. IV .......................................... passim

U.S. Const. amend. XIV .......................................... 10,19

Statutes

28 USC § 1257 ................................................................ 9

Wisconsin Statute § 340.01(46m) (2019-20) ................ 11

Wisconsin Statute § 346.63(1) (2019-20) ................ 11-12

Common Law Authority

Alexander v. Holmes County Board of Education, et al.,

396 U.S. 19 (1969) ........................................................ 24

Brown v. Board of Education (Brown II), 349 U.S. 294

(1955) ............................................................................ 24

Brown v. Texas, 443 U.S. 47 (1979) ............................. 21

Camara v. Municipal Court, 387 U.S. 523 (1967) ....... 19

Delaware v. Prouse, 440 U.S. 648 (1979) ..................... 21

Florida v. Jimeno, 500 U.S. 248 (1991) ....................... 20

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Go-Bart Importing Co. v. United States, 282 U.S. 344

(1931) ............................................................................ 20

Grau v. United States, 287 U.S. 124 (1932) ................. 20

Illinois v. Gates, 462 U.S. 213 (1983) ................. 25-26,30

Jocks v. Tavernier, 316 F.3d 128 (2d Cir. 2003) ..... 27-30

Katz v. United States, 389 U.S. 347 (1967) .................. 20

Malloy v. Hogan, 378 U.S. 1 (1964).............................. 19

Mapp v. Ohio, 367 U.S. 643, 647 (1961)....................... 20

Ohio v. Robinette, 519 U.S. 33 (1996) ..................... 21,26

Reid v. Georgia, 460 U.S. 491 (1983) ........................... 31

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)......... 20

Sgro v. United States, 287 U.S. 206 (1932) .................. 20

Terry v. Ohio, 392 U.S. 1 (1968) .................... 14,21-22,31

United States v. Arvizu, 534 U.S. 266 (2002) ......... 18,2122,31,39,45

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 21

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United States v. Cortez, 499 U.S. 411 (1981) .............. 2324,31,35,39,41,48,51

United States v. Sokolow, 4901 U.S. 1 (1989) ......... 30-31

Wolf v. Colorado, 338 U.S. 25 (1949) ........................... 19

Other Authroity

A. Mendelsohn, Supreme Court Review: The Fourth

Amendment and Traffic Stops: Bright-Line Rules in

Conjunction with the Totality of the Circumstances Test,

88 J. Crim. L. & Criminology 930 (1998) ..................... 26

A. Wortham, The Reclaiming of Hugo Black,

Tuscaloosanews.com (May 16, 2004)

https://www.tuscaloosanews.com/story/news/2004/05/16

/the-reclaiming-of-hugo-black/27864731007/ ............... 24

Note, The Impact of Illinois v. Gates: The States

Consider the Totality of the Circumstances Test, 52

Brooklyn L. Rev. 1127 (1987) .................................. 31,37

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CITATION OF REPORTS

State of Wisconsin v. Andrew H. Zoellick, Case No.

2021AP2204-CR (Wis. Sup. Ct. Apr. 18, 2023)

State of Wisconsin v. Andrew H. Zoellick, Case No.

2021AP2204-CR, 2022 WL 17173107 (Wis. Ct. App. Nov.

23, 2022) (unpublished)

State of Wisconsin v. Andrew H. Zoellick, Case No. 20-CF637

BASIS FOR JURISDICTION

The date of the entry of the judgment of the

Wisconsin Supreme Court sought to be reviewed is April

18, 2023. This petition is not a matter filed pursuant

SCR 11.

No orders regarding rehearing nor extensions of

time have been issued in the instant case.

Jurisdiction of the Court over this matter is

conferred by 28 USC § 1257.

No notifications are required pursuant to SCR

29.4(b) or (c).

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CITATIONS OF AUTHORITY

U.S. Const. amend. IV

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

Wis. Stat. § 340.01(46m) (2019-20)

“Prohibited alcohol concentration” means one of the

following:

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(a) If the person has 2 or fewer prior convictions,

suspensions, or revocations, as counted under s.

343.307(1), an alcohol concentration of 0.08 or more.

if the person has 3 or more prior convictions,

suspensions or revocations, as counted under s.

343.307(1), an alcohol concentration of more than 0.02.

Wis. Stat. § 346.63(1) (2019-20)

No person may drive or operate a motor vehicle while:

(a) Under the influence of an intoxicant, a controlled

substance, a controlled substance analog or any

combination of an intoxicant, a controlled substance and

a controlled substance analog, under the influence of any

other drug to a degree which renders him or her

incapable of safely driving, or under the combined

influence of an intoxicant and any other drug to a degree

which renders him or her incapable of safely driving; or

(am) The person has a detectable amount of a restricted

controlled substance in his or her blood.

(b) The person has a prohibited alcohol concentration.

proceed upon a complaint based upon a violation of any

combination of par. (a), (am) or (b) for acts arising out of

the same incident or occurrence. If the person is charged

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with violating any combination of par. (a), (am) or (b),

the offenses shall be joined. If the person is found guilty

of any combination of par. (a), (am), or (b) for acts arising

out of the same incident or occurrence, there shall be a

single conviction for purposes of sentencing and for

purposes

counting

convictions

under

ss.

343.30(1g) and 343.305. Paragraphs (a), (am), and

(b) each require proof of a fact for conviction which the

others do not require.

(d) In an action under par. (am) that is based on the

defendant allegedly having a detectable amount of

methamphetamine, gamma-hydroxybutyric acid, or

delta-9-tetrahydrocannabinol in his or her blood, the

defendant has a defense if he or she proves by a

preponderance of the evidence that at the time of the

incident or occurrence he or she had a valid prescription

for methamphetamine or one of its metabolic precursors,

gamma-hydroxybutyric

acid,

delta-9tetrahydrocannabinol.

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STATEMENT OF THE CASE

Mr. Zoellick was arrested on October 12, 2020, for

Operating a Motor Vehicle While Under the Influence of

an Intoxicant, contrary to Wis. Stat. § 346.63(1)(a)

(2019-20). R3.1 While he was initially charged with a

sixth offense operating while intoxicated violation,

based upon his successful collateral attack against the

counting of one of his prior convictions as a penalty

enhancer, the charge against him was ultimately

prosecuted as a fifth offense. Because this was Mr.

Zoellick’s fifth offense for operating while intoxicated, he

was subject to Wisconsin’s restricted prohibited alcohol

concentration standard of .02 pursuant to Wis. Stat. §

340.01(46m) (2019-20).

Mr. Zoellick retained private counsel who filed a

pretrial motion challenging whether his Fourth

Amendment right against unreasonable searches and

seizures was violated when law enforcement officers

expanded the scope of his initial detention, which was

premised upon a citizen complaint that he was allegedly

driving “recklessly.” to include an investigation for an

operating while intoxicated-related offense.

1References to the record

developed throughout the state courts’

proceedings are identified herein by the State’s official designation

of the same in the docket entries with the letter “R[Item #].”

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An evidentiary hearing was held on Mr. Zoellick’s

motion on March 22, 2021.2 At the hearing, the State

offered the testimony of the law enforcement officers

who arrested Mr. Zoellick. R37. Apart from making

numerous observations during their contact with Mr.

Zoellick which served to undercut an inference of

impairment, and despite the officers’ admissions that

“[t]here were literally no signs of impairment present

with Mr. Zoellick,” and “there was no sign of even

consumption of alcohol,”3 the Circuit Court for

Winnebago County denied Mr. Zoellick’s motion, finding

that because Mr. Zoellick was subject to a restricted

alcohol concentration and that the court was addressing

a “lower standard” under Terry v. Ohio, 392 U.S. 1

(1968), the officers’ observations of (1) Mr. Zoellick not

retrieving his insurance information immediately, (2) a

complaint that his vehicle failed to stop at a controlled

intersection, and (3) Mr. Zoellick covering his face with

a towel because he did not have his N95 mask with him

during the height of the COVID-19 pandemic, together

conspired to render the expansion of his detention

constitutional. P-App.4 at p.121; R37 at 32:18-23.

Thereafter, Mr. Zoellick changed his plea to one of no

2For a description of the specific facts adduced at the evidentiary

hearing which are relevant to the question of constitutional law

which Mr. Zoellick raises in this petition, refer to the Argument,

Section II.A. & B., pp. 34-38, infra.

3R37 at 20:12-17.

4The designation “P-App” refers to the Petitioner’s Appendix.

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contest and he was found guilty by the court on

December 13, 2021. R115.

Mr. Zoellick subsequently filed a Notice of Appeal

on December 23, 2021. R80. On November 23, 2022, the

Wisconsin Court of Appeals issued a summary

disposition in which it only examined the facts that

allegedly inculpated Mr. Zoellick without regard to the

facts which countervailed the same, concluding that

“‘innocent’ behavior frequently will provide the basis for

a showing of probable cause.” P-App. at 115.

Within the time prescribed by law, Mr. Zoellick

petitioned the Wisconsin Supreme Court for review

based upon the fact that the court of appeals wholly

discounted or ignored the “totality” of the facts known to

the officers which were counter-indicative of

impairment, and therefore, a reasonable suspicion that

a violation of the law was afoot. By order dated April 18,

2023, the Wisconsin Supreme Court declined to accept

Mr. Zoellick’s case for review. P-App. at 101-02.

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ARGUMENT

For the reasons set forth below, Mr. Zoellick seeks

review in this Court pursuant to SCR 10(c) based upon

a decision of the court of last resort in Wisconsin

addressing “an important question of federal law that

has not been, but should be, settled by this Court.”

THE TOTALITY OF THE CIRCUMSTANCES

TEST HAS BEEN TRANSMOGRIFIED INTO

NOTHING MORE THAN AN EXAMINATION

OF INCULPATING FACTS WITHOUT

CONSIDERATION OF THOSE FACTS

WHICH

MITIGATE

AGAINST

REASONABLE SUSPICION OR PROBABLE

CAUSE.

Introduction.

Doubtless, whenever this Court publishes a

decision on any point of law, the rights of thousands of

citizens, if not those of the entire nation, are affected.

Mr. Zoellick presents an issue for this Court’s review

which is cut from the same fabric, but in perhaps a more

practical, day-to-day way because it centers about a

question involving the “typical” manner by which a

private individual comes face-to-face with the monolith

that is “the Law”: namely, the investigatory detention.

Whether it be for a speeding violation, drug possession,

entering a crosswalk illegally, disorderly conduct,

loitering, frequenting a house of ill fame, illegally

possessing a firearm, pandering, reckless driving, etc.,

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before a law enforcement officer may constitutionally

detain a person upon any of the foregoing suspicions, he

or she must first have a “reasonable suspicion” to believe

that wrongdoing is afoot. The test for determining

whether a reasonable suspicion exists is otherwise

known as the “totality of the circumstances” test.

Despite the plethora of decisions involving the

totality of the circumstances test and how it is applied,

it is remarkable that there exists no clear, direct, and

unambiguous definition of the concept of “totality” as it

is implicated in the test which bears its name. Due to

this lack of direction, the totality of the circumstances

test, as it is applied in practice by courts throughout the

United States, has devolved into a one-sided

examination of facts which constitute only a part of the

“totality” of the information known to law enforcement

officers at the time they decide to detain an individual.

In effect, it is the equivalent of looking at only one side

of a balance scale to see whether it has moved, rather

than noticing that the other side of the scale is also

weighted and may be tipped more significantly.

This case presents a substantial question of

constitutional law because legal determinations under

the “totality of the circumstances” test which are

premised on an utter disregard for innocent facts that

weaken a finding of reasonable suspicion—and instead

support an alternate conclusion of innocence—is

constitutionally specious and violates the Fourth

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Amendment’s “reasonableness” standard as well as the

commonly accepted definition of the word “totality.”

At some point, even though it is well settled that

“innocent behavior” may support a conclusion that a

reasonable suspicion exists to believe a crime is afoot,5

there must come a moment when a line is impermissibly

crossed by construing the “innocent” facts as supporting

an incriminating inference—rather than evaluating

them for their counter-indicative nature—and is so

forced and artificial, action must be taken by a court of

supervisory jurisdiction to clarify precisely what an

examination of the totality of the circumstances entails.

This petition affords the Court an opportunity to

address how the innocent-behavior standard is to be

applied to Fourth Amendment questions when the

circumstances do not merely involve facts that are

inherently innocent, but involve facts which contradict

conclusions of wrongdoing. How must these facts be

considered as part of the “totality of the circumstances”

test? There are no decisions of this Court which directly

address at what point inferences from “innocent

conduct” in Fourth Amendment analysis become so

strained that they impugn the neutrality and

detachment of a tribunal. There needs to be some

direction—some standard—by which a line is drawn

that keeps a reviewing court from ignoring the patently

obvious conclusion that the innocent behavior it

5See, e.g., United States v. Arvizu, 534 U.S. 266 (2002).

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contrives as supporting a reasonable suspicion

determination is more correctly viewed as undermining

it.

Until such time as this Court establishes a clear

standard that “totality” means totality in the relevant

test, courts throughout this country will continue to

cherry-pick facts from an officer’s testimony which tend

only to support an inculpating inference. Because

literally millions of citizens every year come into contact

with law enforcement officers and the judicial system

under the guise of any number of violations such as

those enumerated above, a clarification by this Court on

the question presented will have wide-ranging impact.

The Unreasonableness of Weighing

Only Those Facts Which Support an

Inculpating

Inference

Without

Considering Countervailing Facts

Under What Should Be the “Totality” of

the Circumstances.

The

Fourth

Amendment

Standard in General.

Clearly, Mr. Zoellick’s petition implicates the

Fourth Amendment. As a starting point for his analysis,

therefore, it is important to give some context to the

general relationship between the rights secured by the

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Fourth Amendment and the government action against

which it was designed to protect.6

The basic purpose of the Fourth Amendment is to

safeguard the privacy and security of individuals

against arbitrary invasions by government officials. See

Camara v. Municipal Court, 387 U.S. 523, 528 (1967).

This Court has observed that:

A close and literal construction [of the Fourth

Amendment] deprives [its protections] of half

their efficacy, and leads to gradual depreciation

of the right [to be free from unreasonable

searches and seizures], as if it consisted more in

sound than in substance. It is the duty of

courts to be watchful for the constitutional

rights of the citizen, and against any

stealthy encroachments thereon.

Schneckloth v. Bustamonte, 412 U.S. 218, 229

(1973)(emphasis added). As the Court has repeatedly

noted, the Fourth Amendment “guaranties are to be

liberally construed to prevent impairment of the

protection extended.” Grau v. United States, 287 U.S.

124, 127 (1932). It is well settled that “[c]onstitutional

provisions for the security of persons and property

should be liberally construed.” Mapp v. Ohio, 367 U.S.

643, 647 (1961).

6The Fourth Amendment is enforceable against the states through

the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25 (1949);

see also, Malloy v. Hogan, 378 U.S. 1, 6 (1964).

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The Court has admonished that “all owe the duty

of vigilance for [the Fourth Amendment’s] effective

enforcement lest there shall be impairment of the rights

for the protection of which it was adopted.” Go-Bart

Importing Co. v. United States, 282 U.S. 344, 357 (1931).

Ultimately, “the Fourth Amendment . . . should be

liberally construed in favor of the individual.” Sgro

v. United States, 287 U.S. 206, 210 (1932)(emphasis

added).

Apart from its liberal construction, it must also be

recalled that “[t]he touchstone of the Fourth

Amendment is reasonableness.” Florida v. Jimeno, 500

U.S. 248, 250 (1991), citing Katz v. United States, 389

U.S. 347 (1967).

Thus, it is constitutional

“reasonableness” which must form the yardstick by

which the issue raised in the instant case must be

measured. See generally, Ohio v. Robinette, 519 U.S. 33,

38 (1996).

The

“Totality

Circumstances” Test.

the

With the foregoing providing the backdrop

against which all government actions are evaluated,

attention may now be turned to the specific standard at

issue in this case, i.e., the “totality of the circumstances”

test.

In order to justify the investigatory detention of

an individual, a law enforcement officer must first have

a reasonable suspicion to believe that a violation of the

law is afoot. Terry v. Ohio, 392 U.S. 1 (1968). An

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investigatory stop must be justified by some “objective”

manifestation that the individual is, or is about to be,

engaged in criminal activity. Brown v. Texas, 443 U.S.

47, 51 (1979); Delaware v. Prouse, 440 U.S. 648, 661

(1979); United States v. Brignoni-Ponce, 422 U.S. 873,

884 (1975).

When

making

the

foregoing

objective

determination, both federal and state courts have

repeatedly held that purely innocent behavior may,

under the totality of the circumstances, lead to an

inference that trouble is afoot. While any number of

these cases could be cited for this proposition, of

particular note is the Court’s decision in United States

v. Arvizu, 534 U.S. 266 (2002), because it happens to

come the closest—albeit not in the precise words or

circumstances—to formulating the question at issue in

a manner akin to the way Mr. Zoellick does.

More specifically, the Arvizu Court was reviewing

whether the Ninth Circuit correctly applied the totality

of the circumstances test when it parsed out the

conclusions to be drawn from the innocent behaviors it

examined from those which were incriminating. In its

analysis, the Arvizu Court stated:

When discussing how reviewing courts should

make reasonable-suspicion determinations, we

have said repeatedly that they must look at the

“totality of the circumstances” of each case to see

whether the detaining officer has a

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“particularized and objective

suspecting legal wrongdoing.

basis”

for

* * *

We think that the approach taken by the Court

of Appeals here departs sharply from the

teachings of these cases. The court’s evaluation

and rejection of seven of the listed factors in

isolation from each other does not take into

account the “totality of the circumstances,” as

our cases have understood that phrase. The

court appeared to believe that each

observation by [the border patrol

agent] that

was

itself

readily

susceptible to an innocent explanation was

entitled to “no weight.” Terry, however,

precludes this sort of divide-and-conquer

analysis.

Arvizu, 534 U.S. at 273-74 (citations omitted; emphasis

added).

While the Arvizu Court was admittedly

examining the “innocent behavior” of the defendant in

the context of how it might support a determination of

reasonable suspicion, the Court’s overall point is clear:

“innocent” factors cannot be excluded from consideration

in the “totality of the circumstances” test.

If this statement is true—that facts which are

“innocent” in nature are entitled to some “weight”—then

there must be some point at which the “inferential

- 23 -

pendulum” swings from supporting an inference of

wrongdoing to undermining it. Where this line lies and

how to properly determine it is the question Mr. Zoellick

presents for the Court’s consideration. At present, this

assessment has been left to lower courts without

direction, and this has ultimately led to the

disfigurement of the test to a degree which is so distorted

it is no longer recognizable. Courts do not examine the

true “totality” of the circumstances, but rather, look

solely at the inferences which support a reasonable

suspicion or probable cause determination no matter

how much stronger the opposite inference may be based

upon the innocent facts.

If the test is employed as intended, when

determining whether the individual is objectively

manifesting behavior that justifies an investigatory

detention, courts should consider everything objectively

discernable from the citizen-law enforcement encounter,

i.e., the whole picture. In fact, that is precisely how this

Court characterized it: “[T]he totality of the

circumstances—the whole picture—must be taken

into account.” United States v. Cortez, 449 U.S. 411, 417

(1981)(emphasis added). “Based upon that whole

picture the detaining officers must have a

particularized and objective basis for suspecting the

particular person stopped of criminal activity.” Id. at

417-18 (emphasis added).

Despite recognizing that the totality of the

circumstances test involves an examination of the

“whole picture” known to law enforcement officers, over

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time this notion has not simply fallen by the wayside,

but has actually metamorphosed into a standard by

which any “purely innocent” evidence that counterindicates the existence of an objective suspicion is either

disregarded or, worse still, becomes so contrived that the

conclusions drawn from the innocent behavior strain

credulity. In essence, many trial courts have become

nothing more than apologists for law enforcement

officers at the expense of the Fourth Amendment rights

of the accused.

Perhaps this has become the prevailing approach

because of how the Cortez court clarified what it meant

by “the whole picture” when it observed that this

analysis contains two elements, the first of which

“proceeds with various objective observations,

information from police reports, if such are available,

and consideration of the modes or patterns of operation

of certain kinds of lawbreakers.” Id. at 418 (emphasis

added). In the real-world, day-to-day administration of

the criminal justice system, this limited exemplar has

been interpreted to mean that countervailing proof of

exculpation is ignored or discounted and only

incriminating observations are considered. What is

remarkable about the abuse of the standard is that the

Cortez Court enunciated in the immediately proceeding

sentence that “the assessment must be based upon all of

the circumstances.” Id. at 418 (emphasis added). Yet,

in practice, this cautionary note is utterly ignored.

While the genesis of this problem is not clear, it

seems the limiting examples chosen by the Cortez Court

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to describe what constitutes the “whole picture” may be

akin to Justice Black’s expressed dissatisfaction7 about

the Court choosing the words “with all deliberate speed”

in Brown v. Board of Education (Brown II), 349 U.S. 294,

301 (1955), because it allowed for southern lawyers to

delay the implementation of school desegregation. See

Alexander v. Holmes County Board of Education, et al.,

396 U.S. 19 (1969). To be clear, Mr. Zoellick does not

contend that the issue he raises is cut from the same

historically critical moral fabric as that addressed in

Brown, however, to the extent that it is an example of

how the language of this Court’s decisions may be

misinterpreted, abused, or even ignored, it is valid.

On the point of the totality of the circumstances

test devolving into something it was not intended to be,

there have been other circumstances involving the same

test in which these concerns have arisen as well. In

other words, Mr. Zoellick does not stand alone in raising

the concerns he does regarding the application of the

totality of the circumstances test.

For example, in the context of applying the totality

of the circumstances test to tipped information under

Illinois v. Gates, 462 U.S. 213 (1983), it has been said

that:

7A. Wortham, The Reclaiming of Hugo Black, Tuscaloosanews.com

(May 16, 2004)(Justice Black “never forgave himself for bending to

the

will

the

other

Justices”)

https://www.tuscaloosanews.com/story/news/2004/05/16/thereclaiming-of-hugo-black/27864731007/.

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…Gates itself unfairly balances fourth

amendment interests by sacrificing the

principles of individual liberty inherent in

the fourth amendment in the name of effective

law enforcement. Further, the Gates totality of

the circumstances test offers no specific

criteria as to when the requisite probable

cause exists. Without specific criteria,

probable cause is too easily found and

consequently fourth amendment rights go

unprotected.

A survey of state courts that have ruled on the

issue of whether an informant’s tip establishes

probable cause since the Gates decision

demonstrates that the Gates totality of the

circumstances test fails to protect values

inherent in the fourth amendment, and that it

weakens the protection of the probable cause

requirement. . . . . [T]he states that have adopted

the Gates totality of the circumstances test

demonstrate the extent to which the probable

cause

requirement

weakened

Gates. Virtually every state that has applied

that test has found probable cause to exist,

despite marked factual differences from

case to case.

Note, The Impact of Illinois v. Gates: The States

Consider the Totality of the Circumstances Test, 52

Brooklyn L. Rev. 1127, 1129-30 (1987)(footnotes

omitted; emphasis added)[hereinafter “Note, The Impact

- 27 -

of Illinois v. Gates”]. The same concerns identified with

Gates extend to the application of the totality of the

circumstances test in circumstances such as Mr.

Zoellick’s because the “totality” is not really a review of

the “totality” of the circumstances, but rather, just

another mechanism by which to manufacture

reasonable suspicion after the fact. Id. at 1143 (“the lack

of guidance inherent in the totality of the circumstances

test constitutes a drastic weakening of the probable

cause requirement”).

Another commentator has also recognized the

pervasive problem with the unqualified adoption of a

“totality of the circumstances” test in the context of

whether the Fourth Amendment should have a brightline rule requiring law enforcement officers to inform

individuals that they are “free to go” during an

investigatory detention, remarking:

The Supreme Court’s decision in Ohio v.

Robinette upsets the balance of constitutional

interests protected by the Fourth Amendment.

The Court’s holding impermissibly expands the

power of law enforcement officials and grants

great discretion to police officers in their

interactions with motorists. In strictly

adhering

the totality

the

circumstances test in police officer-citizen

encounters, the Court ignored the distinct

Fourth Amendment issues raised in the

police officer-motorist context.

- 28 -

A. Mendelsohn, The Fourth Amendment and Traffic

Stops: Bright-Line Rules in Conjunction With the

Totality of the Circumstances Test, 88 J. Crim. L. &

Criminology 930 (1998)(emphasis added). While the

foregoing article concluded that “the police officermotorist encounter must be controlled by something

more than the totality of the circumstances test,” this is

not what Mr. Zoellick seeks. Instead, he contends that

the “something more” that is needed is not a different

test, a reformulation, or even a modification of the test,

but rather, is a clarification of what “totality” really

means and what weight should be given to innocent facts

which counter-indicate a particularized and objective

basis to believe that an individual is engaged in

wrongdoing. Id.

Although tangentially related from a factual

perspective, the foregoing identifies a glaring

imperfection in the totality of the circumstances test,

i.e., it is being employed to favor law enforcement powers

over constitutional rights in clear contravention to this

Court’s admonishment that courts “owe a duty of

vigilance” to ensure that the Fourth Amendment be

“liberally construed” in “favor of the individual.” See

Sec. I.B.1, at pp. 22-24, supra.

The notion that a totality should include an

accounting of facts which are exculpating and therefore

mitigate against a finding of reasonable suspicion—in

order to avoid the problem of a law-enforcement biased

test—is no stranger to other types of actions in which

affirmative defenses “can eliminate probable cause.”

- 29 -

Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003). For

example, in Jocks, a semi driver attempted to use a pay

phone to make an emergency call to authorities to advise

them that his truck had broken down and was partially

blocking the roadway and, worse yet, was not

immediately visible to motorists because of a hill. Id. at

132. Unfortunately, the pay phone Jocks wished to use

outside of a nearby convenience store was already being

used by an off-duty New York City police officer. Id.

When Jocks attempted to inform the officer of the

emergent situation and the potential danger created by

the positioning of his truck on the highway, the officer

told him to wait. Id. Eventually Jocks, concerned about

the peril his truck created for other motorists,

disconnected the officer’s call by pressing down the hook

on the phone, after which the officer threw the receiver

at Jocks. Id. Jocks took the receiver and attempted to

dial 911, however, the officer shoved him out of the way

and threatened to “blow [his] head off,” and thereafter,

drew his service revolver. Id. Jocks then threw the

receiver at the officer, striking him in the mouth and

then running away. Id. The officer ran Jocks down,

threw him to the ground, and pressed his gun into the

back of Jock’s head. Id. Ultimately, an off-duty Nassau

police officer arrived and settled the two men down. Id.

132-33. After each man described his version of the facts

to the Nassau officer, Jocks was arrested for assault. Id.

at 133.

Jocks filed a 42 USC § 1983 action against the offduty officer, Tavernier, alleging claims of false arrest

- 30 -

and malicious prosecution. Id. at 134. After a verdict

against him, Tavernier moved, inter alia, for a judgment

as a matter of law based upon the fact that Jocks had

properly been taken into custody for the assault of

throwing the phone receiver at him. Tavernier’s motion

was denied by the district court. Id. Tavernier

appealed. Id.

On appeal, Tavernier argued that for Jocks to

succeed on a claim of false arrest, he needed to prove

that the “confinement was not otherwise privileged.” Id.

at 134-35 (internal quotations and citation omitted).

Tavernier maintained that he was privileged to make an

arrest of Jocks for the assault. Id. at 135. The Jocks

court disagreed, concluding that any probable cause

which may have existed to arrest Jocks needed to

account for Tavernier’s “awareness of the facts

supporting [a] defense” of either a necessary emergency

measure or self-defense because such defenses “can

eliminate probable cause.” Id.

Tavernier proffered that there was no

jurisprudence which imposed a duty on him that

“require[d] him to verify whether the defense is true.”

Id. The Jocks court agreed to the extent that there was

no “duty to investigate,” and on that basis, partially

reversed the decision of the district court. Id. at 135-36.

The Jocks court noted, however, that “probable cause to

arrest should be determined on what the officer knew

at the time of the arrest,” and that law enforcement

officers should not “deliberately disregard facts known

to [them] which [are a factor in the arrest calculus].” Id.

- 31 -

(emphasis added). In other words, the Jocks court

acknowledged that probable cause can otherwise exist

when applied superficially to the inculpating facts of a

case, but when the “whole picture” is considered (Cortez),

innocent facts—such as an affirmative defense—can

undermine the probable cause determination. This is

precisely Mr. Zoellick’s contention, to wit: innocent facts

can undermine a reasonable suspicion or probable cause

determination to the point where they “can [be]

eliminate[d].” Jocks, 316 F.3d at 135.

Admittedly, the Jock decision is cut from a

slightly different fabric than the question Mr. Zoellick

presents, but that is simply due to the fact that there are

no decisions from this Court which are directly on point.

Nevertheless, the idea underlying the Jocks holding is

no less instructive. More particularly, the “totality” of

the circumstances surrounding any decision to conduct

an investigatory detention should include the facts “the

officer knew at the time of” the detention and not be

“deliberately disregarded.”

Despite this seemingly

fundamental and common-sense notion, the totality of

the circumstances test “is too easily [satisfied] and

consequently fourth amendment rights go unprotected.”

Note, The Impact of Illinois v. Gates, at 1129.

Several of this Court’s decisions provide examples

of how innocent observations, when taken together, lead

to inculpating conclusions. For example, in United

States v. Sokolow, 4901 U.S. 1 (1989), the Court

commented that few people travel twenty hours from

Honolulu to Miami only to spend forty-eight hours at

- 32 -

their destination.

Id. at 9. The Sokolow Court

recognized the inherent innocence in this behavior, but

in light of other inculpating facts, such as paying for a

plane ticket with a large roll of $ 20 bills, appearing

nervous, and checking none of his luggage, concluded

that the innocent behavior was really no longer so

innocent. Mr. Zoellick does not assert that the Sokolow

Court erred in reaching this conclusion.

acknowledges that, under the right circumstances, such

an inference is permissibly drawn from innocent

behavior. His acknowledgment of the same, however,

standing alone, misses the mark of what this petition is

all about as demonstrated in the hypothetical below.

Assume, arguendo, that the same facts are

established—that a person flew from Honolulu to Miami

for the weekend, paid for a ticket in cash, appeared

nervous, and did not check his luggage—but further

assume that, known to the officer conducting an

investigatory detention, the detained individual

informed him that he was attending a wedding, was

wearing a suit, had a wrapped gift in his hands, and had

a digital camera with him. At this juncture the

inculpating inference drawn by the officer regarding the

suspicion otherwise inherent in so brief a trip would

either dissipate or carry significantly less weight since

people frequently take cash with them to weddings

which have cash bars, may appear nervous if they are

the best man responsible for holding onto the wedding

bands until the service, and might not check luggage

because it is only a weekend trip. The innocence of the

facts examined in Sokolow would now carry far less

- 33 -

inculpating gravitas because the

circumstances dictates as much.

totality

of the

Imagining that “innocent behavior” contradicts

any inculpating inference because it is wholly

exculpatory and one arrives at precisely what happened

in Mr. Zoellick’s case. Very much unlike the litany of

cases in which this Court has condoned the drawing of

inculpating inferences from purely innocent conduct,8 it

has yet to give direction to state and federal courts that,

when evaluating the totality of the circumstances, facts

which contravene inferences that a crime is afoot must

be weighed on the scales of justice as undercutting the

inference of wrongdoing. As the commentators above

have noted, the “the lack of guidance inherent in the

totality of the circumstances test constitutes a drastic

weakening of the probable cause requirement,” and as

more fully set forth below, this is precisely what

happened in Mr. Zoellick’s case.

II.

THE EROSION OF THE TOTAILTY OF THE

CIRCUMSTANCES TEST LED TO THE

COURTS IN THIS MATTER ABUSING THE

FOURTH AMENDMENT’S REASONABLE

SUSPICION STANDARD.

Statement of the Facts Relevant to the

Question Presented.

On October 12, 2020, at approximately 8:16 a.m.,

Andrew Zoellick, was stopped and detained in the City

8See, e.g., Arvizu, 534 U.S. 266; Sokolow, 490 U.S.1; Reid v. Georgia,

460 U.S. 491 (1983); Cortez, 499 U.S. 411; Terry, 392 U.S. 1.

- 34 -

of Neenah by Officer Nathan Franzke of the Neenah

Police Department for briefly straddling two traffic

lanes and failing to stop at a traffic light according to an

anonymous tip. R37 at 3:4 to 4:24.

Due to the COVID-19 pandemic restrictions in

place at the time, after approaching Mr. Zoellick, Officer

Franzke observed that he placed a towel over his face in

lieu of a facemask. R37 at 14:12 to 15:2. Officer Franzke

admitted that Mr. Zoellick immediately apologized and

told him that he was placing the towel over his face

because he could not locate a facemask anywhere within

his vehicle. R37 at 14:16-24. Notably, Officer Franzke

was himself wearing a protective facemask. Id.

At the time of his initial contact with Mr. Zoellick,

Officer Franzke conceded that he did not observe any

odor of intoxicants emanating from his person9 nor did

his cover officer, Officer Barnard—who was speaking

directly with Mr. Zoellick—notice any odor of

intoxicants. R37 at 16:18-24. Similarly, Officer Franzke

did not observe that Mr. Zoellick had any bloodshot or

glassy eyes despite the officer “deliberately look[ing] in

his eyes.” R37 at 9:10-11; 20:1-5. Officer Barnard also

did not observe that Mr. Zoellick had glassy eyes. R37

at 19:8-12; 20:6-11. Likewise, Officer Franzke admitted

that Mr. Zoellick did not have any slurred speech. R37

at 18:18-19. When repeatedly questioned about whether

9R37 at 8:14-16; 9:11-12; 15:13-17.

- 35 -

he had been drinking, Mr. Zoellick denied consuming

any intoxicating beverages. R37 at 6:20-21; 8:17-19.

Notably, Officer Franzke indicated that “[t]here

were literally no signs of impairment present with

Mr. Zoellick,” and “there was no sign of even

consumption of alcohol.” R37 at 20:12-17 (emphasis

added). Despite the utter absence of any odor, signs of

impairment, or of consumption of alcohol, Officer

Franzke—based solely upon direction he received from

Lt. Ann Wagner with whom he spoke telephonically—

directed Mr. Zoellick to exit his motor vehicle and

perform field sobriety tests “just to see if he’d been

drinking.” R37 at 20:18-24. The only reason Officer

Franzke proffered for having Mr. Zoellick exit his vehicle

and perform the field tests was “based off Lieutenant

Wagner[’s]” direction which itself was solely premised

upon the fact that Mr. Zoellick was subject to a .02

alcohol restriction due to his prior convictions for

operating while intoxicated. R37 at 20:21-24.

Notably, Lt. Wagner was never present on the

scene of Mr. Zoellick’s detention, had never made contact

with Mr. Zoellick, nor had she made any observations of

his person. R37 at 20:25 to 21:9. In fact, both Officers

Zoellick and Barnard believed that they did not “even

have enough to bring [Mr. Zoellick] out of the vehicle.”

R37 at 21:23-25; 22:2-4. Officer Barnard expressed this

concern to Lt. Wagner when he told her, “we have

nothing else . . .” on Mr. Zoellick. R37 at 23:4-9.

- 36 -

Of further relevance to the “totality” of the

circumstances known to the detaining officers at the

time of their initial contact with Mr. Zoellick are the

following facts adduced at the evidentiary hearing:

(1)

Mr. Zoellick timely responded to the

officer’s signal to stop his motor vehicle (R37 at

13:13-15);

(2)

Mr. Zoellick had no difficulty executing the

turn into the parking lot in which he stopped (R37

at 13:19-21);

(3)

He parked appropriately in a parking stall

in the lot into which he drove (R37 at 13:22-24);

(4)

Mr. Zoellick had no difficulty “parking in a

straight manner . . .” (R37 at 13:25 to 14:6);

(5)

When asked to do so, Mr. Zoellick provided

Officer Barnard with all of the water bottles in his

vehicle so the officer could check to see whether

any of them contained alcohol, which none of them

did (R37 at 17:12 to 18:6); and

(6)

The officers were acting solely under the

erroneous belief that because Mr. Zoellick was

subject to a .02 alcohol restriction, they had the

authority to remove him from his vehicle for field

sobriety testing (R37 at 21:12-15).

- 37 -

Ultimately, Mr. Zoellick was ordered from his

vehicle to perform field sobriety tests which he allegedly

failed and was thereafter placed under arrest for

operating while intoxicated.

The Abuse of the Totality of the

Circumstances Test in This Case.

In its decision, the court of appeals drew several

troubling conclusions from the facts before it which Mr.

Zoellick proffers are unreasonable to the point of

abusing the Cortez “whole picture” standard.

The issue the Wisconsin Court of Appeals

examined was whether any “additional suspicious

factors” existed which would have alerted officers to the

possibility that Mr. Zoellick may have done more than

driven recklessly. The answer to this question, if one

examines the “whole picture,” should have been derived

in the context of these facts adduced from the

evidentiary record:

Did Mr. Zoellick slur his words? NO. (R37 at

18:18-19).

Did Mr. Zoellick have bloodshot or glassy eyes?

NO. (R37 at 19:8-12; 20:6-11).

Was there an odor of intoxicants about Mr.

Zoellick’s person? NO. (R37 at 8:14-16; 9:11-12;

15:13-17; 16:18-24).

Was Mr. Zoellick stopped at a time “typical” for

- 38 -

drunk driving offenses? NO. (R37 at 3:25)

Did Mr. Zoellick delay in responding to the

officer’s signal to stop? NO. (R37 at 13:13-15).

Did Mr. Zoellick improperly turn into the parking

lot when stopped? NO. (R37 at 13:19-21).

Did Mr. Zoellick park his vehicle improperly?

NO. (R37 at 13:19-21).

Was Mr. Zoellick uncooperative with officers?

NO. (R37 at 17:23-24; 18:7-9).

Did Mr. Zoellick have any alcoholic beverages in

his vehicle? NO. (R37 at 17:12 to 18:6).

Did Mr. Zoellick have any difficulty answering the

officers’ questions? NO. (R37 passim).

Did Mr. Zoellick admit to consuming intoxicants?

NO. (R37 at 6:20-21; 8:17-19).

Did Mr. Zoellick display any problems with his

coordination? NO. (R37 at 15:10-12).

Did Mr. Zoellick ever exhibit any indicia of

impairment or of consuming intoxicants? NO.

(R37 at 20:12-17).

Despite the fact that no additional suspicious

- 39 -

factors existed in this case for law enforcement officers

to believe that anything more than a failure-to-stop

violation occurred, if one wanted to discount the

foregoing argument as nothing more than zealous

advocacy by legal counsel, then the view of the State’s

own witnesses—namely, the arresting officers—should

be considered as well since they are most certainly not

advocates for Mr. Zoellick. Both Officers Franzke and

Barnard concurred and conceded that they did not “even

have enough to bring [Mr. Zoellick] out of the vehicle.”

R37 at 21:23-25; 22:2-4.

There are few—if any—cases in which law

enforcement officers freely admit that they literally had

no reason to remove an individual from a vehicle.

Clearly, the officers’ admission is as condemning as it

possibly could be with regard to enlarging the scope of a

detention. If the officers honestly admit that they had

no “additional suspicious factors” which justified Mr.

Zoellick’s removal from his vehicle, there was no reason

for either the circuit court or the court of appeals to

strain credulity by manufacturing them. In fact, the

court of appeals went so far as to wholly discount the

officers’ opinions. P-App. at 115-16. According to the

court of appeals, “[e]ven if Franzke and Barnard

subjectively believed they needed more explicit signs of

intoxication (than what they had observed) before they

could do field sobriety tests, that is not determinative.”

P-App. at 116. There are several problems with ignoring

the officers’ opinions and the other facts which

comprised the “totality” of the circumstances known to

- 40 -

the officers.

First, it ignores the fact that the officers’

“subjective” opinion was based upon the objective facts

they were then and there observing about Mr. Zoellick.

The conclusions Officers Franzke and Barnard drew are

relevant because they were the only individuals present

to draw these conclusions based upon the facts they were

objectively observing at the time. Put another way, the

officers’ opinions are part of the “totality” of the

circumstances the circuit court and court of appeals

should have considered since they are objectively

premised. In their collective opinion, Mr. Zoellick did

not exhibit any indicia of impairment or of having

consumed alcohol. The undisputed factual conclusions

of highly trained law enforcement officers observing Mr.

Zoellick in real time should have been considered as part

of the “totality” of the circumstances at the time of the

expansion of the scope of Mr. Zoellick’s stop and

mitigated against its enlargement.

Second, the law enforcement opinion which was

wholly disregarded by the court of appeals was not based

upon the reading of tea leaves, tarot cards, or upon the

fact that both officers were “best friends” with Mr.

Zoellick. These officers receive extensive training on

what constitutes a “reasonable suspicion to investigate”

possible impaired drivers. They are not simply

matriculated from their training without having studied

this standard. Their opinions are, therefore, entitled to

more than just being ignored because they represent a

- 41 -

part of the “whole picture” to which the Cortez Court

referred.

Finally, disregarding the officers’ collective

opinion falls directly into the bin of Mr. Zoellick’s

argument in this matter. More particularly, rather than

considering this relevant factor as mitigating against a

finding of a reasonable suspicion to extend the scope of

Mr. Zoellick’s detention, the court of appeals elected

simply to subtract it from its analysis. In other words,

it “parsed it out” contrary to what the Arvizu Court

warned against. The officers’ opinions are very much a

part of the “totality” analysis in this matter which leads

to the conclusion that a reasonable suspicion did not

exist to enlarge the scope of Mr. Zoellick’s detention.

Apart from the foregoing, the circuit court put

significant stock in the fact that Mr. Zoellick produced

two

expired

insurance

cards

and

incorrect

documentation of his vehicle’s registration. R37 at 35:922; P-App. 124. The court of appeals noted this behavior

as well in its decision. P-App. at 118. What neither

court considered in this case but which can confidently

be proffered is that this “mis-documentation” is proof of

nothing as it relates to impairment by alcohol. There

are literally hundreds of thousands of drivers on the

roadways of this country right now who do not have

“proper proof” of insurance. If this was not a legitimate

concern, there would not be statutory requirements

throughout the country which require drivers to carry

proof of insurance.

- 42 -

The court of appeals also expended a significant

amount of its analysis on the fact that Mr. Zoellick was

subject to a .02 alcohol restriction. P-App. at 113-114.

As noted above, both officers in this matter did not

observe any odor of intoxicants emanating from Mr.

Zoellick’s breath, however, in another apologetic effort

to discount this “innocent behavior,” both the circuit

court and the court of appeals noted that Mr. Zoellick

put a towel up to his face when speaking with the

officers. Perhaps of all the crutches both courts created

to prop up the reasonable suspicion conclusion, this is

both the most ridiculous and most offensive.

While the lower court believed that the towel Mr.

Zoellick used to cover his face could have obscured an

odor, Mr. Zoellick reasonably explained to the officers

that he could not find his facemask, and as result, he had

to use a towel for their protection against the COVID-19

virus. Apparently, however, neither the circuit court nor

the court of appeals elected to give any credence to Mr.

Zoellick’s assertion because, instead of recognizing the

reasonableness inherent in such conduct, each court

implied that if he had not chosen to cover his face, there

would have been an odor.

Making an assumption, whether implied or

expressed, such as this fails to give credit to the

“innocence” of Mr. Zoellick’s behavior and instead treats

it as criminal. At the time of Mr. Zoellick’s contact with

law enforcement, the pandemic created an environment

- 43 -

in which the media and medical authorities were

inundating the public with the triumvirate of “wash

your hands, cover your face, and stand six feet apart.”

Why should anyone be impugned for doing precisely

what they were repeatedly instructed to do by

government and medical authorities? It seems that if

Mr. Zoellick had his mask with him and put it on, he

would have been condemned for that behavior because,

“obviously,” he was only doing it to hide the odor of an

intoxicant. This conclusion puts Mr. Zoellick in a no-win

situation because it impales him on the horns of the “do

this and the police will think I’m hiding something” or

“don’t do this and I expose myself and the officers to the

COVID virus” dilemma. That neither the trial court nor

the court of appeals considered the pandemic as a

serious part of its analysis of the totality of the

circumstances is offensive to the Cortez rule that the

“whole picture” must be considered as part of the totality

of the circumstances test. After all, the officers need

only have asked Mr. Zoellick to lower the towel to make

their assessment, yet they did not. This is a fact which

should impugn their investigation and not Mr. Zoellick’s

character.

The current pandemic has made the times in

which we live “unusual” and “extraordinary” to say the

least. On the date of Mr. Zoellick’s detention, October

12, 2020, this country was experiencing the height of the

COVID-19 pandemic and people were expected to cover

their faces with masks in an effort to stem the spread of

the COVID infection. Notably, both officers who

- 44 -

interacted with Mr. Zoellick were wearing their own

masks during the entirety of the encounter. It is not at

all unreasonable or suspicious for Mr. Zoellick to use

whatever he had at hand to cover his face when he could

not find his N95 mask, especially when both officers

themselves were “masked up.” If Officer Franzke was

truly concerned about a .02 restriction violation, he

easily could have asked Mr. Zoellick to lower the towel

covering his face to determine whether he actually had

an odor of alcohol about his person. Officer Franzke

admitted, however, that he never “asked [Mr. Zoellick]

to lower the towel” covering his face. R37 at 15:3-9.

Despite the foregoing, this case is not about the

bones of contention Mr. Zoellick has with the lower

courts’ inferences from facts which (only remotely)

inculpated him.

Mr. Zoellick digressed into the

foregoing discussion solely to point out how truly

strained Fourth Amendment analysis has become.

Instead, the focus of Mr. Zoellick’s claim centers about

the problem that the courts below failed to consider the

actual totality of everything known to law enforcement

officers at the time they encountered Mr. Zoellick—the

vast majority of which undercut any inference that he

was impaired. The mitigating facts were simply ignored.

In common vernacular, it is this “we’re only going to look

at the inculpating facts” attitude which not only worked

an injustice in Mr. Zoellick’s case, but which,

unfortunately, is pervasive throughout the country due

to a lack of direction from this Court or the misguided

reading of the Courts’ decisions regarding the

- 45 -

examination of “innocent facts.”

More particularly, it is part of the common stock

of knowledge that the consumption of alcohol causes an

odor on a person’s breath, slurred speech, bloodshot

and/or glassy eyes, impairment of fine motor control,

impairment of a person’s ability to think clearly, slow

movements, confusion, et al. In this case, none of these

factors were present and, more importantly, the law

enforcement officers involved conceded as much. Yet,

despite the exculpatory absence of any of these factors,

neither the circuit court nor the court of appeals found

them worthy of consideration as part of the “totality” of

the circumstances. It is as though each court felt

obligated to examine only those very few and very

strained facts which supported a finding of reasonable

suspicion to enlarge the scope of Mr. Zoellick’s detention.

Rhetorically, one might inquire at this juncture: How,

precisely, does such an approach satisfy this Court’s

requirement that the Fourth Amendment be “liberally

construed” in “favor of the individual?” How does it

ensure that the “duty of vigilance” courts owe to the

Fourth Amendment is satisfied? See Section I.B.1.,

supra.

More than the fact that the absence of the

foregoing observations is exculpating and a part of the

“totality” of things known to the officers, there are also

those facts which were present which were both

exculpating and, regrettably, ignored. For example, Mr.

Zoellick was observed to properly and immediately

- 46 -

respond to the officer’s signal to stop. He turned into a

parking lot safely and parked appropriately. He denied

consuming any intoxicants. Etc. Nevertheless, just as

the absence of any of the traditional indicia of

impairment meant nothing for either the circuit court or

court of appeals in this case, so too were the observed

facts treated as judicial flotsam.

Based upon the foregoing, the question now

becomes what conclusion should be drawn from the

decisions of the courts below in this (and countless other)

cases? It is simply this: the totality of the circumstances

test is incomplete. It has not been adequately defined

with respect to the term “totality,” and more

disturbingly, has been corrupted to the point where any

innocent behavior is either outright ignored or perverted

into a tool to justify law enforcement actions.

Because a “totality of the circumstances”

approach is required in cases involving the Fourth

Amendment’s reasonable suspicion and probable cause

standards, both sides of the scale on which the “totality”

is examined must be weighed. This means that an

examination of the plethora of facts present in this case

which were counter-indicative of a violation should have

been considered. Unfortunately, this is not an isolated

incident. Rather, not only did the court of appeals

selectively pick the facts it examined—something which

the Arzivu Court cautioned against—but it gave no

consideration to a vast multitude of other facts which

mitigated against the notion that Mr. Zoellick was

- 47 -

engaged in a violation of the law.

Mr. Zoellick proffered the foregoing detailed

analysis of the facts of his specific case not because he

expects this Court to act as an error-correcting court

with regard to the lower courts’ findings.

acknowledges that this is not the Court’s purpose in

being the ultimate arbiter of the law. Rather, he is

suggesting that the approach to the legal standard of the

“totality of the circumstances” test has become, in large

measure, corrupted. Repeatedly, circuit courts and the

courts of appeal either ignore “innocent behavior”

altogether or distort it in such a way that it lends

support to the inference the government wishes to draw

whenever it so requests, and this forms the basis for why

it is time for this Court to intervene.

CONCLUSION

This Court has yet to qualify that the

admonishment offered in Arvizu—that innocent conduct

is a permissible consideration as part of the totality of

the circumstances test—compels courts and law

enforcement officers to consider that those innocent

facts may conspire to mitigate against a finding of

reasonable suspicion or probable cause. This Court now

has the opportunity to do so by granting Mr. Zoellick’s

petition.

- 48 -

Dated this 30th day of August, 2023.

Respectfully submitted:

MELOWSKI & SINGH, LLC

Christopher A. Mutschler

Supreme Court Bar No. 236923

State Bar No. 1017494

Dennis M. Melowski

Counsel of Record

Supreme Court Bar No. 318890

State Bar No. 1021187

Attorneys for Petitioner

- 49 -

In the

Supreme Court of the United States

ANDREW H. ZOELLICK,

Petitioner,

STATE OF WISCONSIN,

Respondent.

APPENDIX

TABLE OF CONTENTS

APPENDIX A

Order Denying Petition for Review ....................... 101-02

APPENDIX B

Decision of the Wisconsin Court of Appeals

............................................................................... 103-19

APPENDIX C

Decision of the Circuit Court for Winnebago County

[R37 at pp. 32:1 to 35:23]

............................................................................... 120-24

- 50 -

OFFICE OF THE CLERK

Supreme Court of Wisconsin

110 EAST MAIN STREET, SUITE 215

P.O. BOX 1688

MADISON, WI 53701

TELEPHONE (608)266-1880

FACSIMILE (608) 267-0640

Web Site: www.wicourts.gov

April 18, 2023

Amended April 18, 2023

To:

Hon. Barbara H. Key

Dennis M. Melowski

Circuit Court Judge

Melowski & Associates LLC

Winnebago County Courthouse

524 S. Pier Drive

P.O. Box 2808

Sheboygan, WI 53081

Oshkosh, WI 54903-2808

Tara Berry

Michael C. Sanders

Clerk of Circuit Court

Assistant Attorney General

Winnebago County Courthouse

P.O. Box 7857

Oshkosh, WI 54903-2808

Madison, WI 53707-7857

You are hereby notified that the Court has entered the

following AMENDED order (amended to insert correct

date):

No. 2021AP2204-CR State v. Zoellick L.C.#2020CF637

A petition for review pursuant to Wis. Stat. § 808.10

having been filed on behalf of defendant-appellant- 101 -

petitioner, Andrew H. Zoellick, and considered by this

court;

IT IS ORDERED that the petition for review is denied,

without costs.

Sheila T. Reiff

Clerk of Supreme Court

- 102 -

OFFICE OF THE CLERK

Supreme Court of Wisconsin

110 EAST MAIN STREET, SUITE 215

P.O. BOX 1688

MADISON, WI 53701

TELEPHONE (608)266-1880

FACSIMILE (608) 267-0640

DISTRICT II

To:

November 23, 2022

Hon. Barbara H. Key

Circuit Court Judge

Electronic Notice

Dennis M. Melowski

Electronic Notice

Tara Berry

Clerk of Circuit Court

Winnebago County Courthouse

Electronic Notice

Michael C. Sanders

Electronic Notice

You are hereby notified that the Court has entered the

following opinion and order:

2021AP2204-CR State of Wisconsin v. Andrew H.

Zoellick (L.C. #2020CF637)

Before Neubauer, Grogan and Lazar, JJ.

Summary disposition order may not be cited in

any court of this state as precedent or authority,

except for the limited purposes specified in WIS.

STAT. RULE 809.23(3).

- 103 -

No.2021AP2204-CR

Andrew H. Zoellick appeals from a judgment

entered after he pled no contest to fifth-offense operating

a motor vehicle while under the influence (OWI) with an

alcohol fine enhancer, contrary to WIS. STAT. §§

346.63(1) and 346.65(2)(g)3 (2019-20).1 Zoellick contends

the police officers lacked reasonable suspicion to extend

the traffic stop to conduct field sobriety tests, and

therefore he argues the circuit court erred in denying his

suppression motion. Based upon our review of the brief

and Record, we conclude at conference that this case is

appropriate for summary disposition. See WIS. STAT.

RULE 809.21. We affirm.

In October 2020, shortly after 8:00 a.m., a citizen

witness called in a complaint about a vehicle that was

“all over the road” and provided the vehicle’s license

plate number. Two officers responded. Officer Nathan

Franzke, who was parked in the area for speed

enforcement, observed what he believed to be the

described vehicle pass by him. Franzke pulled up behind

the vehicle to observe it and confirmed that the license

plate number matched what the citizen witness had

provided. Franzke then observed the vehicle veer over

the lane marker without using a signal and drive while

All references to the Wisconsin Statutes are to the 2019-20 version

unless otherwise noted.

---------

- 104 -

No.2021AP2204-CR

straddling between the two lanes before driving through

a red light. Thereafter, the officer conducted a traffic

stop.

When Franzke approached the vehicle, the driver

--later identified as Zoellick--was digging in the back

seat, which triggered a concern for officer safety.

Franzke instructed Zoellick to stop digging around, and

Zoellick complied while pulling a white towel out and

covering his face, indicating he did not have a mask for

COVID-19.2 At the time of the stop, the officer was

wearing a mask for COVID-19, and it was a very windy

day. The officer thought Zoellick’s towel use was unusual

and noticed Zoellick would not make eye contact with

him. When asked for his driver’s license, Zoellick could

not produce it and just gave his name to the officer.

When asked for his insurance information, Zoellick first

produced two expired cards, and when asked for a

current insurance card, Zoellick handed the officer his

Wisconsin registration form. Zoellick told Franzke that

he ran the red light because he was “going to work and

was nervous[,]” although he did not clarify why he was

nervous. When Franzke asked Zoellick how much he had

2 The World

Health Organization declared a global pandemic of

coronavirus disease (COVID-19) on March 11, 2020 due to

widespread human infection worldwide.

---------

- 105 -

No.2021AP2204-CR

Zoellick said he had “none” and volunteered that he

attends “double A”3 meetings. Franzke asked Zoellick a

second time if he had been drinking, and Zoellick again

denied it.

When a second officer, B. Barnard, arrived on the

scene, Franzke discussed the situation with him. While

Franzke ran a check on Zoellick’s license, Barnard went

to talk to Zoellick and asked to smell the multiple water

bottles he saw in Zoellick’s car. Barnard did not smell

alcohol in any of the water bottles. Neither officer

smelled alcohol on Zoellick or observed other classic

signs of intoxication, except that the second time

Franzke approached Zoellick’s vehicle, he noticed

Zoellick’s eyes were glassy.

Franzke discovered from the license check that

Zoellick had multiple prior OWI’s4 and was subject to a

.02 blood alcohol concentration (BAC) restriction.

Because Franzke and Barnard were unsure whether

they had enough information to ask Zoellick to perform

3 We presume “double A” refers to Alcoholic Anonymous.

Although Officer Franzke’s suppression hearing testimony

establishes that he learned Zoellick had five prior OWIs at some

point during the traffic stop, it is not entirely clear at what point he

actually learned the exact number.

---------

- 106 -

No.2021AP2204-CR

field sobriety tests, Barnard contacted Police Lieutenant

Amy Wagner to confirm. Wagner advised that the

officers could conduct field sobriety tests.

While Zoellick was performing one of the field

sobriety tests, Franzke noticed a moderate odor of

alcohol. Zoellick failed all the field sobriety tests, refused

to do a preliminary breath test (PBT), and was

subsequently arrested for OWI. A blood test conducted

after obtaining a search warrant showed Zoellick’s BAC

was .319. Zoellick was charged with sixth-offense OWI,

and he filed a motion to suppress arguing that the

officers lacked reasonable suspicion to extend the traffic

stop to conduct field sobriety tests.

After hearing Franzke’s testimony, the circuit

court denied the suppression motion, explaining:

What we have here was a significant

complaint with regard to a reckless driver

and then someone who went through a

red light. That’s what starts this. So

that’s a concern with regard to potential

impaired driving. So that’s a different

category because of the nature of the

driving itself that starts this whole

process that would give to the objective

---------

- 107 -

No.2021AP2204-CR

officer a basis for which to begin to have

suspicion here as to what’s impairing

the driver to the point that they’re

driving recklessly, that they’re going

through a red light. Then there’s the

stop. Then there’s the fumbling with

regard to getting the insurance card.

Then there’s the issue with the towel.

And the fact that it was windy at the

time and the officer mentioning that

here, that it was potentially evasive

behavior, number one; number two, the

fact there was a towel and the wind and

the potential of not being able to smell.

There was some evidence of glassy eyes,

but we’ve got—

This isn’t a case in which the

officers—because of the 02, which they

found early on, this isn’t a case in which

they’re going to expect to necessarily—

it’s not that they have to find significant

impairment with a high alcohol content.

The fact that we’ve got someone who’s

been impaired and they’re driving it

would appear, the fact that there’s some

---------

- 108 -

No.2021AP2204-CR

potential fumbling, some potential with

regard to–and again, there’s other

explanations, sure, with regard to the

towel and the fact there’s Covid, but at

the same token, it can also go to the

other category of it could be evasive

behavior.

When you take all that into

consideration and then knowing that

there’s an 02 limit, there doesn’t

necessarily have to be, again, significant

impairment or a strong odor….

---The court has to look at this from,

that objective officer standard and not

from what we have here is two officers

trying to get advice from the supervisor.

But the thing is, [if] the law is on this

issue not to give them those tests, others

are in peril.

You got, again, significant driving

issues. They know there’s an 02 here

and they couldn’t smell it. It’s a windy

night—or windy morning, I’m sorry.

---------

- 109 -

No.2021AP2204-CR

And they would like to at least do some

fields. And that’s reasonable articulable

suspicion and the motion to suppress is

denied.

When asked to clarify what it meant by

“fumbling,” the court explained:

He gave two insurance cards.

shouldn’t say he was not physically

fumbling, that’s correct. But he was not

able to produce the insurance cards and

had produced documentation that

wasn’t the correct documentation, that

being the registration.

Now, again, is that something in and

of itself is enough? No. But as to the

totality of the circumstances, that’s just

another factor.

The circuit court did grant Zoellick’s motion

collaterally attacking a prior OWI, which made the

current arrest a fifth-offense OWI, rather than a sixthoffense OWI. Zoellick entered a no contest plea to fifthoffense OWI, with an alcohol fine enhancer. Zoellick now

appeals.

--------- 110 -

No.2021AP2204-CR

This case involved review of whether evidence

was obtained in violation of the Fourth Amendment5

and, as a result, should have been suppressed. We

review the circuit court’s decision on a suppression

motion under a two-part standard of review. State v.

Anderson, 2019 WI 97, ¶19, 389 Wis. 2d 106, 935

N.W.2d 285. The circuit court’s findings of fact will be

upheld “unless they are clearly erroneous.” Id., ¶ 20. We

apply “constitutional principles to those facts

independently of the decisions rendered by the circuit

court[.]”

Id. The Fourth Amendment prohibits

unreasonable searches and seizures, “and our analysis

focuses on what is reasonable in light of the particular

circumstances.” State v. Smith, 2018 WI 2, ¶1, 379 Wis.

2d 86, 905 N.W.2d 353.

Here, Zoellick asserts the extension of the stop to

conduct field sobriety tests was unreasonable because

the police officers lacked reasonable suspicion. We

disagree. Reasonable suspicion is “a suspicion grounded

in specific, articulable facts and reasonable inferences

from those facts, that the individual has committed [or

was committing or is about to commit] a crime.” State

v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996)

5 U.S. CONST. amend IV.

---------

- 111 -

No.2021AP2204-CR

(alteration in original; quotation marks and citation

omitted). “Reasonable suspicion is ‘a low bar[.]’” State

v. Nimmer, 2022 WI 47, ¶25, 402 Wis. 2d 416, 975

N.W.2d 598 (alteration in original; citation omitted). We

look to “’what would a reasonable police officer

reasonably suspect in light of his or her training and

experience.’” State v. Colstad, 2003 WI App 25, ¶8, 260

Wis. 2d 406, 659 N.W.2d 394 (citation omitted).

The circumstances here involved a citizen-witness

report that Zoellick was driving recklessly. Officer

Franzke confirmed the erratic driving after he pulled

behind Zoellick’s car to observe. Franzke suspected that

the driving behavior may be related to intoxication, so

he asked Zoellick twice whether he had been drinking.

Although Zoellick denied having any alcohol, Zoellick

engaged in evasive conduct, including avoiding eye

contact with the officers and holding a towel over his

mouth—an action made more suspicious in light of

Zoellick’s .02 restriction because even the slightest hint

of alcohol could have been indicative of driving with a

prohibitive alcohol concentration. Zoellick volunteered

that he attends Alcoholics Anonymous meetings, and

upon a second look, Officer Franzke noticed Zoellick’s

eyes were glassy.

---------

- 112 -

No.2021AP2204-CR

Significantly, Franzke learned that Zoellick had

five prior OWI convictions and was subject to the .02

BAC restriction. Although it is true that the officers did

not observe typical signs of intoxication such as slurred

speech, bloodshot eyes6, or the odor of alcohol—before

conducting the field sobriety tests—such factors may not

be present when investigating whether an individual

subject to a .02 restriction was driving with a prohibited

alcohol concentration. See State v. Blatterman, 2015

WI 46, ¶68, 362 Wis. 2d 138, 864 N.W.2d 26 (Ziegler, J.,

concurring) (recognizing that when a driver is subject to

the .02 BAC, a driver may “not exhibit any indicia of

intoxication or impairment” for the “obvious reason”

that only a small amount of alcohol can create a .02

BAC).7 “[T]he legality of the extension of the traffic

stop…turns on the presence of factors which, in the

aggregate, amount to reasonable suspicion that [the

defendant] committed a crime the investigation of which

would be furthered by the defendant’s performance on

Officer Franzke did notice glassy eyes when he approached

Zoellick’s vehicle a second time.

Besides the fact that a BAC of .02 would not require a large

quantity of alcohol, there are numerous methods with which a

driver could mask the odor of alcohol, including chewing gum,

sucking on a mint or cough drop, smoking a cigarette, or even using

a COVID-19 mask/towel to cover his mouth.

---------

- 113 -

No.2021AP2204-CR

field sobriety tests.” State v. Hogan, 2015 WI 76, ¶37,

364 Wis. 2d 167, 868 N.W.2d 124.

This traffic stop did not involve a missing taillight

or even speeding, which are common among all drivers.

It involved reckless driving of such a substantial degree

that it triggered a citizen witness to take the time to get

the license plate numbers and call the police to report

the driver. This case involved erratic driving of such a

duration that, after the citizen’s report, the erratic

driving continued long enough for a responding officer to

locate and follow Zoellick and personally observe the

reckless driving, which included swerving, straddling

between lanes, and running a red light.

This

information, together with the knowledge that Zoellick

had multiple prior OWIs and was subject to the .02 BAC,

Zoellick’s admission that he attended Alcoholics

Anonymous meetings, and Zoellick’s having engaged in

behaviors that a reasonable officer could view as

attempts to hide intoxication, provided specific

articulable facts (or reasonable inferences therefrom) to

constitute reasonable suspicion warranting further

investigation into whether Zoellick was violating WIS.

STAT. § 346.63(1)(b) (operating with a prohibited

alcohol concentration (PAC)).

- 114 -

No.2021AP2204-CR

“Field sobriety tests are ‘observational tools that

law enforcement officers commonly use to assist them in

discerning various indicia of intoxication,’ comprising

‘visual cues’ of a [driver’s] ‘coordination, balance,

concentration, speech, ability to follow instructions,

mood and general physical condition.’” See State v.

Adell, 2021 WI App 72, ¶33, 399 Wis. 2d 399, 966

N.W.2d 115 (quoting City of West Bend v. Wilkens,

2005 WI App 36, ¶¶1, 20, 278 Wis. 2d 643, 693 N.W.2d

324). The field sobriety tests could confirm or dispel the

officer’s suspicion that Zoellick’s reckless driving and

evasive behaviors arose from him in violation of his .02

BAC restriction. See Adell, 399 Wis. 2d 399, ¶34.

Further, officers are not obligated to rule out innocent

explanations when they observe indicia of an intoxicated

driver because “’innocent’ behavior frequently will

provide the basis for a showing of probable cause.” State

v. Tullberg, 2014 WI 134, ¶35, 359 Wis. 2d 421, 857

N.W.2d 120 (citations, quotation marks, and bracket

omitted). The field sobriety tests could just as easily

have dispelled the suspicion that Zoellick was violating

the PAC statute.

Zoellick makes much of the fact that Officers

No.2021AP2204-CR

- 115 -

Franzke’s and Barnard’s body camera videos 8 show the

officers saying that they did not think they had enough

information to get Zoellick out of his car to do field

sobriety tests and that Lieutenant Wagner purportedly

believed that a .02 restriction alone provides a sufficient

basis to do field sobriety tests. Neither point is

persuasive. First, our review is based on a review of the

totality of the circumstances under an objective test—

whether a reasonable officer with the known

information and reasonable inferences from that

information would reasonably suspect that Zoellick was

driving with a prohibited alcohol concentration of .02.

Even if Franzke and Barnard subjectively believed they

needed more explicit signs of intoxication (than what

they had observed) before they could do field sobriety

tests, that is not determinative. Applying an objective,

reasonable officer test, we conclude that reasonable

suspicion existed to conduct field sobriety tests.

Second, whether Lieutenant Wagner thought that

a police officer can conduct field sobriety tests any time

8 The body camera videos are not in the Record.

---------

- 116 -

No.2021AP2204-CR

a traffic stop occurs with a .02-restricted driver is

irrelevant to our analysis. This case did not solely

involve a .02-restricted driver without any other facts to

suggest the driver was breaking the law. Rather, this

case involved a .02-restricted driver who drove so

recklessly that a citizen witness took the time to get the

license plate number and phone the police. This case

involved a responding officer who also observed

Zoellick’s continued reckless driving. This case also

involved Zoellick engaging in behavior during the traffic

stop that constituted suspicious, evasive behavior and a

driver with glassy eyes. Thus, the field sobriety tests

were conducted based on the totality of the

circumstances in the aggregate—not solely based on the

.02 factor.

These officers certainly could have taken

additional steps before proceeding with the field sobriety

tests. They could have asked Zoellick to step out of the

car, for example, particularly since he was digging

around in the back seat when the officer approached.

See Smith, 379 Wis. 2d 86, ¶31 (“’[e]stablishing a faceto-face confrontation diminishes the possibility,

otherwise substantial, that the driver can make

unobserved movements’ which could threaten the

officer’s safety: (alteration in original) (quoting

Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)).

---------

- 117 -

No.2021AP2204-CR

They could have engaged in further conversation with

Zoellick and insisted he produce a current insurance

card. They could have told Zoellick that he did not need

to worry about COVID-19 and asked him to remove the

towel. But, our focus is not about what more could have

been done, but rather on what was actually done and

whether those facts satisfy the legal standard. It is not

our job to second-guess how an officer could have better

conducted a particular investigation.9 Rather, our

function is to review the facts and apply the law under

the proper standard of review to ensure that police

operate within the confines of our constitutions. State

v. Reed, 2018 WI 109, ¶53, 384 Wis. 2d 469, 920 N.W.2d

56 (“’It is the duty of courts to be watchful for the

constitutional rights of the citizen, and against any

stealthy encroachments thereon.’” (citation omitted)).

We conclude that the circuit court properly denied

Zoellick’s motion seeking suppression because the

totality of the facts demonstrate that the officers had

reasonable suspicion to extend the stop to conduct field

9 Our supreme court has cautioned courts to recognize that police

officers are tasked with making “split-second,” on-the-street

decisions, often “’in circumstances that are tense, uncertain, and

rapidly evolving[.]’” State v. Smith WI 2, ¶32 n.18, 379 Wis. 2d 86,

905 N.W.2d 353 (citation omitted).

---------

- 118 -

No.2021AP2204-CR

sobriety tests to investigate whether Zoellick was

operating with a prohibited alcohol concentration.

Therefore,

IT IS ORDERED that the judgment of the circuit

court is summarily affirmed pursuant to WIS. STAT.

RULE 809.21.

IT IS FURTHER ORDERED that this summary

disposition order will not be published.

Sheila T. Reiff

Clerk of Court of Appeals

------- 119 -

STATE OF WISCONSIN

WINNEBAGO COUNTY

CIRCUIT COURT

STATE OF WISCONSIN,

Plaintiff,

-vs-

Case No. 2020-CF-637

ANDREW H. ZOELLICK,

Defendant.

PARTIAL TRANSCRIPT OF

MARCH 22, 2021 EVIDENTIARY HEARING

ORAL DECISION OF THE CIRCUIT COURT

[R37 at pp. 32:1 to 35:23]

- 120 -

THE COURT: Thank you. I think the

argument of fishing expedition would make more

sense if the basis for the stop was something like

an unregistered vehicle. What we have here was

a significant complaint with regard to a reckless

driver and then someone wo went through a red

light. That’s what started this. So that’s a

concern with regard to potential impaired driving.

So that’s a different category because of the

nature of the driving itself that starts this whole

process that would give to the objective officer

a basis for which to begin to have suspicion here

as to what’s impairing a driver to the point that

they’re driving through a red light. Then there’s

the stop. Then there’s the fumbling with regard

to getting the insurance card. Then there’s the

stop. Then there’s the issue with the towel. And

the fact that it was windy at the time and the

officer mentioning that here, that it was

potentially evasive behavior, number one;

number two, the fact there was a towel and the

wind and the potential of not being able to smell.

There was some evidence of glassy eyes, but we’ve

got—

This isn’t a case in which the

- 121 -

officers—because of the 02, which they found

early on, this isn’t a case in which they’re

going to expect to necessarily—it’s not that

they have to find significant impairment with a

high alcohol content.

The fact that we’ve got someone who’s

been impaired and they’re driving it would

appear, the fact that there’s some potential

fumbling, some potential with regard to—and,

again, there’s other explanations, sure, with

regard to the towel and the fact that there’s

Covid, but at the same token, it can also go to

the other category of it could be evasive

behavior.

When you take all that into consideration

and then knowing that there’s an 02 limit,

there doesn’t necessarily have to be, again,

significant impairment or a strong odor. Is that

enough for which the—the intrusion here is one

in which there’s a stop, there’s the—then the

taking out of the vehicle itself to do the tests. I

think that’s State v. Brown that was issued July

third. I don’t have the exact cite here. But there

was a case remanded that does allow for them

being taken out of the vehicle, although in those

- 122 -

in those situations it could be for officer

protection.

But, nonetheless, you get out of the car.

They do what is less invasive than the next step

with regard to arrest or-- You know, this is

simply on the spectrum with regard to

reasonable suspicion, probable cause from the

Terry stop, to the spectrum of later the arrest.

So this is a lower standard, reasonable

suspicion, articulable facts. But is it

articulable enough for which to run some type of

field sobriety tests to see what they’re dealing

with? I think they—that’s for their own—

whatever—

The Court has to look at this from, again,

that objective officer standard and not from

what we have here is two officers trying to get

advice from the supervisor. But the thing is

the law is on this issue to not give them those

tests, others are in peril.

You got, again, significant driving issues.

They know there’s an 02 here and they couldn’t

smell it. Iti’s a windy night—or windy morning,

I’m sorry. And they would like to at least do

some fields. And that’s reasonable articulable

- 123 -

suspicion and the motion to suppress is denied.

ATTORNEY MELOWSKI: Judge, could I

seek clarification on one point?

THE COURT: Yes.

ATTORNEY MELOWSKI: More than one

occasion in your ruling you indicated there was

evidence of Mr. Zoellick fumbling with things.

THE COURT: I shouldn’t say fumbling,

it was that he couldn’t get his insurance card

right away.

ATTORNEY MELOWSKI: He couldn’t find

it.

THE COURT: Couldn’t find it—

ATTORNEY MELOWSKI: Yes.

THE COURT: --that’s right. He gave two

insurance cards. I shouldn’t say, he was not

physically fumbling, that’s correct. But he was

not able to produce the insurance cards and then

produced documentation that wasn’t the correct

documentation, that being the registration.

Now again, is that something in and of itself

enough? No, But as to the totality of the

circumstances, that’s just another factor.

- 124 -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.