MADISON, Wis. (CN) — On a May afternoon in 2014, a Kenosha, Wisconsin, man sitting in his car in his driveway was arrested for drunken driving, had his blood tested and was subsequently charged with an OWI, his fourth such offense.
Kenosha Police Officer Mark Poffenberger was responding to a call from a neighbor of Valiant Green who claimed Green had been driving his Chevy Tahoe around their neighborhood drunk. Glassy-eyed, slurring his speech and smelling of alcohol, Green refused a breath test and field sobriety tests, though he admitted to having consumed alcohol at his house.
Poffenberger arrested Green and, using a preprinted affidavit form with blank spaces and check boxes, applied for a search warrant to draw Green’s blood for testing. Kenosha County Circuit Court Judge Bruce Schroeder signed the warrant and hospital staff tested Green’s blood, revealing an alcohol content of 0.214, well above the legal limit and the lower limit applicable to Green due to his previous OWI convictions.
The thing is, sitting in your car drunk in your driveway is not necessarily illegal, as Wisconsin’s OWI statute only criminalizes driving drunk on highways and other public roadways, which does not include private parking areas at farms or single-family residences.
Green tried to suppress his blood test results in court on this basis, arguing the warrant leading to the test was issued without probable cause that he had committed a crime. The warrant was deficient, he said, because it did not say he operated his car on a public road, just in his driveway.
Schroeder—who admitted after issuing the warrant that he may have done so in error by not asking Poffenberger for “more data” for his affidavit supporting probable cause—denied Green’s motion, finding that any error in the warrant did not call for suppression. At trial, the jury found Green guilty, though the state threw out the OWI charge and judgment was entered against Green only for fourth-offense operating with a prohibited alcohol concentration.
The Wisconsin Court of Appeals heard Green out, but summarily affirmed the circuit court’s findings. On Wednesday, the Wisconsin Supreme Court followed suit in a brief seven-page decision cosigned by six of its justices.
Writing for the majority, Justice Brian Hagedorn said “Green’s argument fails…because reasonable inferences from the affidavit support finding probable cause that Green drove on a public road. And that’s all that is needed.”
“The affidavit does not say Green’s driving occurred merely in his driveway, but at his driveway—a location that can reasonably be read to refer to a position on the road adjacent to his driveway,” Hagedorn reasoned, a notion he found buttressed by other portions of the affidavit, including that the traffic stop happened because a citizen reported Green, so not just Poffenberger witnessed Green driving drunk.
“Viewing the entire affidavit together, a judge could reasonably infer that Green operated his vehicle on the road while intoxicated, not solely in his driveway,” Hagedorn said, calling this not the only inference possible, but a reasonable one, and enough to defeat Green’s appeal.
Justice Ann Walsh Bradley didn’t buy the majority’s argument, writing in her solo dissent that Green’s Fourth Amendment right protecting him from unreasonable searches was clearly violated “when law enforcement drew his blood based on a search warrant that wholly lacked probable cause.”
“Confronted with the absence of probable cause here, the majority contrives to manufacture its presence,” Bradley said. “The affidavit in support of the warrant said that Green drove his car while intoxicated ‘at his driveway.’ But this isn’t a crime.”
The majority, Bradley said, ignored the lack of an essential search warrant requirement—that is, an indication that Green had committed a crime at all—and instead drew several other inferences from the affidavit to support the idea that a crime had been committed, though none of the relevant facts prove Green drove his car anywhere but his driveway.
“The majority’s math doesn’t add up—zero plus zero plus zero still equals zero. The majority pulls the reasonableness of its inferences out of thin air, seemingly assuming the existence of probable cause by the sole fact that law enforcement applied for a warrant,” Bradley said.
Bradley ultimately concluded the blood test results should have been suppressed. Even if that led to results that may appear contrary to the state’s policies on operating while intoxicated, that does not trump Green’s constitutional right to be free from unreasonable searches, she said.
Jay Pucek, a state public defender who represented Green, did not immediately respond to a request for comment on the high court’s ruling.
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