State v. Donald A. Whitaker

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 27, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP204-CR Cir. Ct. No. 2019CT481

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONALD A. WHITAKER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Walworth County:
DANIEL STEVEN JOHNSON, Judge. Affirmed.

¶1 NEUBAUER, J.1 Donald A. Whitaker appeals from a judgment of
conviction for operating a motor vehicle with a prohibited alcohol concentration,

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP204-CR

first offense, with a minor passenger, challenging the circuit court’s denial of his
motion to suppress. Whitaker maintains the procedure used to obtain a telephonic
search warrant for a blood draw following his arrest did not comport with state and
federal constitutional protections and WIS. STAT. § 968.12 so as to require
suppression of the evidence. We conclude that the search warrant for the taking of
a blood sample was obtained lawfully and affirm.

BACKGROUND

¶2 The relevant facts are undisputed. In the evening of June 25, 2019,
Sergeant Derrick Goetsch of the Village of Fontana Police Department observed a
pickup truck towing a boat on a village street. An adult and juvenile were in the
boat. Goetsch stopped the truck, made contact with the driver, Whitaker,
administered field sobriety tests, and arrested him for operating a vehicle while
intoxicated (OWI). Whitaker refused to provide an evidentiary sample of his
blood.

¶3 Goetsch then completed the necessary information for a blood search
warrant and affidavit.2 Goetsch e-mailed the warrant and affidavit to the on-call

2
Goetsch explained the procedure for obtaining a telephonic search warrant, which was
consistent with the process followed in this matter:

We complete an affidavit, a warrant, with all the information
from that current incident and then we have to e-mail it to an on-
call Judge e-mail address and after we e-mail that address we
call the on-duty judge cell phone and a judge will answer the
phone, review the e-mail with the affidavit and warrant. He
directs you to raise your right hand. You have to swear to the
accuracy of everything on the warrant and then he’ll direct you
on where to sign the officer’s name and he’ll direct you to print
his name or her name in certain spots and they physically will
direct you which line to put the information on.

2
No. 2022AP204-CR

judge, Judge David M. Reddy, for his review. Goetsch then called the judge and
advised him that he had completed a search warrant for an OWI blood draw.
Goetsch testified that although he could not remember specifically what he told
the judge about the offense, “[t]here was nothing discussed [with the judge]
besides the fact that I told him it was an impaired driver with a juvenile.”

¶4 After the judge reviewed the search warrant and affidavit,
Judge Reddy had Goetsch swear to the fact that everything in the search warrant
was true and accurate. Then the judge directed Goetsch to sign the search warrant
and affidavit and to write the judge’s name on the form. Around 9:00 p.m., blood
samples were taken from Whitaker pursuant to the warrant.

¶5 Whitaker was charged with one count of OWI, first offense, with a
minor child in the vehicle, and one count of operating with a prohibited alcohol
concentration, first offense, with a minor child in the vehicle. He subsequently
moved to suppress the results of the blood draw, contending that the procedure for
obtaining the warrant violated his constitutional and statutory rights because the
officer’s telephonic interaction with the judge was not recorded.3 The circuit court
denied Whitaker’s motion.

¶6 Whitaker subsequently pled no contest to operating a vehicle with a
prohibited alcohol concentration, first offense, with a minor passenger. The count
of OWI, first offense, with a minor passenger was dismissed and read in at
sentencing.

3
Whitaker raised additional challenges to the affidavit, including that it contained
inaccurate information. The circuit court denied this challenge, concluding that despite any
inaccurate information, the search warrant affidavit provided probable cause for the blood draw.
Whitaker does not appeal this ruling, nor does he challenge on appeal the stop or his arrest.

3
No. 2022AP204-CR

¶7 Whitaker now appeals.

DISCUSSION

¶8 “In reviewing a motion to suppress, we uphold the circuit court’s
findings of fact unless they are clearly erroneous, and review the application of
constitutional principles to those facts de novo.” State v. Grady, 2009 WI 47, ¶13,
317 Wis. 2d 344, 766 N.W.2d 729. Statutory interpretation presents a question of
law that we decide independently of the circuit court. Rechsteiner v.
Hazelden, 2008 WI 97, ¶26, 313 Wis. 2d 542, 753 N.W.2d 496.

¶9 Both the United States Constitution and the Wisconsin Constitution
provide that no warrant shall issue, but upon probable cause, supported by oath or
affirmation.4 This is reinforced in the Wisconsin statutes under WIS. STAT.
§ 968.12(1), which provides that “[a] judge shall issue a search warrant if probable
cause is shown.” “Suppression is only required when evidence has been obtained
in violation of a defendant’s constitutional rights or if a statute specifically
provides for the suppression remedy,” State v. Raflik, 2001 WI 129, ¶15, 248
Wis. 2d 593, 636 N.W.2d 690 (emphasis added; citation omitted), but circuit
courts have “discretion to suppress or allow evidence obtained in violation of a
statute that does not specifically require suppression of evidence obtained contrary
to the statute, depending on the facts and circumstances of the case and the
objectives of the statute.” State v. Popenhagen, 2008 WI 55, ¶68, 309 Wis. 2d
601, 749 N.W.2d 611.

4
The Fourth Amendment to the United States Constitution provides, in relevant part,
that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation.” Article I, section 11 of the Wisconsin Constitution similarly states, in relevant part,
that “no warrant shall issue but upon probable cause, supported by oath or affirmation.”

4
No. 2022AP204-CR

¶10 Here, Whitaker contends that the search warrant was obtained in
violation of the Fourth Amendment, the Wisconsin Constitution, and WIS. STAT.
§ 968.12 because no electronic or written recording of Goetsch’s telephone call
with the judge was made. The procedures for obtaining a telephonic search
warrant are set forth in § 968.12(2) and (3).5 Under subsection (2), “[a] search
warrant may be based upon sworn complaint or affidavit, or testimony recorded by
a phonographic reporter or under sub. (3)(d), showing probable cause therefor.”
Subsection (3)(d) allows a judge to take sworn testimony over the phone to
support the issuance of a warrant, and in that event “[t]he judge or requesting
person shall arrange for all sworn testimony to be recorded either by a court
reporter or by means of a voice recording device.” Sec. 968.12(3)(d).

¶11 Here, as the circuit court concluded, the process followed in this case
complied with WIS. STAT. § 968.12(2) which provides that the warrant may be
based on a sworn affidavit showing probable cause. Recording the sworn
testimony under § 968.12(3)(d) is an alternative means of preserving the evidence
purporting to establish probable cause. It is not a requirement any time a

5
WISCONSIN STAT. § 968.12(2) states in full as follows:

A search warrant may be based upon sworn complaint or
affidavit, or testimony recorded by a phonographic reporter or
under sub. (3)(d), showing probable cause therefor. The
complaint, affidavit or testimony may be upon information and
belief. The person requesting the warrant may swear to the
complaint or affidavit before a notarial officer authorized under
[WIS. STAT.] ch. 140 to take acknowledgments or before a judge,
or a judge may place a person under oath via telephone, radio, or
other means of electronic communication, without the
requirement of face-to-face contact, to swear to the complaint or
affidavit. The judge shall indicate on the search warrant that the
person so swore to the complaint or affidavit.

5
No. 2022AP204-CR

telephone is used to obtain a warrant. Recording sworn testimony by a
phonographic reporter is another alternative. These three means of documenting
probable cause all serve to preserve the policies of judicial integrity and the right
to judicial review. Raflik, 248 Wis. 2d 593, ¶21. The “essential thing is that proof
be reduced to permanent form and made a part of the record, which may be
transmitted to the reviewing court.” Id., ¶28 (quoting Glodowski v. State, 196
Wis. 265, 272, 220 N.W. 227 (1928)). Here, the warrant prepared by Goetsch and
signed with the judge’s authorization met that requirement.

¶12 Whitaker does not identify any other violation of the statutory
process whereby Goetsch was sworn over the telephone by the judge and signed
the affidavit providing that he had been sworn on oath by the judge, and then
signed the affidavit as authorized by the judge pursuant to WIS. STAT. § 968.12(2).
At the judge’s direction, Goetsch also signed the warrant, which stated that it was
based on Goetsch’s sworn on oath affidavit. Judge Reddy subsequently signed
both documents after the return. It is undisputed that the sworn affidavit provided
probable cause for the warrant. Whitaker has failed to identify any statutory,
much less constitutional, violation. See State v. Tye, 2001 WI 124, ¶24, 248 Wis.
2d 530, 636 N.W.2d 473 (warrant invalid because it was not issued on the basis of
an oath or affirmation).

¶13 While Whitaker complains that Goetsch and the judge may have had
a discussion that was not recorded, he provides no legal support for his suggestion

6
No. 2022AP204-CR

that the failure to record such a conversation rises to the level of either a statutory
or constitutional violation.6

CONCLUSION

¶14 Whitaker has not shown that his statutory or constitutional rights
were violated by the procedure used to obtain the search warrant telephonically.
Therefore, we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

6
Given our disposition, this court need not reach the other grounds for affirmance the
State sets forth. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (when
one issue is dispositive of an appeal, we need not reach other issues).

7