State v. Katelyn Marie Leach

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.
April 16, 2020
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. 2019AP1830-CR Cir. Ct. No. 2018CT156

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KATELYN MARIE LEACH,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waupaca County:
VICKI L. CLUSSMAN, Judge. Affirmed.

¶1 FITZPATRICK, J.1 Katelyn Leach appeals a judgment of
conviction from the Waupaca County Circuit Court for operating a motor vehicle
with a detectable amount of a controlled substance in her blood, second offense,

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1830-CR

contrary to WIS. STAT. § 346.63(1)(am). On appeal, Leach challenges the denial
of her motion to suppress evidence that she gave the arresting officer while
questioned by the officer, and all evidence obtained thereafter. Leach argues that
the evidence she gave the arresting officer was not given freely and voluntarily,
and was thus illegally obtained, and that all subsequently acquired evidence was
obtained through the exploitation of the illegally procured evidence. I affirm for
the reasons set forth below.

BACKGROUND

¶2 The following facts are largely taken from the transcript of the
suppression hearing and are not in dispute.

¶3 Leach was charged with operating a motor vehicle with a detectable
amount of a controlled substance in her blood, second offense, contrary to WIS.
STAT. § 346.63(1)(am). Leach moved to suppress evidence given by her to the
arresting officer, and any evidence obtained subsequent to that point.

¶4 At the suppression hearing, there was testimony by City of
Weyauwega Police Officer Justin Malueg and by Gina Pecha, a passenger in
Leach’s vehicle at the time the vehicle was stopped by Officer Malueg.

¶5 Officer Malueg testified to the following. At approximately
9:20 p.m. on March 10, 2018, the officer stopped Leach’s vehicle after observing
the following: the vehicle failed to stop at a stop sign; the vehicle turned around in
a church parking lot, which Officer Malueg “thought was odd”; the vehicle
“swerved abruptly within its lane of travel” twice; and the vehicle “randomly
braked two times.” After stopping Leach’s vehicle, Officer Malueg observed two

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No. 2019AP1830-CR

occupants inside the vehicle, Leach, who was driving, and Pecha. As he
approached the vehicle, Officer Malueg smelled a “light odor of raw marijuana.”

¶6 Officer Malueg asked Pecha to exit the vehicle. After Pecha exited
the vehicle, Officer Malueg asked Pecha if she had any drugs or drug
paraphernalia on her person. Officer Malueg “had informed [Pecha] that if she
had a simple marijuana pipe or a small amount of weed, something relatively
minor[,] that [he] could issue just a municipal citation … [and] that [he] would do
so.” “At that point,” Pecha handed to Officer Malueg a “methamphetamine pipe
with residue inside of it” and “items consistent with [the] usage of … marijuana.”

¶7 Officer Malueg next questioned Leach. He “had a similar
conversation with [Leach] as [he] did with [Pecha], in reference to a pipe,
marijuana, something relatively minor.” Officer Malueg informed Leach “that if it
was minor paraphernalia or low level of THC, that municipal citations could be
issued.” “At that point,” Leach “admitted she had a marijuana pipe on her and she
retrieved it off her person.”

¶8 After Leach gave Officer Malueg the marijuana pipe, he and other
officers searched Leach’s vehicle. “[A] small amount of shake,” or “raw
marijuana” was found inside the vehicle. After the raw marijuana was found,
Officer Malueg questioned Leach and asked her about her recent drug use. Leach
“informed [him] that she had smoked marijuana earlier in the day.” Officer
Malueg then questioned Pecha about Pecha’s usage of marijuana, and Pecha
informed him that she and Leach had smoked marijuana “before they had left
Weyauwega, prior to [Officer Malueg] stop[ing] them.”

¶9 Officer Malueg then questioned Leach again and, at that point,
Leach admitted that she and Pecha “had smoked [marijuana] prior to just leaving.”

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No. 2019AP1830-CR

Based on Leach’s admission to recently smoking marijuana and his prior
observations, Officer Malueg had Leach perform field sobriety tests, after which
he placed Leach under arrest.

¶10 A recording from Officer Malueg’s body camera of his interaction
with Leach was played for the circuit court. After that recording was played,
defense counsel questioned Officer Malueg as follows:

[Defense counsel] [Y]ou indicated to [Leach], that if she
gave up … whatever she had on her … you would only give her a
municipal citation; is that correct?

[Officer Malueg] Correct.

[Defense counsel] And you also indicated that you were
going to search her?

[Officer Malueg] Correct, based off the odor, correct.

¶11 The circuit court denied Leach’s suppression motion. The court
concluded that Officer Malueg had reasonable suspicion to stop Leach’s vehicle.
The court determined that the stop was “conducted in a reasonable manner for
trying to determine whether or not [Leach and Pecha] were in possession of any
illegal substances, and then whether or not [Leach] was driving with restricted
substances in her system.” The court further determined that there was probable
cause to search Leach’s vehicle, as well as probable cause to arrest Leach.

¶12 Following the circuit court’s denial of Leach’s suppression motion,
Leach filed a request with the court to make additional factual findings. The court
granted Leach’s request and made the following additional findings:

I will make a finding that during the course of the traffic
stop, Officer Malueg spoke to Ms. Leach and Ms. Pecha. I
will further find that Officer Malueg spoke to Ms. Pecha
first and Ms. Leach second. That the conversation with
Ms. Leach was recorded, the initial conversation with

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No. 2019AP1830-CR

Ms. Pecha was not. That Officer Malueg told Ms. Leach if
she gave up her drugs, he would issue her a citation, but
that if she did not, Officer Malueg would search her car.
And that Officer Malueg told the same thing to Ms. Pecha.

¶13 Thereafter, Leach pleaded no contest to second offense operating a
motor vehicle with a restricted substance.

DISCUSSION

¶14 Leach argues that the circuit court erred in denying her motion to
suppress evidence concerning the marijuana pipe she gave Officer Malueg and any
evidence obtained thereafter. More particularly, Leach contends that, even though
she voluntarily gave Officer Malueg her marijuana pipe, her consent was obtained
through misrepresentation and was therefore coerced, meaning her consent was
not voluntarily and freely given.2 Leach further contends that the circuit court
should also have suppressed any evidence obtained after the marijuana pipe was
obtained because that evidence was “derivative.”

¶15 The State does not refute Leach’s argument that the marijuana pipe
evidence was obtained through coercion and should have been suppressed on that
basis. The State argues, however, that Officer Malueg nevertheless had probable
cause to arrest Leach based on the remaining evidence that was not subject to
suppression.

2
Leach also argues that the marijuana pipe evidence should have been suppressed
because the “search” of her person, that is to say, when Leach gave Officer Malueg the marijuana
pipe, was not incident to a lawful arrest. I will conclude for purposes of this appeal that the
marijuana pipe evidence should have been suppressed. Therefore, I do not address this argument.
See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (when a
decision on one issue is dispositive, this court not reach other issues raised).

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No. 2019AP1830-CR

¶16 Below I set forth the standard of review and the governing legal
principles, and then address the parties’ arguments.

I. Standard of Review.

¶17 When reviewing the denial of a motion to suppress evidence, this
court upholds the circuit court’s findings of historical fact unless those are clearly
erroneous. State v. Sykes, 2005 WI 48, ¶12, 279 Wis. 2d 742, 695 N.W.2d 277.
However, this court reviews de novo the circuit court’s application of
constitutional principles to those facts. Id. Accordingly, whether the facts as
found by the circuit court establish a recognized exception justifying a warrantless
search presents a question of law, which is reviewed de novo. See State v.
Phillips, 2009 WI App 179, ¶¶6, 9, 322 Wis. 2d 576, 778 N.W.2d 157.

¶18 Also at issue in this appeal is whether Officer Malueg had probable
cause to arrest Leach based on the evidence that was not subject to suppression.
Probable cause to arrest is assessed on a case-by-case basis taking into account the
totality of the circumstances. State v. Lange, 2009 WI 49, ¶20, 317 Wis. 2d 383,
766 N.W.2d 551. An objective standard that takes into consideration the
information available to the officer and the officer’s training and experience is
applied when determining whether there is probable cause to arrest. Id. When the
material facts are not in dispute, as in this appeal, whether probable cause to arrest
exists is a question of law that is reviewed de novo. Id.

II. The Marijuana Pipe.

¶19 Leach contends the evidence about the marijuana pipe she gave to
Officer Malueg should have been suppressed because she did not give it to Officer
Malueg freely and voluntarily.

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No. 2019AP1830-CR

¶20 This issue implicates Leach’s right to be free from an unreasonable
search and seizure. The Fourth Amendment of the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution provide protection from those
searches and seizures that are unreasonable. Sykes, 279 Wis. 2d 742, ¶13; see also
Cady v. Dombrowski, 413 U.S. 433, 439 (1973) (“The ultimate standard set forth
in the Fourth Amendment is reasonableness.”). “Subject to a few well-delineated
exceptions, warrantless searches are deemed per se unreasonable under the Fourth
Amendment.” State v. Faust, 2004 WI 99, ¶11, 274 Wis. 2d 183, 682 N.W.2d
371. One recognized exception is a search conducted pursuant to consent. State
v. Artic, 2010 WI 83, ¶29, 327 Wis. 2d 392, 786 N.W.2d 430.

¶21 On appeal, the State does not dispute Leach’s argument that her
consent was not free and voluntary and that the marijuana pipe evidence should
have been suppressed on that basis. It is well-established that arguments asserted
by one party and not disputed by the other party may be taken as admitted. See
Fischer v. Wisconsin Patients Comp. Fund, 2002 WI App 192, ¶1 n.1, 256 Wis.
2d 848, 650 N.W.2d 75. For the purpose of this appeal, I will assume without
deciding that the marijuana pipe evidence should have been suppressed. I now
turn to Leach’s argument that evidence obtained subsequent to the marijuana pipe
delivery to the officer should also have been suppressed.

III. Evidence Discovered After the Marijuana Pipe.

¶22 Leach asserts that evidence obtained after she gave Office Malueg
the marijuana pipe should also have been suppressed because that evidence was
“derivative” of and “was discovered by exploitation” of the illegally obtained
marijuana pipe evidence.

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No. 2019AP1830-CR

¶23 The “fruit of the poisonous tree” doctrine seeks to prevent parties
from benefiting from evidence that is unlawfully obtained and, therefore, excludes
evidence that is obtained by the exploitation of other, illegally obtained evidence.
See State v. Roberson, 2006 WI 80, ¶¶32-33, 292 Wis. 2d 280, 717 N.W.2d 111.
The burden is on the accused to prove that evidence is “fruit of the poisonous
tree.” See State v. Knapp, 2005 WI 127, ¶31, 285 Wis. 2d 86, 700 N.W.2d 899
(citing Nardone v United States, 308 U.S. 338, 341 (1939)).

¶24 Even though she has the burden in this situation, Leach does not
develop an argument explaining how or why evidence obtained after the marijuana
pipe was acquired should also be suppressed. Assertions that are not supported by
reasons or legal authority will not be decided on appeal. See State v. Pettit, 171
Wis. 2d 627, 646-67, 492 N.W.2d 633 (Ct. App. 1992) (an appellate court will not
decide issues that are inadequately briefed). Also, this court will not abandon its
neutrality by making arguments for parties. See Industrial Risk Insurers v.
American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82.3

¶25 Accordingly, I conclude that any evidence obtained after Leach gave
Officer Malueg the marijuana pipe is not “fruit of the poisonous tree.” The circuit
court thus properly denied Leach’s motion to suppress that evidence.

3
Leach’s “argument” on this point consists of generalized citations to case law and three
conclusory sentences on separate pages of two briefs. The State’s brief is not much better, but it
does make the argument that there is sufficient evidence to support probable cause to arrest based
on evidence obtained after seizure of the marijuana pipe.

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No. 2019AP1830-CR

IV. Officer Malueg Had Probable Cause to Arrest Leach.

¶26 The State argues that the totality of the circumstances, taking into
account the admissible evidence, provided probable cause for Officer Malueg to
arrest Leach. I agree.

¶27 A warrantless arrest is unlawful unless the arrest is supported by
probable cause. State v. Blatterman, 2015 WI 46, ¶34, 362 Wis. 2d 138, 864
N.W.2d 26. To repeat, probable cause to arrest “refers to that quantum of
evidence within the arresting officer’s knowledge at the time of the arrest that
would lead a reasonable law enforcement officer to believe that the defendant was
operating a motor vehicle [with a detectable amount of a controlled substance in
her blood].” State v. Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 768 N.W.2d 551.
When determining whether probable cause existed to arrest a defendant, courts
examine the totality of the circumstances and consider whether the officer “had
‘facts and circumstances within his or her knowledge sufficient to warrant a
reasonable person to conclude that the defendant … committed or [was] in the
process of committing an offense.’” Blatterman, 362 Wis. 2d 138, ¶35 (quoted
source omitted).

¶28 WISCONSIN STAT. § 346.63(1)(am) forbids anyone from operating a
motor vehicle with “a detectable amount of a restricted controlled substance in his
or her blood.” Sec. 346.63(1)(am). The term “restricted controlled substance”
applies to a number of drugs defined by WIS. STAT. § 340.01(50m), including
delta–9–tetrahydrocannabinol, the primary active ingredient in marijuana. See
State v. Smet, 2005 WI App 263, ¶¶2, 4, 288 Wis. 2d 525, 709 N.W.2d 474. Proof
of impairment is not necessary to find a violation of § 346.63(1)(am). See id.,
¶¶15-16.

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No. 2019AP1830-CR

¶29 Leach argues that Officer Malueg did not have probable cause to
arrest her because: the odor of marijuana was “[s]light” and there was more than
one person in the vehicle.4 Leach’s argument fails because Officer Malueg had
sufficient other evidence before him to support a reasonable belief that Leach had
operated her vehicle with a detectable amount of a restricted substance in her
blood. The most persuasive evidence was Leach’s own admission that she had
smoked marijuana a short time before driving. In addition, Leach exhibited
driving behaviors that Officer Malueg found suspicious based on his training, and
Officer Malueg discovered the presence of raw marijuana inside Leach’s vehicle.
I conclude that, under the totality of the circumstances, Officer Malueg had
probable cause to believe that Leach had operated her vehicle with a detectable
amount of a restricted controlled substance in her blood.

¶30 Accordingly, I conclude that, even if the circuit court erred in
denying Leach’s motion to suppress as to the marijuana pipe evidence (and I have
assumed that only for the sake of argument), the court’s failure to do so was
harmless because the evidence obtained after Leach gave Officer Malueg the
marijuana pipe was admissible and, under the totality of the circumstances, Officer
Malueg had probable cause to arrest Leach. See State v. Semrau, 2000 WI App
54, ¶22, 233 Wis. 2d 508, 608 N.W.2d 376 (stating that the test for harmless error
where the defendant pleaded guilty following the denial of a motion to suppress
“is whether there is a reasonable possibility that the erroneous admission of the
disputed evidence contributed to the conviction”).

4
Leach also asserts that there was no probable cause because, at the time Officer Malueg
arrested Leach, “he had already found the source of the odor: Ms. Pecha’s joint.” The portion of
the record Leach relies on does not support that contention, and Leach does not assert that the
circuit court made such a finding. An appellate court does not consider assertions of fact that are
not part of the record. See Jenkins v. Sabourin, 104 Wis. 2d 309, 313, 311 N.W.2d 600 (1981).

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No. 2019AP1830-CR

CONCLUSION

¶31 For the foregoing reasons, the judgment of the circuit court is
affirmed.

By the Court.—Judgment affirmed.

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

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