State v. Michael S. Ormosen

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 25, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP1962-CR Cir. Ct. No. 2019CF206

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL S. ORMOSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Columbia County:
W. ANDREW VOIGT, Judge. Reversed and cause remanded with directions.

Before Graham, Nashold, and Taylor, JJ.

Per curiam opinions 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).

¶1 PER CURIAM. Michael Ormosen appeals a judgment of
conviction for operating a motor vehicle while under the influence of an intoxicant
No. 2022AP1962-CR

(OWI) and an order denying his suppression motion. The sole issue on appeal is
whether police lawfully entered Ormosen’s home pursuant to his wife’s consent.
Because we conclude that the State has not met its burden of establishing that the
consent was voluntary, we reverse and remand for proceedings consistent with this
opinion.

BACKGROUND

¶2 The State charged Ormosen with one count of OWI as a seventh,
eighth, or ninth offense, and one count of operating with a prohibited alcohol
concentration. Ormosen moved to suppress all evidence obtained following police
officers’ entry into his home, arguing that his wife’s consent to the officers’ entry
was coerced and involuntary. At an evidentiary hearing, the circuit court heard
testimony from Officer Spencer Oemig, Ormosen’s wife, and Ormosen’s mother-
in-law.

¶3 Oemig testified as follows. Oemig responded in the early evening to
a report of a collision between a motorcycle and a parked car on Main Street in
Fall River, Wisconsin. Witnesses reported that a person later determined to be
Ormosen had been drinking at a bar near the collision and was operating the
motorcycle at the time of the crash. Witnesses also reported that, following the
collision, Ormosen was thrown from the motorcycle, and that he got up and fled
the scene on foot.

¶4 Oemig went to Ormosen’s home to look for him. When Oemig
arrived, he saw two women in the yard—Ormosen’s wife, Paulette Ormosen,1 and
1
We refer to Paulette Ormosen by her first name to distinguish her from Michael
Ormosen.

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No. 2022AP1962-CR

Paulette’s mother, Alice Pichler. When Oemig asked if they had seen Ormosen,
Paulette responded that she had not seen Ormosen since he left the house
following an argument they had that morning. Oemig then asked if he could
search the home for Ormosen. Paulette responded that she did not want him to
search the house because her children were getting ready for school. Oemig could
not recall if he immediately told Paulette and Pichler why he was there, although
at some point they discussed that Ormosen had been in an accident and that Oemig
was concerned about Ormosen’s well-being. After Paulette first refused to allow
Oemig entry into the home, Oemig separated Paulette from Pichler and informed
Paulette that she needed to remain where she was in the front yard.

¶5 Once the two women were separated, Oemig spoke privately with
Pichler. He asked Pichler if she had seen Ormosen that day, and Pichler
responded that she had not. Pichler also told Oemig that she had not been inside
the house but that she was willing to look there if Paulette would allow it. Paulette
allowed Pichler to enter the house to look for Ormosen.

¶6 While Pichler was looking for Ormosen in the house, Oemig again
questioned Paulette as to Ormosen’s whereabouts, and Paulette responded that she
did not know. Oemig told Paulette that he would arrest her for the crime of
obstructing an officer if he became aware that Paulette was lying to him. Paulette
became nervous and upset.

¶7 After Pichler came out of the house, a second officer arrived.
Pichler and Paulette were again separated, this time farther away from one
another. Oemig again requested permission to enter the home to search for
Ormosen, and Paulette again refused. Oemig agreed that Paulette denied him
consent to search at least twice, but he could not recall if she did so more than

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No. 2022AP1962-CR

twice. At various points during his conversation with Paulette, Oemig informed
her that lying to police was considered obstructing, a criminal offense.

¶8 Following Paulette’s last refusal, Oemig told Paulette “something to
the effect of I’m going to wait here until [Ormosen] comes out because he will
have to come out at some point. At that time I’m going to arrest [him], and I’m
going to arrest you as well for obstructing.”2 Paulette allowed the officers to
search the home. At some point prior to Paulette granting consent, Pichler was
permitted to leave.

¶9 Once inside the Ormosens’ home, the officers discovered that
Ormosen was in the attic. Ormosen came downstairs and Oemig placed him in
handcuffs and led him out the door. Ormosen was transported to the Fall River
Police Department, where, following field sobriety tests, he was placed under
arrest.

¶10 Oemig testified that if Paulette had not granted him permission to
enter the residence, he “would have stayed here at the house for a while to see if
anybody exited the home.” Specifically, Oemig would have stayed “the remainder
of [his] shift, a few extra hours maybe.” At no point during the encounter did
Oemig consider trying to obtain a warrant to search the home for Ormosen.
Oemig believed his failure to obtain a warrant was due to his “inexperience,” and
he further testified that, if he had it do over again, he probably would have sought
a warrant after Paulette denied him entry into the home the first time.

Oemig also testified that he told Paulette that he “would wait by the residence and that
2

eventually [Ormosen] would come out at which point they would both be placed under arrest.”

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No. 2022AP1962-CR

¶11 Paulette’s testimony was consistent with the officer’s testimony in
many respects, but she further testified as follows. At about 6:30 that night, when
Ormosen had not come home for dinner, she and Pichler went out looking for him.
A bartender told Paulette that Ormosen had hit the bartender’s car and left, and the
bartender asked Paulette if she knew where Ormosen was. Paulette and her
mother went to the Ormosens’ home and were sitting on the deck for about
15 minutes when Oemig showed up. Oemig asked Paulette if she knew where
Ormosen was, and when Paulette said she did not, Oemig told her that if she knew
where Ormosen was and was not telling Oemig, she could be placed under arrest.
At some point during this exchange, he also asked for consent to look for Ormosen
in the house and Paulette refused.

¶12 According to Paulette, Oemig asked her for consent to search the
home “[a]t least four or five” times and told Paulette that she could be arrested for
obstruction of justice “[e]very single time.” Paulette denied consent because her
children, who were then seven and twelve years old, were in the house. Although
Paulette understood Oemig to be saying that if he found out she was lying she
would be placed under arrest, Oemig’s final threat of arrest was different than the
prior times in that he said something to the effect of, “I’m just going to wait for
him to come out and arrest both of you.” It was because of this statement that she
agreed to allow the officers into the house.

¶13 Paulette testified that it was a “stressful situation” and that after
about a half an hour into her encounter with police, she began crying. She
testified that the officers required her to stay outside in the yard with them and that
they would not let her go into her home, except when Oemig directed her to get
Ormosen’s business phone and to come back immediately, which Paulette did.
When asked why she finally agreed to allow the officers into the house, she

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No. 2022AP1962-CR

testified that, in addition to the threat of being arrested, “[the officers] basically
said there was no way they were going to leave unless I let them in the house.
This was already over an hour. My kids were upstairs looking out the window. I
can’t tell [the kids] anything while I’m outside my house.” She testified that she
was not free to leave but that she did not ask to go into her home or request that
the officers leave her property.

¶14 Pichler’s testimony did not significantly add to or vary from the
other witnesses’ testimony. Regarding her interactions with the officers, Pichler
testified that she was separated from Paulette for questioning; that she agreed to
look for Ormosen on the first floor of the house but did not go upstairs because her
grandchildren would not want to go to bed if they saw her; and that she believed
that prior to being permitted to leave she asked once or twice to leave but that the
officers told her they had more questions.

¶15 The circuit court denied Ormosen’s motion to suppress, concluding
that there was actual consent and that the consent was voluntary. The court made
the following pertinent findings of fact:

 When Oemig arrived at the residence, he informed Paulette and
Pichler why he was there and asked if they were aware of Ormosen’s
location.

 After one or both women denied knowing where Ormosen was,
Oemig requested permission to search the house for Ormosen.
Paulette denied the request and Oemig advised her that she could be
arrested for obstructing if there was evidence that she lied to law
enforcement.

 Oemig informed Paulette and Pichler that he was concerned about
Ormosen’s well-being.

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No. 2022AP1962-CR

 Pichler was given permission to enter the house to conduct a limited
search for Ormosen. Upon Pichler’s return from inside the
residence, another officer arrived and more discussion occurred.

 Paulette “was permitted or requested”3 to enter the residence to
retrieve Ormosen’s cell phone. Law enforcement made attempts to
contact Ormosen using the phone, including by asking Paulette to try
calling him, which Paulette did.

 At some point, Oemig made a second request to enter the residence.
Paulette denied the request and Oemig again told Paulette that she
could be arrested for obstructing if she lied to law enforcement.

 During this timeframe, Pichler was permitted to leave.

 Oemig also told Paulette, in the circuit court’s words, that Oemig
“would remain in the vicinity of the residence … to await
[Ormosen’s] exit from the home and then he would arrest both.”4
“At this point, Paulette [gave] Oemig permission to enter the
residence.”

 The officers located Ormosen hiding in an attic.

 At no point during the encounter did Paulette ask to end the contact,
tell the officers to leave the property, request permission to enter the
house for any reason other than to retrieve Ormosen’s cell phone, or
make any other request that was denied by law enforcement.

3
The uncontroverted evidence is that Oemig told Paulette to retrieve Ormosen’s phone
from inside the home.
4
The circuit court’s complete statement was that Oemig told Paulette he “would remain
in the vicinity of the residence in a squad car potentially across the street to await [Ormosen’s]
exit from the home and then he would arrest both.” (Emphasis added.) Although it is unclear
what the court meant by “potentially,” we note that there was no testimony (or any other
evidence) at the suppression hearing that Oemig stated he would wait in a squad car across the
street. Moreover, neither party relies on such a finding.

Oemig’s testimony was ambiguous as to where he intended to wait for Ormosen.
Ormosen construes Oemig’s testimony to mean that Oemig would wait in the Ormosens’ yard.
The State construes Oemig’s testimony to mean that he would wait “by the residence,” but does
not indicate whether that means in the yard by the house or next to the yard. Under either
interpretation, our conclusion in this case is the same.

7
No. 2022AP1962-CR

 The encounter between Oemig and Paulette lasted about an hour.

 Paulette was told “at least once” to remain where she was and was
“separated from her mother a couple times,” during which time law
enforcement spoke to the two women individually.

 Prior to the officers’ entry into the home, they were denied entry into
the residence twice.

 There was no evidence that Paulette “had any perceptible difficulties
that made her more susceptible to law enforcement tactics.”

 Oemig told Paulette at least three times that she would be arrested if
he discovered that she was lying to him.

 The officers did not tell Paulette that she could refuse consent to
enter; however, it is “fairly obvious” that Paulette “was aware of
that.”

 Paulette’s statement that she did not know where Ormosen was
“may well [have been] true,” given testimony that: (1) Paulette was
not aware of Ormosen’s presence until officers were already in her
home; and (2) Paulette told Oemig immediately upon his arrival that
she did not know where Ormosen was. However, Oemig was not
“under any obligation to accept such a statement as true,” in light of
the following:

o Paulette never asked law enforcement for permission to enter
the house to look for him, despite knowing about Ormosen’s
crash and potential injuries;

o Paulette told law enforcement that they could not enter the
house because her children were getting ready for school even
though it was a Sunday at approximately 7:00 p.m.; although
“[i]t is absolutely possible that this could have been true …, it
adds to what the [c]ourt views as suspicious at best
explanations for the denial”;

o Paulette allowed Pichler to enter the residence but limited
where Pichler could look; and

o Pichler testified that the reason for this was because there was
concern that the children might have trouble going to bed on
time if they encountered their grandmother, which the court

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No. 2022AP1962-CR

said was “entirely possible” but was “somewhat questionable
given the time of day.”

¶16 Following the denial of his suppression motion, Ormosen pled guilty
to the OWI charge and was sentenced. He now appeals.5

DISCUSSION

¶17 When reviewing a circuit court’s denial of a motion to suppress
evidence, we will uphold a circuit court’s findings of fact unless they are clearly
erroneous. State v. Grady, 2009 WI 47, ¶13, 317 Wis. 2d 344, 766 N.W.2d 729;
State v. Phillips, 2009 WI App 179, ¶6, 322 Wis. 2d 576, 778 N.W.2d 157.
“Whether the facts satisfy constitutional principles is a question of law for this
court to decide.” Phillips, 322 Wis. 2d 576, ¶6.

¶18 It is a “‘basic principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively unreasonable.’”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quoted source omitted). In
particular, the physical entry of the home has been described by the United States
Supreme Court as “the chief evil against which the wording of the Fourth
Amendment is directed.” United States v. United States Dist. Ct., 407 U.S. 297,

5
The appellant’s briefs do not comply with WIS. STAT. RULE 809.19(8)(bm) (2021-22),
which addresses the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that,
when paginating briefs, parties should use “Arabic numerals with sequential numbering starting
at ‘1’ on the cover”). This rule was amended in 2021, see S. CT. ORDER 20-07, 2021 WI 37, 397
Wis. 2d xiii (eff. July 1, 2021), because briefs are now electronically filed in PDF format and
electronically stamped with page numbers when they are accepted for e-filing. As our supreme
court explained when it amended the rule, the pagination requirement ensures that the numbers on
each page of the brief “will match … the page header applied by the eFiling system, avoiding the
confusion of having two different page numbers” on every page of a brief. S. CT. ORDER 20-07
cmt. at x1.

All references to the Wisconsin Statutes are to the 2021-22 version.

9
No. 2022AP1962-CR

313 (1972); see also State v. Richter, 2000 WI 58, ¶28, 235 Wis. 2d 524, 612
N.W.2d 29 (same). Wisconsin courts have “scrutinized with the greatest care
claims by the state to the use of evidence seized in warrantless searches of one’s
home.” State v. Douglas, 123 Wis. 2d 13, 21, 365 N.W.2d 580 (1985).

¶19 One well-established exception to the Fourth Amendment’s warrant
requirement is for searches conducted pursuant to consent by an individual having
either actual or apparent authority over the place to be searched. State v.
Wantland, 2014 WI 58, ¶¶20, 23, 355 Wis. 2d 135, 848 N.W.2d 810. To
determine whether the consent exception is satisfied, we consider: (1) whether
consent was, in fact, given; and (2) whether the consent was voluntary. State v.
Artic, 2010 WI 83, ¶30, 327 Wis. 2d 392, 786 N.W.2d 430. Here, there is no
dispute that Paulette gave actual consent and that she had authority to do so. The
question is whether her consent was voluntary.

¶20 When evaluating the voluntariness of an individual’s consent to a
search, we consider ‘“the totality of all the surrounding circumstances.’” Id., ¶32
(quoted source omitted). To qualify as voluntary, a person’s consent must be ‘“an
essentially free and unconstrained choice’” that is not ‘“the product of duress or
coercion, express or implied.’” Id. (quoted source omitted).

¶21 The following nonexclusive factors are relevant to the voluntariness
inquiry: (1) whether the police used deception, trickery, or misrepresentation to
obtain consent; (2) whether the police used threats, physical intimidation, or
punishment by the deprivation of something like food or sleep to obtain consent;
(3) whether the conditions attending the request to search were congenial,
nonthreatening, and cooperative, or the opposite; (4) how the person giving
consent responded to the request to search; (5) the characteristics of the consenting

10
No. 2022AP1962-CR

individual, such as age, intelligence, education, physical and emotional condition,
and prior experience with the police; and (6) whether the police explained that
consent could be refused. Id., ¶33.

¶22 The State bears the burden of proving that consent was given freely
and voluntarily, and must satisfy that burden by clear and convincing evidence.
Id., ¶32. Applying the above principles of law to the undisputed facts, we
conclude that the State has not met its burden of establishing by clear and
convincing evidence that Paulette’s consent was voluntary.

¶23 Regarding the first factor, Ormosen does not argue, nor does the
record show, that police used or attempted to use deception, trickery, or
misrepresentation to persuade Paulette to consent to the search. As the circuit
court found, Oemig explained the purpose of the search.

¶24 As to the second factor—whether police used threats, physical
intimidation, or punishment to obtain consent—we agree with the circuit court’s
observation that this factor “is substantially more complicated.” As found by the
court, Oemig threatened to arrest Paulette on at least three occasions, primarily in
response to her refusal to grant him consent to enter her home. Although the court
determined that Paulette’s statements that she did not know Ormosen’s
whereabouts may or may not have been true, Oemig made it clear to Paulette that
if she denied consent to search and Ormosen came out of the home, Paulette
would be arrested for obstruction. According to Oemig’s own testimony, in
response to Paulette’s last denial of consent, Oemig said something to the effect
of, “I’m going to wait here until [Ormosen] comes out” and “[a]t that time I’m
going to arrest [him], and I’m going to arrest you as well for obstructing.”

11
No. 2022AP1962-CR

¶25 The State argues that “[t]o the extent that [Oemig’s] statement about
arresting [Paulette] could be considered a ‘threat,’ it was only a ‘threat’ to do what
[the officer] would have had the lawful authority to do: arrest Paulette for
obstruction if he developed probable cause that she lied about knowing where
Ormosen was.” In support, the State cites two cases from the federal courts of
appeals and a Nebraska court of appeals case: See Thompson v. Haley, 255 F.3d
1293 (11th Cir. 2001); United States v. Finch, 998 F.2d 349 (6th Cir. 1993); State
v. Grimes, 870 N.W.2d 162 (Neb. App. 2015). However, these cases—which
address voluntariness of confessions rather than consent to enter a home—do not
hold, or even suggest, that a threat of arrest cannot be a factor in determining,
under the totality of the circumstances, whether consent to a search was voluntary.
The State has not provided, nor have we uncovered, any precedent establishing
that such threats may not be considered in this analysis.

¶26 In addition to Oemig’s repeated threats to arrest Paulette, he also
threatened, in response to Paulette’s denial of consent, that he would stay “here,”
referring to the Ormosens’ property, or “by the residence” until Ormosen emerged
from the house, at which point both Paulette and Ormosen would be arrested.
According to Paulette’s undisputed testimony, it was this statement that finally led
her to provide consent. As Paulette testified, “[The officers] basically said there
was no way they were going to leave unless I let them in the house. This was
already over an hour. My kids were upstairs looking out the window. I can’t tell
[the kids] anything while I’m outside my house.” See State v. Phillips, 218
Wis. 2d 180, 200, 577 N.W2d 794 (1998) (consideration in examining second
factor is whether police “prolong[ed] the encounter to wear down the [consenter’s]
resistance … before the [consenter] consented to the search”). Further, on at least
one occasion, Oemig restrained Paulette, depriving her of freedom of movement

12
No. 2022AP1962-CR

on her own property. See id. (in examining this factor, court considers whether
person from whom consent is obtained is “physically subdue[d] or restrain[ed]”).

¶27 We next examine the third and fourth factors together, whether the
conditions attending the request to search were congenial, nonthreatening, and
cooperative—or the opposite—and how Paulette responded to law enforcement’s
request to search her home. As stated, before granting consent, Paulette refused
Oemig’s request to enter her home on two occasions, explaining that her children
were in the home. Our supreme court has stated that “[a]n initial refusal of a
request to search will weigh against a finding of voluntariness.” Artic, 327
Wis. 2d 392, ¶56 (citing State v. Kiekhefer, 212 Wis. 2d 460, 472, 569 N.W.2d
316 (Ct. App. 1997). Here, this factor weighs more heavily against voluntariness,
given that there was more than one refusal prior to consent. See also State v.
Munroe, 2001 WI App 104, ¶11, 244 Wis. 2d 1, 630 N.W.2d 223 (“[The officers’]
continued questioning and their renewed request to search made Munroe’s
‘consent’ not voluntary.”).

¶28 The evidence also shows that Paulette’s encounter with the officers
was far from congenial, nonthreatening, and cooperative. As noted, police
repeatedly requested to enter Paulette’s home and, upon her refusal, threatened to
arrest her and to remain either on or by her property until Ormosen exited the
house. The encounter took place over the course of approximately an hour, during
which Oemig ordered Paulette to various locations in her own yard and further
ordered her to remain there, restraining her movement until otherwise directed.
Oemig also directed Paulette to enter her home to retrieve Ormosen’s phone and
provide it to law enforcement. In addition, law enforcement twice separated
Paulette from her mother and ordered her mother to particular locations in
Paulette’s yard. It is undisputed that Paulette’s young children were in the house

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No. 2022AP1962-CR

and that Paulette was upset and crying. See Phillips, 218 Wis. 2d 180, 200-01 (in
analyzing third factor, a consideration is whether person giving consent “was in
any way overcome by the [officer’s] tactics”).

¶29 As to the fifth factor, the record contains no information regarding
Paulette’s age or education, and her testimony reveals no reason to doubt her
intelligence. However, her “emotional condition” undisputedly was one of
distress and vulnerability, and there is no indication that she had any prior
“experience with the police” that might have made her more resistant to the
pressure of the police conduct here.

¶30 Regarding the sixth factor, the evidence shows that police did not
inform Paulette of her right to refuse consent. Although we agree with the circuit
court and the State that Paulette’s initial refusals indicate that she was at least
initially aware that she had the right to refuse, we conclude that Oemig’s
continued requests for consent and threats of arrest in response to Paulette’s
refusals weigh against a determination of voluntariness. This is especially so in
light of Oemig’s repeated assertions that he would arrest Paulette, which
immediately followed her repeated exercise of the right to refuse consent.

¶31 Based on the totality of the circumstances—and bearing in mind that
the physical entry of the home is the “chief evil” against which the Fourth
Amendment is directed and that it is the State that has the burden of establishing
voluntary consent—we conclude that the State has not met its burden of
establishing by clear and convincing evidence that Paulette voluntarily consented
to the officers’ entry into the Ormosens’ home.

¶32 Accordingly, we conclude that the circuit court erred in denying
Ormosen’s suppression motion. We therefore reverse that decision and remand

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No. 2022AP1962-CR

with directions to vacate the judgment of conviction and suppress the evidence
obtained as a result of the unconstitutional search of the Ormosens’ home.

By the Court.—Judgment reversed and cause remanded with
directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

15