State v. Mark T. Solheim

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.
September 18, 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. 2024AP239-CR Cir. Ct. No. 2022CT600

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

MARK T. SOLHEIM,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Walworth County:
DAVID M. REDDY, Judge. Reversed and cause remanded for further
proceedings.

¶1 GUNDRUM, P.J.1 The State appeals from a circuit court order
granting Mark T. Solheim’s motion to suppress evidence based upon the court’s
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2024AP239-CR

conclusion that the officer who filed the affidavit in support of a search warrant
authorizing Solheim’s blood draw included a false statement made with a reckless
disregard for the truth. Because we conclude Solheim did not make the necessary
initial showing to be granted an evidentiary hearing on his motion and because,
despite being afforded a hearing, he failed to establish that the affiant made the
false statement with a reckless disregard for the truth, we uphold the warrant and
reverse and remand for further proceedings.

Background

¶2 A circuit court judge issued a search warrant authorizing a draw of
Solheim’s blood after determining the arresting officer’s affidavit established the
requisite probable cause. That blood draw led to charges for operating while
intoxicated (OWI), third offense, and operating a motor vehicle with a prohibited
alcohol concentration (PAC), third offense.

¶3 As relevant to this appeal, the officer swore in his affidavit that
Solheim was arrested for OWI because he (1) was driving his vehicle while under
the influence at “5:00PM” on October 9, 2022; (2) had “glassy eyes”; (3) admitted
to drinking two beers; (4) Solheim’s wife, Alexandrea Solheim, had “observed”
Solheim “PULL[] INTO THE DRIVEWAY IN THEIR ESCALADE”;
(5) Solheim himself had “admitted to driving/operating the motor vehicle”; and
(6) during Solheim’s performance of field sobriety tests, the officer observed six
out of six possible clues of intoxication on the horizontal gaze nystagmus test,
three of eight possible clues on the walk and turn test, and two of four possible
clues on the one leg stand test.

2
No. 2024AP239-CR

¶4 Solheim moved to suppress blood alcohol evidence2 based upon his
contention that the arresting officer’s statement in his affidavit that Solheim had
driven his vehicle at “5:00PM” on October 9, 2022, was “total speculation” and
“completely arbitrary, capricious, and not credible/plausible” and that without that
statement the officer’s affidavit “lacks probable cause.” At the hearing on
Solheim’s motion, with the same judge presiding who had signed the warrant, the
following relevant evidence was presented.

¶5 Alexandrea testified she called the police around 5:00 p.m. on
October 9, 2022, “because I had locked the doors to my home with my children
inside, and my husband was trying to get in the door.” She told the police she was
calling because she was upset with Solheim because “he took [their children]
down to Oktoberfest, I didn’t know where they were, and that I had picked them
up, locked the door, and now he’s trying to break into the house.” The police
responded to the home quickly. Alexandrea agreed that even though her husband
also lived at the home, she had locked the door due to “a concern for [her] safety.”

¶6 Alexandrea further testified that she returned home from Oktoberfest
with her children around 2:45 p.m. and that Solheim subsequently drove home in a
black SUV, arriving home sometime between 3:00 and 3:15 p.m. She indicated
she was familiar with the sight of Solheim drunk and on that day she “believed
that he had been drinking, but … had no proof.” She stated she knows when he is
drunk because of “[t]he way his eyes look, the way he speaks, or on the opposite,
the way he just does not speak, kind of goes silent.” She disagreed that Solheim

2
Solheim also filed a “Motion to Suppress and Dismiss Fruits of Illegal Arrest.” This
motion was briefly discussed on the record, and according to the docket in Walworth County
Case No. 2022CT600, the circuit court orally denied it. It is not at issue on appeal.

3
No. 2024AP239-CR

tried to enter the house immediately after arriving home, stating instead that “he
was mostly in the barn and around.” She indicated she did not see Solheim
drinking anything after he returned home from Oktoberfest.

¶7 On cross-examination, Alexandrea testified that she did not go
outside the house until after the police arrived. At “some point” on October 9,
2022, she went into the barn and saw “a half-full Smirnoff bottle.” She agreed
that Solheim drove into the driveway around 3:00 p.m., and she testified that if
police had indicated that Solheim had driven into the driveway around 5:00 p.m.,
that would “not [be] accurate.” On redirect examination, she indicated she
assumed the bottle of Smirnoff “may have been opened and consumed” on that
day, but she did not know “the accuracy of that.”

¶8 Officer Jeffrey Sargent testified that he responded to the Solheim
home shortly after 5:00 p.m. on October 9, 2022, for a “domestic” situation. Upon
arriving at the home, the officer encountered Solheim, who indicated his wife was
upset with him but that he was not certain as to why. Solheim also stated he had
had two of their children with him at Oktoberfest but that “his wife came and
picked them up.” While speaking with Solheim, the officer observed that his eyes
were “glassy” and “smell[ed] [the] odor of intoxicants coming from him.” Upon
inquiry, Solheim told the officer he had consumed two beers at Oktoberfest
approximately one and one-half hours earlier. The officer agreed that when he
asked Solheim for his identification, Solheim “looked all over the place” but could
not find it, but later “found it in his pocket.” When asked by the officer, Solheim
indicated he had not consumed alcohol since returning home from Oktoberfest.

¶9 The officer asked Solheim to perform field sobriety tests because the
officer “believed he was intoxicated and … had driven home.” The officer agreed

4
No. 2024AP239-CR

that he believed this “based on [Solheim’s] admission to drinking and driving and
other witness’s statement and also [the officer’s] observations.” Solheim
originally refused to do the tests but eventually agreed.

¶10 After the officer explained to Solheim why he wanted Solheim to do
the field sobriety tests, Solheim “changed his statement and said he in fact did not
drive home, that he walked home from Oktoberfest” and also stated that he “had
drinks when he arrived at home.” The officer agreed that when Solheim
performed the field sobriety tests, the officer “observe[d] a number of clues
indicating that [Solheim] was impaired,” confirming the officer’s “observations
that [Solheim] was drunk driving.” The officer arrested Solheim for OWI.

¶11 Solheim refused to consent to a blood draw, causing the officer to
apply for a search warrant, which he supported with the previously mentioned
affidavit. The judge granted the warrant, and a sample of the defendant’s blood
was procured.3

¶12 On cross-examination, the officer agreed he was dispatched to the
Solheim home “for a domestic abuse situation.” He testified that when he
encountered Solheim outside of his house, Solheim “did appear to be intoxicated.”
Solheim appeared confused, and his speech was “off.” The officer acknowledged
he never personally observed Solheim drive and found no alcohol in a search of
Solheim’s vehicle. The officer agreed he did not know “when” Solheim had
driven “other than … after Oktoberfest and then prior to my arrival.” The officer
indicated he had not searched the barn.

3
The criminal complaint indicates that an analysis of the sample showed Solheim’s
blood alcohol content (BAC) to have been .266.

5
No. 2024AP239-CR

¶13 In response to questioning from the circuit court, the officer stated
he had put “5:00PM” as the time that Solheim had driven his vehicle because the
officer “believed that [Solheim] had just returned home from the Oktoberfest at
the time that [Alexandrea] called.” He believed this because

when she called, she … stated her husband was trying to
get into the house, which led me to believe that he had
come home from Oktoberfest and then proceeded to try to
get into the house. She had never said that he was in the
barn or was home for a while. It was just reported that he
got home from Oktoberfest and then was trying to get into
the house.

Upon redirect examination, the officer explained that he had not searched the barn
for alcohol “because [Solheim] had denied drinking at home so there was no
reason to search the premise for any alcohol.”

¶14 Solheim’s mother, Patricia Solheim, testified next. She stated she
went to Oktoberfest to check on Solheim and Alexandrea’s children—her
grandchildren—and encountered Solheim there. She was standing just a few feet
from Solheim and “did not believe he was drunk”; he was not slurring his speech
and did not have “an odor of intoxicants on him.” She stated that she “d[idn’t]
recall specifically looking at [Solheim’s] eyes,” but she also (contradictorily)
indicated his eyes were not bloodshot, and she did not believe they were “glassy.”

¶15 Patricia testified that she took one of the Solheim children home
around 2:45 p.m. and stayed at the house only long enough to explain to
Alexandrea that there was a misunderstanding regarding the whereabouts of one of
the children at Oktoberfest. Sometime later, after she left the Solheim home,
Patricia received a text from Alexandrea indicating she was upset with Solheim; so
Patricia returned to the home “[s]ometime between 5:00 and 5:30” p.m., and
observed police on the property.

6
No. 2024AP239-CR

¶16 The circuit court found that at the time the officer engaged with
Solheim on October 9, 2022, he was “definitely intoxicated.”4 The court also
found that Solheim had driven his vehicle, as the officer’s search warrant affidavit
stated, but that the driving occurred between 3:00 and 3:15 p.m., not around
5:00 p.m., as the officer had indicated in his affidavit. The court determined the
5:00 p.m. driving time the officer had included in his affidavit was false and
needed to be excised from it because, the court concluded, “there was a reckless
disregard for the truth inasmuch as I think [the officer’s] investigation was poor at
best.” The court granted Solheim’s suppression motion, and the State appeals.

Discussion

¶17 In State v. Anderson, 138 Wis. 2d 451, 406 N.W.2d 398 (1987), our
supreme court laid out the review process and standard for a defendant challenging
a search warrant on the basis that the affidavit supporting it contains false
information.

[T]he defendant must first make a substantial preliminary
showing that a false statement knowingly and intentionally,
or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit and that the allegedly false
statement is necessary to the finding of probable cause.

To make a substantial preliminary showing “[t]here
must be allegations of deliberate falsehood or of reckless
disregard for the truth, and those allegations must be
accompanied by an offer of proof. They should point out
specifically the portion of the warrant affidavit that is

4
The circuit court then stated, “But [Solheim’s] position was he drank after he got
home.” This is not a factual finding that Solheim in fact drank after he returned home from
Oktoberfest; indeed, Solheim did not testify at the hearing, and his wife’s testimony was that she
had not seen him drink anything after returning home from Oktoberfest. Instead, it appears to be
merely a restatement of Solheim’s theory of defense at the evidentiary hearing.

7
No. 2024AP239-CR

claimed to be false; and they should be accompanied by a
statement of supporting reasons.”

Id. at 462 (second alteration in original; citations omitted).

¶18 If the defendant makes the requisite “substantial preliminary
showing,” the circuit court will hold a “Franks”5 hearing. Importantly, “the
defendant is only entitled to a hearing if he or she first makes a substantial
showing that a false statement was knowingly or intentionally, or with reckless
disregard for the truth, included by the affiant in the affidavit and that the alleged
false statement is necessary to a finding of probable cause.” Anderson, 138
Wis. 2d at 463 n.5 (emphasis added).

¶19 “A presumption of validity attends the affidavit.” Id. at 463. To
overcome this presumption, the defendant must prove at the Franks hearing, by a
preponderance of the evidence,

first[,] … that the challenged statement is false, and second,
that the affiant intentionally made the false statement or
that the statement was made with a reckless disregard for
the truth. Proof that the challenged statements were made
innocently or negligently is insufficient to have the
challenged statement removed from the affidavit….

… [T]o prove reckless disregard for the truth, the
defendant must prove that the affiant in fact entertained
serious doubts as to the truth of the allegations or had
obvious reasons to doubt the veracity of the allegations.
Because the defendant must show either intent or reckless
disregard, a Franks hearing, by necessity, focuses on the
state of mind of the affiant.

If the challenged statements are proven to be false and
either made recklessly or intentionally, then the challenged
statements are excised from the affidavit. The affidavit is
then examined to determine whether, with the statements

5
Franks v. Delaware, 438 U.S. 154 (1978).

8
No. 2024AP239-CR

excised, the affidavit provides probable cause for a search
warrant. If the affidavit fails to state probable cause, the
warrant is voided and the evidence seized pursuant to the
warrant must be suppressed. If with the challenged
statements excised the warrant still states probable cause,
the warrant is upheld and the evidence is admissible.

Anderson, 138 Wis. 2d at 463-64 (citations omitted).

¶20 We conclude we must reverse because Solheim failed to make a
sufficient preliminary showing to entitle him to the Franks hearing in the first
instance. Moreover, at the hearing, Solheim failed to overcome the presumption
of validity attending the officer’s affidavit by showing that the false
5:00 p.m.-driving information in the affidavit was included with a reckless
disregard for the truth.

Preliminary showing

¶21 As indicated, a defendant is entitled to a hearing to challenge the
affidavit and warrant only if he or she makes a “substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant affidavit and that the allegedly
false statement is necessary to the finding of probable cause.” Anderson, 138
Wis. 2d at 462. Such a showing requires “allegations of deliberate falsehood or of
reckless disregard for the truth, and those allegations must be accompanied by an
offer of proof.” Id. (citation omitted). “[R]eckless disregard for the truth”
requires a defendant to show that the affiant “in fact entertained serious doubts as
to the truth of the allegations or had obvious reasons to doubt the veracity of the
allegations.” Id. at 463.

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No. 2024AP239-CR

¶22 Solheim asserted in his motion to suppress that:

1. That information in the Affidavit in support of Blood
Warrant has some information that is not true or
accurate.

2. That this untrue and inaccurate information causes
the search warrant to lack probable cause.

3. Specifically, Ms. Alex Solheim did not see
Mr. Solheim pull into the driveway in their
[E]scalade.

4. Also, No. 8 of the Affidavit indicates the date of
driving/operation is October 9, 2022 at 5 p.m. This
statement is total speculation.

5. The police never saw Mr. Solheim drive,
Ms. Solheim never said Mr. Solheim drove at 5 p.m.
and Mr. Solheim never said he drove at 5 p.m. This
proposed fact is completely arbitrary, capricious, and
not credible/plausible.

6. That without knowing Mr. Solheim allegedly drove
at 5 p.m. the Affidavit in support of [the] search
warrant lacks probable cause.

(Emphasis added.)

¶23 The first two assertions are conclusory and say nothing helpful. We
assume assertion three relates to a statement in para. 12.b. of the officer’s
affidavit, that “[a] citizen witness … SOLHEI[M], ALEX observed the person
drive/operate the vehicle in the following manner … Driver PULLED INTO THE
DRIVEWAY IN THEIR ESCALADE.” (Emphasis added.) Solheim did not
dispute in the motion that he in fact “pulled into the driveway in [his] [E]scalade”;
he only asserted that his wife did not actually “see” him do that.

¶24 Assertion three does not make a “substantial preliminary showing”
to support the circuit court holding a Franks hearing because such a showing must
also demonstrate that the allegedly false statement “is necessary to the finding of

10
No. 2024AP239-CR

probable cause.” See Anderson, 138 Wis. 2d at 462. Here, the motion fails in this
regard because immediately following para. 12.b. of the affidavit is para. 12.c.,
which states that Solheim himself “admitted to driving/operating the motor
vehicle.” Thus, even if the officer had not averred that Alexandrea had
“observed” Solheim drive/operate the vehicle, Solheim himself admitted doing
that.

¶25 Assertion four is completely unhelpful. It states that “No. 8 of the
Affidavit indicates the date of driving/operation is October 9, 2022 at 5 p.m. This
statement is total speculation.” (Emphasis added.) Not only does Solheim’s
motion not assert that the October 9, 2022 date (or the 5:00 p.m. time for that
matter) of his driving is false, it makes no suggestion that the officer “in fact
entertained serious doubts as to the truth of the [date] or had obvious reasons to
doubt the veracity” of the date. See id. at 463. That is not a surprise because in
fact Solheim’s driving underlying this case indisputably did occur on October 9,
2022. There was nothing remotely false about this date, and the motion does
assert that there was.

¶26 As to assertion five, the officer’s affidavit does not state the officer
“saw Mr. Solheim drive,” and in fact a related box at para. 12.a.—“A peace officer
observed the person drive/operate the vehicle”—is left unchecked, thus suggesting
only the truth—that the officer himself did not observe Solheim drive his vehicle.
Assertion five continues with: “Ms. Solheim never said Mr. Solheim drove at
5 p.m. and Mr. Solheim never said he drove at 5 p.m. This proposed fact is
completely arbitrary, capricious, and not credible/plausible.” This does not assert
that the officer made a false representation in the affidavit as he never stated
therein that Alexandrea or Solheim told the officer that Solheim drove at 5:00 p.m.
While one could make an inference that because the officer indicated that

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No. 2024AP239-CR

Alexandrea and Solheim both informed the officer that Solheim had been driving
his vehicle, the “5 p.m.” time came directly from them, that would not be the only
explanation for the officer’s representation that the driving occurred around
5:00 p.m. As we will discuss more later, the officer could have concluded based
upon other factors—as he testified he in fact did—that the time of Solheim’s
driving was 5:00 p.m.

¶27 Finally, assertion six merely presents a legal conclusion.

¶28 Regardless and significantly, when the motion is read carefully, it is
clear that it does not deny that Solheim’s driving occurred at 5:00 p.m. and does
not assert that the 5:00 p.m.-driving representation by the officer was actually
false. These would have been very simple assertions to include, yet the motion
instead appears to artfully dodge them. Even if Solheim wanted to avoid
admitting in the motion that he had driven, he could have asserted, for example,
“Mr. Solheim arrived home at approximately 3:00 p.m. on October 9, 2022, not
5:00 p.m.” Relatedly and also significantly, the motion fails to allege the officer
intentionally lied in stating Solheim drove at 5:00 p.m., that the officer made this
representation while “entertain[ing] serious doubts” that this was the time Solheim
drove, or that the officer had “obvious reasons to doubt” that this was the time of
Solheim’s driving. See id.

¶29 In Anderson, our supreme court stated it was “unconvinced that the
hearing was providently granted.” Id. at 464 n.7. Similarly here, Solheim was
improvidently granted a Franks hearing, as his motion failed to make the
necessary showing.

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No. 2024AP239-CR

Failure to overcome the presumption of validity of the affidavit

¶30 The only statement Solheim challenged at his evidentiary hearing
and continues to challenge is the officer’s representation in his affidavit that
Solheim’s driving on October 9, 2022, occurred at 5:00 p.m. The affidavit
indicates that at Solheim’s home on that date, Solheim told the officer that he did
drive home. Then, after the officer explained why he was going to have Solheim
perform field sobriety tests, Solheim changed his story and told the officer he did
not drive home but instead walked home. At the Franks hearing, Solheim took
the position that he did drive home—but that he did so around 3:00 p.m. that day,
not 5:00 p.m. This last position is the one he takes on appeal.

¶31 To overcome the presumption of validity of the officer’s affidavit
and the statements therein, see Anderson, 138 Wis. 2d at 463, Solheim needed to
show at the evidentiary hearing “both … that the statement [that Solheim drove
around 5:00 p.m.] is false and that it was made either intentionally, or with
reckless disregard for the truth,” see id. Solheim asserts it was made with reckless
disregard for the truth, which, again, requires a showing that the officer
“entertained serious doubts as to the truth of the [5:00 p.m.] allegation[] or had
obvious reasons to doubt the veracity” of that allegation. See id. Whether the
5:00 p.m. allegation was made with reckless disregard for the truth is a question of
fact for the circuit court. State v. Mann, 120 Wis. 2d 629, 632, 357 N.W.2d 9
(Ct. App. 1984), rev’d on other grounds, 123 Wis. 2d 375, 367 N.W.2d 209
(1985). We affirm a circuit court’s findings of fact unless they are clearly
erroneous. Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶34, 319
Wis. 2d 1, 768 N.W.2d 615.

13
No. 2024AP239-CR

¶32 At the hearing, Alexandrea flatly testified that Solheim drove home
from Oktoberfest around 3:00 p.m., explaining in detail why she recalled that to be
the time, but that she did not call the police about Solheim attempting to enter the
house until 5:00 p.m. When the court subsequently asked the officer why he had
put down the time of 5:00 p.m. in the affidavit, the officer responded, “Because I
had believed that he had just returned home from the Oktoberfest at the time that
she called.” The court then asked, “What led you to believe that?” The officer
responded:

[S]he called and stated her husband was trying to get into
the house, which led me to believe that he had come home
from Oktoberfest and then proceeded to try to get into the
house. She had never said that he was in the barn or was
home for a while. It was just reported that he got home
from Oktoberfest and then was trying to get into the house.

¶33 Finding Alexandrea’s testimony on the matter credible, the court
found as a matter of fact that Solheim drove home around 3:00 p.m., not 5:00 p.m.
Because of this finding, which is supported by some evidence from the hearing,
we must conclude that the officer’s statement in the affidavit that Solheim drove at
5:00 p.m. was false. That conclusion, however, does not end this issue, as the
officer’s inference that Solheim had driven around 5:00 p.m. was not made with a
reckless disregard for the truth.

¶34 “[T]o prove reckless disregard for the truth, the defendant must
prove [by a preponderance of the evidence] that the affiant in fact entertained
serious doubts as to the truth of the allegations or had obvious reasons to doubt the
veracity of the allegations.” Anderson, 138 Wis. 2d at 463. The focus is on the
officer’s state of mind. Id. at 464.

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No. 2024AP239-CR

¶35 Here, Alexandrea called the police around 5:00 p.m. on October 9,
2022. The officer testified that he responded to the Solheim home around 5:10 or
5:15 p.m. to address a “domestic abuse situation.” He encountered Solheim first,
and Solheim stated he did not know why his wife had called the police. Solheim
explained that he had had some of his children with him at Oktoberfest but that his
wife had come and picked them up. Alexandrea testified that she had called the
police around 5:00 p.m. that day, and when the police asked her what had
happened and why she was calling, she essentially told the police she was upset
with Solheim because “he took [the children] down to Oktoberfest, I didn’t know
where they were, and that I had picked them up, locked the door, and now he’s
trying to break into the house.” Alexandrea also testified that she “d[idn]’t recall”
if she had told the police at what time she had seen Solheim drive.

¶36 What matters is the officer’s state of mind at the time he signed and
submitted his affidavit to the circuit court in support of a search warrant. Solheim
failed to establish that at that critical time the officer “in fact entertained serious
doubts as to the truth of the [5:00 p.m. time] or had obvious reasons to doubt the
veracity” of his belief that Solheim had driven home around 5:00 p.m. See id. at
463.

¶37 Here, the officer was dispatched for a domestic abuse incident after
Alexandrea told the police at approximately 5:00 p.m. that Solheim had taken their
children to Oktoberfest and she had “picked them up, locked the door, and now
he’s trying to break into the house.” The officer’s undisputed testimony was that
Solheim initially had indicated he had driven home from Oktoberfest but then
changed his story after the officer explained why he wanted Solheim to perform
field sobriety tests. It was not unreasonable for the responding officer, who
prepared the affidavit, to infer that all of the conduct of concern—Solheim driving

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No. 2024AP239-CR

home from Oktoberfest, Alexandrea locking the door to the house, and Solheim
“now … trying to break into the house” occurred right before she called the police
at 5:00 p.m. Nothing in the record suggests Solheim, Alexandrea, or Patricia had
indicated to any police personnel that the time of Solheim’s driving was two hours
before Alexandrea’s call, and the officer testified that Alexandrea “had never said
that he was in the barn or was home for a while.” Even when Solheim changed his
story about having driven home, he did not indicate he had arrived home two
hours earlier than the approximately 5:15 p.m. time that he was interacting with
the officer; instead, Solheim simply told the officer that he had walked home
(which he now agrees was a lie).

¶38 The circuit court determined that in attesting in the affidavit that
Solheim had driven at 5:00 p.m., the officer had exhibited “a reckless disregard for
the truth.” But, this determination was based solely on the court’s conclusion that
the officer’s investigation on October 9, 2022, “was poor at best.” The court
criticized the officer for not “touching the hood of the vehicle to find out if it was
warm” or actually asking Solheim what time he drove home—though the court
also acknowledged that Solheim “was in no position to be making statements that
were … forthcoming because he was definitely intoxicated.”

¶39 While it appears the officer could have done a more thorough job
securing evidence by simply asking Alexandrea what time Solheim had pulled into
their driveway, the officer’s reliance upon the inference that Solheim drove at
5:00 p.m. was innocent—or, at most, negligent—and did not amount to a reckless
disregard for the truth. Indeed, the officer explained his understandable reason for
assuming/inferring that Solheim had driven home around 5:00 p.m.—
“[Alexandrea] had never said that he was in the barn or was home for a while. It
was just reported [at 5:00 p.m.] that he got home from Oktoberfest and then was

16
No. 2024AP239-CR

trying to get into the house.” (Emphasis added.) The officer had no reason to
instead believe Solheim had driven home at 3:00 p.m., or at any time that day
other than 5:00 p.m. There was no evidence produced at the hearing that the
officer “in fact entertained serious doubts as to the truth of the [5:00 p.m. time] or
had obvious reasons to doubt the veracity” of his representation in the affidavit
that Solheim had driven around 5:00 p.m. See id. at 463. The circuit court’s
conclusion that the officer had made the 5:00 p.m. driving-time representation in
the affidavit with reckless disregard for the truth was clearly erroneous. Because
Solheim failed to establish that the officer made the false 5:00 p.m. statement with
reckless disregard for the truth, we do not excise the 5:00 p.m. time from the
affidavit, and the warrant stands as it originally did when presented to and
approved by the judge.6

By the Court.—Order reversed and cause remanded for further
proceedings.

6
In its brief-in-chief, the State spends three and one-half pages developing an argument
for why the affidavit still establishes probable cause even if the 5:00 p.m. time of driving is
excised. In his response brief, Solheim fails to address this issue at all and thus concedes it. See
Singler v. Zurich Am. Ins. Co., 2014 WI App 108, ¶28, 357 Wis. 2d 604, 855 N.W.2d 707
(“Arguments not refuted are deemed conceded.”); Charolais Breeding Ranches, Ltd. v. FPC
Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (stating that “propositions of
[parties] are taken as confessed which they do not undertake to refute” (citation omitted)). We
could reverse on this basis alone, as we uphold the search warrant and deem the evidence
admissible if the affidavit establishes probable cause after excising the challenged statement. See
State v. Anderson, 138 Wis. 2d 451, 464, 406 N.W.2d 398 (1987). We additionally note that the
circuit court found as a fact at the hearing that Solheim’s actual time of driving was “between
3:00 and 3:15” p.m. Yet, even if the officer had put that timeframe, instead of 5:00 p.m., in the
warrant, in light of Solheim’s performance on the field sobriety tests as identified in the warrant,
there still would have been probable cause shown in the warrant that Solheim had driven—around
3:00 p.m.—with a BAC of .08 or greater.

17
No. 2024AP239-CR

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

18