State v. Jonathon L. Sundermeyer

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.
March 3, 2026
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. 2024AP2007-CR Cir. Ct. No. 2020CF1333

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHON L. SUNDERMEYER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Marathon County:
SCOTT M. CORBETT, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

¶1 STARK, P.J. Jonathon L. Sundermeyer appeals from a judgment
convicting him, pursuant to a no-contest plea, of operating a motor vehicle with a
prohibited alcohol concentration (PAC), as a fifth offense. See WIS. STAT.
No. 2024AP2007-CR

§ 346.63(1)(b) (2023-24).1 Sundermeyer challenges his conviction on two bases.
First, Sundermeyer sought to collaterally attack his 2001 conviction for operating
a motor vehicle while intoxicated (OWI), as a second offense, and to exclude it
from consideration as a penalty enhancer, pursuant to WIS. STAT. § 346.65, on the
basis that the plea colloquy pertaining to his waiver of the right to counsel in that
case was defective. We conclude that pursuant to State v. Ernst, 2005 WI 107,
283 Wis. 2d 300, 699 N.W.2d 92, Sundermeyer has failed to allege that he did not
know or understand the information that was allegedly missing from the plea
colloquy at the time he waived his right to counsel and entered his plea.
Therefore, he has not met his initial burden to show that his waiver of his right to
counsel was defective.

¶2 Second, he argues that the circuit court erred by denying his motion
to suppress the results of a blood draw, which was supported by a search warrant,
because the warrant application was allegedly not supported by oath or
affirmation. On that issue, we conclude that because the affiant relied on the
observations and conclusions of another law enforcement officer, the affidavit in
support of the search warrant was sufficiently sworn. Accordingly, we affirm
Sundermeyer’s judgment of conviction.

BACKGROUND

¶3 On December 16, 2020, at 11:15 p.m., Marathon County Sheriff’s
Deputy Mou Xiong was dispatched to the Town of Johnson based on a report of a
vehicle in the ditch on Fence Road. Dispatch also informed Xiong that the

1
All references to the Wisconsin Statutes are to the 2023-24 version.

2
No. 2024AP2007-CR

reporting party had called back to report that a passerby had helped the vehicle out
of the ditch and that the vehicle had continued east on Fence Road towards County
Road E. Xiong proceeded east on Fence Road until he came upon Sundermeyer,
who was stopped on the side of the road.

¶4 When Xiong made contact with Sundermeyer, he observed that
Sundermeyer had glassy eyes, slurred speech, and an odor of intoxicants
emanating from his vehicle. Sundermeyer admitted to drinking three Busch Light
beers that evening, but he denied that he had been stuck in a ditch. Sundermeyer
agreed to submit to field sobriety tests, and his performance on those tests showed
indicia of intoxication. Xiong asked Sundermeyer if he would consent to a
preliminary breath test, but he refused. Sundermeyer then resisted Xiong’s
attempts to place him under arrest. Eventually, Sundermeyer was placed in
handcuffs and put in the back seat of Xiong’s vehicle.

¶5 While still at the scene, Xiong read Sundermeyer the Informing the
Accused form. See WIS. STAT. § 343.305(4). Sundermeyer failed to respond
when asked if he would consent to a chemical test of his blood; instead, he asked
to go to the bathroom three times, which Xiong eventually deemed a refusal.
Xiong thereafter applied for and received a warrant to draw Sundermeyer’s blood,
which we will discuss in more detail below. Xiong transported Sundermeyer to
Aspirus Wausau Hospital, where a lab technician drew Sundermeyer’s blood,
revealing a blood alcohol concentration of 0.173 g/100 mL.

¶6 The State charged Sundermeyer with one count each of OWI and
operating with a PAC, both as fifth offenses. Sundermeyer filed multiple motions,
including, as relevant here, a motion to suppress the blood test result, on the basis
that the warrant was obtained with a defective affidavit pursuant to State v. Tye,

3
No. 2024AP2007-CR

2001 WI 124, 248 Wis. 2d 530, 636 N.W.2d 473, and a motion and an amended
motion collaterally attacking his 2001 conviction for second-offense OWI in Clark
County Case No. 2001CT128.

¶7 The circuit court held an evidentiary hearing on the motions, during
which Xiong testified.2 Sundermeyer did not testify at this hearing. The court
later denied the motions by written orders.3

¶8 Sundermeyer entered a no-contest plea to operating with a PAC, as a
fifth offense, and the circuit court sentenced him to 1 year of initial confinement
followed by 18 months’ extended supervision.4 Sundermeyer appeals. See WIS.
STAT. § 971.31(10).

2
The State notes that Sundermeyer’s amended motion references an evidentiary hearing
conducted on March 8, 2022, and document 55 of the appellate record is labeled as “Motion
Hearing on 03-08-2022.” However, the date on the transcript is March 8, 2021. We agree with
the State that “[t]he 2021 date on that transcript appears to be an error.”
3
Sundermeyer’s original motion collaterally attacking his 2001 conviction alleged that
no transcript from the plea hearing existed. The State was eventually able to present the
transcript, and Sundermeyer “amended his initial motion to reflect the defects he discovered in
the newly-discovered transcript.” In the circuit court’s first decision and order on Sundermeyer’s
motions, entered on November 23, 2022, it held the amended motion “open for 60 days to allow
both parties to develop the factual record further or schedule this matter for further proceedings.”

The subsequent decision and order on Sundermeyer’s amended motion collaterally
attacking his 2001 conviction, entered on June 9, 2023, notes that the circuit court held a
nonevidentiary hearing on April 11, 2023. Based on the circuit court record, the hearing notice,
and the exhibit list from that hearing, it appears that the hearing occurred on April 10 rather than
April 11. However, a transcript of that hearing does not appear to be included in the appellate
record. It is the appellant’s responsibility to ensure that the record on appeal is complete, and any
missing material is presumed to support the circuit court’s ruling. Fiumefreddo v. McLean, 174
Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993).
4
The OWI charge was dismissed outright by operation of law. See WIS. STAT.
§ 346.63(1)(c).

4
No. 2024AP2007-CR

DISCUSSION

¶9 On appeal, Sundermeyer renews his challenges before the circuit
court. First, he argues that his 2001 conviction “should have been stricken as a
penalty enhancer” because it “was entered in violation of State v. Klessig, 211
Wis. 2d 194, 564 N.W.2d 716 (1997).” (Formatting altered.) Second, he contends
that the search warrant authorizing his blood draw was invalid because it did not
properly “establish the affiant’s basis of knowledge for swearing an affidavit,”
which “violates the Fourth Amendment.” (Formatting altered.) For the reasons
that follow, we reject each of Sundermeyer’s arguments.

I. Collateral attack of the 2001 OWI conviction

¶10 The United States Supreme Court and the Wisconsin Supreme Court
have held that a defendant “has a limited constitutional right” to collaterally
attack5 a prior OWI conviction where he or she “was not represented and did not
knowingly, intelligently, and voluntarily waive the right to counsel.” State v.
Clark, 2022 WI 21, ¶10, 401 Wis. 2d 344, 972 N.W.2d 533. To establish a valid
waiver of the right to counsel, the record must reflect that the
defendant: “(1) made a deliberate choice to proceed without counsel, (2) was
aware of the difficulties and disadvantages of self-representation, (3) was aware of
the seriousness of the charge or charges against him [or her], and (4) was aware of
the general range of penalties that could have been imposed on him [or her].”
Klessig, 211 Wis. 2d at 206. In Ernst, we held that a circuit court’s failure to

5
“[A] collateral attack in a prior conviction is ‘an attempt to avoid, evade, or deny the
force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by
law and instituted for the purpose of vacating, reviewing, or annulling it.’” State v. Ernst, 2005
WI 107, ¶22 n.5, 283 Wis. 2d 300, 699 N.W.2d 92 (citation omitted).

5
No. 2024AP2007-CR

conduct a Klessig colloquy in a prior proceeding in this state may “form the basis
for a collateral attack” pursuant to the burden-shifting procedure utilized for
claims challenging the validity of a defendant’s guilty plea under State v. Bangert,
131 Wis. 2d 246, 389 N.W.2d 12 (1986). Ernst, 283 Wis. 2d 300, ¶¶22-25; see
also Clark, 401 Wis. 2d 344, ¶¶14-16 (noting that the Bangert procedure applies
when there is a transcript of the prior proceeding).

¶11 Under the Bangert procedure, the defendant must first identify a
defect in the transcript of the plea colloquy in the prior proceeding. Clark, 401
Wis. 2d 344, ¶14. Importantly, “[t]he defendant also ‘must allege that he [or she]
did not know or understand the information that should have been presented at the
plea hearing.’” Id., ¶14 n.11 (citation omitted); see also Ernst, 283 Wis. 2d 300,
¶25 (noting that a valid collateral attack requires the defendant to “point to facts
that demonstrate that he or she ‘did not know or understand the information which
should have been provided’ in the previous proceeding and, thus, did not
knowingly, intelligently, and voluntarily waive his or her right to counsel”
(citation omitted)). Once the defendant makes that prima facie showing, the
burden shifts to the State to prove “by clear and convincing evidence that the
defendant’s plea was made knowingly, intelligently, and voluntarily.” Clark, 401
Wis. 2d 344, ¶14 (citation omitted). The State is entitled to an evidentiary hearing
in order to meet its burden of proof. Ernst, 283 Wis. 2d 300, ¶27.

¶12 Whether a defendant has made the required prima facie showing that
he or she did not knowingly, intelligently, and voluntarily waive the right to
counsel in an earlier proceeding is a question of law that we review de novo. Id.,
¶10. Whether the State has demonstrated that the defendant, in fact, knowingly,
intelligently, and voluntarily waived his or her right to counsel is also a question
that we review de novo, while benefitting from the circuit court’s analysis. Id.

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No. 2024AP2007-CR

¶13 Here, Sundermeyer challenges his 2001 conviction on the fourth
Klessig factor. According to Sundermeyer, “[e]ven the most cursory review of the
transcript from the [2001 case] reveals that the circuit court … failed to describe
the general range of penalties to which Mr. Sundermeyer” was exposed, and,
additionally, “there is not even a mention of, or reference to, a properly executed
Plea Questionnaire in the colloquy which made Mr. Sundermeyer aware of the
range of penalties to which he was exposed.” “Further exacerbating these
problems,” argues Sundermeyer, “is the fact that the Clark County Circuit Court
never informed Mr. Sundermeyer that it was not obligated to accept the penalty
recommendation suggested by the State and that it had the authority to depart from
it.”

¶14 The circuit court determined that Sundermeyer had failed to meet his
burden to prove “that the Klessig colloquy that occurred in the 2001 [case] was
insufficient.” The court reviewed the transcript of the plea colloquy in that case
and took “judicial notice of the entirety of” the case file. Based on its review, the
court explained,

In this case, no plea questionnaire was completed.
However, the court heard the recommendation of the
Assistant District Attorney and conducted a plea colloquy
within the parameters set forth in Klessig.
The defendant argues that the Court did not review the
penalties for OWI second. However, the transcript reflects
that the Assistant District Attorney set forth the penalty
recommended specifically on the record and made
reference to BAC 0.22% and the relevant OWI sentencing
guidelines. The Criminal Complaint contained both the
maximum and minimum penalties. The Court specifically
inquired whether the defendant understood the discussions
he had had with the Assistant District Attorney and the
defendant answered that he did. The Court specifically
found that the waiver of attorney was made freely,
voluntarily and intelligently and that the defendant was
competent to make the waiver.

7
No. 2024AP2007-CR

On appeal, Sundermeyer argues that the court erred by “read[ing] far more into the
[2001 plea] colloquy than that which is actually there,” and he contends that the
court’s “assumptions so water-down the Klessig standard as to render it
meaningless.”

¶15 Based on our review of the record on appeal, like the circuit court,
we conclude that Sundermeyer has failed to make the required prima facie
showing that he did not knowingly, intelligently, and voluntarily waive his right to
counsel in the 2001 case. Although Sundermeyer sufficiently alleges a plea
colloquy defect, he has failed to affirmatively allege that at the time he waived his
right to counsel he did not know or understand the general range of penalties that
could have been imposed on him, information which should have been provided at
the plea hearing.

¶16 Our supreme court’s decision in Ernst represents the controlling
precedent. There, “Ernst asked the circuit court to set aside his fourth OWI
conviction, because he was ‘not represented by counsel and the court did not take
a knowing and voluntary waiver of counsel from the defendant.’” Ernst, 283
Wis. 2d 300, ¶26. The court concluded that “Ernst’s attempt to initiate a collateral
attack failed” because he “made no mention of specific facts that show that his
waiver was not a knowing, intelligent, and voluntary one.” Id. Instead, he
“simply relied on the transcript and asserted that the court’s colloquy was not
sufficient” “because the [c]ourt did not address each of the four Klessig factors.”
Id. According to the Ernst court, a defendant “must do more than allege that ‘the
plea colloquy was defective’ or the ‘court failed to conform to its mandatory
duties during the plea colloquy’ to satisfy the standard for collateral attacks.” Id.,
¶25 (citation omitted). The defendant must also “point to facts that demonstrate
that he or she ‘did not know or understand the information which should have

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No. 2024AP2007-CR

been provided’ in the previous proceeding and, thus, did not knowingly,
intelligently, and voluntarily waive his or her right to counsel.” Id. (citation
omitted).

¶17 We agree with the State that, like the defendant in Ernst,
Sundermeyer has failed to allege evidence of an actual lack of knowledge. For
example, Sundermeyer did not allege in his motion or his amended motion that he
was unaware of the general range of penalties that he faced at the time he waived
his right to counsel in the 2001 case. He also did not submit an affidavit with
either the initial or amended motion averring the same. In fact, at the evidentiary
hearing, the State made the following observation before Sundermeyer had filed
his amended motion:

If [the amended motion is] still going to be a collateral
attack, I don’t know what defense’s new argument will be,
but it will likely have to be evidentiary given the fact that
with the filing they made they didn’t make a prima facie
showing. There was no affidavit or anything. So it’s likely
the defendant would have to testify if that’s how it
continues.

Nevertheless, Sundermeyer failed to submit an affidavit with his amended motion
or otherwise aver or testify at either the March 8, 2022 or April 10, 2023 motion
hearings that he did not know or understand the general range of penalties that he
faced.6

¶18 Sundermeyer appears to misunderstand the purpose of a collateral
attack on a prior conviction. The purpose is not to determine whether the circuit

6
Although no transcript of the April 10, 2023 motion hearing was included in the
appellate record, the circuit court’s decision and order states that “[t]he Court heard oral
arguments at a hearing held on April 1[0], 2023,” but it does not otherwise state that the court
heard any testimony. Thus, we presume that Sundermeyer did not testify at that hearing.

9
No. 2024AP2007-CR

court erred during the colloquy. The purpose is to determine whether the
defendant “knowingly, intelligently, and voluntarily waive[d] the right to
counsel.” See Clark, 401 Wis. 2d 344, ¶10; cf. State v. Brown, 2006 WI 100,
¶¶62-65, 293 Wis. 2d 594, 716 N.W.2d 906 (stating that “[t]he ultimate issue to be
decided at the hearing is whether the defendant’s plea was knowing, intelligent,
and voluntary, not whether the circuit court erred,” and that “[i]n the absence of a
claim by the defendant that he lacked understanding with regard to the plea, any
shortcoming in the plea colloquy is harmless”). Given that Sundermeyer has only
alleged the existence of a defect in the 2001 plea colloquy, he has failed to satisfy
his initial burden under Ernst.7

¶19 In his reply brief, Sundermeyer asserts that “the State’s focus on the
alleged deficiency in Mr. Sundermeyer’s pleading overlooks important aspects of
his motion,” that the “the ‘prima facie’ burden is an exceedingly low one,” and
that his “case presents with more proof of defective plea procedures than did
Ernst’s.” (Formatting altered.) According to Sundermeyer, because he

established through the court record—and through the
documents missing therefrom—that he could not have been
‘aware’ of the range of penalties since they were never
reviewed by the circuit court or addressed on a valid Plea
Questionnaire, he has made a prima facie showing that
there has been a Klessig violation in his case.

¶20 Essentially, Sundermeyer is suggesting that proof of a deficient plea
colloquy—i.e., proof that the circuit court did not tell the defendant certain

7
We note that we recently released our decision in State v. Christianson,
No. 2024AP1884-CR, slip op. recommended for publication (WI App Feb. 12, 2026), which also
addressed a collateral attack on prior OWI convictions. Although the holding in Christianson is
not dispositive, it is instructive because it demonstrates how the defendant established a
prima facie case that his right to counsel was violated during three prior OWI cases. Id., ¶¶21-25,
36-39, 56-59.

10
No. 2024AP2007-CR

information—is sufficient to prove that a defendant could not have known the
information. Our supreme court certainly could have determined that evidence of
a plea colloquy defect on its own is sufficient to establish a prima facie showing,
but that is not the law. See Ernst, 283 Wis. 2d 300, ¶25. The lack of a plea
questionnaire on its own also does not establish that the defendant did not know or
understand the information. Both examples merely establish that the defendant
was not told the information, which is, again, by itself, insufficient. Ernst is clear
that the defendant must both identify specific deficiencies in the plea colloquy and
provide some evidence that he or she did not know or understand the information
that should have been provided. Because Sundermeyer has not done so, the
burden does not shift to the State. Ernst’s holding is not inapplicable here merely
because, as Sundermeyer argues, he provided “more detail[]” as to the plea
deficiencies.

¶21 Finally, Sundermeyer requests that if we conclude that he has failed
to meet his initial burden, we should remand this case to the circuit court “to
permit him to file an affidavit in support of his motion,” as our supreme court did
in Ernst. See id., ¶9. Wisconsin law does not authorize such relief. Collateral
attacks are not vehicles for piecemeal litigation. The defendant is required to
present all grounds for relief in his or her initial motion. Cf. WIS. STAT.
§ 974.06(4); State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d
157 (1994); Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327
Wis. 2d 572, 786 N.W.2d 177 (“It is a fundamental principle of appellate review
that issues must be preserved at the circuit court to be raised on appeal as a matter
of right. If the issue is not preserved, an appellate court may consider the issue
forfeited.”).

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No. 2024AP2007-CR

¶22 Ernst has been the law for over 20 years; thus, Sundermeyer cannot
argue that he was surprised by its requirements. Allowing a defendant to refile an
affidavit solely to satisfy Ernst after failing to do so initially would undermine all
of the above principles and invite precisely the sort of serial litigation that we seek
to prevent.8 Sundermeyer failed to meet the threshold requirements for a collateral
attack on his 2001 OWI conviction, and his request to return to the circuit court to
relitigate the issue is denied.

II. Oath or affirmation in the search warrant affidavit

¶23 Sundermeyer next argues that his blood test results should have been
suppressed because the warrant that law enforcement obtained to draw his blood
was invalid, as it was not supported by oath or affirmation of a deputy who was at
the scene of his investigative stop. “Whether evidence should be suppressed is a
question of constitutional fact subject to a two-step inquiry.” State v. Wilson,
2022 WI 77, ¶17, 404 Wis. 2d 623, 982 N.W.2d 67. We will uphold a circuit
court’s factual findings unless clearly erroneous, but we independently apply
constitutional principles to those facts. Id., ¶18.

¶24 Both the United States Constitution and the Wisconsin Constitution
provide that a search warrant may be issued upon probable cause supported by an
oath or affirmation.9 U.S. CONST. amend. IV; WIS. CONST. art. 1, § 11; see also

8
Furthermore, final judgments of conviction are entitled to a presumption of regularity,
including with respect to constitutional waivers. Ernst, 283 Wis. 2d 300, ¶31 n.9; Parke v.
Raley, 506 U.S. 20, 29-30 (1992).

As relevant here, “blood tests to determine alcohol concentration are ‘searches’ for
9

Fourth Amendment purposes.” State v. Dieter, 2020 WI App 49, ¶9, 393 Wis. 2d 796, 948
N.W.2d 431 (citation omitted).

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No. 2024AP2007-CR

WIS. STAT. § 968.12(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.”). “The purpose of an oath or affirmation is to
impress upon the swearing individual an appropriate sense of obligation to tell the
truth.” Tye, 248 Wis. 2d 530, ¶19. However, “[t]here are no rigid requirements or
magic words. [The oath or affirmation requirement] is a matter of substance, not
form.” State v. Moeser, 2022 WI 76, ¶28, 405 Wis. 2d 1, 982 N.W.2d 45.

¶25 “An oath or affirmation to support a search warrant reminds both the
investigator seeking the search warrant and the magistrate issuing it of the
importance and solemnity of the process involved.” Tye, 248 Wis. 2d 530, ¶19. It
“protects the target of the search from impermissible state action by creating
liability for perjury or false swearing for those who abuse the warrant process by
giving false or fraudulent information” and “preserves the integrity of the search
warrant process and thus protects” fundamental constitutional rights. Id.
(footnotes omitted). Therefore, our supreme court recognized in Tye that “when
no sworn testimony exists to support a search warrant, then the warrant is void.”
Id., ¶13.

¶26 As noted above, Xiong applied for a warrant after Sundermeyer
refused to voluntarily submit to a blood draw, which a Marathon County Circuit
Court judge granted. However, the affidavit submitted in support of the warrant
was not signed by Xiong but was instead signed by Deputy Christopher Gazda and
notarized by Xiong’s lieutenant, Ted Knoeck. According to Xiong’s testimony at
the motion hearing, he “completed the [warrant] affidavit” and then forwarded it
to his lieutenant for review and authorization by a judge. Xiong explained that
Gazda signed the affidavit, had it notarized, and later delivered the signed warrant

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No. 2024AP2007-CR

to him. Gazda was not “present at the scene” when Sundermeyer was stopped and
placed under arrest, but he was present at the hospital.

¶27 Sundermeyer argues on appeal that the circuit court erred by denying
his motion to suppress because Xiong, the investigating officer, never swore or
affirmed to the notary that the statements in the affidavit were true and accurate.
Instead, Gazda signed the affidavit, which contained the following averment:

Affiant has personal knowledge that the contents of this
application and supporting affidavit, together with the
statements made therein, are true. Affiant states that this
affidavit references and in part relies upon the observations,
reports and/or conclusions of fellow peace officers whose
reports Affiant believes to be truthful and reliable and has
found them reliable in the past.

According to Sundermeyer, “[t]he first portion of the foregoing averment is clearly
a falsehood because” Xiong testified that Gazda was not present at the scene, “so
he could not have directly observed any of the averments made in the affidavit.”
Sundermeyer also observes that Xiong “admitted that he was ‘not sure’ who was
swearing to the information contained within the affidavit.” As to whether Gazda
“relied upon” Xiong’s observations or conclusions, Sundermeyer contends that
“there is no foundation which establishes that Deputies Gazda and Xiong ever
spoke about Mr. Sundermeyer’s circumstances prior to [Lieutenant] Knoeck
forwarding the affidavit to the on-call judge” and that “[w]ithout this nexus, there
is no reason to believe that the [above] averment … is true.”

¶28 In support of his argument, Sundermeyer cites Tye, where “the city
of Racine police department drafted an affidavit in support of a search warrant for
a residence occupied by the defendant.” Id., ¶4. The investigator presented the
affidavit to an assistant district attorney for review and approval and to a Racine
County Circuit Court judge, who issued the warrant. Id., ¶5. Neither official

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No. 2024AP2007-CR

realized that the investigator had failed “to sign and swear to the truth of the
affidavit written in support of the search warrant and failed to give sworn
testimony attesting to the accuracy of the statements in the affidavit.” Id. Our
supreme court held “that the total absence of any statement under oath to support a
search warrant violates the explicit oath or affirmation requirement of both the
federal and state constitutions and that the warrant therefore is constitutionally
infirm,” and, as a result, “the evidence seized must be suppressed.” Id., ¶3.
According to Sundermeyer, “[l]ike Tye, the investigating officer in this case,
Deputy Xiong, never swore or affirmed to the notary that the statements in the
affidavit were true and accurate.”

¶29 We conclude that the circuit court did not err by denying
Sundermeyer’s motion to suppress. The record contains a sworn affidavit from
Gazda that sets forth probable cause for a warrant to draw Sundermeyer’s blood.
The affidavit expressly states that Gazda relied in part on “the observations,
reports and/or conclusions of fellow peace officers whose reports Affiant believes
to be truthful and reliable.” The affidavit bears Gazda’s signature and was
notarized. The warrant-issuing judge reviewed the affidavit, determined that
probable cause existed, and issued the warrant. That procedure satisfies Tye.

¶30 Sundermeyer’s argument rests on the premise that law enforcement
cannot apply for a warrant based on information gathered by other officers.
However, beyond Tye, Sundermeyer fails to present any legal authority in support
of this proposition. While he claims that “[n]o case could be more clearly on
point,” the facts in Tye involved “the total absence of any statement under oath to
support a search warrant.” Id., ¶¶3, 5. Here, by contrast, the warrant was
supported by a sworn affidavit. The cases are therefore materially different, and
Tye does not support Sundermeyer’s claim.

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No. 2024AP2007-CR

¶31 Instead, Wisconsin courts have determined, in other contexts, that
“[t]he police force is considered as a unit.” See, e.g., State v. Mabra, 61 Wis. 2d
613, 625, 213 N.W.2d 545 (1974); see also United States v. Hensley, 469 U.S.
221, 231-32 (1985) (quoting the United States Court of Appeals for the Ninth
Circuit for the proposition “that effective law enforcement cannot be conducted
unless police officers can act on directions and information transmitted by one
officer to another and that officers, who must often act swiftly, cannot be expected
to cross-examine their fellow officers about the foundation for the transmitted
information” (citation omitted)). We look to the totality of law enforcement’s
knowledge when viewing probable cause to arrest. Accordingly, we discern no
basis to conclude that an officer may not rely on the observations, reports, or
conclusions of a fellow law enforcement officer when submitting an affidavit in
support of a warrant.10

¶32 To the extent that Sundermeyer is instead arguing that Gazda did not
actually know the information to which he swore in the affidavit, his challenge
fails. In support of his position, Sundermeyer points to Xiong’s testimony that he
10
Sundermeyer also points to United States v. Hyten, 5 F.3d 1154, 1156 (8th Cir. 1993),
where “the officer who took the oath affirming the affidavit was not the officer who the affidavit
named as the affiant.” The court upheld the validity of the warrant, treating the officer who was
“the named affiant” as “the functional equivalent of a reliable informant” and noting that the
officers had worked together “on the investigation, and [they] read and discussed the affidavit.”
Id. at 1155-56. According to Sundermeyer, “unlike Hyten, there is nothing in the record to
indicate that Deputy Gazda was a part of the investigation or that he read and discussed the
affidavit with Deputy Xiong.”

First, we are not bound by holdings of the federal courts of appeals. See State v.
Mechtel, 176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993). Second, we are not persuaded that Hyten
supports a different result here. Gazda was “part of the investigation” because he delivered the
warrant to Xiong at the hospital so that law enforcement could continue to investigate and collect
evidence to charge Sundermeyer. Finally, we agree with the State that nothing in Hyten can be
read “as requiring a substantive conversation between the officer swearing the affidavit and one
other specific officer.” (Emphasis added.)

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No. 2024AP2007-CR

was “not sure” who swore to the information in the affidavit. That testimony,
however, is not probative. Xiong’s uncertainty about Gazda’s knowledge does not
establish what Gazda did or did not know at the time he swore to the affidavit. To
the extent Sundermeyer wished to challenge Gazda’s knowledge or the accuracy
of the statements in the affidavit, he failed to obtain Gazda’s testimony to properly
challenge the basis for the warrant. See Franks v. Delaware, 438 U.S. 154,
155-56 (1978); State v. Mann, 123 Wis. 2d 375, 388-89, 367 N.W.2d 209 (1985).

¶33 At bottom, the record is clear that probable cause supporting the
warrant was provided under oath or affirmation. Therefore, the affidavit in this
case met constitutional requirements, and the circuit court did not err by denying
Sundermeyer’s motion to suppress.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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