Can the State carry its burden of proof on suppression without calling any witnesses?

State v. Lindsey Dawayne Neal, 2017AP1397-CR, 4/3/18, District 1, (not recommended for publication); case activity (including briefs)

According to the court of appeals, yes. The State’s allegations in its complaint and a dashcam video were sufficient to prove reasonable suspicion that Neal parked his car in a manner to obstruct traffic on a highway in violation of Milwaukee Traffic Code 101-24.1. Neal himself asked to call the arresting officers to testify, but the circuit court refused. Who needs witnesses? Hearings are much more efficient without them.

The State bears the burden of proving that a warrantless search or seizure was reasonable and complied with the 4th Amendment. State v. Quartana, 213 Wis. 2d 440, 570 N.W.2d 618 (Ct. App 1997). The question is whether the State can meet that burden based exclusively on the allegations of its own complaint and a dashcam video–especially when the video clearly shows (a) the car parked in an alley (not a highway) with room for cars to pass, and (b) no traffic actually being blocked. Here’s what the court of appeals had to say about the stop:

¶12 . . . While we note that the better practice is to allow an arresting officer to testify at a suppression hearing, we conclude that the facts in the record, although extremely thin, support reasonable suspicion for the stop. The complaint alleges, with no testimony to the contrary, that the vehicle Neal was in was obstructing traffic in an alleyway—a violation of a local traffic ordinance. See Colstad, 260 Wis. 2d 406, ¶¶8-9 (When there is reasonable suspicion to believe a person is violating a law or a traffic ordinance, a police officer may, consistent with the Fourth Amendment’s protection against unreasonable seizures, detain the person for an investigative stop.). The ordinance, titled “Blocking Traffic” states: “It shall be unlawful for any vehicle to be parked or left standing on a highway in such a manner as to obstruct traffic.” See MILWAUKEE, WIS. TRAFFIC CODE 101- 24.2. The dashcam clearly shows the vehicle parked towards the middle of the alley, blocking traffic in at least one direction. Accordingly, the stop was reasonable.

And what was good enough for the stop was good enough for the search and seizure too:

¶15 Without testimony by an arresting officer at the suppression hearing, we can only rely on the other facts in the record, which come from the notarized complaint and the dashcam video. We conclude that the facts in the record support the minimal detention which occurred before Neal attempted to flee the officers. The officers initially stopped the vehicle because they believed that a traffic violation was in progress. The complaint reports that the officers asked the occupants to exit. The dashcam video shows that after Neal was patted-down, Mahnke looked in the vehicle and observed a firearm under Neal’s seat. See Maryland v. Wilson, 519 U.S. 408, 415 (1997) (On a lawful traffic stop, an officer may order the driver and the passengers to exit the vehicle without violating the Fourth Amendment’s prohibition against unreasonable seizures.). The pat-down occurred before Mahnke saw a gun in the vehicle. The time between the pat-down and Neal’s attempt to flee was less than one minute. Hence, we conclude that the officers did not unconstitutionally prolong the traffic stop. Because Neal resisted and attempted to flee, the officers had probable cause to arrest. After obtaining probable cause to arrest, the officers discovered the items Neal disclosed to them, which Neal later sought to suppress.

Humph. Compare District 1’s decision in this case with District 3’s decision in State v. Hembel, where in a similar but not identical situation, the court of appeals found the State’s evidence insufficient.