State v. Mark T. Solheim, 2024AP239, District II, 9/18/24 (one-judge decision; ineligible for publication); case activity
In its decision reversing the circuit court’s order suppressing evidence obtained pursuant to a warrant for a blood draw, the Court of Appeals reminds that Franks and its Wisconsin counterpart Anderson require defendants challenging the veracity of an affidavit in support of a search warrant to do more than show the affidavit contained false information, but also that the officer knew the information was false at the time it was asserted and included it intentionally or with a reckless disregard for the truth.
The Walworth County Circuit Court issued a warrant to obtain a blood draw from Solheim after he was arrested for OWI based on the arresting officer’s affidavit that stated: 1) Solheim drove his vehicle while under the influence at 5 p.m. on Oct. 9, 2022; 2) he had glassy eyes; 3) he admitted to drinking two beers; 4) Solheim’s wife said she saw him pull into their driveway in his vehicle; 5) Solheim admitted he drove the vehicle; and 6) Solheim did not pass most of the field sobriety tests.
Solheim moved to suppress the blood alcohol evidence, arguing that the officer’s affidavit that he drove at 5 p.m. was speculative, “arbitrary, capricious, and not credible/plausible” and that, without the statement, the affidavit did not establish probable cause. The circuit court held an evidentiary hearing regarding the motion to suppress, at which Solheim’s wife–Alexandrea–testified that she called police around 5 p.m. on Oct. 9, 2022, because Solheim was trying to break into the house after she locked the doors with her children inside. Alexandrea said Solheim took the children to Oktoberfest earlier in the day and he returned between 3 and 3:15 p.m. She believed he had been drinking, but had no proof. She testified that, if police reported that Solheim drove into the driveway at 5 p.m., that would be inaccurate.
The arresting officer testified that he responded to Alexandrea’s call shortly after 5 p.m. on Oct. 9, 2022, and encountered Solheim outside, who said his wife was upset with him but he did not know why. Solheim told the officer that he was at Oktoberfest with two of their children, but Alexandrea picked up the children to take them home. He also told police that he drank two beers at Oktoberfest 1 ½ hours earlier, but had not drank any alcohol since he returned home. The officer then directed Solheim to perform field sobriety tests, at which time Solheim changed his statement and said he walked home and drank alcohol after he returned home. Solheim was arrested for OWI when he did not pass most of the field sobriety tests. The officer testified that he did not know when Solheim drove, only that it was after he left Oktoberfest and before the officer arrived at the home. The officer said he included 5 p.m. on his affidavit because he believed Solheim returned home shortly before Alexandrea called police.
The Court of Appeals reversed the circuit court’s order suppressing the blood alcohol evidence. The Court determined that the circuit court erred by holding an evidentiary hearing because Solheim did not make a “substantial preliminary showing” that the officer’s affidavit included a false statement knowingly and intentionally or with reckless disregard for the truth, as required by Franks and Anderson. The Court observed that Solheim did not allege in his motion that the officer intentionally lied when he said Solheim drove at 5 p.m. or that the officer had reason to doubt he drove at that time. (¶ 28). Further, Solheim did not assert in his motion that he arrived home at 3 p.m., instead of 5 p.m. (¶ 28).
But even if Solheim made the substantial preliminary showing required to obtain a hearing, the Court found he did not overcome the affidavit’s presumption of validity, which requires the defendant to show that the challenged statement is false and that the affiant intentionally made the false statement or made the statement with a reckless disregard for the truth. (¶ 31) (citing Anderson).
Whether the 5 p.m. allegation was made with reckless disregard for the truth was a factual issue, and the Court of Appeals adopted the circuit court’s finding of fact that Solheim drove home at 3 p.m. and not 5 p.m. (¶33). The Court determined, however, that the circuit court’s finding that the officer made the 5 p.m. representation with reckless disregard for the truth was clearly erroneous. (¶ 39). The Court remarked: “It was not unreasonable for the responding officer, who prepared the affidavit, to infer that all of the conduct of concern – Solheim driving 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.” (¶ 37). The Court noted that none of the witnesses told police that Solheim drove two hours before the call to police. (¶ 37).
The Court concluded that, although “it appears the officer could have done a more thorough job securing evidence by simply asking Alexandrea what time Solheim 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.” (¶ 39).
