State v. Jeremy A. Sobotik, 2024AP1976-CR, 3/19/25, District II (1-judge decision, ineligible for publication); case activity
In an appeal seeking to test the boundary between permissible traffic stop inquiries and interrogation requiring Miranda warnings, COA holds that the officer in question did not cross the constitutionally-imposed line and affirms.
Officer Matthew Bublitz made contact with Sobotik while investigating a traffic accident. (¶2). Sobotik claimed to have been distracted by his phone when he ran a red light. (Id.). Bublitz smelled an odor of burnt marijuana coming from Sobotik’s person and an odor of both burnt and raw marijuana from his car. (¶3). Bublitz searched the car and recovered a container of suspected marijuana. (Id.). Bublitz then began questioning Sobotik about his usage of marijuana. (¶4). Sobotik was ultimately arrested for an RCS violation. (Id.).
Sobotik moved to suppress. (¶5).
(The decision does not make clear if Sobotik moved to suppress just his statements or his statements and all derivative evidence.)
Following the circuit court denial, he renews his arguments on appeal. COA begins with the principle that officers are generally permitted to ask questions related to the basis for a traffic stop without violating any constitutional principles. (¶8). However, there is “a line after which a traffic stop extends into an impermissible interrogation
with constitutional implications.” (Id.).
Although COA cites State v. Anker for the proposition that an investigative stop can ripen into a constructive arrest requiring Miranda warnings when “a reasonable person” would have considered themselves “in custody,” it then goes on to apply a different rule. (¶11). In its view, whether Bublitz crossed “the line” depends on two factors: (1) whether the communications were “excessive,” and (2) whether there was a “deliberate effort” to avoid Mirandizing Sobotik. (¶¶13-14).
Here, COA finds that the “approximately five questions” asked of Sobotik about his use of marijuana were “part and parcel of an effort by Bublitz to establish that he had enough probable cause to believe that Sobotik had marijuana in his system while he was operating a motor vehicle.” (¶13). Second, it finds that the officer was not engaged in a deliberate effort to avoid Mirandizing Sobotik as he was “properly conducting” an OWI investigation. (¶14). Here, “the questions were not designed to make Sobotik incriminate himself for use or possession of marijuana.” (¶16). Instead, they were designed to make Sobotik incriminate himself in another respect, as to whether he was under the influence of that marijuana while driving. (Id.). Accordingly, COA affirms.
Marijuana, as far as we know, remains illegal in Wisconsin. Being confronted with a jar of the substance recovered from one’s vehicle would seem to be strong indicia that an investigatory stop is morphing into some other category of constitutional seizure. Likewise, the questions about use of marijuana are somewhat curious as, after all, Wisconsin penalizes operating with a detectable amount of that substance in the blood.
