State v. Jonah Michael Hoffman, 2024AP1221-CR, 4/24/25, District IV (1-judge decision, ineligible for publication); case activity
The sole issue on appeal is whether the deputy who arrested Hoffman had probable cause to search his truck for evidence of an open container. COA concludes that probable cause was lacking, and accordingly reverses and remands with directions that any evidence derived from the search be suppressed.
The deputy saw ran the plates on Hoffman’s truck after seeing it on the road, and the plate came back registered to Hoffman, whose driver’s license was canceled. Hoffman began pulling over, but, according to the deputy , “it took five to ten seconds longer than necessary for the truck to come to a complete stop.” (¶3). When he walked up, the deputy saw a six pack of beer containing only five bottles, which had condensation on them. (¶4). Hoffman was smoking what “looked like a newly lit cigarette” and the windows were down, which the deputy thought was unusual given that it had been raining on and off (although not at the time of the stop). (¶5).
During the stop, Hoffman stated he believed he had resolved any license issues. The deputy noticed Hoffman had “glassy, bloodshot eyes” and that an odor of intoxicants was emanating from Hoffman’s breath. Hoffman admitted he’d had had a few drinks ending 25 or 30 minutes prior, and ultimately performed three field sobriety tests, the results of which were mixed, and took a PBT, which had a result of .052. The deputy then asked Hoffman about open containers, and he replied that there weren’t any in the truck. (¶6).
The deputy subsequently informed Hoffman that he would not be arrested for OWI, but that he could not drive away because his license was canceled. (¶¶6-7). Hoffman planned to have another individual pick him up, and the deputy searched the truck for open containers, finding marijuana and paraphernalia. (¶¶7-8). He then conducted marijuana-specific field tests and arrested Hoffman for operating under the influence of marijuana. (¶8).
Hoffman moved to suppress the evidence, and the state argued that the deputy had probable cause to search for open containers. The circuit court denied Hoffman’s motion. (¶9). On appeal, the state argues that the deputy’s search was lawful under the automobile exception to the warrant requirement–specifically that Hoffman had been driving with an open container. (¶13). “This rule . . . permits law enforcement to search a vehicle without a warrant when there is probable cause to believe that the vehicle contains contraband or evidence of a crime.” (¶13 (citing State v. Tompkins, 144 Wis. 2d 116, 130, 423 N.W.2d 823 (1988); State v. Marquardt, 2001 WI App 219, ¶11, 247 Wis. 2d 765, 635 N.W.2d 188)).
COA concludes that there was not probable cause to search the truck for open containers. Probable cause is present when the facts available to police would “‘warrant a [person] of reasonable caution in the belief,’ that the contraband was likely to be in the place searched.” Tompkins, 144 Wis. 2d at 124 (alteration in original). COA believes there were facts that tend to show that Hoffman was driving after having consumed alcohol, but that those facts are “only minimally suggestive of an open-container violation.” (¶¶14-16). It is too much of a “logical leap to conclude that because a motorist has some alcohol in the bloodstream, that motorist likely possesses an open container in the vehicle.” (¶16).
COA goes on to consider the two additional facts that could have contributed to probable cause of an open container violation; the time it took for Hoffman to stop, and the six-pack missing one bottle in the back seat. (¶¶18-19). Regardless, COA holds that even with these additional factors, there was not probable cause. (¶20). It proceeds to analyze State v. Bons, 2007 WI App 124, 301 Wis. 2d 227, 731 N.W.2d 367, upon which the circuit court relied, and distinguishes Bons from the current case. (¶¶21-23). COA also considers the applicability of State v. Johnston, No. 2012AP2427, unpublished slip op. (WI App Apr. 16, 2013), in which the COA found probable cause, and which it considers to be the “closest” to Hoffman’s case. (¶24). However it distinguishes Johnson, based on the source of the odor of alcohol. Here, the smell of alcohol was coming from Hoffman, while in Johnson, it was coming from the car. (¶25).
