State v. Mitchell M. Treiber, 2013AP2684-CR, District 3, 3/11/14; court of appeals decision (1-judge; ineligible for publication); case activity
The inevitable discovery doctrine, which provides that “evidence obtained during a search which is tainted by some illegal act may be admissible if the tainted evidence would have been inevitably discovered by lawful means,” State v. Lopez, 207 Wis. 2d 413, 427, 559 N.W.2d 264 (Ct. App. 1996), saved evidence obtained when a police officer opened the door to a truck stopped for a traffic violation.
After pulling over Treiber’s truck, the officer approached the vehicle and opened the driver’s door to speak to Treiber instead of talking to him through the open window. (¶¶4-5). After opening the door the officer smelled the odor of intoxicants, noted Treiber’s slurred speech, red face, and bloodshot, glassy eyes, and heard Treiber admit he’d been drinking. (¶6). Even if opening the vehicle door was not authorized under Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (it is reasonable under the Fourth Amendment for officers to order individuals to exit their vehicles during routine traffic stops), and constituted an unlawful search, the evidence the officer obtained after opening the truck door probably would have been discovered by lawful means:
¶19 In this case, [Officer] Sweetman lawfully stopped Treiber for racing and was therefore going to make contact with Treiber about that violation. Had Sweetman not opened the door to speak with Treiber, but instead talked to Treiber through the open driver side window, there is more than a reasonable probability that Sweetman still would have observed Treiber’s glossy and bloodshot eyes, his “very slurred speech,” his red face, and the odor of intoxicants. … Considering Treiber readily admitted to drinking, there is a reasonable probability that Treiber still would have admitted to drinking when asked through the open window.
The court also holds the initial stop was lawful because the officer had reasonable suspicion to believe Treiber was racing another car in violation of § 346.94(2). (¶¶2, 12-13).
