The case: State v John R. Phelan
Case no.: 24AP777
Filed in: District IV, Wisconsin Court of Appeals
Circuit Judge: W. Andrew Voigt, Columbia County
Filing Attorney: Leo Draws
Title: Assistant state public defender
Law firm / agency: Office of the State Public Defender
"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
An almost nine-year-old case that started with suspected littering is in the Court of Appeals after "numerous motions and hearings on the suppression issue, a jury trial, and a guilty plea," according to the appellate brief filed last week.
Assistant State Public Defender Leo Draws argued that DNR Warden Ryan Volenberg exceeded his authority when he investigated a crime off DNR property and improperly detained defendant John Phelan.
It started back in 2015, when Volenberg incorrectly believed he saw Whelan litter and followed him as Whelan as he drove away. The two left DNR property and Volenberg thought Whelan was driving poorly and could be impaired, Draws wrote. Whelan, in turn, later attributed any erratic driving to being pursued very closely by a non-police vehicle.
Volenberg stopped Whelan off DNR property, Draws said. When Whelan rolled down the window, Volenberg thought he detected the odor of marijuana coming from Whelan's car.
About this same time, Volenberg determined that the violation behind the pursuit — littering by dropping a can on the ground — had not occurred, so the warden he decided to focus instead on determining whether Whelan was driving while impaired, Draws said.
In testifying about his training regarding marijuana or lack thereof, Warden Volenberg stated that the smell of raw and burnt marijuana is “fairly similar” and that “it just smells like smoke.” Details of Volenberg’s training with respect to marijuana detection were sparse, with Volenberg admitting that he was not sure about the smells or difference between raw and burnt marijuana and stating that he was largely going off of what he had been told by others.
Volenberg asked Phelan to exit his vehicle, extending the stop. The warden administered field sobriety tests and determined that Phelan did not pass. Volenberg also had Phelan take a preliminary breath test that showed Phelan's blood-alcohol level was one-tenth the legal limit, Draws wrote.
Volenberg contacted the Columbia County Sheriff’s Department for the assistance of a drug recognition expert.
"Warden Volenberg kept Mr. Phelan detained and continued to question him until the arrival of the additional officers," Draws said.
Phelan was eventually arrested.
His first attorney filed a motion to suppress the evidence, which Voigt denied. His second attorney also filed a motion to suppress, arguing that Volenberg exceeded his authority as a warden. Voight denied that motion as well, Draws said.
A jury in 2023 found Phelan not guilty of OWI, guilty of operating with a detectable amount of restricted controlled substance in his blood, and guilty of possession of drug paraphernalia. Voigt sentenced him to 80 days in jail, noting the case " 'has wandered into, frankly, almost bizarre territory on so many levels, it’s hard to even fathom' ” Draws said.
Phelan's appeal, he said, "is unusual for a criminal matter as it turns entirely on this Court’s interpretation of the statutes governing the authority of wardens of the Department of Natural Resources" under Wis. Stats. §§ 29.921(1), (5), and 29.924(1).
Draws argued that a DNR warden's authority is limited.
A warden cannot conduct investigations for violations of state law outside of specifically enumerated situations. The legislature has limited the warden’s investigatory power to incidents on state-owned lands, yielding to emergency vehicles, the transport of firearms or other hunting tools, and areas in the Kickapoo Valley Reserve.
The circumstances of this case present a perfect example of why Wisconsin law does not authorize DNR wardens to investigate or enforce laws wherever they happen to be in the state. ...
Warden Volenberg testified that it had been “six years or four years since [he had] done any field sobriety tests.” ... Second, and ignoring that a DNR warden is almost certainly not required to be as up-to-date on training as a police officer, Volenberg also testified that he does not know how to interpret the test results: “All I’m trained is how to administer the test and how to look for the clues that the test is designed to look for and to record those. I don’t interpret the results. I just administer the tests. I look for the observations.”
Third, even though Volenberg was apparently concerned about marijuana, he conducted the field sobriety tests and offered the following explanation:
[Question:] The field sobriety tests, what were they designed for?
[Volenberg:] To determine impairment.
[Question:] Impairment by what substance?
[Volenberg:] I don’t know. I assume alcohol.
What began as a warden concerned about littering "ultimately turned into an unlawful detainment," Draws wrote. "The statute governing wardens’ arrest powers plainly states that '[a] warden may not conduct investigations for violations of state law' outside of enumerated instances not relevant here."
Commenti