State v. Jason Michael Zander
2024 WI App 62
Wis. Ct. App.2024Background
- Jason Zander was convicted of operating a motor vehicle while intoxicated (OWI) as a fifth or sixth offense and for refusal to submit to a blood draw in Columbia County, Wisconsin.
- The arrest followed an officer approaching Zander, who was sitting in a pickup truck parked outside a bar late at night; the officer detected signs of intoxication before further investigation and arrest.
- Zander filed a pretrial motion to suppress all evidence obtained by the officer, arguing the encounter constituted a seizure lacking reasonable suspicion under the Fourth Amendment.
- At trial, Zander admitted to being intoxicated but disputed whether he "operated" the vehicle under Wisconsin law, contending he only turned the ignition to accessory mode to retrieve belongings.
- Postconviction, Zander challenged the effectiveness of his trial counsel, specifically for failing to call certain witnesses and for not objecting to evidence referencing prior OWI convictions.
- The circuit court denied all motions, crediting the officer’s testimony and finding the seizure occurred only after reasonable suspicion arose. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Whether Zander was unlawfully seized | Officer seized him by approaching and initiating contact before RS | No seizure occurred until after officer observed signs of intoxication | Officer did not seize Zander before RS |
| Whether evidence should be suppressed | All evidence post-encounter derived from unconstitutional seizure | Initial encounter was consensual; RS developed lawfully through officer’s senses | Suppression unwarranted; evidence admissible |
| Ineffective assistance: not calling witnesses at suppression hearing | Additional witnesses could have undermined officer’s account of window operation | Calling them would not have changed outcome—seizure analysis same even if credited | No prejudice from not calling witnesses |
| Ineffective assistance: failure to object to prior OWI reference | Jury hearing prior OWI convictions was prejudicial | Evidence of actual operation and intoxication was overwhelming; no prejudice | No reasonable probability of different result |
Key Cases Cited
- United States v. Mendenhall, 446 U.S. 544 (1980) (defines seizure under Fourth Amendment as a restraint on liberty by force or authority)
- County of Grant v. Vogt, 356 Wis. 2d 343 (Wis. 2014) (no seizure where police initiate consensual contact with driver unless a reasonable person would not feel free to leave)
- State v. Roberson, 292 Wis. 2d 280 (Wis. 2006) (summarizes the Strickland v. Washington standard for ineffective assistance of counsel)
- State v. Carter, 324 Wis. 2d 640 (Wis. 2010) (updates the objective standard of reasonableness for deficient performance by counsel)
- Strickland v. Washington, 466 U.S. 668 (1984) (sets two-prong test for ineffective assistance: deficient performance and prejudice)
- Milwaukee County v. Proegler, 95 Wis. 2d 614 (Wis. Ct. App. 1980) (defines "operate" in OWI context as turning on ignition or manipulating controls necessary to put vehicle in motion)