874 N.W.2d 328
Wis. Ct. App.2015Background
- On March 13, 2011 Officer Craig Birkholz stopped Glenn Zamzow; Birkholz later told Zamzow on a squad-car recording that he had observed Zamzow cross the center line twice.
- Birkholz died before the suppression hearing; the recording (audio and video) was played at the hearing and transcribed.
- Zamzow moved to suppress, arguing the stop lacked reasonable suspicion; he objected to admission/use of the officer’s recorded statement on hearsay and Sixth Amendment Confrontation Clause grounds.
- The circuit court found the video inconclusive on whether Zamzow crossed the center line but relied (in part) on the officer’s recorded statement that he had observed two crossings and denied suppression.
- Zamzow was convicted; on appeal he raised hearsay, Confrontation Clause, and a novel Fourteenth Amendment due process challenge to the court’s reliance on the officer’s recorded statement.
- The court of appeals affirmed, concluding the Confrontation Clause and hearsay rules do not bar use of such out-of-court statements at suppression hearings and that due process was not violated here.
Issues
| Issue | Plaintiff's Argument (Zamzow) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Admissibility of officer’s recorded statement at suppression hearing (hearsay) | Statement is inadmissible hearsay and unreliable because officer is unavailable | Hearing is a preliminary proceeding where rules of evidence (including hearsay exclusion) do not strictly apply | Court may consider hearsay at suppression hearings; admission not improper |
| Confrontation Clause | Admission/relied-upon testimonial statement violated Sixth Amendment right to confront accuser | Confrontation Clause is a trial right and does not apply to pretrial suppression hearings | Confrontation Clause does not apply to suppression hearings; reliance on statement is allowed |
| Due process (Fourteenth Amendment) | Reliance on untested officer statement is fundamentally unfair and unreliable without cross-examination | Less process is due at suppression hearings; recording and video provided sufficient reliability | Court found no due process violation; hearing evidence (recording + video) sufficiently reliable |
| Sufficiency of evidence for reasonable suspicion/probable cause | Court relied “solely” on officer’s dead man’s statement and video was inconclusive | Court relied on officer’s statement together with video showing close-to/onto center line and officer’s U-turn maneuvers | Court affirmed that officer observed crossing (supporting stop); facts provided sufficient basis for stop |
Key Cases Cited
- State v. Frambs, 157 Wis. 2d 700 (Ct. App. 1990) (rules of evidence and confrontation rights do not strictly apply at certain pretrial evidentiary hearings)
- United States v. Matlock, 415 U.S. 164 (1974) (out‑of‑court statements may be used at suppression hearings; trial rules differ from probable‑cause hearings)
- McCray v. Illinois, 386 U.S. 300 (1967) (upheld use of informant’s out‑of‑court statements at suppression hearing)
- Crawford v. Washington, 541 U.S. 36 (2004) (redefined confrontation analysis for testimonial statements at trial)
- United States v. Raddatz, 447 U.S. 667 (1980) (less procedure is required at suppression hearings than at trial)
- State v. Jiles, 262 Wis. 2d 457 (2003) (rules of evidence do not apply at suppression hearings)
- State v. Popke, 317 Wis. 2d 118 (2009) (standard for assessing reasonable suspicion at time of stop)