Kevin Murphy, Leader Correspondent
A state appeals court Tuesday reversed a Shawano man’s sixth OWI conviction and three-year prison sentence, finding that the game warden who arrested him lacked probable cause.
Conservation warden James Horne arrested Thomas J. Anker, 46, after responding to a call in November 2012 about a man involved in a vehicle injury accident who had run into a woods behind the Shawano Walmart. Horne found Anker, barefoot and bleeding from a head injury, near the store’s parking lot and arrested him.
Circuit Court Judge James Habeck found that Horne had probable cause to arrest Anker, and Anker subsequently pleaded no contest to operating while intoxicated-sixth offense and causing injury to another person by operation of a vehicle while intoxicated. He was sentenced in February 2014.
On appeal, Anker’s attorney successfully argued that Horne lacked probable cause to arrest Anker. The state claimed that Horne did not arrest Anker but was merely detaining him while other authorities were investigating the incident.
Detention requires the lower standard of reasonable suspicion and Horne had that, the state contended.
However, the facts did not support the state’s arguments, the District III Court of Appeals ruled.
Horne ordered Anker to stop, told him he was under arrest, forcibly handcuffed and turned him over to local authorities. The state argued that Horne took those steps to assert his authority over someone he believed would flee the scene.
To lawfully detain someone during an investigation, law enforcement must identify themselves as such. Horne was driving an unmarked vehicle and did not initially tell Anker that he was a law enforcement official, the court noted.
Also, Habeck did not officially find that Horne was wearing his uniform at the time, according to the opinion.
“(U)nder the totality of the circumstances, a reasonable person would believe that he or she was being placed under arrest by Horne,” Judge Thomas Crane wrote in the 12-page opinion. “Accordingly, we conclude probable cause was the appropriate standard. Because the state concedes there was not probable cause for the arrest, we reverse the judgment of conviction.”
The appeals decision allows the Shawano County district attorney to try to convince Habeck that it would have discovered the evidence obtained after Anker’s arrest through other sources. The court did not identify what evidence it contends is admissible or explain how it would have been discovered without Anker’s arrest.
Dana Brueck, a spokesperson for the attorney general’s office, which handled the appeal, had no comment on the opinion.
District Attorney Gregory Parker was not available for comment Tuesday.