### COURT OF APPEALS DECISION DATED AND FILED January 5 , 202 3

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP1843

- CR Cir. Ct. No. 2019CM258 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

S TATE OF W ISCONSIN ,
P LAINTIFF - A PPELLANT ,

V .
M ICHAEL L OUIS V ON S CHRADER ,
D EFENDANT - R ESPONDENT .

APPEAL from an order of the circuit court for Oneida County:
MICHAEL H. BLOOM , Judge. A ffirmed

.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2020AP1843

- CR

2 ¶ 1 PER CURIAM. 1 The State appeals an order granting Michael
VonSchrader ’ s motion to suppress evidence obtained after VonSchrader was
ordered out of his home at gun point by law enforcement

. 2 The State concedes that VonSchrader was seized within his home, but it argues that the seizure was justified by exigent circumstances an d probable cause. In the alternative, the State contends that the exclusionary rule does not apply to the evidence obtained after VonSchrader left his home because law enforcement had probable cause to arrest
him. We conclude the State has forfeited its newly raised probable cause theories, and, therefore, the State’s arguments fail. To the extent the State has not abandoned an earlier argument regarding the exclusionary rule, we reject that argument as well. Accordingly, we affirm.

BACKGROUND

¶ 2 The State charged VonSchrader with four offenses: one count of operating a motor vehicle while intoxicated (OWI) as a second offense; one count of operating with a prohibited alcohol concen tration as a second offense; one count of possession of a firearm while intoxicated; and one count of obstructing an

1 The chief judge of the court of appeals converted this from an appeal decided by one judge to a three

-

judge panel by order dated March 3, 2022. See W IS

. S TAT

. R ULE 809.41(3) (2019

- 20). All references to the Wisconsin Statutes are to the 2019

- 20 version unless otherwise noted. Upon converting the appeal to a three

- judge panel, we ordered the parties to serve copies of their briefs upon the Wisconsin Department of Ju stice (DOJ), and we asked the DOJ to advise whether it would stand upon the briefs already filed by the assistant district attorney or whether it would submit a supplemental brief. The DOJ opted to submit a supplemental brief. We rely almost entirely on that brief to discern the State’s arguments because the DOJ largely abandoned the arguments previously made by the assistant district attorney.

2 The State does not challenge the circuit court’s order suppressing VonSchrader’s statements after he was plac ed in handcuffs but before Miranda warnings were administered. See Miranda v. Arizona , 384 U.S. 436 (1966).No. 2020AP1843

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3 officer. VonSchrader later moved to suppress all evidence obtained after law
enforcement ordered him out of his home , arguing that law enforcement unlawfully seized him within his residence without a warrant.

¶ 3 The circuit court held two evident iary hearings on VonSchrader’s motion, hearing testimony from Oneida County Sheriff’s Deputies Ch ris Coniglio
and Mitchell Ellis

. Coniglio and Ellis testified that they responded to a 3:00 a.m. report on July 21, 2019, regarding a disturbance involving several men and a naked woman who had run away from a reside nce “into the woods.” Upon arriving at the residence, the deputies spoke with the repo rting party and two other

men.
¶ 4 The men reported that they had recently returned home from a nearby bar when they discovered the reporting party’s fiancée in bed with
VonSchrader

— a man whom the reporting party knew personall y from prior

encounters. According to Deputy Ellis , the men reported that “some kind of altercation, verbal or other, [had] happened.” Deputy Coniglio testified that the reporting party stated that VonSchrader had unsuccessfully attempted to punch him, that one of the other men then punched VonSchrader, and that the reporting party’s fiancée had ripped a door off its hinges. The men told the deputies that the woman appeared intoxicated and that she had run away from the ho me without wearing any clothing. They also stated that VonSchrader had left the re sidence in
a black Ford F

- 150 around the same time as the woman, and he appeared to have park ed just down the road.

¶ 5 Out of concern for the woman’s welfare, the deputies began searching for her in the surrounding area. When they were unable to locate her, they went to VonSchrader’s residence

. The deputies arrived at VonSchrader’sNo. 2020AP1843

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4 trailer home some time around 4:00 a.m. As the deputies walked up to the home , Deputy Coniglio observed a male

— later identified as VonSchrader

— standing in the home using a cell p hone.

¶ 6 The deputies stepped up onto the home’s porch, knocked on an
unsh aded window near the front door , and shined lights on their uniforms to show that they were sheriff’s deputies

. VonS c hrader looked at the deputies and gave “a ‘hang on’ or ‘one minute’ motion , ” but his attention returned to his cell phone. After the deputies continued knocking, VonSchrader walked to the s ide of the
residence and picked up what Deputy Con ig lio believed to be “a black pistol

. ” Coniglio immediately yelled “ [g] un” to alert Deputy Ellis, and they subsequently
retreated for cover

. ¶ 7 A fter taking cover behind some vehicles in the front yard , the deputies pointed their service weapons at the home and “began order ing [VonSchrader] out of the traile r with his hands up.” VonSchrader eventually came
out of the residence holding a cell phone and a beer

. T he deputies subsequently placed him in handcuffs

. The deputies began asking VonSchrader questions, including wher e the unclothed woman had gone

. A lthough VonSchrader was not cooperative at first, he eventually responded, “She’s not here; you can look in the

tr ailer if you want.” According to Deputy Coniglio, when the deputies asked about VonSchrader having a handgu n in the home, VonSchrader “did not give a definitive answer, jus t laughed.” Deputy Ellis, on the other hand, recalled VonSchrader saying that the gun “ was on the table in the residence. ” The deputies
never entered the residence , and no gun was ever recovered.

¶ 8 Both deputies described VonSchrader as having slurred speech and an “odor of intoxicants coming from his person. ” The deputies subsequentlyNo. 2020AP1843

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5 arrested VonSchrader for OWI and tra nsported him to a different location to conduct field sobriety testing

. After administering the field sobriety tests, Deputy Ellis took VonSchrader to the hospita l for a blood draw.

¶ 9 In an oral ruling, the circuit court denied VonSchrader’s motion to
suppress evi dence gathered after he left his home. In essence, t he court concluded
that the deputies’ conduct was not unreasonable and that VonSchrader was not
seized until he exited his home. Although the court ruled in the State’s favor, the court rejected the Sta te’s argument that the deputies had “ probable cause of criminal activity.” The State had previously argued in its circuit court briefing and at the motion hearing that law enforcement had probable cause to believe
VonSchrader committed an OWI offense and unlawfully possessed a firearm
while intoxicated. Each of tho se probable cause theories was based, in part, on the officers smelling an “odor of intoxicant s ” and observing VonSchrader’s slurred speech after he exited his home. The State did not argue any other theories of probable cause.
¶ 10 VonSchrader later filed a motion for reconsideration, arguing that he was constructively s e ized within his home. The circuit court agreed and
concluded th at there was a constructive entry because a reasonable person in VonSchrader’s position would not have felt free to ignore the deputies’
commands

. The court also rejected the State’s argument that the exclusionary rule should not apply to the eviden ce gat hered from VonSchrader outside of his home. The court explained that the Harris 3 exception to the exclusionary rule require s “probable cause to arrest before the unlawful entry, [but the court] had already

3 See New York v. Harris , 495 U.S. 14 ( 1990 ).No. 2020AP1843

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6 ruled that there was not probable cause pri or to the deputies ordering
Mr. [V]o nSchrader out of his trailer.” Accordingly, the court suppressed all
evidence obtained after VonSchrader exited his home.

¶ 11 The State now appeals. Additional facts will be provided as necessary below.

DISCU SSION

¶ 12 Both the Fourth Amendment to the United States Constitution and article I, section 11 of the W isconsin Constitution protect “ [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonabl e searches and seizures.” U.S. C ONST

. amend. IV; W IS

. C ONST

. art. I, § 11. Absent exigent circumstances, the Fourth Amendment “ prohibits the police from making
a warrantless and non consensual entry into a suspect’ s home in order to make a routine felony arrest. ” Payton v. New York , 445 U.S. 573, 576, 590 ( 1980 )

. Furthermore, a s relevant here, whe re a person does not wish to leave a location, such as a home, that person might be considered “seized” if a reasonable person would not “ fe el free to decline t he officers’ requests or otherwise terminate the

encounter. ” City of Sheboygan v. Cesar , 2010 WI App 170, ¶13, 330 Wis. 2d 760, 796 N.W.2d 429 (citing Florida v. Bostick , 501 U.S. 429, 436 ( 1991 )). “Under the exclusionary rule, evidence obtained in viola tion of the Fourth Amendment is generally inadmissible in court proceedings.” State v. Scull , 2015 WI 22, ¶20, 361 Wis. 2d 288, 862 N.W.2d 562.

¶ 13 We review a circuit court’s decision on a suppression motion using a

two

- part standard of review. State v. Adell , 2021 WI App 72, ¶14, 399 Wis. 2d 399, 966 N.W.2d 115. We will uphold a circuit court’s findings of historical fact unless they are clearly e rroneous, and we independently apply constitutionalNo. 2020AP1843

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7 principles to those facts. State v. Felix , 2012 WI 36, ¶22, 339 Wis. 2d 670, 811
N.W.2d 775.

¶ 14 The State concedes in its supplemental brief that the “deputies seized
VonSchrader within his home by ordering him outside at gunpoint .” The State nevertheless argues that the seizure was lawful because it “ was supported by probable cause and justified by exigent circumstances. ” In the alternative, the State argues that the circuit court erre d by suppressing certain evidence because
the Harris exception to the exclusionary rule applie s

. ¶ 15 Before addressing these arguments directly, we must first address the issue of probable cause, which is a necessary component of both of th e State’s arguments. The State argues that the deputies had probable cause to arrest VonSchrader before ordering him out of his home. In particular , on appeal, the
State contends that the deputies could have reasonably believed that VonSchrader probably committed the crimes of attempted battery and disorderly conduct because the reporting party said that VonSchrader had attempted to punch h im.

¶ 16 In response, VonSchrader a rgues that the State has “waived” this probable cause argument

. He contends that the State never argued

— and the
circuit court never considered

— whether the deputies had probable cause to arrest
VonSchrader before he was seized within his home

.No. 2020AP1843

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8 ¶ 17 “Arguments raised for the first time on appeal are genera lly deemed forfeited.” 4 State Farm Mut. Auto. Ins. Co. v. Hunt , 2014 WI App 115, ¶32, 358
Wis. 2d 379, 856 N.W.2d 633 (citation omitted). “The purpose of the forfeiture rule is to enable the circuit court to avoid or correct any error as it comes up, wit h minimal disruption of the judicial process and maximum efficiency.” State v. Counihan , 2020 WI 12, ¶26, 390 Wis. 2d 172, 938 N.W.2d 530. The forfeiture rule also encourages attorneys to diligently prepare for and conduct court proceedings, and it “obvi ates the need for appeal.” Id. , ¶¶26

- 27. Thus, “[w]e will

not ... blindside [circuit] courts with reversals based on theories which did not originate in their forum. ” State v. Rogers , 196 Wis. 2 d 817, 827, 539 N.W.2d 897 (Ct. App. 1995 ).

¶ 18 T he State has indeed argued new theories of probable cause for the first time on appeal. In the circuit court, the State argued that the deputies had probable cause to arrest VonSchrader for the crimes of : (1) possession of a firearm while intoxicated ; and (2) OWI

. Both of these theories were based , in part, on the deputies’ observations (an “odor of intoxicants” and slurred speech) after VonSchrader exited his home. The State , however, never argued

— as it does

now

— that there was probable cause to arr est based on the crimes of attempted battery or disorderly conduct before VonSchrader was seized in his home

. Thus, not only has the State changed its argument regarding the crimes for which

4 P ast opinions have sometimes used the terms “forfeiture” and “waiver” interchangeably, but “the t wo words embody very different legal concepts.” Loren Imhoff Homebuilder, Inc. v. Taylor , 2022 WI 12, ¶13, 400 Wis. 2d 611, 970 N.W.2d 831 (citation omitted). Forfeiture involves “ the failure to make the timely assertion of a right .” Id. (citation omitt ed). Waiver , on the other hand, “is the intentional relinquishment or abandonment of a known right.” Id. (citation omitt ed). This case involves a forfeiture because VonSchrader does not argue, nor does the record support a conclusion , that the State intentionally relinquished or abandoned the probable cause a rguments now raised on appeal.No. 2020AP1843

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9 probable cause existed, but it has also changed its arg ument reg arding when probable cause existed.

¶ 19 The State fails to acknowledge in its supplemental briefing that it is advancing ne w probable cause theories , and it even seems to imply that it had
made these arguments to the circuit court. Specifically , after highlighting evidence that supports its curren t probable cause theories , the State assert s that when “[p]resented with this evidence, the circuit court decided the deputies had only reasonable suspicion of illegal behavior ... [and d id] n ot [have] probable

cause .” The State even goes so far as to call the court’s probable cause ruling “illogical , ” while ignoring the fact that the State never presented the court with its current probable cause theories

. The State also ignores the fact tha t it never discussed the report of VonSchrader’s attempted punch to a man in either its
bri efing or its oral argument in the circuit court

. In fact, when recounting the facts in its brief opposing VonSchrader’s motion to reconsider, the State said that th e deputies learned of “a verbal a ltercation.”

¶ 20 We conclude that the State has forfeited its new argument regarding probable cause. If the State had presented the circuit court with its current probable cause theories, the court could have avoided the alleged error, which, in turn, might have prevented the necessity of this appeal. In addition, i f we were to consider and rule in favor of the State’s probable cause arguments, we would risk
blindsid ing the circuit court with a reversal b ased on theories that did not originate
in its forum

. See Rogers , 196 Wis. 2 d at 827.

¶ 21 Of course, forfeiture is a rule of judicial administration, and a reviewing court may disregard a forfeiture and address the merits of an unpreserved issue. See Town of Mentor v. State , 2021 WI App 85, ¶48, 400No. 2020AP1843

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10 Wis. 2d 138, 968 N.W.2d 716. A forfeiture may be disregarded “[w]hen an issue involves a question of law rather than of fact, when the question of law has been briefed by both parties and when the question of law is of sufficient public interest to merit a decision.” Marotz v. Hallman , 2007 WI 89, ¶ 16, 302 Wis. 2d 428, 734
N.W.2d 411. For several reasons, this is not a case where we can disregard the
State’s forfeiture.

¶ 22 Fi rst, the facts surrounding the State’s current probable cause
theories are not fully developed. Whether the facts of a particular case constitute probable cause is a question of constitutional fact. State v. Mata , 230 Wis. 2d 567, 570, 602 N.W.2d 158 (Ct . App. 1999). In other words, “ the question of probable cause turns on the facts of the particular case. ” Id. at 572. Here, because
the State never argued its current theories of probable cause, the circuit court never made specific findings of fact regarding what the deputies were told about VonSchrader’s behavior during the alleged “ altercation.” VonSchrader points out
this omission in his supplemental briefing, arguing that “the State relies upon what [it ] assume [ s] are factual findings,” but “the re were no such specific findin gs made by the circuit court.” Indeed, the State relies solely on the deputies’ testimony to support its probable cause arguments in its supplemental briefing; it does not cite any factual findings by the court

. ¶ 23 The circuit court did acknowledge that “[t]here was certainly a
disturbance tha t arose as a result of all this, ” and the court appeared to find the deputies ’ testimony generally credible. The court noted that the deputies had “ at least reasonable suspicion to believe [VonSchrader] was in either a state of agitation, possibly intoxication, based on what they already knew from what they learned from the individual at the prior residence.” But, again, the court never made any specific findings about what the deputies were told or what theyNo. 2020AP1843

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11 believed . Significantly, the deputies both testified that they went to VonSchrader’s home to find the naked woman and to ensure her safety , and Deputy Coniglio agreed with d efense counsel’s suggestion that the depu ties did
not have probable cause to arrest VonSchrader before going to his home

. One could therefore infer that the deputies themselves doubted the credibility of the reporting party ’s claim that VonSchrader had attempted to punch him. This
inference would not be unreasonable , given that the reporting party had stated he just observed his naked fiancée in bed with VonSchrader

. ¶ 24 “ It is the function of the trier of fact, and not of an appellate court, to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. ” State v. Poellinger , 153
Wis. 2 d 493, 506, 451 N.W.2d 752 ( 1990 ). Because the circuit court was not given a fair opportunity to make findings of fac t regarding the State’s current probable cause theories , we have not been presented with a clean question of law. Therefore, on this ground alone, we cannot disregard the State’s forfeiture. Marotz , 302 Wis. 2d 428 , ¶16.

¶ 25 Second, we ca nnot disregard the State’s forfeiture because both parties have not briefed the State’s new probable cause theories. Although
VonSchrader could have addressed the State’s new probable cause theories in his supplemental brief, he did not make an alternativ e ar gument to his “ waiver ” argument. The State might fault him for not doing so, but this second requirement for disregarding a forfeiture has plainly not been met. See id.

¶ 26 Third, the forfeited issues in this case are not of sufficient public interest to merit a decision. The legal issues raised in the State’s supplemental brief (probable cause; exigent circumstances; and the Harris exception to theNo. 2020AP1843

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12 exclusionary rule) involve the application of well

- settled rules of law to a recurring fact situation; therefore, the issues are not novel or complex and would

not warrant a published or authored opinion. 5 See W IS

. S TAT

. R ULE 809.23(1)(b)1. In addition, all of the charges against VonSchrader are
mis demeanors , and there do not appear to be any identifiable victims of his alleged
crime s , other than society in general

. ¶ 27 In short, we cannot disregard the State’s forfeiture in this case because the State’s new probable cause theories in volve questions of fact that we cannot resolve, the parties have not fully briefed the issue of probable cause, and
the forfeited issues in this case are not of sufficient public interest. See Marotz , 302 Wis. 2d 428 , ¶16.

¶ 28 The State’s failure to establish probable cause on appeal is fatal to
each of its main arguments. F or a warrantless seizure inside of a home to be justified by exigent circumstances, the warrantless entry must also be supported by probable cause that the individual has committed a jailable offense

. See State v. Weber , 2016 WI 96, ¶ ¶ 19, 32, 372 Wis. 2d 202, 887 N.W.2d 554 (“[T]he State must ‘show[] that the warrantless entry was both supported by probable cause and justified by exigent circumstan ces.’” (second alteration in original; citation omitted)). Likewise, the Harris exception to the exclusionary rule applies only “where police had probable cause to arrest before the unlawful entry and warrantless arrest from a defendant’s home.” Felix , 3 39 Wis. 2d 670, ¶42.

5 Although we initially converted this appeal from a one

- judge decision to a three

- judge decision, thereby signaling that publication might be warranted, the State’s supplemental brief largely abandoned its previous arguments and did not contest that VonSchrader ha d been seized within his home.No. 2020AP1843

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13 ¶ 29 Because the State has forfeited its new probable cause theories and because it has abandoned its earlier probable cause theories, 6 the State cannot
establish either an exigent circumstance exception to the warrant r ule or the Harris exception to the exclusionary rule. Accordingly, we reject these arguments

. ¶ 30 Finally, t o the extent the State has not abandoned its argument in its original briefing that the exclusionary rule does not apply, we reject that argument
as well. In its initial brief

- in

- chief, the State argued that the exclusionary rule did not apply because the deputies did not engage in reckless or deliberate misconduct when they reasonably believed “that VonSchrader posed an imminent thr eat to officer safety, and potentially, the missing fiancé[e].” The exclusionary rule applies where police conduct is “sufficiently deliberate that exclusion can meaningfully deter it, and [is] sufficiently culpable that such deterrence is worth the price paid by the justice system.” State v. Burch , 2021 WI 68, ¶16, 398
Wis. 2d 1, 961 N.W.2d 314 (citation omitted). Police misconduct is sufficiently deliberate and can be effectively deterred through the exclusion of evidence where the conduct is “delibera te, reckless, or grossly negligent,” or, in some circumstances, where the conduct involves “recurring or systemic negligence.” Id. , ¶17 (citation omitted).

¶ 31 Here, the deputies’ conduct was grossly negligent, if not reckless. The deputies did not have probable cause or a warrant to arrest VonSchrader, and they ordered him out of the sanctity of his home at gun point. As the circuit court recognized during the hearing on VonSchrader’s motion for reconsideration,

6 “[A]n issue raised in the [circuit] court, but not raised on appeal, is deemed abandoned.” A.O. Smith Corp. v. All state Ins. Cos. , 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998).No. 2020AP1843

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14 [T]here’s no information that’s been presented to me to indicate that [VonSchrader] brandished or threatened a weapon against the officers or, for that matter, whether it was loaded

— and there’s still, at least based on the record in this case relative to this motion, a potential argument as to what exactly it was in [VonSchrader’s] hand because apparently the officer [s] did not enter the dwelling at that time to locate the item

....
Accordingly, we conclude that the deputies’ conduct should be and can be meaningfully deterred by the application of the exclusionary rule.

By the Court.

— Order affirmed

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.