COURT OF APPEALS

DECISION

DATED AND FILED

July 20, 2023

Samuel A. Christensen

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 WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2021AP161-CR Cir. Ct. No. 2016CF104

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

TERRY M. PETERSON, JR.,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Vernon County: 

DACRY JO ROOD, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Graham, 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 WIS. STAT. RULE 809.23(3). 
No. 2021AP161-CR

2

¶1 PER CURIAM. Terry M. Peterson, Jr. appeals a judgment 

convicting him of operating a motor vehicle while intoxicated (OWI) as a fifth 

offense. Peterson argues that the circuit court erred in denying his motion to 

suppress evidence on the ground that the procedure used to obtain a telephonic 

search warrant for a blood draw following his arrest for OWI and his refusal to 

submit to chemical testing of his blood did not comport with the requirements of

WIS. STAT. § 968.12(3) (2021-22).1 Specifically, Peterson asserts that the State’s 

reconstruction of unrecorded portions of the telephonic warrant application was 

inadequate and violated his constitutional rights. We conclude that the search 

warrant was valid and that the State adequately reconstructed the record to reflect 

the issuing judge’s considerations at the time of the warrant application, with the 

result that he fails to show a violation of his constitutional rights. Accordingly, we

affirm.

BACKGROUND

¶2 The facts pertinent to this appeal are undisputed. In September 2016, 

Officer Josiah Gjefle of the Viroqua Police Department initiated a traffic stop after 

seeing a vehicle weaving several times and discovering that the driver’s license of 

the vehicle’s registered owner was revoked. Gjefle noticed an odor of intoxicants 

coming from the vehicle’s driver, Peterson, when speaking with him pursuant to the 

stop. Gjefle also observed that Peterson’s eyes were bloodshot and glassy and his 

speech was slurred. Peterson admitted that he had been drinking alcohol earlier that 

night.

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version.
No. 2021AP161-CR

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¶3 Peterson performed inadequately on field sobriety tests and provided 

a preliminary breath test sample with a .165 result. Gjefle arrested Peterson for 

OWI and took him to the hospital for a blood draw. After Gjefle read him the 

Informing the Accused form, Peterson refused to consent to chemical testing. Gjefle 

then completed a search warrant affidavit to obtain a sample of Peterson’s blood,

and Gjefle contacted Vernon County Circuit Court Judge Michael J. Rosborough by 

telephone to complete the warrant application procedure.

¶4 Although the telephonic search warrant application should have been 

recorded, Gjefle’s conversation with Judge Rosborough related to the warrant

application was not recorded. However, Gjefle’s body camera was activated 

throughout and recorded his side of the conversation in its entirety. Judge 

Rosborough issued the warrant, Peterson’s blood was drawn, and the test results 

indicated that Peterson’s blood alcohol concentration was significantly above the 

legal limit.

¶5 The State charged Peterson with several driving offenses, including 

OWI with a minor in the vehicle as a fifth offense. Peterson filed a motion to 

suppress, which raised several arguments related to the propriety of the arrest and 

search warrant application process. The State filed a written response to Peterson’s 

motion, accompanied by a transcript of the attempt by Gjefle and Judge Rosborough 

to reconstruct the conversation they had regarding the search warrant application. 

The warrant application had occurred more than two years before Gjefle and Judge 

Rosborough attempted to reconstruct the record and, during the reconstruction, 

Gjefle and Judge Rosborough both acknowledged that they had no independent 

recollection of the search warrant application. However, they attempted to 

reconstruct the record to reflect the conversation that they would have had regarding

Peterson’s refusal based on their standard procedures. Gjefle also reviewed his 
No. 2021AP161-CR

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police report following Peterson’s arrest and a transcript of his body camera 

recording in preparation for the reconstruction.

¶6 After conducting an evidentiary hearing, the circuit court found the 

body camera footage of Gjefle’s side of the conversation “very compelling.” The 

court further observed that Gjefle had been placed under oath at the beginning of 

the conversation, and that it could clearly recognize Judge Rosborough’s “voice on 

two occasions” during the course of the conversation. The court put weight on the 

facts that Judge Rosborough had granted search warrants in his capacity as judge 

for over thirty years and that questions asked by a judge during a search warrant 

application are “fairly routine.”

¶7 The circuit court concluded that the reconstruction was adequate, and 

it denied Peterson’s suppression motion. Distinguishing Peterson’s case from those 

in which evidence suppression was appropriate, the court reiterated its view that the 

presented body camera footage “rescue[d] this case” and that Peterson’s due process 

rights were not violated by the warrant application process. The court also declined 

to find a violation of Peterson’s constitutional right to appellate review, noting the 

referenced body camera footage allowed an appellate court “to discern the 

considerations by Judge Rosborough based on the responses to his questions by 

Officer Gjefle.”

¶8 Although Peterson raised several arguments in his suppression 

motion, he renews on appeal only one—his position that the blood evidence should 

be suppressed because the warrant application process was improper. Specifically, 

Peterson argues on appeal that his due process rights were violated because the 

warrant application conversation between Gjefle and Judge Rosborough was not 

recorded in its entirety.
No. 2021AP161-CR

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DISCUSSION

¶9 “In reviewing a motion to suppress, we uphold the circuit court’s 

findings of fact unless they are clearly erroneous, and review the application of 

constitutional principles to those facts de novo.” State v. Grady, 2009 WI 47, ¶13, 

317 Wis. 2d 344, 766 N.W.2d 729. “Suppression is only required when evidence 

has been obtained in violation of a defendant’s constitutional rights or if a statute 

specifically provides for the suppression remedy.” State v. Raflik, 2001 WI 129, 

¶15, 248 Wis. 2d 593, 636 N.W.2d 690 (citations omitted). There is no statutory 

provision for suppression as a remedy for failure to comply with WIS. STAT.

§ 968.12, which governs the issuance of search warrants. Therefore, the only issue 

is whether the alleged failure to comply with the statutory procedure violated one 

of Peterson’s constitutional rights. See Raflik, 248 Wis. 2d 593, ¶¶15-16 

(identifying three potential constitutional violations in this context: a violation of 

the Fourth Amendment “in its own right”; the lack of “probable cause on the record 

to support the warrant and the Fourth Amendment’s probable cause requirement 

would arguably not be met”; and a violation of “the Fourteenth Amendment due 

process right to meaningful judicial review and her right to a meaningful appeal 

under Article I, Section 21 of the Wisconsin Constitution.”).

¶10 The procedures for obtaining a telephonic search warrant are set forth 

in WIS. STAT. § 968.12(3). Under para. (a), “[a] search warrant may be based upon 

sworn oral testimony communicated to the judge by telephone, radio or other means 

of electronic communication.” See § 968.12(3)(a). If the testimony is 

communicated through telephonic means, “The person who is requesting the 

warrant shall prepare a duplicate original warrant and read the duplicate original 

warrant, verbatim, to the judge. The judge shall enter, verbatim, what is read on the 

original warrant.” See § 968.12(3)(b). Subsection (3)(d) allows a judge to take 
No. 2021AP161-CR

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sworn testimony over the phone to support the issuance of a warrant, and in that 

event “[t]he judge or requesting person shall arrange for all sworn testimony to be 

recorded either by a court reporter or by means of a voice recording device.” See

§ 968.12(3)(d).

¶11 While a complete search warrant application transcript “guarantees 

that the defendant has the opportunity to analyze the proceedings of the trial court 

and to challenge any errors,” a violation of WIS. STAT. § 968.12(3)(d) does not 

automatically constitute a constitutional violation triggering evidence suppression. 

Raflik, 248 Wis. 2d 593, ¶¶31, 39. Rather, “a reconstructed warrant application 

may serve as a functional equivalent of the record of the original application. Such 

a reconstruction, when made appropriately, can protect the defendant’s right to a 

meaningful appeal, as well as the defendant’s ability to challenge the admission of 

evidence in a suppression hearing.” Id., ¶39.

¶12 In Raflik, an officer called in a telephonic search warrant application 

and the judge took testimony over the phone, but the call was mistakenly not 

recorded. Id., ¶¶5-6. The officer and the judge got together the next day and 

reconstructed the officer’s testimony. Id., ¶¶7-10. Our supreme court determined

that the warrant process fulfilled all the requirements of the Fourth Amendment, and 

that the reconstruction of the warrant application process adequately protected 

Raflik’s right to judicial review. Id., ¶21. As the court explained, “[t]he essential 

thing is that proof be reduced to permanent form and made a part of the record, 

which may be transmitted to the reviewing court.” Id., ¶28 (citation omitted).

¶13 The Raflik court pointed to several facts to support its conclusion. 

Specifically, the court noted that: (1) the reconstructed testimony was short and 

involved only one witness; (2) the facts described during the reconstruction “were 
No. 2021AP161-CR

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uncomplicated and easily remembered” by the witness; (3) the facts set forth in the 

reconstruction were corroborated by the witness’s affidavit and other documents 

filed during the original warrant application; (4) the reconstruction occurred the day 

after the original warrant application; and (5) all the participants involved in the 

original warrant application were available to the circuit court when the record was 

reconstructed. Raflik, 248 Wis. 2d 593, ¶¶42-43.

¶14 Here, as in Raflik, Gjefle’s sworn testimony to support the warrant 

application was short, with the phone conversation lasting only approximately three 

minutes and, similarly, involving only one witness. Further, the facts recited during 

the reconstruction were simple, and were easily remembered by Gjefle after he 

refreshed his recollection with the body camera recording of his portion of 

conversation, which represented the vast majority of the pertinent discussion

between Gjefle and the judge. The facts were also corroborated by the body camera 

recording and by Gjefle’s affidavit, which had been filed simultaneously with the 

warrant application. Finally, as in Raflik, every person involved in the original 

warrant application process (here, Gjefle and Judge Rosborough) was available to 

the circuit court when the record was reconstructed. Under these circumstances, the 

reconstruction was sufficient to provide Peterson with the right to meaningful 

judicial review both in the circuit court and on appeal. See Raflik, 248 Wis. 2d 593,

¶21.

¶15 Peterson emphasizes that over two years passed between the warrant 

application and the reconstruction of the record. As part of this argument, he notes

that the Raflik court took into consideration the short passage of time between the 

events and argues that the passage of time here makes a proper record reconstruction 

“impossible as a matter of law.” Apart from his assertion, however, Peterson 

provides no authority for this proposition. Although it is true that the reconstruction 
No. 2021AP161-CR

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in Raflik occurred the day after the warrant application in that case, Peterson fails 

to demonstrate why the delay in this case makes the reconstruction “impossible” or 

even unreliable.

¶16 We conclude that, under the circumstances here, the gap between the 

warrant application and reconstruction does not negate the adequacy of the 

reconstruction. The conversation at issue was a total of only three minutes long and 

one side of the conversation was completely recorded. Moreover, the side that was 

recorded was that of Gjefle, who did most of the talking and provided the majority 

of the content during the conversation. Finally, as the circuit court found, the officer 

and the judge were discussing a rather routine type of search warrant; it follows that

the judge, based on his then-thirty years on the bench, had substantial experience in 

considering similar search warrant applications and as a result had a firm idea of the 

types of questions that he would ask an officer seeking a warrant of this type.

¶17 Peterson concedes that Gjefle had probable cause to obtain the 

warrant in question and that the scope of the warrant was appropriate. However, he 

argues that the fact that the entire warrant application process was not recorded 

violates his due process rights because, without the complete recording, “[he] cannot 

fully evaluate ... Judge Rosborough’s neutrality.” Peterson’s due process argument 

fails on its merits.

¶18 First, Peterson identifies nothing in the record to support an inference 

that Judge Rosborough acted unfairly. Without any evidence to the contrary, we 

presume that judges act “fairly, impartially, and without bias.” State v. Goodson, 

2009 WI App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d 385. Given this presumption 

and the lack of record support to the contrary, there is no basis from which to 
No. 2021AP161-CR

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conclude that Judge Rosborough was biased or unfair, or even that he misunderstood 

any facts.

¶19 Second, as we have explained, the body camera footage and Gjefle’s 

sworn affidavit are sufficient for both the circuit court and this court on appeal to 

conclude that the warrant was properly granted. See Raflik, 248 Wis. 2d 593, ¶42. 

Under these circumstances, we conclude that the reconstruction of the record 

adequately protected Peterson’s “right to a meaningful appeal, as well as [his] ability 

to challenge the admission of evidence in a suppression hearing.” See id., ¶39. In 

other words, the reconstruction did not violate Peterson’s due process rights.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.