State v. Michael R. Meton

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 27, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP141-CR Cir. Ct. No. 2022CT657

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL R. METON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Winnebago
County: MICHAEL D. RUST, Judge. Affirmed.

¶1 NEUBAUER, P.J.1 Michael R. Meton challenges his judgment of
conviction for operating a motor vehicle with a prohibited alcohol concentration,

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2025AP141-CR

second offense, contrary to WIS. STAT. § 346.63(1)(b). He argues that the circuit
court erred in declining to suppress the results of a blood draw obtained by the
police after they administered a preliminary breath test in violation of WIS. STAT.
§ 343.303. Because the police had independent grounds apart from the breath test
result to seek the blood draw, suppression of the blood draw result was not
required. This court affirms.

BACKGROUND

¶2 In December 2022, the State charged Meton with operating a motor
vehicle while under the influence, second offense. The State later filed an
amended complaint to include an additional count of operating with a prohibited
alcohol concentration, second offense. The charges, and Meton’s suppression
motion, arose out of the following facts.

¶3 On December 24, 2022, Officer Nicholas Erickson of the
Winnebago County Sheriff’s Department received a report of a reckless driver in
Winchester. The report stated that a black truck nearly collided head-on with the
reporting party, passed Antlers sports bar, and then backed up and drove into its
parking lot. When Erickson arrived in the area, he observed a truck matching the
report’s description in the parking lot. According to Erickson’s report, the truck’s
engine was running and in drive, the brake lights were active, and Meton was
seated in the driver’s seat “and appeared to be passed out.”

¶4 When Erickson knocked on the truck’s windows, Meton did not
immediately wake up. At that time, emergency services were dispatched.
Eventually, Erickson was able to wake Meton up. When Meton opened his door,
Erickson “immediately detected the odor of an intoxicant” coming from the
vehicle. In speaking with Erickson, Meton admitted that he had been drinking that

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No. 2025AP141-CR

evening. Erickson also observed that Meton’s eyes were glassy and bloodshot and
that his speech was slurred.

¶5 Based on these observations, Erickson administered field sobriety
tests and observed several clues of intoxication. Erickson then administered a
preliminary breath test (PBT), which indicated a blood alcohol level above the
legal limit. Erickson placed Meton under arrest and read the Informing the
Accused form to him, after which he consented to chemical testing of his blood.

¶6 Meton filed a pretrial motion to suppress, arguing that Erickson
violated WIS. STAT. § 343.303 and the Fourth Amendment by administering the
PBT without first asking Meton to submit to the test. Meton argued that § 343.303
requires an officer to “request” that a person “provide a sample of his or her breath
for a preliminary breath screening test” and that Erickson failed to request the test
because he simply placed the testing device in front of Meton’s face and said,
“Deep breath and blow for me,” thereby making it “appear to Mr. Meton that he
was obligated to submit to a PBT[.]” In addition to violating the statute, Meton
argued that Erickson’s conduct constituted an unreasonable seizure of his breath in
violation of the Fourth Amendment and article 1, section 11 of the Wisconsin
Constitution, and that “all evidence gathered subsequent to” the PBT result should
be suppressed as the tainted fruit of the PBT.

¶7 The circuit court held an evidentiary hearing on Meton’s motion in
January 2024. The parties agreed that, in lieu of officer testimony, the court could

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No. 2025AP141-CR

rely on Erickson’s bodycam video in making its factual findings.2 The court
granted Meton’s motion in part, finding that Erickson had failed to request that
Meton submit to the PBT and excluding the results from that test. However, the
court declined to suppress all subsequent evidence, including the results from the
blood draw, concluding that the independent source doctrine precluded application
of the exclusionary rule. Specifically, the court concluded that there was
“probable cause … to believe [Meton] was operating [a] motor vehicle while
intoxicated” even without the PBT because Erickson found Meton “asleep in the
car[,]” “the vehicle was still in drive,” Meton was difficult to arouse from sleep,
Erickson smelled a “strong odor of intoxicants” when Meton opened the door, and
Meton admitted to drinking that evening and to driving.

¶8 In January 2025, Meton pled no contest and was convicted of
operating with a prohibited alcohol concentration, second offense. Meton appeals,
asserting that the circuit court erred when it declined to suppress all evidence
obtained subsequent to the PBT.

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.

2
Although the circuit court indicated in its oral ruling that it had reviewed the video, the
video was not included in the appellate record that was transmitted to this court. Thus, the facts
relayed herein are derived from the statement of facts in Erickson’s appellate brief, which the
State agrees is “sufficient,” and from the court’s oral ruling.

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No. 2025AP141-CR

¶10 The Fourth Amendment to the United States Constitution and
article I, section 11 of the Wisconsin Constitution protect against “unreasonable
searches and seizures.” U.S. CONST. amend. IV; WIS. CONST. art. I, § 11.3
Evidence obtained in violation of the Fourth Amendment is generally inadmissible
in circuit court proceedings under the exclusionary rule. Mapp v. Ohio, 367 U.S.
643, 655 (1961). The exclusionary rule can apply to both evidence discovered
during an unlawful search or seizure and evidence discovered only because of
what the police learned from the unlawful activity, also referred to as “fruit of the
poisonous tree.” State v. Knapp, 2005 WI 127, ¶24, 285 Wis. 2d 86, 700 N.W.2d
899. Broadly speaking, this rule “prohibit[s] the use of any secondary evidence
which is the product of or which owes its discovery to illegal government
activity.” Id. (citation omitted).

¶11 The independent source doctrine is “an exception to the exclusionary
rule” that “allows for the admissibility of evidence or information tainted by an
illegal evidence-gathering activity when the State otherwise acquires the same
information … by lawful means.” State v. Van Linn, 2022 WI 16, ¶12, 401
Wis. 2d 1, 971 N.W.2d 478. The “doctrine applies when the State has a separate
reason to seek the challenged evidence apart from the knowledge it gains from an
unlawful [seizure].” Id., ¶14. If a “later, lawful seizure is genuinely independent
of an earlier, tainted one … there is no reason why the independent source
doctrine should not apply.” State v. Carroll, 2010 WI 8, ¶44, 322 Wis. 2d 299,
778 N.W.2d 1 (citation omitted). The independent source doctrine “derives from

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Wisconsin courts “normally interpret [a]rticle I, § 11 consistent with the United States
Supreme Court’s interpretation of the Fourth Amendment.” State v. Coffee, 2020 WI 53, ¶21 n.5,
391 Wis. 2d 831, 943 N.W.2d 845.

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No. 2025AP141-CR

the principle that ‘[w]hen the challenged evidence has an independent source,
exclusion of such evidence would put the police in a worse position than they
would have been in absent any error or violation.’” Id. (quoting Murray v. United
States, 487 U.S. 533, 537 (1988) (alteration in original)).

¶12 Meton contends that the circuit court erred when it allowed Meton’s
blood test result into evidence and that it should have been excluded as fruit of the
unlawful PBT. Meton argues that a PBT not only “assist[s] a law enforcement
officer in making [a] probable cause determination, [but] also serves an additional
function in assisting the officer in determining what form of testing will
subsequently be sought.” Meton reasons that, if field sobriety tests “indicate
impairment,” but a “low” PBT result is subsequently obtained, an officer “is likely
to suspect that substances other than ethanol are present” and “will likely choose
to request a blood specimen from the accused rather than a breath test in order to
confirm [these] suspicions.” Thus, due to the “direct impact” that the PBT result
had upon the subsequent investigation, Meton argues that application of the fruit
of the poisonous tree doctrine to Meton’s blood test result is “unavoidable” and
that the court erred in not suppressing it.

¶13 This argument is without factual support. Meton does not direct this
court to any facts in evidence which suggest that the result of the PBT had any
impact on Erickson’s decision to seek a blood draw. Additionally, there are no
facts suggesting that Erickson’s administering of the PBT impacted Meton’s
voluntary consent to the blood draw.

¶14 In arguing this point, Meton appears to rely entirely on the text of
WIS. STAT. § 343.303, which provides that the “result of this preliminary breath
screening test may be used by the law enforcement officer for the purpose of

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No. 2025AP141-CR

deciding whether or not the person shall be arrested … and whether or not to
require or request chemical tests.” However, as this court indicated in County of
Dane v. Sharpee, “[t]he legislature’s repeated use of the word ‘may’ in the statute
indicates … that the [PBT] is not … determinative of the issue of probable cause
to arrest for driving while intoxicated.” 154 Wis. 2d 515, 519, 453 N.W.2d 508
(Ct. App. 1990). Similarly, although a PBT may be considered by a law
enforcement officer in deciding to seek a blood draw, nothing in the statute
requires a properly administered PBT before a blood draw may be requested.
And, as noted above, no testimony from Erickson or other evidence indicates that
he requested a blood draw because of the PBT result.

¶15 Once Erickson placed Meton under arrest for OWI, he was
authorized to seek a blood draw under WIS. STAT. § 343.305(3)(a). Erickson had
probable cause to arrest Meton based on his reported reckless driving, that his car
was running, not in park and he was initially unresponsive, along with Meton’s
slurred speech, glassy eyes, admission of drinking, and performance on field
sobriety tests. Those facts provided “a separate reason,” apart from the PBT
result, to seek the blood draw. See Van Linn, 401 Wis. 2d 1, ¶14. Accordingly,
the circuit court correctly determined that suppression of the blood draw was not
required because independent grounds apart from the PBT existed for Erickson to
request the blood draw.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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