Dec. 9, 2015 – The officer who arrested Glenn Zamzow for operating while intoxicated (OWI) died before Zamzow’s suppression hearing. Recently, a state appeals court ruled that the trial court properly considered an audio recording of the officer despite Zamzow's constitutional arguments.

Zamzow argued that the officer lacked reasonable suspicion to make the stop. At a hearing on Zamzow’s motion to suppress evidence, the court allowed a squad car audio recording of the officer who made the stop. Zamzow objected on hearsay grounds.

He said allowing the audio recording would violate his right to confront the witnesses against him, under the Sixth Amendment to the U.S. Constitution (Confrontation Clause). In the recording, the officer can be heard telling Zamzow that he made the stop because he twice observed Zamzow veer across the center line of the roadway.

A dash cam video recording also showed the officer turned around to tail Zamzow and Zamzow’s tires were very close to and/or upon the center line. However, the video did not show whether Zamzow actually crossed the center line. The police officer arrested Zamzow for a third offense OWI and a prohibited alcohol concentration (PAC).

The Fond du Lac County Circuit Court found that Zamzow crossed the center line, relying on the audio recording in which the officer says Zamzow crossed it. The court denied Zamzow’s motion to suppress, and he was ultimately convicted after a jury trial.

Zamzow filed a postconviction motion, reasserting the Confrontation Clause argument and also claiming that the court violated his Fourteenth Amendment procedural due process rights by relying on the audio recording to allow hearsay evidence.

The court denied the motion and Zamzow appealed. In State v. Zamzow, 2014AP2603-CR (Dec. 2, 2015), a three-judge panel for the District II Wisconsin Court of Appeals affirmed, concluding that the circuit court properly admitted the audio recording.

“We conclude the circuit court properly admitted and relied upon the officer’s statement in the recording that he stopped Zamzow because he twice observed Zamzow’s vehicle cross the center line,” wrote Judge Mark Gundrum.

Confrontation Clause

The panel relied on 1990 case, State v. Frambs, in which a witness made conflicting statements to police and could not be located for trial. One of his statements implicated the defendant. The other statement implicated someone other than the defendant.

The defendant, Frambs, sought to admit the exculpatory statement. The court excluded the statement because the officer and prosecutor presented evidence that Frambs’s misconduct caused the witness’s unavailability. They said the witness indicated that Frambs would retaliate if anyone talked. Frambs challenged that evidence as hearsay.

The appeals court in Frambs held that the court did not violate any Confrontation Clause rights by allowing hearsay statements at a pretrial hearing. That is, the Confrontation Clause kicks in at trial, where there is opportunity for cross-examination. The Frambs court said that ruling was consistent with U.S. Supreme Court precedent.

Zamzow argued that Frambs is no longer good law, the audio recording was hearsay, and the trial court violated his rights by allowing hearsay at the pre-trial hearing. But the appeals court panel said Frambs is still good law and there was no basis to reject it.

“[B]ased on Frambs, as well as the cited Supreme Court precedent, we conclude the Confrontation Clause simply does not apply to pretrial hearings such as the suppression hearing at issue in this case, and the circuit court’s reliance upon the hearsay evidence from the recording was not improper,” Judge Gundrum wrote.

Procedural Due Process

Zamzow said the trial court violated his procedural due process rights because the officer’s statements “cannot be tested for defects in perception.” That is, it would be fundamentally unfair to rely on statements by someone who could not be examined.

The panel noted, and Zamzow conceded, that there was no case law to support this due process argument. But the panel decided to address the question anyway.

Relying on U.S. Supreme Court precedent, the panel concluded that allowing hearsay statements at pretrial suppression hearings does not present a due process problem.

“While Zamzow was not able to challenge the officer’s observations for ‘defects in perception,’ this does not make the officer’s recorded statement unreliable,” wrote Judge Gundrum, noting that the trial court was able to observe the real-time interaction and “hear directly what the officer said to Zamzow and how he said it.”

The question at the suppression hearing was whether the officer had a reasonable suspicion that Zamzow was violating the law, and the audio was admissible.

“The court properly concluded that the officer’s recorded statement provided reliable evidence that the officer had observed Zamzow cross the center line, providing the legal basis for the stop,” Judge Gundrum wrote for the three-judge panel.