COURT OF APPEALS

COURT OF APPEALS

DECISION

DATED AND FILED

May 30, 2012

Diane M. Fremgen

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.�	2011AP2702	Cir. Ct. No.� 2011CV727
STATE OF WISCONSIN�			IN COURT OF APPEALS
			DISTRICT III


Town of Grand Chute, �� Plaintiff-Respondent, �� v. William F. Thomas, �� Defendant-Appellant.

�� APPEAL from a judgment of the circuit court for Outagamie County:� JOHN A. DES JARDINS, Judge.� Affirmed.�

�1�� HOOVER, P.J.[1] William Thomas appeals a judgment of conviction for operating while intoxicated, first offense.[2]� Thomas argues the circuit court erred by denying his suppression motion.� Specifically, he asserts the officer lacked reasonable suspicion to extend the traffic stop in order to investigate whether he was operating while intoxicated.� We affirm.�

BACKGROUND

�2�� At the suppression hearing, officer Aaron Schellinger testified that on August 15, 2010, at approximately 1:40 a.m., he observed a motorcycle weaving within its lane of traffic.� Schellinger explained that it appeared as though the motorcycle was attempting to weave in its lane.� He decided not to stop the motorcycle on that basis, and instead, began to follow it.

�3�� After the motorcycle made a right turn, it began to accelerate at a �rapid pace.�� Schellinger clocked the motorcycle traveling sixty-five miles per hour in a thirty-five mile-per-hour zone, and stopped it for speeding.�

�4�� When Schellinger made contact with the driver, subsequently identified as Thomas, Schellinger smelled the odor of intoxicants on Thomas.� Schellinger then administered field sobriety tests.� Thomas showed signs of impairment and was arrested for operating while intoxicated.

�5�� The circuit court found Schellinger had reasonable suspicion to extend the traffic stop to administer field sobriety tests.� The court denied Thomas�s suppression motion, and, following a court trial on stipulated facts, it found Thomas guilty.�

DISCUSSION

�6�� On appeal, Thomas concedes Schellinger lawfully stopped him for speeding.� He argues Schellinger lacked reasonable suspicion to believe he was operating while intoxicated and, therefore, unlawfully extended the traffic stop to administer field sobriety tests.�

�7�� An officer may lawfully extend a traffic stop, if, during the stop, �the officer discover[s] additional information � which, when combined with information already acquired, provide[s] reasonable suspicion that [the defendant] was driving while under the influence of an intoxicant.�� State v. Colstad, 2003 WI App 25, �19, 260 Wis. 2d 406, 695 N.W.2d 394.�� Reasonable suspicion exists when, under the totality of the circumstances, �the facts of the case would warrant a reasonable police officer, in light of his or her training and experience, to suspect that the individual has committed, was committing, or is about to commit a crime.�� State v. Post, 2007 WI 60, �13, 301 Wis. 2d 1, 733 N.W.2d 634.� It �must be based on more than an officer�s �inchoate and unparticularized suspicion or hunch.�� Id., �10 (citation omitted).� The officer ��must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant� the intrusion of the [extended] stop.�� Id. (citation omitted); see also State v. Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d 499 (Ct. App. 1999).�

�8�� Thomas argues Schellinger lacked reasonable suspicion to extend the traffic stop because the only fact supporting Schellinger�s belief that Thomas was operating while intoxicated was the odor of intoxicants.� Thomas asserts the odor of intoxicants does not, by itself, constitute reasonable suspicion that a driver is operating while intoxicated.� He contends Schellinger did not rely on the observed weaving to form a belief that Thomas was operating while intoxicated because Schellinger did not stop Thomas for weaving and, during cross-examination, when asked whether Thomas was able to get off his motorcycle, Schellinger responded, �The only thing that I observed was the odor of intoxicants.�

�9�� We reject Thomas�s assertion that the odor of intoxicants was the only fact supporting Schellinger�s belief that Thomas was operating while intoxicated.� �Although Schellinger testified, �The only thing that I observed was the odor of intoxicants,� the test for reasonable suspicion is an objective one.[3]� See State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996); see also State v. Buchanan, 178 Wis. 2d 441, 447 n.2, 504 N.W.2d 400 (Ct. App. 1993) (�[I]t is the circumstances that govern, not the officer�s subjective belief.�).� Here, in addition to the odor of intoxicants, Schellinger observed Thomas weaving within his lane and speeding thirty miles per hour over the posted limit.� We conclude that, under the totality of the circumstances, the odor of intoxicants combined with the observed weaving, the 1:40 a.m. time of the stop, and the inordinately excessive speed gave rise to a reasonable suspicion that Thomas consumed enough alcohol to impair his ability to drive.� See Post, 301 Wis. 2d 1, ��10, 13.� Schellinger properly extended the traffic stop to administer field sobriety tests.

�� By the Court.�Judgment affirmed.

�� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2] Thomas was also convicted of speeding.� He does not challenge his speeding conviction on appeal.

[3] Moreover, taken in context, it appears that when Schellinger made the statement, Thomas was questioning him only on his post-stop observations.