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COURT OF
APPEALS DECISION DATED AND
RELEASED June
13, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0144
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF DODGE,
Plaintiff-Respondent,
v.
BRYAN
E. HARNED,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dodge County: DANIEL W. KLOSSNER, Judge. Affirmed.
EICH,
C.J.[1] Bryan Harned, appealing from a judgment
finding that he had operated a motor vehicle while intoxicated, raises a single
issue on appeal: whether the trial court erred in determining that he had not
been placed under arrest before he was asked to perform field sobriety tests.[2] We reject his arguments and affirm the
judgment.
The
results of several field sobriety tests administered to Harned after he had
been stopped by police formed the primary basis for the trial court's finding
that he had been driving while intoxicated.
Prior to trial, Harned moved to suppress the results of the test,
arguing that he had in fact been placed under arrest when he was briefly held
at gunpoint and handcuffed by the officer after his vehicle was stopped. He maintained that at the time the officer
cuffed him, there were no reasonable grounds to believe that he had committed
or was committing any offense, civil or criminal.
The
trial court denied the motion and, after a trial on the merits, Harned was
found to have violated the Dodge County drunk driving ordinance. His appeal challenges only the trial court's
denial of his suppression motion, and the underlying facts are not in
dispute.
Dodge
County Deputy Sheriff James Engels was on patrol on a rural county road at
approximately 1:40 a.m. when he "clocked" an approaching vehicle
(Harned's) traveling at an excessive rate of speed. Engels turned his squad car around, activated the emergency and
"wigwag" headlights and began to follow the car. Engels saw Harned's car turn onto a local road,
and then appear to drive off the road into a field. As he got closer, he saw the car stopped, with all lights out, in
the middle of the field, some 300 to 400 feet from the roadway. Engels stopped, and when he shone his
spotlight into the field, the car's headlights came on and it drove out of the
field, coming to a stop partly on the road and partly in the adjacent
ditch. When Harned got out of his car,
Engels, not knowing whether others were in the car or what the
"circumstances" were,[3]
drew his weapon and told Harned to keep his hands at his side.
After
patting Harned down for weapons, Engels told him he was going to handcuff him
for his (Engels's) own safety, specifically informing Harned "that he was
not under arrest, that it was for my safety." According to Engels, Harned "was cooperative and understood
that." After handcuffing Harned,
Engels performed a more thorough search of Harned and his car, and once he was
satisfied that there were no weapons on Harned's person or in his car--and that
the car was unoccupied--Engels removed the cuffs,[4]
telling Harned, "as I told him before, [that] he wasn't under arrest. I placed him in the handcuffs for my safety
because I don't know the circumstances and I told him I appreciated his ...
cooperation, and that I was going to ask him to do some field sobriety
tests." Engels then asked Harned
why he had attempted to "[e]lude" him, and Harned replied that he had
just come from a bar and became scared when he saw the squad car turn around because
he knew he had been speeding and because he was driving on a commercial
license.
Before
Engels could testify as to the field sobriety tests, the attorneys, feeling
enough testimony had been adduced to determine Harned's motion, argued to the
court about the timing of the arrest.
The county attorney argued that Engels's act of handcuffing Harned was
not an arrest but only a temporary detention for his own safety. Harned's counsel argued that he had been
arrested when he was handcuffed by Engels.
The
trial court ruled that, considering all of the circumstances, the handcuffing
was reasonable and did not constitute an arrest. As indicated, that ruling is the only one Harned challenges on
this appeal, and it is a legal question, which we review de novo. See State v. Jackson,
147 Wis.2d 824, 829, 434 N.W.2d 386, 388 (1989) (constitutional reasonableness
of a law enforcement officer's action presents a question of law where material
facts are undisputed).
Citing
State v. Swanson, 164 Wis.2d 437, 446-47, 475 N.W.2d 148, 152
(1991), for the general rule that a person is considered under arrest in the
constitutional sense when the facts are such that "a reasonable person in
the defendant's position would have considered himself or herself to be `in
custody,' given the degree of restraint under the circumstances," Harned
argues that that point was reached when Engels first placed him in
handcuffs. The trial court disagreed,
as do we.
Immediately
following its statement of the rule we have just quoted, the Swanson
court went on to state: "The circumstances of the situation including
what has been communicated by the police officers, either by their words or
actions, shall be controlling under [this] test." Id. at 447, 475 N.W.2d at 152
(emphasis added). The court made
several other points relevant to our inquiry in this case. It first noted that a request that the
person being detained submit to field sobriety tests does not "transform
the routine traffic stop into a formal arrest." Swanson, 164 Wis.2d at 449, 475 N.W.2d at 153. The court then cited to other cases,
reaching the same conclusion with respect to the officers' use of force or the
drawing of weapons. Id.
at 448-49, 475 N.W.2d at 153 (citing United States v. Glenna, 878
F.2d 967, 972 (7th Cir. 1989)); United States v. Taylor, 716 F.2d
701, 708-09 (9th Cir. 1983); and United States v. Laing, 889 F.2d
281, 285 (D.C. Cir. 1989), cert. denied, 494 U.S. 1008 (1990). In Taylor, the court stated
that even the use of handcuffs, if reasonably necessary, does not turn an
investigative stop into an arrest. Taylor,
716 F.2d at 709. See also
Glenna, 878 F.2d at 972-73, where the court said that while
handcuffs are "restraints on freedom of movement normally
associated with arrest," common sense and "`ordinary human
experience'" dictate that officers may reasonably believe such action to
be necessary in order to "effectuate[] safely an investigative stop,"
and in such circumstances courts will not substitute their judgment for that of
the officer and will not hold an arrest to have been made (quoted source
omitted).
Applying
these principles to this case, the totality of the circumstances--including
Harned's unusual conduct after Engels began his pursuit and Engels's assurances
to Harned that he was not under arrest but was being briefly handcuffed only
for reasons of safety--satisfy us that a reasonable person in Harned's position
would not have believed he was under arrest at the time.
Accordingly,
we see no error in the ruling of the trial court Harned challenges on this
appeal.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] While Harned phrases his argument in terms of
"probable cause to arrest," it is clear from his brief, as it was in
his presentation to the trial court, that he is challenging only the timing of
the arrest.
Well, I wasn't sure what the circumstances were around
the vehicle trying to [e]lude me. I was
unsure if the driver was scared, if they had just committed a crime, if there
were people in the car against their will.
I didn't know what the circumstances were. And at that point for my safety I wasn't going to take any
chances.