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COURT OF
APPEALS DECISION DATED AND
RELEASED February
27, 1997 |
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. 96-0302
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
CITY
OF MIDDLETON,
Plaintiff-Respondent,
v.
DANIEL
L. BARRETT,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: PATRICK J. FIEDLER, Judge.
Affirmed.
VERGERONT,
J.[1] Daniel
Barrett appeals from the circuit court's judgment that affirmed the municipal
court judgment convicting Barrett of operating a motor vehicle while under the
influence of an intoxicant in violation of a local ordinance conforming with
§ 346.63(1)(a), Stats. Barrett contends that: (1) the circuit court's decision
violated his due process rights because he did not have an opportunity to be
heard by the circuit court; (2) the arresting officer patted Barrett down
in violation of the Fourth Amendment; (3) he was arrested for battery
without probable cause; and (4) the evidence was insufficient to sustain a
conviction for driving while under the influence of an intoxicant. We reject each contention and affirm.
BACKGROUND
On
February 4, 1992, at 6:30 a.m. David Kasdorf, a police officer for the City of
Middleton, issued a citation to Barrett for operating a motor vehicle while
under the influence of an intoxicant (OWI) and operating a motor vehicle with
an alcohol concentration of .10 or more (BAC).[2] At the trial before the City of Middleton
municipal court, Barrett's counsel began by making a motion to suppress
evidence based on an unlawful arrest.
It appears that a written motion had previously been filed, but a copy
of the motion is not part of this record.
The municipal court first heard the testimony relating to the motion to
suppress, which consisted solely of Kasdorf's testimony.
Kasdorf
testified that at approximately 4:56 a.m. on January 22, 1993, he and Officer
Michael Ash responded to a report of a man and woman fighting in the street in
the 500 block of Parmenter Street in Middleton. Kasdorf arrived at that location within a couple of minutes and
saw a female in a vehicle pulling out of the driveway and a male standing on
the sidewalk approximately fifteen feet away from the vehicle. Officer Ash stopped the vehicle to talk to
the female and Kasdorf approached the male.
There were no other persons in the area. Barrett identified himself to Kasdorf. Kasdorf smelled a strong odor of intoxicants on Barrett's breath
and saw blood running from his nose.
Kasdorf asked Barrett to have a seat in his squad car. It was cold out; it was still dark; and
Barrett was dressed only in a pair of shorts, deck shoes without socks, a light
shirt and a light jacket. Before
Barrett entered Kasdorf's squad car, Kasdorf did a pat-down search of Barrett,
checking only for weapons because he wanted to make sure Barrett had no weapons
before he got into the squad car.
After
Barrett was in the squad car, Kasdorf asked what had happened. According to Kasdorf, Barrett said that the
female was Amy Martin, his girlfriend, and they had been at the Hotel Bar in
Middleton earlier that morning after he got off work. Barrett had been drinking there.
He drove to his home in Madison and she drove to her home in
Middleton. When Barrett got home he
called Martin and asked her to come to his residence in Madison, which she
did. At his home, they got into a
verbal argument and Martin left. He
left also and drove his car to her residence to further confront her and
continue the argument.
After
Kasdorf had testified to this point, Barrett's counsel suggested to the court
that the direct testimony stop at that point and cross-examination be
permitted, and the motion to suppress then be argued based on that
testimony. According to Barrett's
counsel "the motion stops at that point." Counsel for the City of Middleton and the municipal court agreed.
On
cross-examination Barrett's counsel established that Kasdorf did not see any
weapons on Barrett and no one had told him over the dispatch that there were
weapons. Kasdorf testified he did not
know if Barrett was armed or not.
Kasdorf did not know at that point what Barrett's involvement in the
altercation was.
The
municipal court heard argument on the motion to suppress. Barrett's counsel argued that when Kasdorf
patted Barrett down, he did not have a reasonable suspicion to believe Barrett
was armed and dangerous. The
combination of a pat-down not justified by a legal suspicion and being placed
in the squad car constituted an arrest, Barrett's counsel argued, and the
arrest was illegal because there was no probable cause to believe that Barrett
was driving while intoxicated at that point or that he had committed any
crime. After counsel for the City of
Middleton argued that the pat-down was reasonable because of safety concerns
and that no arrest occurred at that point, the trial court decided to withhold
ruling on the suppression motion until the trial testimony was completed.
Officer
Kasdorf continued his testimony.
Barrett told Kasdorf in the squad car that he had driven over to
Martin's house drunk. Barrett asked if
Kasdorf would just give him a ride home, since his car was parked in the
driveway. Barrett told Kasdorf that he
had not had anything to drink since he arrived at Parmenter Street. Kasdorf testified that while Barrett was in
the squad car, he placed Barrett under arrest for domestic battery[3]
and transported him back to the Middleton Police Department for processing the
arrest.
At
the station, Kasdorf asked Barrett to perform a series of field sobriety tests.
Barrett was able to perform the tests,
but he lost his balance on the heel-to-toe test and was unsteady and swayed on
the one-legged test. At the conclusion
of the field sobriety tests, Kasdorf formed the opinion that Barrett was
impaired and under the influence of intoxicants and issued the citations
described above. Kasdorf read Barrett a
statement of his rights under Wisconsin's applied consent law.[4] Barrett submitted to the intoxilizer test
for breath alcohol analysis. Kasdorf
testified to the results of those tests.
After
Kasdorf was cross-examined, the City of Middleton called Officer Ash. He testified that he spoke to Martin when he
arrived at the scene of the reported altercation. When the City's counsel attempted to elicit testimony about what
Martin told Ash concerning the timing of Barrett's arrival at her residence,
the trial court sustained objections based on hearsay. At the close of the testimony, the trial
court dismissed the BAC charge because the intoxilizer test results were not
admissible without proof that Barrett had been driving within three hours of
the test. See § 885.235(1),
Stats. The trial court allowed both parties to brief the suppression
motion and the sufficiency of the evidence for a conviction.
After
receiving the briefs, the trial court issued a decision denying the suppression
motion and finding that the evidence was clear, satisfactory and convincing that
the defendant operated his motor vehicle while under the influence of an
intoxicant.
Since
Barrett did not request a trial de novo in circuit court, the appeal was by
review of the transcript. See
§ 800.14(5), Stats. The City appealed the dismissal of the BAC
charge. The trial court affirmed the
municipal court's denial of Barrett's motion to suppress based on an unlawful
arrest. The trial court concluded that
Kasdorf did have reasonable suspicion to temporarily stop and detain Barrett
for investigative purposes based on the complaint that a man and woman were
fighting in the street, and that it was reasonable for Kasdorf to conduct a
brief investigative questioning inside the squad car because of the weather
conditions and Barrett's attire. The pat-down
for weapons prior to Barrett entering the squad car, the court concluded, was
reasonable and did not convert the lawful stop into an unlawful arrest.
The
circuit court also concluded that the City had proven by clear, satisfactory
and convincing evidence that Barrett was guilty of operating a motor vehicle
under the influence of an intoxicant.
The unsteadiness and swaying Barrett exhibited in performing the field
sobriety tests combined with the odor of intoxicants on his breath and his
admission to driving drunk, the trial court's decided, satisfied the City's
burden of proof. The trial court also
affirmed the dismissal of the BAC charge.
DISCUSSION
Barrett's
argument that his right to due process was violated because he was not given
the opportunity to brief or argue his appeal in the circuit court is controlled
by our decision in City of Middleton v. Hennen, ___ Wis.2d ___,
557 N.W.2d 818 (Ct. App. 1996). In Hennen
we held that a party who chooses a transcript review appeal under § 800.14(5),
Stats., from a municipal court
judgment is neither statutorily nor constitutionally entitled to brief or
orally argue before the circuit court.
Barrett states that he included the issue on this appeal to preserve it
for review because a petition for review by our supreme court was filed in Hennen. That petition for review was denied on
January 14, 1997.
Barrett
next argues that the pat-down for weapons was a violation of his Fourth
Amendment rights. Although in the
municipal court he argued that the pat-down was illegal because it was not
justified by a reasonable suspicion that Barrett was armed, in his main brief
on appeal he argues that it was illegal because Kasdorf had not lawfully
detained Barrett. There is no merit to
the latter argument. Kasdorf was
informed that there was a fight between a man and a woman on the street. In arriving at that location he observed a
woman leaving in a vehicle and Barrett standing on the sidewalk. There was no one else in sight. Barrett smelled of alcohol and had a bloody
nose. These specific and articulable
facts with the rational inferences from those facts constitute a reasonable
suspicion that domestic abuse or battery had occurred and that Barrett was
involved. See Terry v.
Ohio, 392 U.S. 1, 21 (1968).
The fact that Barrett's bloody nose may create an inference that Barrett
had been injured in the altercation does not mean there was not a reasonable
suspicion that Barrett had himself committed an act constituting domestic abuse
under § 968.075(1), Stats.,
or battery under § 940.19(1), Stats. If any reasonable suspicion can be drawn
from the circumstances of past, present or future criminal conduct,
notwithstanding the existence of other inferences that can be drawn, an officer
has the right to temporarily freeze the situation in order to investigate
further. See State v. Jackson,
147 Wis.2d 824, 835, 434 N.W.2d 386, 391 (1989).
In
his reply brief, Barrett repeats the argument made before the municipal court
that the pat-down was illegal because Kasdorf did not have a reasonable
suspicion that Barrett was armed. See
Terry v. Ohio, 392 U.S. 1, 27-30 (1968).[5] We do not decide whether the pat-down
violated the Fourth Amendment because we conclude that, even if it did, that
does not transform the lawful investigative stop into an arrest as Barrett
argues. Barrett has provided no
authority for this proposition. The
test for determining whether an arrest occurred is whether a reasonable person
in the defendant's position would have considered himself or herself to be in
custody given the degree of restraint in the particular circumstances. State v. Swanson, 164 Wis.2d
437, 446-47, 475 N.W.2d 148, 152 (1991).
This is an objective test that assesses the totality of the
circumstances, including what was communicated by the words or actions of the
officer. Id. at 447, 475
N.W.2d at 152. Applying this test, we
conclude that the pat-down did not constitute an arrest.
In
Swanson, police officers stopped a car after seeing it drive onto
the sidewalk and almost hit a pedestrian.
The officers detected a strong odor of alcohol on Swanson's breath and
directed him to come over to the squad car for field sobriety tests. Before he got into the squad car, an officer
conducted a pat-down search because department policy required a pat-down
search before placing someone in a squad car.
The officer discovered a bag of marijuana in Swanson's pocket during the
pat-down. The court concluded that the
scope of the pat-down exceeded that justified as a pat-down for weapons under Terry. Swanson, 164 Wis.2d at 454-55,
475 N.W.2d at 155-56. It also concluded
that the search was not a search incident to an arrest because Swanson was not
under arrest at that time. Id.
at 452, 475 N.W.2d at 155.
In
analyzing whether Swanson was under arrest at the time of the pat-down, the
court noted the brief duration and public nature of the usual traffic
stop. Id. at 447, 475
N.W.2d at 152. It also noted that the
officers did not tell Swanson he was under arrest, give him Miranda
warnings, handcuff him or draw weapons.
Id. at 448, 475 N.W.2d at 153. The court concluded that a person in Swanson's position would not
believe he was under arrest simply because he was asked to perform field
sobriety tests. Id. Rather, reasonable people would understand
that the request means that if they pass the test, they are free to leave. Id. The court rejected as unreasonable the view that the request to
perform field sobriety tests transformed the stop into a search. Id. at 449, 475 N.W.2d at
153. In reaching this conclusion, the
court noted that other jurisdictions have held that more intrusive
circumstances--such as the use of handcuffs or physical force--do not transform
a Terry stop into an arrest.
Id. at 448-49, 475 N.W.2d at 153. It also referred to Jones v. State,
70 Wis.2d 62, 233 N.W.2d 441 (1975), which held that a Terry stop
does not become an arrest merely because police draw their weapons. Id. at 448, 475 N.W.2d at 153.
In
this case, Kasdorf found nothing when he patted Barrett down, but the Swanson
analysis on the issue of arrest is instructive. Kasdorf asked Barrett who he was and asked him to get into his
squad car, patting him down first to check only for weapons. Kasdorf did not tell Barrett he was under
arrest at that point, give him Miranda warnings, handcuff him or
draw a weapon either before, during or immediately after the pat-down. He used no physical force. Given the dark, the cold and the way Barrett
was dressed, it was reasonable for Kasdorf to ask Barrett to get into the car
so that he could continue his inquiries there rather than outside. We conclude that the pat-down Kasdorf
performed and his request that Barrett get in the squad car would not make a
reasonable person conclude that Barrett was not free to leave after he answered
some questions. We conclude that an
arrest did not occur by virtue of the pat-down or Kasdorf's request that
Barrett get into the squad car.
Barrett
next argues that Kasdorf did not have probable cause to believe that he
committed a battery when Kasdorf informed him that he was under arrest for that
offense and drove him to the police station.
We do not decide this issue, or the validity of the underlying premise
that Kasdorf needed probable cause to arrest before administering the field
sobriety tests at the station, because Barrett did not present this as a ground
for the suppression motion before the municipal court. Although we may decide issues on appeal that
were not raised below in the proper case, see County of Columbia
v. Bylewski, 94 Wis.2d 153, 171-72, 288 N.W.2d 129, 138-39 (1980), this
is not a proper case. Barrett's failure
to raise this issue in the municipal court prevented the state from making a
record. In particular, it is apparent
from the police reports of Kasdorf and Ash contained in the record that Kasdorf
obtained pertinent information from Barrett and Officer Ash, who interviewed
Martin, before placing Barrett under arrest for battery. However, none of this was put into evidence
by the City. We can only conclude that
it was because the ground for the motion to suppress, as described by Barrett's
attorney, was limited to the legality of the pat-down and, possibly, Kasdorf's
request that Barrett get into the squad car.
Barrett's counsel specifically stopped the state's presentation of
evidence at this point, explaining that only the evidence up to that point in
time was necessary to the motion to dismiss.
Under these circumstances, it would be most unfair to the City to permit
Barrett to raise on appeal this additional ground for suppressing evidence.
Finally,
Barrett argues that the evidence was insufficient to justify a conviction on
the OWI charge. Barrett contends that
his statement that he drove to Martin's house drunk is essential to prove that
Barrett drove a vehicle while under the influence of an intoxicant. According to Barrett, under the corpus
delicti rule, a conviction may not rest on the uncorroborated confession of
the accused.
Barrett
has not fully stated the rule of corpus delicti applied in
Wisconsin. In criminal cases some
corroboration of a confession is necessary to support a conviction in order to
produce confidence in the truth of the confession. Holt v. State, 17 Wis.2d 468, 480, 117 N.W.2d 626,
633 (1962). However, all the elements
of the crime do not need to be proved independently of the confession. Id. "The corroboration ... can be far less than is necessary to
establish the crime independent of the confession. If there is corroboration of any significant fact, that is
sufficient under the Wisconsin test."
Id.
No
Wisconsin case has applied the corpus delicti rule in an OWI case. Assuming without deciding that it does apply
in this case, we conclude there is corroboration of a significant fact. The odor of an intoxicant on Barrett's breath
and his unsteadiness while performing the field sobriety tests corroborate the
portion of his statement that he was "drunk," that is, under the
influence of an intoxicant. As Holt
makes clear, under the rule of corpus delicti in Wisconsin, there need
not be corroboration for every element of the crime. Even if the rule applies here, there need not be independent
corroboration of the fact that Barrett was under the influence of an intoxicant
at the time that he drove to Martin's
house.
We
agree with the circuit court's analysis of the evidence. We conclude that Kasdorf's testimony that,
while performing the test, Barrett was unsteady, swaying and lost his balance,
coupled with Kasdorf's testimony that he smelled intoxicants on Barrett's
breath and Barrett's unequivocal admission that he drove to Martin's house
drunk, establish by clear, satisfactory and convincing evidence that Barrett
drove his car while under the influence of an intoxicant.
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[4] Section 343.305(2), Stats., known as the implied consent law, states that any
person who drives a vehicle on the public highways of this state is deemed to
have given his consent for chemical testing when requested to do so by a law
enforcement officer. Section 343.305(2)
requires law enforcement to provide at its expense at least two of three approved
tests to determine the presence of alcohol in the breath, blood or urine of a
suspected intoxicated driver. State
v. Stary, 187 Wis.2d 266, 269, 522 N.W.2d 32, 34 (Ct. App. 1994). Law enforcement may designate one of those
two as its primary test. Id. Once a person consents to the primary test,
the person is permitted, at his or her request, the alternate test the agency
chooses, at the agency's expense, or a reasonable opportunity to a test of the
person's choice at the person's expense.
Id. at 270, 522 N.W.2d at 34. The officer must inform the arrestee of the arrestee's implied
consent to a test; that if the arrestee refuses the test his license shall be
revoked; and that the arrestee may have an additional test performed. Section 343.305(4)(b) and (d).