PUBLISHED OPINION
Case No.: 96-0474
†Petition for
review filed.
Complete
Title
of
Case:COUNTY OF DANE,
Plaintiff-Respondent,
v.
CHRISTOPHER J. CAMPSHURE,
Defendant-Appellant.†
Submitted
on Briefs: July 12, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: July 25, 1996
Opinion
Filed: July
25, 1996
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Daniel
R. Moeser
so
indicate)
JUDGES: Eich,
C.J., Dykman and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Tracey A. Wood of Kalal &
Associates of Madison.
Respondent
ATTORNEYSFor the plaintiff-respondent the cause
was submitted on the brief of Lyn C. Opelt, assistant district
attorney.
COURT OF
APPEALS DECISION DATED AND
RELEASED July
25, 1996 |
NOTICE |
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. 96-0474
STATE OF WISCONSIN IN
COURT OF APPEALS
COUNTY
OF DANE,
Plaintiff-Respondent,
v.
CHRISTOPHER
J. CAMPSHURE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
VERGERONT,
J.[1] Christopher Campshure appeals from a
judgment of conviction for operating a motor vehicle while intoxicated in
violation of § 69.01 Dane County
Ordinances, which incorporates § 346.63(1)(a), Stats.
He contends that, in view of State v. Babbitt, 188 Wis.2d
349, 525 N.W.2d 102 (Ct. App. 1994), the law enforcement officer's request to
perform field sobriety tests converted the traffic stop into an arrest, and
that the arrest was illegal because it was not supported by probable
cause. As a result, Campshure claims,
all evidence obtained as a consequence of the illegal arrest should have been
suppressed by the trial court. We
conclude that a request to perform field sobriety tests does not convert an
otherwise lawful investigatory stop into an arrest. We therefore affirm the judgment of conviction.
The
pertinent facts are not disputed. Early
one morning, Dane County Deputy Sheriff Dale Veto observed Campshure's vehicle
stopped at the stop lights at the corner of Century Avenue and U.S. Highway 12
in the City of Middleton. The vehicle
remained stopped while the light turned green, then back to red. When Veto pulled up next to Campshure, Veto
observed him sleeping in the driver's seat.
The vehicle was parked partially in the roadway. Campshure told Veto that he was waiting for
the light to turn green. When Veto told
him the light had already changed from red to green and back to red, Campshure
said he must have fallen asleep. Veto
noticed a strong odor of intoxicants coming from Campshure and saw that his
eyes were very bloodshot. When getting
out of the vehicle, Campshure had to place his right hand on the top of the
door to keep his balance. His speech
was slow and slurred. He told Veto that
he had been to various bars and had had three or four beers.
Veto
asked Campshure to perform three field sobriety tests--the heel-to-toe test,
the finger-to-nose test, and the alphabet test. After demonstrating each test to Campshure, Veto instructed him
to begin the tests. Campshure was
unable to perform the three tests as demonstrated by Veto. Veto asked if Campshure would submit to a
preliminary breath test and Campshure said he would. The test result was .11.
Veto then informed Campshure that he was under arrest, handcuffed him
and took him in the squad car to the Middleton Police Department.
The
trial court denied Campshure's motion to suppress evidence, concluding that the
officer's request that Campshure perform field sobriety tests was not an
arrest, which would require probable cause, but was within the permissible
scope of an investigatory stop under Terry v. Ohio, 392 U.S. 1
(1968).
On
appeal, Campshure implicitly concedes that his initial detention was a lawful
investigatory stop. He contends,
however, that the scope of a lawful investigatory stop was exceeded by the
officer's request that he perform field sobriety tests. Campshure acknowledges that in State
v. Swanson, 164 Wis.2d 437, 448, 475 N.W.2d 148, 153 (1991), the
supreme court held that a person is not under arrest for Fourth Amendment
purposes when he or she is asked to perform field sobriety tests because a
reasonable person would not believe that he or she is under arrest merely
because he or she has been asked to perform such tests during a routine traffic
stop. But, according to Campshure, Babbitt
requires a different result than that reached in Swanson.
In
Babbitt, we held that a driver's refusal to perform a field
sobriety test when requested by an officer is not protected by the Fifth
Amendment privilege against self-incrimination and, therefore, the driver's
refusal may be used to establish probable cause to arrest for driving while
intoxicated. Babbitt, 188
Wis.2d at 362, 525 N.W.2d at 106.
Campshure argues that requiring a suspect to choose between performing
the test or having the refusal considered as a factor for probable cause to
arrest imposes, in effect, an obligation on the suspect to cooperate in the
investigation. According to Campshure,
this exceeds an officer's authority under Terry and converts an
otherwise lawful investigative stop into an arrest.
We
reject Campshure's argument. Campshure
mixes Fourth Amendment analysis with Fifth Amendment analysis in a manner
supported by neither logic nor case law.
When a claim is made that a search or seizure violates the Fourth
Amendment, the first inquiry is whether a search or seizure has occurred. It has long been settled that stopping an
automobile and detaining its occupants is a "seizure" under the
Fourth Amendment. Berkemer v.
McCarty, 468 U.S. 420, 436-37 (1984).
The next inquiry under the Fourth Amendment is whether the seizure was
reasonable. While an officer must have
probable cause to believe a crime has been committed in order to make an
arrest, an officer may detain a person on less than probable cause in certain
circumstances. When an officer's
observations lead him or her to reasonably suspect that a person has committed,
is committing, or is about to commit a crime, the officer may detain that
person briefly to investigate the circumstances that provoke the suspicion. Berkemer, 468 U.S. at
439. An investigatory stop is
permissible when the person's conduct may constitute only a civil
forfeiture. State v. Krier,
165 Wis.2d 673, 678, 478 N.W.2d 63, 65-66 (Ct. App. 1991). The reasonableness inquiry required by the
Fourth Amendment in this context has two parts: whether the officer's action was justified at the inception of
the detention and reasonably related in scope to the circumstances that
justified the interference in the first place.
Terry, 392 U.S. at 19-20.
Veto
had a reasonable suspicion that Campshure had been driving while intoxicated
based on his observation of Campshure asleep in his stopped vehicle after the
light had changed to green and back to red, the odor of alcohol emanating from
him, and his bloodshot eyes. Veto was
therefore justified in detaining Campshure briefly to investigate further. The answers to Veto's questions and Veto's
related observations provided information that made it reasonable to
investigate further by requesting that Campshure perform field sobriety
tests. This request was reasonably
related in scope to the circumstances that justified the initial stop. Indeed, Swanson holds that a
request that a person perform field sobriety tests does not transform an
otherwise lawful investigative stop into an arrest. Swanson, 164 Wis.2d at 448, 475 N.W.2d at 153. The Swanson court reasoned
that, under ordinary circumstances, the clear implication of such a request is
that if one passes the test, one is free to leave. Id.
Our
decision in Babbitt does not require a different result or alter
the proper Fourth Amendment analysis.
In Babbitt, we addressed a Fifth Amendment claim. The defendant contended that considering a
person's refusal to perform a field sobriety test as a factor in determining
probable cause to arrest compels a person to testify against himself or
herself. Under Fifth Amendment
analysis, the first inquiry was whether a field sobriety test is testimonial in
nature. We held it is not. Babbitt, 188 Wis.2d at 361,
525 N.W.2d at 106. Therefore, we
concluded, a person does not have a Fifth Amendment right to refuse to take a
field sobriety test and the refusal can be used as a factor for probable cause. Id. at 362, 525 N.W.2d at
106. We contrasted this to testimonial
statements from a suspect, which cannot be compelled in a lawful investigatory
stop. Id. at 360, 525
N.W.2d at 106. Although an officer may
detain a person upon reasonable suspicion to investigate, the person detained
has a constitutional right not to respond to questions. Id.
We
also held in Babbitt that because the State provides a defendant
with the option of performing or refusing to perform the field sobriety test,
there is no compulsion in violation of the Fifth Amendment.[2] Id. at 361, 525 N.W.2d at 106
Campshure
attempts to convert the lack of Fifth Amendment protection for field sobriety
tests into increased Fourth Amendment protection where field sobriety tests are
concerned. According to Campshure,
because field sobriety tests are not protected by the Fifth Amendment, an
officer needs to have probable cause before requesting that a suspect perform
field sobriety tests. Campshure argues
that since testimonial statements of a suspect are protected by the Fifth
Amendment, an officer need only have reasonable suspicion to ask appropriate
investigatory questions. We can
perceive no logic in this result.
Certainly Babbitt does not support this result. Indeed, our discussion in Babbitt
implies just the opposite. We would not
have undertaken a discussion whether the refusal to take a field sobriety test
could be used as a factor in determining probable cause to arrest if probable
cause was necessary before such a request could be made.
The
lack of Fifth Amendment protection for field sobriety tests in Babbitt
does not affect the Swanson court's reason for concluding that a
request to perform field sobriety tests does not convert a lawful investigatory
stop into an arrest. It remains true
that the clear implication of such a request is that if one passes the test,
one is free to leave. See Swanson,
164 Wis.2d at 448, 475 N.W.2d at 153.
In
support of his position, Campshure cites to this language in a concurring
opinion in Terry:
However, given the proper circumstances, such as those
in this case, it seems to me the person may be briefly detained against his
will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers
may not be compelled, and refusal to answer furnishes no basis for an arrest,
although it may alert the officer to the need for continued observation.
Terry, 392 U.S. at 34 (White, J., concurring).
Based
on this language, Campshure argues that Terry holds that
"compelling" a detained person to take field sobriety tests (by using
refusal as one factor in determining probable cause) is beyond the lawful scope
of an investigatory stop. There is no
merit to this argument. First, the
language is from a concurring opinion.
Second, it is addressing answers to questions, which, unlike field
sobriety tests, are protected by the Fifth Amendment. Babbitt, 188 Wis.2d at 360, 525 N.W.2d at 106. Third, Babbitt does not hold
that refusal to take field sobriety tests, in itself, constitutes probable
cause to arrest. Fourth, Campshure's
contention that he is "compelled" to take field sobriety tests
because a refusal can be used as a factor in determining probable cause, has no
merit in light of our conclusion in Babbitt that there is no
compulsion in violation of the Fifth Amendment because the suspect is not
required to perform field sobriety tests.
Babbitt, 188 Wis.2d at 361-362, 525 N.W.2d at 106. Campshure provides no authority for the
proposition that a lawful request by an officer, which is not considered
compulsion for Fifth Amendment purposes, transforms a lawful investigatory stop
into an arrest.
By
the Court.—Judgment affirmed.
[1] The chief judge of the court of appeals
converted this from an appeal decided by one-judge to a three-judge panel by
order dated July 8, 1996. See Rule 809.41(3), Stats.
[2] In reaching this conclusion, we relied on South
Dakota v. Neville, 459 U.S. 553 (1983), which held that admission into
evidence of a refusal to submit to a blood test did not offend the Fifth
Amendment right against self-incrimination.
The court in Neville did not rest its decision on the
ground that refusal to submit to a blood test was not testimonial in nature,
but on the alternative ground that the Fifth Amendment is limited to
prohibiting physical or moral compulsion on the person asserting the privilege. Id. at 562. The Neville Court noted that
the State of South Dakota did not directly compel submission to the blood test
because the person had a choice whether to submit or refuse, with the refusal
being used as evidence against the person.
The Court also considered the safe and painless nature of the blood test
and the fact that the State wants the person to take the test. The Court concluded that a refusal to submit
to the test, after being lawfully requested to take it, is not an act coerced
by the officer and is thus not protected by the privilege against
self-incrimination. Neville,
459 U.S. at 563-64.