|
COURT OF
APPEALS DECISION DATED AND
RELEASED August
22, 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. 96-0757-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN
L. STOFLET,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: JACK AULIK, Judge. Affirmed.
ROGGENSACK,
J.[1] Defendant-Appellant, Steven L. Stoflet
(Stoflet), appeals the denial of a motion to suppress all evidence derived
directly or indirectly as a consequence of his detention and arrest on
July 12, 1995. In support of his
motion, he argues that he was unlawfully detained for the purpose of
investigating a possible charge of operating a motor vehicle while under the
influence of an intoxicant because his detention exceeded the original scope of
the stop. He argues the field sobriety
test failed to support probable cause to believe that a preliminary breath
screening test should have been administered; therefore, the results of that
test should have been suppressed as well.
And, he asserts his arrest was not based on probable cause. Finally, Stoflet alleges error because the
trial court did not give him an evidentiary hearing on his motion to suppress.
For
the reasons stated below, the trial court's decision is affirmed.
DISCUSSION
The
gravamen of Stoflet's appeal is that he was convicted because the trial court
erred when it did not hold an evidentiary hearing on his motion to suppress
evidence of his violation of § 346.63(1)(a), Stats., and denied this motion based on the motion papers and
the complaint. Further, Stoflet's
suppression motion alleges an unlawful detention, an unlawful administration of
a preliminary breath screening test and an arrest without probable cause.
Scope of Review.
The application of a
statute to a particular set of facts is a question of law which is decided
independently, without deference to the trial court. Minuteman, Inc. v. Alexander, 147 Wis.2d 842, 853,
434 N.W.2d 773 (1987). And, whether the
facts found meet a particular legal standard is a question of law. Green Scapular Crusade v. Town of
Palmyra, 118 Wis.2d 135, 138, 345 N.W.2d 523, 525 (Ct. App. 1984).
Evidentiary Hearing.
Here, § 971.30(2)(c), Stats., states the grounds for a motion
must be stated with particularity. A
hearing is not required on a motion to suppress unless the movant, by affidavit
or other facts, points out to the court where there are material facts in
dispute. See U.S. v.
Harris, 914 F.2d 927, 933 (7th Cir. 1990). Where the Wisconsin statute being construed is similar to a
federal statute, the courts of Wisconsin may look to federal law for
guidance. Midwest Developers v.
Goma Corp. et. al., 121 Wis.2d 632, 651, 360 N.W.2d 554, 564 (Ct. App.
1984).
Stoflet
argues that he should have been provided an evidentiary hearing on the merits
of his motion to suppress. However, he
failed to advise the trial court of any disputed material factual issue which
it needed to resolve in order to rule on the suppression motion. His motion papers incorporated only the
arresting officer's report as a factual basis for the motion. He included no affidavit asserting facts in
conflict with the officer's report, nor did he bring conflicting material facts
to the trial court's attention in any other way. The purpose of an evidentiary hearing is to resolve disputed
issues of material fact. Midwest
Developers v. Goma Corp., 121 Wis.2d at 651. Based on this record, there were no disputed issues of material
fact and no hearing was required.
Denial of Motion to Suppress.
Stoflet
argues that the trial court ignored arresting Officer Fenton's report and
implies that had the report been considered, the trial court would have granted
the suppression motion. Stoflet does
not explain this argument by pointing to parts of the report which support his
contention. Rather, he seems to imply
that because speeding was one of the facts which led to his arrest, and because
he was able to place heel to toe for nine counts in one part of the sobriety
test, he should not have been given a preliminary breath screening test or
arrested for a violation of § 346.63(1)(a), Stats.
Stoflet's
arguments are not well taken. First, he
was not stopped solely for speeding.
The police report states, "I then observed the vehicle weaving, in
a serpentine pattern, in the traffic lane, as well as crossing the striped
white line three times (to the left hand side of the road), and also crossing
over the solid white line on the right hand side of the road three
times." Speeding was only one of
the concerns of Officer Fenton when he stopped Stoflet.
Second, probable cause
to believe that a violation of § 346.63(1), Stats., or a local ordinance in conformity therewith, has
occurred is not the sole authorization for a preliminary breath screening
test. Section 343.303, Stats. authorizes a preliminary breath
screening test "if the officer detects any presence of alcohol." The police report shows undisputed material
facts from which the trial court could easily have found that the arresting
officer had reasonable suspicion to believe that Stoflet was under the
influence of an intoxicant when the initial stop was made. For instance, Stoflet smelled strongly of
alcohol, had a glassy eyed appearance, exhibited slow speech and reported he
had had four or five drinks. The
preliminary breath screening test was properly administered.
Third,
the trial court could not consider a portion of the police report without
considering it in its entirety. State
v. Sharp, 180 Wis.2d 640, 653, 511 N.W.2d 316, 322-23 (Ct. App.
1993). The entire report of Officer
Fenton's initial contact with Stoflet provided additional facts to support probable cause for his arrest. When Stoflet exited the car, he hung onto
the vehicle's door; he was weaving while walking toward the squad car from his
own car; and he failed the field sobriety test. Officer Fenton's initial observations of Stoflet, combined with
his observations after the stop, confirm probable cause to arrest for a
violation of § 346.63(1)(a), Stats. The motion to suppress was properly denied.
By
the Court.—Judgment affirmed.
Not recommended for
publication in the official reports. See
Rule 809.23(1)(b)4., Stats.