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COURT OF
APPEALS DECISION DATED AND
RELEASED January
16, 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. |
Nos. 96-1385-CR & 96-1386-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT
E. FRYE,
Defendant-Appellant.
APPEAL
from judgments of the circuit court for Dane County: JACK F. AULIK, Judge. Affirmed.
Before
Eich, C.J., Vergeront and Roggensack, JJ.
EICH,
C.J. Scott Frye appeals from judgments convicting him of possession of a
controlled substance and drug paraphernalia as a repeater, and third-offense
drunk driving. He claims that police
(1) arrested him for obstructing an officer without probable cause and (2)
violated his Fifth Amendment self-incrimination rights by failing to comply
with the requirements of the Miranda rule before administering field sobriety
tests. We reject his arguments and
affirm the judgments.
Madison
police officer Victor Wahl, while on patrol in the late evening hours of
December 8, 1995, saw Frye, driving a truck, proceed through an intersection on
a red light. Wahl followed Frye and
caught up to him as he pulled into a residential driveway several blocks away. As Wahl exited his vehicle, so did
Frye. Following a departmental policy
geared toward officer safety, Wahl told Frye to get back into his truck.[1] Frye refused, stating: "[W]hy, what did
I do?" Wahl repeated his request
that Frye return to the truck several times—at least four or five—and Frye
refused in each instance, responding with a question. Wahl, realizing that Frye was not going to follow his
instructions, arrested him for obstructing an officer and failing to stop at a
red light, handcuffed him and placed him in the rear seat of the squad
car. According to Wahl, Frye could not
produce a driver's license, smelled of intoxicants and had bloodshot eyes. In addition, an occupant of the house where
the vehicles were parked told Wahl that Frye was "a whiskey drinker"
and that he had just been at a bar with him.[2]
Wahl
took Frye to police headquarters where, during a custodial search, a bindle of
cocaine was found on his person. Field
sobriety tests[3] and an
Intoxilyzer test were administered, the latter reporting a blood-alcohol
concentration of .21%. Neither Wahl nor
any other officer read Frye a Miranda warning before
administering the sobriety tests.
Frye
moved to suppress the cocaine found on his person—as well as the breath test
results—on grounds that his arrest was illegal. The trial court denied the motion, concluding that he was
properly arrested because he had committed a traffic violation and did not have
a driver's license in his possession.
The court also ruled that Miranda warnings were not
required prior to requesting Frye to submit to field sobriety tests.
I. Probable Cause to Arrest
Frye argues first that
Wahl lacked probable cause to arrest him for obstructing an officer.[4] In general terms, probable cause to arrest
exists "`where the totality of the circumstances within the arresting
officer's knowledge at the time ... would lead a reasonable police officer to
believe that the defendant probably committed [an offense].'" State v. Riddle, 192 Wis.2d
470, 476, 531 N.W.2d 408, 410 (Ct. App. 1995) (quoted source omitted).
Probable cause ...
is neither a technical nor a legalistic concept; rather, it is a
"flexible, common-sense measure of the plausibility of particular
conclusions about human behavior"—conclusions that need not be
unequivocally correct or even more likely correct than not. It is enough if they are sufficiently
probable that reasonable people—not legal technicians—would be justified in
acting on them in the practical affairs of everyday life.
State v. Pozo, 198 Wis.2d 705, 711, 544 N.W.2d 228, 231 (Ct. App. 1995) (citations
and quoted sources omitted).
The
offense of obstructing an officer has three elements: (1) the defendant
obstructed an officer; (2) the officer was acting in his or her official
capacity with lawful authority; and (3) the defendant knew or believed that he
or she was obstructing the officer.
Section 946.41, Stats. Frye's challenge goes to the first element:
he maintains that no "obstruction" occurred as a matter of law. Citing Henes v. Morrissey, 194
Wis.2d 338, 533 N.W.2d 802 (1995), and State v. Hamilton, 120
Wis.2d 532, 356 N.W.2d 169 (1984), he argues that he has an "absolute
right not to answer questions," and that "invoking that right cannot
be obstructing."
We
think Frye paints Henes and Hamilton with too broad
a brush. We agree with the State that
the most that can be said of the two cases, from the standpoint of this appeal
at least, is that mere silence, or a refusal to identify oneself to police
officers—at least where the State has not shown how the refusal may have
affected the officer, see Henes, 194 Wis.2d at 354, 533
N.W.2d at 808, Hamilton, 120 Wis.2d at 543, 356 N.W.2d at
175—will not, without more, establish a violation of § 946.41, Stats.
We reject Frye's attempts to equate his situation with that of the
defendants in Henes and Hamilton.
In
Henes, the supreme court did not discuss the facts of the
defendant's conduct other than to state that he declined to identify himself to
the police: "[A]ll [he] did was remain silent." Henes, 194 Wis.2d at 354, 533
N.W.2d at 808. The court, rejecting the
State's argument that the defendant's refusal to identify himself was the
equivalent of "knowingly giving false information" within the meaning
of § 946.41(2)(a), Stats.,[5]
concluded: "Without more than mere silence, there is no
obstruction." Id. In Hamilton, the defendant was
asked for identification and responded: "I'm not telling you
anything," whereupon he was arrested for obstructing. Hamilton, 120 Wis.2d at 534,
356 N.W.2d at 170. The supreme court,
characterizing the State's argument as asking it to rewrite the obstruction
statute to declare anyone refusing to furnish identifying information to be
guilty of obstructing an officer, declined to do so and concluded that evidence
of the defendant's refusal to identify himself to officers was insufficient to
constitute obstructing, primarily because the information sought by police—the
defendant's identity—was "readily available" from another person on
the scene. Id. at 543,
544, 356 N.W.2d at 175.
Neither
Henes nor Hamilton compels the result sought by
Frye. This is not a case of mere
silence, or a refusal to provide requested information that is readily
ascertainable from another person at the scene. Unlike the suspects in Henes or Hamilton,
Frye was not a passive, silent observer.
He exited his truck after a nighttime traffic stop by a lone police
officer and refused to follow the officer's instructions, which are routine in
such potentially dangerous situations, to return to his vehicle. He also persisted in attempting to engage
Wahl in a dialogue, repeatedly asking him to explain the reasons for the request.
Obstructive
conduct within the meaning of § 946.41, Stats.,
is that which "prevents or makes more difficult the performance of the
officer's duties." Wis J I-Criminal 1766 (1992). Certainly self-preservation—in this case,
maintaining the officer's personal safety when confronting a detained
suspect—is among the duties, and within the range of appropriate and expected
conduct, of any law enforcement officer.
We believe that, under the totality of the circumstances Wahl faced that
night, a reasonable officer could conclude that Frye's conduct delayed and
impeded Wahl in the performance of his duties and at the very least—and as Wahl
testified—made the performance of his duties more difficult and more dangerous
in that "it compromised [his] safety."
We
thus conclude that Wahl had probable cause to arrest Frye for obstructing an
officer and that the cocaine was admissible in evidence as the fruit of a
lawful search because it was seized during a search of Frye's person at police
headquarters.
II.
Necessity for Miranda Warnings
Frye
next argues that because he had been arrested and was in custody, he was
entitled to be advised of his rights under Miranda v. Arizona,
384 U.S. 436, 444 (1966), prior to the administration of field sobriety
tests. It is conceded that he was never
so advised, and he maintains that, as a result, the results of the tests must
be suppressed.
Miranda is a Fifth Amendment self-incrimination case, id.
at 439, and Frye offers no legal authority for his argument's major premise:
that the field sobriety tests are the equivalent of a "statement"
obtained in violation of his Miranda rights. The State correctly points out that nothing
in the record indicates that Wahl ever questioned Frye when he was arrested or
when he was taken to police headquarters; nor is there anything to indicate
that Wahl gave any written or verbal statements to police that would be
susceptible to exclusion under Miranda. As the State also points out, Miranda warnings
"are not required when an arrested driver is asked to submit to a
breathalyzer or other chemical test pursuant to sec. 343.305, Stats." State v. Bunders, 68 Wis.2d
129, 133, 227 N.W.2d 727, 730 (1975).[6] Nor are they required before administration
of field sobriety tests.
Like the [breath]
test, suspects also have no fifth amendment right to refuse to perform a field
sobriety test .... Field sobriety tests are not testimonial in nature ....
Furthermore, field sobriety tests involve no requirement that the suspect make
admissions or respond to police inquiries regarding prior alcohol use. Finally, there is no compulsion in violation
of the fifth amendment because the suspect is not required to perform the test.
State v. Babbitt, 188 Wis.2d 349, 361-62, 525 N.W.2d 102, 106 (Ct. App.
1994).
Frye
also argues that because he was under arrest for obstructing and in custody at
the time, Wahl needed probable cause to arrest him for operating under the
influence in order to request him to perform field sobriety tests. We rejected a similar argument in County
of Dane v. Campshure, 204 Wis.2d 27, 34, 552 N.W.2d 876, 878 (Ct. App.
1996), noting, "We would not have undertaken a discussion [in Babbitt]
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."[7]
We
conclude, therefore, that Wahl's failure, after arresting Frye for obstructing
an officer, to advise him of his Miranda rights before asking him
to submit to field sobriety tests does not render the results of those tests
inadmissible in evidence.
It
follows that the trial court did not err in denying Frye's motions to suppress
evidence.
By
the Court.—Judgments affirmed.
Not
recommended for publication in the official reports.
[1] Wahl testified that, because of the peril
sometimes faced by officers stopping vehicles, police officers are trained—and
it is their standard procedure—to have the driver of a stopped vehicle remain
in the vehicle as the officer approaches.
[3] Wahl stated that he decided to administer the
field tests at the police station rather than at the scene where it was
"impractical and unsafe" because the sidewalk and roads were
snow-covered and slippery and there was no dry, level surface.
[4] Because we conclude that there was probable
cause for the arrest, we need not consider Frye's ancillary argument that,
contrary to the trial court's ruling, probable cause was also lacking to arrest
him for the traffic offense.
[5] As indicated above, the statute's definition
of "obstruct[ing]" includes the defendant's knowledge in knowingly
"giving false information to the officer ...." Section 946.41(2)(a), Stats.
[6] Relying on Schmerber v. California,
384 U.S. 757 (1966)—where the Supreme Court held that withdrawal of blood for
alcohol-content testing was not a testimonial or communicative act within the
meaning of the Fifth Amendment—the Bunders court concluded that
"Miranda warnings ... are not required when an arrested
driver is asked to submit to a breathalyzer or other chemical test pursuant to
sec. 343.305, Stats." Bunders,
68 Wis.2d at 131-33, 227 N.W.2d at 729-30.
[7] It is true, as Frye stresses in his brief,
that he not been formally placed under arrest for operating while intoxicated
when sobriety tests were administered—contrary to usual practice, as in Bunders. But we do not see why that fact should lead
to a different result—especially where, as here, the facts of the case lead to
the conclusion that Wahl acted reasonably in administering the field tests to
Frye.
Although Frye was not arrested for
operating while intoxicated, he is, as a driver, subject to the provisions of
the implied consent law stating that all persons driving on public roads within
the state are deemed to have consented to tests for the presence of alcohol in
their blood. Section 343.305(2), Stats. Additionally, while field sobriety tests are not normally
administered to subjects arrested for a nontraffic-related violation such as
obstructing an officer, it is undisputed in the record that Wahl saw Frye run a
red light, smelled the odor of intoxicants about his person and noted his
bloodshot eyes, and that Frye was plainly uncooperative, arguing with Wahl and
refusing to follow his instructions.
The supreme court, in State v. Seibel, 163 Wis.2d 164,
181-83, 471 N.W.2d 226, 234, cert. denied, 502 U.S. 986 (1991), found
probable cause to arrest for drunk driving when the officer observed erratic
driving, an odor of intoxicants, and a "belligeren[t]" lack of
cooperation on the defendant's part.
Wahl observed that much and more with respect to Frye's actions and
conduct on the night in question.
While
the defendant's driving in Seibel had a serious and tragic result
not present in this case (he had crossed the center line, precipitating a
head-on collision resulting in the injury and death of several occupants of the
vehicles), id. at 167, 471 N.W.2d at 228, Frye has not persuaded
us that a traffic violation without such serious consequences should be treated
any differently—at least insofar as evidence supporting a probable cause
determination for the offense is concerned.
One running a red light could, under the right circumstances, cause an
equally devastating collision, whereas another could cross a center line
without incident.