|
COURT OF
APPEALS DECISION DATED AND
RELEASED October
31, 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. 96-1432-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID
M. MOSEL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: STUART A. SCHWARTZ, Judge.
Affirmed.
VERGERONT,
J.[1] David
Mosel appeals from a judgment finding him guilty of operating a motor vehicle
while under the influence of an intoxicant in violation of § 346.63(1)(a),
Stats. We denied Mosel's counsel's motion to extend the time to file
appellant's brief by one day because the motion did not show good cause because
we had already in this appeal stated in an order that no other extensions were
contemplated and because in other unrelated appeals Mosel's counsel had been
warned that the number and grounds for motions for extensions filed by counsel
were not acceptable to this court.
Although we did not accept the appellant's brief, we gave the State the
opportunity to file a brief if it chose, and, if it chose to do so, Mosel could
then file a brief in reply. The State
chose not to file a brief. There is
therefore no brief before this court from any party. We could dismiss the appeal because there is no appellant's
brief. See Rule 809.83(2), Stats.
However, we choose to review the issue that Mosel informed this court he
wished to raise on this appeal in the context of an earlier motion.[2] That issue is: whether the trial court
should have granted Mosel's motion to suppress evidence because of an unlawful
arrest. We conclude the trial court
properly denied the motion and we affirm the judgment.[3]
BACKGROUND
The only witness at the
suppression hearing was Frank Fenton, a police officer for the City of
Monona. In the afternoon of February
18, 1994, he was dispatched to a two-vehicle accident at the intersection of
Monona Drive and Femrite Drive in the City of Monona. When he arrived, there were two vehicles in the parking lot of a
business. One, a Ford Bronco, had its
front end in a snow bank. It was cold
and snowing. The parking lot was
partially icy. The driver of the Ford
Bronco identified herself as Deborah Girard.
She told Fenton that she had been driving her vehicle and the other
vehicle had pulled out in front of her.
The driver of the other vehicle was Mosel. He told Fenton he did not have a driver's license. Fenton noticed the odor of intoxicants from
his breath, that his speech was slurred as he answered questions, and that he
swayed as he walked.
Fenton
put both people in the rear of his squad car and asked them to make written
statements, which they did. After they
completed the written statements, they handed them to Fenton and he looked at
them.[4] Fenton then asked Girard to get out of the
vehicle. He asked her if she had smelled
the odor of alcohol from Mosel and she responded that she had. She also told him that before Fenton's
arrival, Mosel had told her that he had been drinking and did not think it was
"a big deal." After giving
Girard certain information and verifying that she was not injured, Fenton
permitted her to leave.
After
Girard left, Fenton went back to the car to talk to Mosel. He asked Mosel if he had been consuming
alcohol and Mosel nodded and mumbled "yes." Fenton advised Mosel that he believed Mosel was under the
influence of intoxicants and that Mosel would be offered the opportunity to
complete field sobriety tests. Fenton
said he preferred to do the tests at the police station because that was the
best way to do them. Mosel said that
was fine; he would be willing to go back to the police station and do the
tests. Fenton determined that it was
appropriate to do the field sobriety tests at the police station because of the
weather conditions, the temperature and the pavement conditions. They were located in a parking lot with icy
patches and Fenton did not believe that was a good set of circumstances for an
individual to take the field sobriety tests.
Fenton
believed he had probable cause at the scene of the accident to arrest Mosel for
driving while under the influence of an intoxicant. He based that belief on the odor of intoxicants, his slurred
speech and his swaying as he walked.
Before taking Mosel to the police station, Fenton removed him from the
squad car, did a pat down, handcuffed him, double locked the cuffs and put him
back in the squad car. That is standard
procedure for the officer's and the individual's safety which Fenton followed
because he believed Mosel was intoxicated and he was a suspect.
Fenton
took Mosel to the Monona Police Department which was less than two miles
away. It took a few minutes to get
there. When they arrived at the Monona
police station, Fenton removed Mosel from the squad car and they went into the
police station to the squad room.
Fenton took the handcuffs off and seated Mosel in a chair at a table in
the squad room. Fenton administered
field sobriety tests at the police station upon completion of the tests, Fenton
told Mosel that he was under arrest.
At
this point in Fenton's testimony, Mosel's counsel stipulated that the events
which occurred at the police station--the results of the field sobriety
tests--did provide Fenton with probable cause to believe that Mosel was
operating a motor vehicle while intoxicated.
Over Mosel's counsel's objection, Fenton was permitted to testify that
at the time he administered the field sobriety tests to Mosel at the police
station he did not have his weapon drawn and he was not in a locked area of the
police station. The field sobriety
tests took place in the hallway, an area open to police officers working at the
police station. There were no other
officers in the area and no other members of the public were there.
The
field sobriety tests that Fenton performed at the police station were the
finger-to-nose test, the thumb-to-finger test, walk and turn test, and
one-legged stand test. The
finger-to-nose test involves an individual standing in one place. Fenton acknowledged on cross-examination
that the thumb-to-finger test could be performed by a person seated in a squad
car, although that is not the way he prefers to do it. With respect to the walk and turn test, the
finger-to-nose test, and the one-legged test, it was Fenton's view that the
cold temperature would affect Mosel's performance and that the ground
conditions would affect his ability to get a firm footing.
Mosel
argued before the trial court that Fenton's act of taking him to the police
station, frisking him, and handcuffing him constituted an arrest because Mosel
did not consent but merely acquiesced to going to the police station, and, even
if he did consent to that, he did not consent to the frisk or the
handcuffing. The arrest was unlawful,
Mosel contended, because it was not supported by probable cause.
The
State responded that Mosel was not under arrest at the time he was taken to the
police station because Mosel consented to go and consented to the frisk and
search as part of being transported to the police station. The State also argued that Fenton did have
probable cause to arrest Mosel at the scene of the accident.
In
a thorough written opinion, the trial court concluded that the initial
detention and questioning of Mosel at the scene of the accident was permissible
under Terry v. Ohio, 392 U.S. 1 (1968), and that the pat-down
search after Mosel agreed to go to the police station did not transform the
stop into an arrest because a reasonable person in Mosel's position would not
believe he was under arrest when the pat down occurred. The court also determined that Mosel
consented to being transported to the police station and consented to being
handcuffed as part of that transportation, and neither of those acts
transformed the stop into an arrest.
The court went on to state that, had Mosel not so consented, Fenton's
act of handcuffing Mosel, even if pursuant to departmental policy, would have
constituted an arrest at the scene.
But, the court held, there was probable cause to arrest at that time.
In
reviewing a trial court's denial of a suppression motion, we will not disturb
the court's finding of historical facts unless they are clearly erroneous;
however, the application of the facts to the constitutional requirement of
consent presents a question of law, which we review de novo, State v. Johnson, 177 Wis.2d
224, 233, 501 N.W.2d 876, 879 (Ct. App. 1993).
We
agree with the trial court that the initial stop and questioning at the scene
was proper under Terry.
Mosel did not argue otherwise.
We also note that when an officer has reasonable grounds to suspect that
a person has been driving while intoxicated, the officer may request that the
person perform field sobriety tests. See
State v. Swanson, 164 Wis.2d 437, 448, 475 N.W.2d 148, 153
(1991). That does not transform the
stop into an arrest. Id. The issue here focuses on transporting Mosel
to the police station for those tests after patting him down and handcuffing
him for the trip in the squad car.
That, in turn, raises the issue of Mosel's consent. Consent in this context means consent that
is free, unequivocal and specific, without any duress or coercion, actual or
implied. See Johnson, 177
Wis.2d at 233, 501 N.W.2d at 879.
The
trial court found that Fenton explained to Mosel that he wanted Mosel to
perform field sobriety tests and he wanted him to perform them at the police
station because of the cold weather and icy conditions. The court found that Mosel agreed to perform
the tests at the police station. The
trial court also found:
Fenton removed
Mosel from the squad car, patted him down and placed him in handcuffs. Fenton explained that, when suspects are
transported in squad cars, department policy requires suspects to be
handcuffed. Mosel agreed to this and
was subsequently handcuffed and transported to the police department.
These
findings are not clearly erroneous.
There was no evidence contradicting Fenton's testimony that Mosel agreed
to take the tests at the police station.
Mosel's counsel on cross-examination focused on a particular sentence in
Fenton's police report: "I then
told Mosel that I would be transporting him to the Monona Police Department
where he would be allowed if he chose to perform field sobriety tests." Mosel's point is that Fenton did not give
him an option but instead said or implied that Mosel had to go to the
police station. However, when the
sentences directly following this sentence are read, Fenton's report does not
contradict his testimony and it supports the trial court's finding that Mosel
consented to go to the police station to take field sobriety tests:
I explained that I
did not want to do them [the field sobriety tests] in the parking lot of this
business and felt that performing them at the police department would be the
best option. Mosel said that yes, he
agreed to do that and would be willing to perform the field sobriety tests at
the Monona Police Department.
We
conclude that Mosel freely, intelligently, unequivocally and specifically
agreed to go to the police station to take the tests without any duress or
coercion, actual or implied. Fenton's
explanation for wanting to perform the tests at the police station instead of
in the parking lot is reasonable and does not suggest coercion. There is nothing to suggest that Mosel felt
he had to agree or that his consent was equivocal. It was cold and snowy and the parking lot was icy. It was reasonable for Mosel to want to
perform the tests under the best conditions and in a warm place.
Since
Mosel consented to go in the squad car to the police station, Fenton could
properly do a pat-down frisk for weapons before taking Mosel in the car. See Swanson, 164 Wis.2d 437,
442-44, 475 N.W.2d 148, 150-51 (1991) (where suspect was put in squad car,
court held that limited pat-down search for weapons to protect officer is
permissible in Terry stop; but more extensive search uncovering
marijuana in pockets was beyond permissible scope).
The
trial court's finding that Mosel agreed to be handcuffed as part of being
transported to the police station for the tests is also not clearly
erroneous. Fenton's report, directly
following the passage cited above states:
I then took Mosel
out of the rear of my squad car, patted him down and placing him in handcuffs,
double locking the cuffs. I explained
to him that it is policy of the Monona Police Department, under circumstances
like this, that suspects not be transported in the squad car without first
being handcuffed. It should be noted
that Mosel was very cooperative with this and posed no problems to me.
Fenton's testimony at the hearing did not contradict his
report. He removed the handcuffs once
he and Mosel were at the police station.
We
conclude that Mosel freely, intelligently, unequivocally and specifically
agreed to be handcuffed for the purpose of being taken to the police station to
perform the field sobriety tests. There
is no evidence that he equivocated about going to the police station once he
learned he would need to be handcuffed while in the squad car. There is no evidence of duress coercion,
express or implied, which would be necessary here to support a conclusion of
"mere acquiescence."
Because
Mosel consented to go to the police station in the squad car to take the field
sobriety tests and consented to be handcuffed while being transported, and
because the limited pat-down search was within the scope of a Terry
stop, an arrest did not occur at that time.
We therefore do not decide the other issues addressed in the trial
court's opinion.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Mosel moved to consolidate this appeal with
an appeal from a forfeiture judgment for operating after suspension, Appeal No.
96-1461. Both charges arose out of the
same incident. By order dated August
21, 1996, we dismissed Appeal No. 96-1461 on our own motion and denied the
motion to consolidate as moot. In
response to our order in the context of deciding that motion, Mosel advised us
that the grounds for appeal in both Appeal No. 96-1461 and this case were the
same and "emanate from the erroneous denial in the circuit court of the
defendant-appellant's motion to suppress evidence." More specifically, that response identifies
the issue at the suppression hearing as whether there was an unlawful arrest.