COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 11, 1997 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2004-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
CITY OF MARINETTE,
Plaintiff-Respondent,
v.
PAUL H. GERONDALE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Marinette County:
TIM A. DUKET, Judge. Affirmed.
LaROCQUE, J. Paul Gerondale appeals a judgment of
conviction for OWI (first offense civil).[1] He challenges the trial court's denial of
his motion to suppress evidence on grounds of an illegal search and
seizure. This court affirms.
Gerondale was initially
stopped by a Marinette police officer, Dennis Gladwell, at approximately 1:15
a.m., for driving without a registration plate. According to Gladwell, when he approached the vehicle he observed
an odor of intoxicants on Gerondale's breath, detected "slightly slurred
speech" and noticed his "red, watery eyes." Gladwell took possession of Gerondale's
driver's license and registration and returned to his squad for an unspecified
time to verify their validity with radio dispatch. In response to Gladwell's inquiry whether he had been drinking,
Gerondale advised that he had had four beers.
Gerondale does not
challenge the initial stop to check the vehicle registration. See State v. Griffin, 183
Wis.2d 327, 515 N.W.2d 535 (Ct. App. 1994).
Rather, he contends that the officer unlawfully expanded the scope of
the temporary stop when he approached Gerondale for the second time. It is his contention that no further
conversation was necessary in light of his discovery that the license and
registration were in proper order.
"The temporary
detention of individuals during the stop of an auto by the police, even if only
for a brief period and for a limited purpose, constitutes a "seizure"
of "persons" within the meaning of the Fourth Amendment." State v. Gaulrapp, No.
96-1094-CR, slip op. at 2 (Wis. Ct. App. Dec. 27, 1996, ordered published
Jan. 28, 1997). "An auto stop is
thus subject to the constitutional imperative that it not be
"unreasonable" under the circumstances." Id.
This court concludes
that the officer had grounds to pursue the question of Gerondale's intoxication
as a result of the factual inferences drawn from observations made at the time
of the initial stop: the odor of
intoxicants, the red, watery eyes and the slightly slurred speech. Gerondale contends that because these
symptoms are also consistent with causes other than intoxication, they
constitute insufficient grounds to render the officer's further inquiry,
including field tests, reasonable. This
court disagrees.
The officer is not
required to rule out the possibility of innocent behavior when conducting a Terry[2]‑type
stop. See State v. Anderson,
155 Wis.2d 77, 84, 454 N.W.2d 763, 766 (1990).
The fundamental focus of the Fourth Amendment is on reasonableness; it
is a common sense test; it inquires what a reasonable police officer would
suspect in light of his training and experience. Id. at 83, 454 N.W.2d at 766. This court concludes that the officer's
observations justified the temporary stop relating to OWI to conduct further
tests.
Gerondale argues that
because the evidence suggests that the officer's inquiry regarding Gerondale's
consumption of intoxicants occurred only after the registration and license
check indicated no violation, the questioning exceeded the scope of the initial
stop. This timing of the conversation
is not important. This court concludes
that the officer had sufficient grounds to conduct field tests without
Gerondale's admission. The odor of
intoxicants on Gerondale's breath, coupled with the other physical evidence
consistent with intoxication, were sufficient.
The trial court did not err by denying the motion to suppress the
evidence.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.