COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 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. 96-2070-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD
J. SIZE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Marquette County: RICHARD
O. WRIGHT, Judge. Affirmed.
DYKMAN,
P.J. This is a single-judge appeal decided pursuant to
§ 752.31(2)(c), Stats. Richard J. Size appeals from a judgment of
conviction for operating a motor vehicle while intoxicated, contrary to
§ 346.63(1)(a), Stats. The issues are: (1) whether information the police obtained from Size should
be suppressed because he was arrested without probable cause, and (2) whether
this prosecution should be barred under the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution.
We conclude that a police officer had probable cause to arrest Size and
that State v. McMaster, 198 Wis.2d 542, 543 N.W.2d 499 (Ct. App.
1995), petition for review granted, 546 N.W.2d 468 (1996), is
dispositive as to Size's double jeopardy claim. Accordingly, we affirm.
While
taking a person home a little after 1:00 a.m. on December 14, 1995,
Officer Les Crandall of the Marquette County Sheriff's Department observed a
truck in the ditch on a county highway.
Road conditions were extremely icy and hazardous. Crandall stopped to see if help was needed. The driver of the truck, Richard Size,
exited the truck and walked toward Crandall, who recognized him from previous
contact. Crandall smelled an odor of
intoxicants about Size and observed that his eyes were bloodshot and glassy and
that his speech was slow and slurred.
Crandall believed that Size was possibly under the influence of an
intoxicant, so he decided to do field sobriety tests. The first of these was a horizontal gaze nystagmus (HGN) test,
which consisted of checking Size's eyes for lack of smooth pursuit, distinction
at maximum deviation, and nystagmus prior to forty-five degrees. Crandall referred to these factors as
"clues" and testified that Size exhibited all three clues in both
eyes.
Because
of the icy conditions, Crandall did not want to do the remaining field sobriety
tests at the scene and asked Size if he could finish the tests at Crandall's
office. Size asked Crandall if he had
to do so. Crandall replied that he
would like Size to finish the test for him and that he could not do so at the
scene. He also told Size that he was
still doing the investigation and that Size was not under arrest. Size agreed to go with Crandall. We do not know what occurred at Crandall's
office because at this point in Crandall's testimony, Size and the State
stipulated that after the remaining field sobriety tests, Crandall had probable
cause to arrest Size.
Size's
first issue, though divided into three parts, is that Crandall did not have
probable cause to arrest him and that any information he obtained as a result
of his unlawful arrest should be suppressed.
We will address this issue shortly, but we first address counsel's
characterization of the facts.
Supreme
Court Rule 20:3.3 (Lawyers Coop. 1996) requires an attorney to exercise candor
toward a tribunal. We contrast
counsel's characterization of the facts with the testimony of the only witness,
Crandall. The second sentence of
counsel's argument provides:
"There is nothing in the testimony to show that defendant-appellant
consented to go to the police station."
The testimony of Crandall was as follows:
Q:So
then you asked him [Size] to come back to the Sheriff's Department with you?
A: Right.
Q: What was his response?
A:At
first, he asked me if he had to. I
stated I would like him to finish the test for me, and I couldn't ask him to do
them here.
....
Q:What
did you then indicate?
A:I
indicated that I would like him to do the field sobriety tests somewhere, where
I could observe him, where it wouldn't be so icy.
Q: And what was Mr. Size's response?
A: He agreed.
There
is a dramatic difference between the sentence in Size's brief and the
record. It goes considerably beyond the
advocate's duty to present a client's case with persuasive force found in SCR
20:3.3 cmt. (Lawyers Coop. 1996). This
is not the first time that courts have commented on the brief writing methods
of members of counsel's firm. See
State v. Reiter, No. 95-1926-CR, order denying petition for
review (Wis. Sup. Ct. Apr. 16, 1996), and State v. Przybilla, No.
95-1589, unpublished slip op. (Wis. Ct. App. Feb. 1, 1996). At a minimum, counsel has violated a maxim
of effective appellate legal writing, which is to present all the pertinent
facts a court will need to render a decision.
At a maximum, this sentence may have violated SCR 20:3.3. We recognize that on cross-examination,
Crandall testified that he told Size:
"I told him if he didn't do the field sobriety tests I would be
placing him under arrest at this point."
Size's brief, however, never addresses the issue of whether Crandall's
statement rendered Size's consent involuntary.
All that is found is the statement we previously quoted. We anticipate that in the future, counsel
will carefully compare the record with his briefs.
We
return to the issue of whether Size was legally arrested. The supreme court explained what is required
by the term "probable cause" in State v. Mitchell, 167
Wis.2d 672, 681-82, 482 N.W.2d 364, 367-68 (1992):
Probable cause is
the sine qua non of a lawful arrest.
Probable cause refers to the quantum of evidence which would lead a
reasonable police officer to believe that defendant committed a crime. There must be more than a possibility or
suspicion that defendant committed an offense, but the evidence need not reach
the level of proof beyond a reasonable doubt or even that guilt is more likely
than not. The information which
constitutes probable cause is measured by the facts of the particular case.
This
is not a high standard. An inference of
guilt need not even be more likely than not.
Slightly more than a possibility of guilt or a suspicion of guilt is all
that is necessary. The purpose of the
concept of probable cause is not to have a mini-trial, but to separate out
those against whom the evidence suggesting guilt is so insignificant that
further prosecution would be worthless.
Size
cites State v. Seibel, 163 Wis.2d 164, 471 N.W.2d 226, cert.
denied, 502 U.S. 986 (1991), and State v. Swanson, 164 Wis.2d
437, 475 N.W.2d 148 (1991), in which the supreme court determined whether the
evidence was sufficient to constitute probable cause to believe a defendant was
intoxicated. In Swanson,
the court noted that the evidence of a crime included unexplained erratic
driving, an odor of intoxicants emanating from the defendant as he spoke and
the fact that the incident occurred at about the time that bars close in
Wisconsin. Swanson, 164
Wis.2d at 455 n.6, 475 N.W.2d at 155.
The factors in Seibel were the nature and cause of an
accident, a strong odor of intoxicants emanating from the defendant's
companions, a police chief's belief that he smelled an intoxicant on the
defendant and the defendant's conduct at a hospital. Seibel, 163 Wis.2d at 181-83, 471 N.W.2d at
234.
In
Swanson, the court held that these factors constituted a
reasonable suspicion that the defendant had committed a crime. However, the factors arguably failed to show
probable cause in Seibel and failed to show probable cause in Swanson. See Swanson, 164 Wis.2d
at 453-54 n.6, 475 N.W.2d at 155.
Probable
cause is a common-sense concept. It is
judged by the factual and practical considerations of everyday life on which
reasonable and prudent persons, not legal technicians, act. State v. Truax, 151 Wis.2d
354, 360, 444 N.W.2d 432, 435 (Ct. App. 1989).
As a result, it is not possible to compare cases with dissimilar facts
and draw a conclusion as to whether probable cause exists. Probable cause cases are therefore limited
to their facts. We agree that should
the facts of Swanson and Seibel repeat themselves,
those cases would dictate a particular result.
But when a case has dissimilar facts, Swanson and Seibel
are not helpful.
That
is the case here. The factors relied
upon by officer Crandall were an odor of intoxicants, bloodshot and glassy
eyes, slow and slurred speech and all three clues in each eye in the HGN
test. The only factor in common with
the factors of Swanson and Seibel is the odor of
intoxicants about the defendant.
When the facts are
undisputed, the question of whether probable cause for arrest exists is a
question of law. Truax,
151 Wis.2d at 360, 444 N.W.2d at 435.
We therefore are not bound by the trial court's conclusion. Nor are we bound by the officer's opinion as
to whether probable cause existed. But
we agree with the trial court's conclusion that Officer Crandall had probable
cause to arrest Size. The four factors
upon which we rely are the odor of intoxicants, Size's bloodshot and glassy
eyes, his slow and slurred speech and the result of the HGN test.
Size
makes much of the fact that he was wearing contact lenses, had just been
involved in an accident, and that the officer who performed the HGN test was
never checked to see if he was doing the test correctly. First of all, Size's counsel has again
misrepresented the facts of record.
While Officer Crandall testified that he asked Size if he was wearing
contacts, he did not testify as to Size's answer. Nor is there evidence as to whether the HGN test is rendered
invalid by a previous accident in which there is no evidence of injury. Finally, there is no evidence that a person
giving an HGN test must be checked to see if he is performing the test
correctly. We will not presume the
test's invalidity. Size's argument is
one which should be made to a jury or a trial court. Here, we are concerned only with probable cause. The result of the HGN test and the other
three factors the officer noted are more than enough for us to conclude that
Size was probably operating his motor vehicle while intoxicated. We concede that one could hypothesize
explanations for all four factors we have considered which might lead to a
conclusion of innocence. But that is far
from the test we are to use. Using the
proper test, we conclude that the information available gave Officer Crandall
probable cause to arrest Size.
Finally,
Size asserts that his prosecution and sentence are barred by the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution. He recognizes that this issue is foreclosed
by State v. McMaster, 198 Wis.2d 542, 543 N.W.2d 499 (Ct. App.
1995), but notes that the supreme court has granted a petition for review in
that case. We are bound by McMaster,
and therefore conclude that Size's prosecution and sentence are not barred by
the Double Jeopardy Clause.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.