COURT OF APPEALS DECISION DATED AND RELEASED January 21, 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, Stats. |
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No. 96-2233-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Paul W. Schnelz,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
TIMOTHY G. DUGAN, Judge. Affirmed.
WEDEMEYER, P.J.[1] Paul W. Schnelz appeals from a judgment
entered after he pled guilty to one count of possession of a controlled
substance (cocaine), contrary to §§ 161.16(2)(b)(1) and 161.41(3m), Stats.
He claims the trial court erred in denying his motion to suppress
because no probable cause existed to arrest him. Because probable cause existed sufficient to arrest Schnelz for
operating a vehicle while under the influence of an intoxicant, the trial court
did not err in denying Schnelz's motion to suppress. Therefore, this court affirms.
I. BACKGROUND
On March 8, 1996, at
4:04 a.m., City of Milwaukee Police Officer Timothy Elwing was patrolling the
area of 3000 West Lincoln Avenue. He
observed a vehicle parked in front of a closed tavern. The car's engine was running, but the
headlights were off. Elwing could see
an individual inside the car, who began making furtive movements once he
noticed the police car. The individual
was Schnelz.
Elwing went over to the
vehicle and motioned for Schnelz to roll down the window. At this point, Elwing smelled a moderate
odor of alcohol on Schnelz's breath, noticed that his eyes were bloodshot and
that his speech was slurred. Elwing
said that Schnelz appeared very nervous and was unable to comply with Elwing's
command to keep his hands visible.
Schnelz told the officer that he had just come from a gay bar. Elwing asked Schnelz to step out of the car,
at which time Schnelz almost fell over.
Elwing observed an open can of beer in the vehicle.
At this point, Elwing
arrested Schnelz for operating a vehicle while under the influence of an
intoxicant. He performed a custodial
search and discovered the controlled substance which formed the basis for the
charge in this case. Schnelz filed a
motion to suppress the evidence, arguing that absent the administration of a
field sobriety test, the officer did not have probable cause to arrest. The trial court denied the motion. Schnelz entered a guilty plea. Judgment was entered. Schnelz now appeals.
II. DISCUSSION
The issue in this case
is whether Elwing had probable cause to arrest Schnelz. The facts are not in dispute. Accordingly, whether or not probable cause
existed to support Schnelz's warrantless arrest is a question of law that this
court reviews de novo. See
State v. Drogsvold, 104 Wis.2d 247, 256-57, 383 N.W.2d 243,
247-48 (Ct. App. 1981). Upon reviewing
the record in the instant case, this court concludes that probable cause
existed and, therefore, the arrest was legal and the evidence discovered
incident to the arrest should not be suppressed.
Probable cause requires
that the police officer have facts and circumstances within his or her
knowledge sufficient to warrant a reasonable person to conclude that the
defendant has committed, or is in the process of committing, an offense. The information available to the officer
must lead a reasonable police officer to believe that “guilt is more than a
possibility.” Probable cause includes
the “totality of the circumstances” within the officer's knowledge at the time,
though the “‘evidence need not reach the level of proof beyond a reasonable
doubt or even [show] that guilt is more likely than not.'” (Citations
omitted.) State v.
Richardson, 156 Wis.2d 128, 148, 456 N.W.2d 830, 838 (1990).
The facts present here
provided Elwing with probable cause to believe that Schnelz had committed the
offense of operating a vehicle while under the influence of an intoxicant. Schnelz admitted that he had just been at a
bar, Elwing smelled intoxicants on his breath, Schnelz's speech was slurred,
his eyes were bloodshot, he had difficulty with motor coordination and with
understanding orders, and there was an open intoxicant in Schnelz's car. These factors together, even absent a field
sobriety test, provided Elwing with probable cause to arrest Schnelz. See State v. Wille,
185 Wis.2d 673, 684, 518 N.W.2d 325, 329 (Ct. App. 1994) (field sobriety test
not always required in order to find probable cause).
Schnelz relies on dicta
in State v. Swanson, 164 Wis.2d 437, 475 N.W.2d 148 (1991)
to support his argument that absent a field sobriety test, an officer does not
have probable cause to make the arrest.
Although this court acknowledges that Swanson does contain
certain language that seems to support Schnelz's argument, this language has
been qualified by Wille.
Whether probable cause exists is assessed on a case-by-case basis. Id. Sometimes a field sobriety test is required to establish probable
cause and sometimes it is not. Id. This court concludes that all of the facts
present in the instant case were sufficient to establish probable cause without
requiring field sobriety tests.
Therefore, the trial court did not err in denying Schnelz's motion to
suppress.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.