COURT OF
APPEALS DECISION DATED AND
RELEASED February
27, 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. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos.96-2349
96-2350
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
VILLAGE
OF McFARLAND,
Plaintiff-Respondent,
v.
DENNIS
L. PRESTON,
Defendant-Appellant.
APPEAL
from judgments of the circuit court for Dane County: PATRICK J.
FIEDLER and JACK F. AULIK, Judges. Affirmed.
DYKMAN, P.J.[1] Dennis
L. Preston appeals from judgments convicting him of operating a motor vehicle
while under the influence of an intoxicant (OMVWI), contrary to
§ 346.63(1)(a) Stats., and
operating a motor vehicle with a prohibited blood alcohol concentration (BAC),
contrary to § 346.63(1)(b), Stats. First, Preston contends that the police
officer illegally expanded the scope of a traffic stop for nonfunctioning
trailer lights to include investigation for OMVWI and BAC. Secondly, Preston contends that the police
officer did not have reasonable
suspicion to investigate the OMVWI and BAC charges. We conclude that:
(1) the Fourth Amendment to the United States Constitution does not
prohibit such an expansion of the investigation in this case; and (2) the
officer had reason to suspect Preston of both OMVWI and BAC. We therefore affirm.
BACKGROUND
On
August 13, 1995, at approximately 1:40 a.m., Officer Michael Klementz and
Probationary Officer Bradley Meng of the McFarland Police Department stopped
Dennis Preston for nonfunctioning trailer lights. Preston told Meng that the connection must have been made
inadequately. The officers allowed
Preston to exit his vehicle and attempt to correct the nonfunctioning
lights.
While
Preston attempted to make a proper electrical connection, Officer Klementz
detected an odor of intoxicants on his breath.
At that time, Klementz asked Preston if he had been drinking. Preston admitted that he had consumed four
or five drinks. Klementz asked Preston
to submit to field sobriety testing, and Preston consented. The results of the field sobriety tests were
stipulated as evidence. Based upon his
observations of Preston during the field sobriety tests and the odor of
intoxicants on Preston's breath, Officer Klementz arrested him for OMVWI and
BAC.
Preston
moved to suppress the evidence of intoxication obtained at the scene for two
reasons. First, he argued that the
evidence was obtained during an illegal expansion of the traffic stop. Second, he argued that Officer Klementz did
not have reasonable suspicion to investigate the OMVWI and BAC charges. The trial court denied his suppression
motion and subsequently convicted Preston of both charges. Preston appeals.
DISCUSSION
The
temporary detention of individuals during traffic stops constitutes a
"seizure" of "persons" under the Fourth Amendment. Whren v. United States, 116
S. Ct. 1769, 1772 (1996).
Therefore, an automobile stop is subject to the constitutional
requirement that it not be "unreasonable" under the circumstances.
Id. A traffic stop is generally reasonable if the officer has grounds
to reasonably suspect that a violation has been or will be committed. See Berkemer v. McCarty,
468 U.S. 420, 439 (1984). Moreover, a Terry-stop
is investigative in nature. See Terry
v. Ohio, 392 U.S. 1, 22 (1988).
The officer can temporarily question the suspect to determine whether
the person is committing, is about to commit, or has committed a crime. See § 968.24, Stats.
Preston
concedes that Officer Klementz had reasonable suspicion or probable cause to
stop him for nonfunctional trailer lights.
However, Preston asserts that the scope of an investigation during a
traffic stop is limited to the justification for its initiation. In support of his argument, Preston cites Terry,
which provides that "evidence may not be introduced if it was discovered
by means of a seizure and search which were not reasonably related in scope to
the justification for their initiation."
Terry, 392 U.S. at 29.
Because Officer Klementz's justification for stopping Preston was to
investigate a nonfunctional trailer light, Preston argues that the scope of the
investigation was illegally expanded when the officer asked Preston if he had
been drinking. Yet, in his brief
Preston concedes that a Terry-stop can be expanded: "Nothing, in this legal area, is more
well-settled than the proposition that a stop cannot be expanded in its scope
beyond the specific suspicion which originally justified the officer in making
the stop, absent independent justification for doing so." (Emphasis added.)
Therefore,
the question becomes, did Officer Klementz have independent justification to
ask Preston if he had been drinking?
Preston’s first argument melds into his second argument, and the only
remaining issue is: did Officer
Klementz possess the reasonable suspicion necessary to investigate Preston for
driving while intoxicated? Preston
argues that Officer Klementz did not have reason to suspect that he was guilty
of the OMVWI and BAC charges, and therefore, the officer could not ask Preston
if he was drinking. We disagree.
The
fundamental focus of the Fourth Amendment is reasonableness. State v. Anderson, 155 Wis.2d
77, 83, 454 N.W.2d 763, 766 (1990). Terry
provides that reasonable suspicion is present "where a police officer
observes unusual conduct which leads him to reasonably conclude in light of his
experience that criminal activity may be afoot." Terry, 392 U.S. at 30. Reasonable suspicion has also been defined as "founded
suspicion" and "a particularized and objective basis for suspecting
the particular person stopped of criminal activity." See United States v. Cortez,
449 U.S. 411, 417-18 (1981). "The
question of what constitutes reasonableness is a common sense test. What is reasonable under the circumstances? What would a reasonable police officer
reasonably suspect in light of his or her training and experience?" State v. Anderson, 155 Wis.2d
77, 83-84, 454 N.W.2d 763, 766 (1990).
Officer Klementz stopped
Preston at 1:40 a.m. for a violation of nonfunctioning trailer lights. During that brief detention, the officer
acquired additional information. He detected
intoxicants on Preston's breath. This
provided a "particularized and objective basis" for suspecting
Preston of OMVWI. Additionally, common
sense would dictate that a police officer who smelled intoxicants on a driver's
breath would question if that person was driving while intoxicated. In applying that common sense, the officer
then asked if Preston had been drinking.
Preston admitted to consuming "four or five" drinks. Based upon his training and experience,
Officer Klementz reasonably believed that Preston might be under the influence
of an intoxicant. Therefore, the officer's
continued investigation did not violate the Fourth Amendment, and the trial
court did not err in denying Preston's motion to suppress.
By
the Court.—Judgments affirmed.
Not
recommended for publication in the official reports. See Rule 809.23(1)(b)(4), Stats.