COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
October 1, 1998 |
This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
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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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV |
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County
of Lafayette,
Plaintiff-Respondent, v. Bradley
G. Heins,
Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Lafayette County: william d. johnston, Judge. Reversed and cause remanded with directions.
EICH, J.[1] Bradley Heins appeals from a judgment
convicting him of operating a motor vehicle while under the influence of
intoxicants and having a prohibited blood-alcohol concentration. He argues that the trial court erred when it
denied his motion to suppress evidence of his arrest on grounds that he was
unlawfully stopped and detained by the arresting officer. Assuming, without deciding, that the
arresting officer’s initial contact with Heins was permissible, we conclude
that he lacked the requisite reasonable suspicion to expand the stop and detain
Heins after the initial contact. We
therefore reverse the judgment and remand to the trial court with directions to
grant Heins’s suppression motion.
After an off-duty police officer
observed a parked vehicle on the side of the road with its lights off at 2:30
a.m., and two occupants, one apparently slumped over the driver’s seat, Deputy
Sheriff Richard Nichols was dispatched to the scene. Approaching the vehicle, Nichols saw that the occupants—one of
whom was Heins—were nude and engaging in sexual intercourse. Nichols testified that he was concerned
about possible drug use or sexual assault.
After observing the occupants, he contacted them, telling them to put on
their clothes and that he would return to question them in a few minutes. When Nichols returned, Heins was still
partially undressed. He appeared to be
confused, and Nichols detected an odor of intoxicants coming from the vehicle. When Heins was fully dressed, Nichols
ordered him out of the car. After
observing additional signs of intoxication, Nichols administered a series of
field sobriety tests, which Heins failed.
Nichols then arrested Heins for driving while intoxicated.
Prior to trial, Heins moved to
suppress the results of the sobriety tests on grounds that Nichols lacked
reasonable suspicion to believe that a crime had been or was being committed,
and therefore, had no lawful reason to stop and detain him. The trial court denied the motion and, after
a trial on stipulated facts, found him guilty of operating a motor vehicle
while under the influence of an intoxicant and while having a prohibited
alcohol concentration.
When reviewing the denial of a
suppression motion, we defer to the trial court’s factual findings, and will
uphold them unless they are clearly erroneous.
State
v. Dull, 211
Wis.2d 652,
655,
565
N.W.2d 575,
577
(Ct.
App. 1997). However, whether an investigative stop
satisfies the constitutional standards of reasonableness presents a question of
law which we review de novo. State
v. Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991).
A police officer may temporarily
stop and detain an individual to investigate possible criminal behavior even if
there is no probable cause for an arrest.
Terry v. Ohio, 392 U.S. 1, 22, (1968); § 968.24, Stats. To
be valid, however, the stop must be based on the officer’s reasonable suspicion
that some criminal activity has taken or is taking place. State
v. Jackson, 147
Wis.2d 824,
833-34,
424
N.W.2d 386,
390
(1989). “Reasonableness” is a common sense test:
whether, under the totality of the facts and circumstances, it was reasonable
for the officer, in light of his or her training and experience, to believe
that the defendant had committed, was committing, or was about to commit an
offense. Id. at
834, 424 N.W.2d at 390.
A stop which is lawful at its
inception, however, may develop into an unlawful seizure if an officer detains
an individual after the purpose of the stop is completed.
In addition to being justified at its inception … a traffic stop also must be reasonably related in scope to the circumstances which justified the interference in the first place. … [T]he detention caused by the traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Thus, even a lawful traffic stop could develop into an unreasonable seizure if [police] detained [the suspect] … after the purpose of the stop was completed, so long as nothing occurred in the course of the stop to give the officers the reasonable suspicion needed to support a further detention.
Valance v. Wisel,
110 F.3d 1269, 1276-77 (7th Cir. 1997) (quotation marks and quoted sources
omitted).
Assuming that Nichols’s initial
contact with Heins—approaching the parked car after receiving the off-duty
officer’s report—was proper, all he observed at that time was a man and woman
engaging in sexual intercourse. There
were no signs of any struggle or other indicia of forced or nonconsensual
conduct—Nichols said he saw Heins lying on the car seat with a woman straddling
him—nor did he detect any signs of intoxication or drug use at that time. He observed only factors consistent with
consensual sexual activity, and the State does not suggest in its brief that
that activity constituted criminal conduct.
The State argues that Nichols
possessed reasonable suspicion to investigate further after the initial contact
because, according to his testimony, he was “concerned” about “acquaintance
rape” or sexual assault. And he said
his concern was grounded on his belief, based on twenty-seven years’ experience
in law enforcement, that it is “unusual
... for people apparently in their 30’s and 40’s to be engaged in sexual
activity in a car because, unlike teenagers, they usually had an apartment or
home where they would engage in these activities.” Nichols said he also was “concerned” that the driver or the
occupant “would attempt to drive away and be intoxicated.”
Based on the circumstances
outlined in his own testimony, however, Nichols had had no facts before
him that would reasonably justify a suspicion of criminal activity on the part
of either Heins or his companion at the time he initially approached the car
and observed them. There was no sign of
drug use or intoxication, and no indication of rape. Indeed, Nichols stated that the couple appeared to be “quite
preoccupied with what they were doing.”
The State also attempts to
justify Nichols’s actions as part of a police officer’s “community caretaker
function.” It is true that police
officers are allowed to make contact with vehicles in order to render necessary
assistance to the occupants. See
Cady v. Dombrowski, 413 U.S. 433, 441 (1973). However, community caretaking functions must
be “totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.” State v. Anderson, 142 Wis.2d
162, 166, 417 N.W.2d 411, 413 (Ct. App. 1987) (quoted source omitted). And Nichols testified in this case that he
initiated contact with Heins not to check on the general welfare of the
occupants, but because he suspected criminal activity—drug use or assault. And, by his own testimony, he fulfilled that
purpose on his initial contact with Heins and his companion.
As indicated, we do not question
Nichols’s act of initially approaching Heins’s car. We are satisfied, however, that he lacked reasonable suspicion,
under Terry and its progeny, to detain the couple, require them
to dress and get out of the car, and begin an investigation into possible
illegal activities. We therefore remand
the case with instructions that the trial court grant Heins’s motion to
suppress evidence.
By the Court.—Judgment reversed and cause remanded with directions.
This opinion will not be published in the official reports. See Rule 809.23(1)(b)4, Stats.