COURT OF APPEALS DECISION DATED AND FILED October 9, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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City of
Plaintiff-Respondent, v. Eli Weinstein,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 HIGGINBOTHAM, P.J.[1] Eli
Weinstein appeals a judgment against him for operating a motor vehicle under
the influence of an intoxicant and for operating a motor vehicle with a
prohibited alcohol concentration, contrary to Wis.
Stat. §§ 346.63(1)(a) and 346.63(1)(b). The circuit court found Weinstein guilty
after denying his motion to suppress evidence gathered as a result of the
traffic stop. Weinstein argues that the
stop was unlawful because the officer lacked reasonable suspicion to believe
that he had committed a traffic violation.
In the alternative, he argues that if the stop was legal initially, it
later became an illegal arrest when the investigating officer transported him
to the parking garage of the
Background
¶2 On the evening of February 17, 2006, Officer Marine Yoo was
stationed at the intersection of
¶3 Yoo observed that Weinstein’s eyes were glassy and his speech
was slurred. Yoo smelled the odor of
alcohol coming from inside the vehicle.
Yoo decided to conduct field sobriety tests and informed Weinstein he
would administer the tests at the
¶4 The case was first heard in the municipal court, which denied Weinstein’s initial motion to suppress and found him guilty of running a red light and operating a motor vehicle while intoxicated. Weinstein then requested a trial de novo before the circuit court. Weinstein renewed his motion to suppress in the circuit court, which denied the motion upon finding that Officer Yoo had reasonable suspicion to stop Weinstein for running the red light, and that the transport of Weinstein to the City-County Building did not transform the investigatory stop into an arrest without probable cause. The court found Weinstein guilty following a stipulated trial. Weinstein appeals.
Discussion
Reasonable Suspicion for Traffic Stop
¶5 A temporary detention for investigative purposes implicates
the constitutional protections against unreasonable searches and seizures
contained in the Fourth Amendment of the United States Constitution and art. I,
§ 11 of the
¶6 Determining whether reasonable suspicion existed for an
investigatory stop is a question of constitutional fact.
¶7 Weinstein
contends that the stop was not justified by reasonable suspicion. First, he
argues that Yoo lacked an objective basis for the stop because he could not
have observed the traffic light and Weinstein’s vehicle at the same time.
Weinstein notes that this view was bolstered by the testimony of an expert
witness. Second, Weinstein notes that the light was yellow as he approached the
intersection, and argues that stopping on the yellow would have been hazardous
because the street was partially covered in ice. He asserts that this places his actions
within the inability-to-stop-safely exception to the red light violation
statute. See Wis. Stat. §
346.37(1)(b). We reject both
contentions.
¶8 These
arguments challenge the circuit court’s finding of historical fact that
Weinstein ran the red light, which was based upon the testimony of Officer
Yoo. Yoo testified that he observed
Weinstein run the red light, and that he relied on his familiarity with the intersection
and his experience and training in determining that a traffic violation took
place. The circuit court found Yoo’s
testimony to be credible. The circuit
court also found that Yoo credibly determined that Weinstein’s vehicle could
have stopped for the red light.
Weinstein fails to demonstrate that these findings were clearly
erroneous, and we therefore may not disturb them. See Wis. Stat. § 805.17(2).
Effect
of Transport on Temporary Detention
¶9 Weinstein contends that Officer Yoo transformed the
investigative stop into an arrest by transporting him to the
¶10 A totality of the circumstances analysis is used to determine
whether a reasonable person would have considered himself to be under arrest
considering the degree of restraint under the circumstances. State v. Quartana, 213
¶11 Weinstein argues that a reasonable person in his position would
have believed he was under arrest when he was moved to the
¶12 We conclude that the transport of Weinstein did not transform
the investigative detention into an arrest under the two-part Quartana
test. Concerning the “vicinity” prong of
the Quartana
test, the record demonstrates that the
¶13 Turning to the “reasonableness” prong of the Quartana
test, the record establishes that the temperature at the time of the
stop was well below freezing, and that Yoo was concerned that the cold could
make the filed sobriety test unnecessarily difficult for Weinstein. We note that convenience and safety are both
reasonable reasons to transport a suspect to a different location to continue
an investigation. See Quartana, 213
¶14 Weinstein protests that the institutional nature of the place
to which he was transported, the
¶15 As for Yoo’s admission that he would have arrested Weinstein if
he had tried to leave, it is well-established that an officer’s unarticulated
plans have no bearing on the question of whether a person is actually under
arrest. See Berkemer v. McCarty,
468
Conclusion
¶16 In sum, we conclude that the traffic stop was supported by
reasonable suspicion. We further
conclude the transport of Weinstein to the City-County Building garage did not
transform the investigative stop into an arrest because the garage was in the
vicinity of the traffic stop and the move was reasonable under the
circumstances. Moreover, we conclude that the nature of the place to which
Weinstein was transported, the parking garage of the
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)(4).
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, § 11 of the Wisconsin Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
We
ordinarily interpret Article I, § 11 of the Wisconsin Constitution in
accordance with the United States Supreme Court’s interpretation of the Fourth
Amendment. State v. Phillips, 218
[3] Wisconsin Stat. § 968.24 provides:
After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person’s conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.