COURT OF APPEALS DECISION DATED AND FILED November 4, 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 I |
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State of Plaintiff-Respondent, v. Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 KESSLER, J.[1]
BACKGROUND
¶2 On January 26, 2006, Barboff was arrested and charged with operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle with a prohibited alcohol concentration (PAC) of .08% or more.[3] She filed a motion to suppress evidence on grounds that the officer lacked reasonable suspicion to stop her, and lacked probable cause to arrest her.
¶3 At the hearing on the suppression motion, the State called a
single witness: Officer Steve Anderson
of the City of Oak Creek Police Department.
He testified that at approximately 10 p.m. on January 26, 2006, he was
informed that the police department dispatch center had received a call from a
McDonald’s employee “advising that they believed an operator of a vehicle was
intoxicated, and they gave a description of the vehicle with a female driver
and a license plate.” The license plate
was registered to Barboff, with whom
¶4
As I was driving between the rows of cars, I noticed the vehicle with the taillights still on as it was pulled in head first. Upon driving up to that vehicle, I noticed it had the same license plate, it was a blue station wagon, and that the engine was running on the vehicle.
Anderson explained that he knew the engine was running because he approached the car with his window down, heard the engine running, and saw exhaust (which was made possible by the cold temperatures) coming from the tailpipe.
¶5
¶6
¶7
¶8
¶9 The trial court denied Barboff’s suppression motion. First, the court noted that the defense had
“essentially not taken issue with reasonable suspicion for the stop.” It concluded that the officer had reasonable
suspicion to stop behind Barboff and probable cause to arrest her. It specifically found
¶10 Prior to trial, the charge of operating with a PAC of .08% or more was dismissed when the State was unable to produce a witness from the State Crime Lab. At trial, the jury heard testimony from Anderson, a second officer and Barboff. Of significance to this appeal, Barboff testified that she had a fight with her boyfriend, left her apartment, sat in her car and used her cell phone to call her mother. She said she did not have her keys and did not put them in the ignition. She said she was in the car for about an hour and then the police arrived and approached her car.
¶11 The jury found Barboff guilty and she was convicted. After sentencing, this appeal followed.
DISCUSSION
¶12 Barboff presents two arguments: (1) the evidence against her should have been suppressed because she was illegally seized by police; and (2) the evidence produced at trial was insufficient to prove she operated the vehicle. We examine each in turn.
I. Illegal detention.
¶13 Barboff argues that she was detained when the officer parked
his car behind her vehicle so she could not leave. In doing so, she is challenging whether the
officer had reasonable suspicion to initially detain her, and she spends
considerable time discussing whether the informant’s tip was reliable. We reject her argument, for two reasons. First, as the State notes, there were no
written arguments filed for the suppression hearing. Barboff’s suppression motion simply alleged
that she “was stopped without reasonable suspicion and further that [she] was
arrested without probable or reasonable cause.”
At the suppression hearing, Barboff’s counsel offered no argument
concerning reasonable suspicion, focusing instead on the argument that the officer
lacked probable cause to arrest Barboff.[5] Counsel stated: “I would agree that there does appear to be
reasonable suspicion to stop.” The trial
court acknowledged this when it observed that the defense had “essentially not
taken issue with reasonable suspicion for the stop.” We reject Barboff’s attempt to raise this
issue after not pursuing it (and, arguably conceding it) at the trial court.
¶14 We also reject Barboff’s argument because we conclude that she was not seized at the time of the initial encounter. Our supreme court has summarized the appropriate standard of review:
Whether a person has been seized is a question of constitutional fact. As such, we accept the circuit court’s findings of evidentiary or historical fact unless they are clearly erroneous, but we determine independently whether or when a seizure occurred. Similarly, in reviewing a motion to suppress, we employ a two-step analysis. We will uphold the circuit court’s findings of fact unless clearly erroneous. Whether those facts constitute reasonable suspicion, however, is a question of law we review de novo.
State v. Young, 2006 WI
98, ¶17, 294
¶15 “‘In order to effect a seizure, an officer must make a show of
authority, and the citizen must actually yield to that show of authority.’” State v. Powers, 2004 WI App 143,
275
¶16 Under the facts here, there was not a sufficient show of authority, when the encounter first began, to effect a seizure. The officer did not stop the vehicle; it was already parked when he came upon it. Further, as the State notes,
before Ms. Barboff voluntarily got out of her car, the officer made no requests, whether verbal or otherwise. The officer barely made contact; Officer Anderson pulled in behind Ms. Barboff’s car but in no way tried to restrain or prevent Ms. Barboff from getting out of her car which she then did voluntarily. Officer Anderson drew his flashlight, not a firearm.
¶17 These facts do not suggest that Barboff was “seized” at the time the officer first began to observe her. The officer’s subsequent observations—including that Barboff stumbled as she got out of her car, smelled like intoxicants and had glassy, bloodshot eyes—led him to believe she might have been drinking, and he then conducted field tests to determine if she was intoxicated. Thus, the encounter gradually became a seizure and then an arrest.
II. Sufficiency of the evidence.
¶18 Barboff argues that her conviction should be reversed because the evidence was insufficient to establish that she operated the vehicle. Barboff does not challenge the jury’s implicit finding that her car was running and that she turned off the ignition, noting that she “may be loathe to accept the contrary testimony of the officers that the engine was running,” but recognizing that “on appeal she must swallow this bitter pill.” See State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990) (This court may not reverse a conviction “unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.”).
¶19 Rather than challenge the jury’s finding that she turned off
the ignition, Barboff argues that she did not “operate” a motor vehicle as that
term is used in Wis. Stat. § 346.63(3),
which states: “‘Operate’ means the physical manipulation or activation of any
of the controls of a motor vehicle necessary to put it in motion.” This presents a question of law that we
review de novo. See Village of Cross Plains v. Haanstad, 2006 WI 16, ¶9, 288
¶20 In Haanstad, our supreme court concluded that the defendant was
not “operating” the vehicle simply because she was sitting in the driver’s seat
of a parked vehicle with the engine running, where the uncontested evidence
showed that the defendant was not the person who had left the engine
running.
¶21 Accepting for purposes of this appeal Barboff’s assertion that
there was no evidence presented that she had turned the vehicle on, we nonetheless reject her challenge
to her conviction because we conclude that the act of turning off the car’s ignition constituted
operation of the vehicle under Wis.
Stat. § 346.63(3). The
statute requires “activation of any of the controls” necessary to put the
vehicle in motion.
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).
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3]
[4]
[5] Barboff did not file a reply brief and, therefore, did not address the State’s waiver argument. We conclude Barboff has, once again, waived this argument. See Fischer v. Wisconsin Patients Comp. Fund, 2002 WI App 192, ¶1 n.1, 256 Wis. 2d 848, 650 N.W.2d 75 (“An argument asserted by a respondent on appeal and not disputed by the appellant in the reply brief is taken as admitted.”).
[6] Barboff notes that evidence concerning the call from McDonald’s was not presented at trial.
[7] Barboff
cites County of Milwaukee v. Proegler, 95
[8] We are unpersuaded by Barboff’s final argument that it is unfair to penalize her simply for turning off the vehicle where doing so was “obviously safer for the officers” who were shining flashlights into the vehicle. She asserts that in doing so, she was “demonstrat[ing] due regard for the safety of the police officers.” This assertion is without any support in the record, and directly contradicts Barboff’s testimony that the car was never running and she never turned off the ignition.