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COURT OF APPEALS
DECISION
DATED AND FILED
February 19, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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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
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IN COURT OF
APPEALS
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DISTRICT IV
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In the matter of the refusal of Juan M. Madrid:
State of Wisconsin,
Plaintiff-Respondent,
v.
Juan M. Madrid,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Jefferson County: jacqueline
r. erwin, Judge. Affirmed.
¶1 VERGERONT, J. Juan
Madrid appeals the circuit court’s order revoking his operating privilege
because, the court determined, he improperly refused to submit to a chemical
test of his blood upon arrest for operating while under the influence of an
intoxicant (OWI) in violation of Wis.
Stat. § 346.63(1)(a). Madrid’s
primary contention is that the circuit court erred in concluding there was
probable cause for his arrest for OWI. For
the reasons we explain below, we affirm.
BACKGROUND
¶2 Madrid
was arrested for OWI outside his apartment building by an officer who had come
to investigate a noise complaint in apartment C. The officer testified as follows at the
suppression hearing. The officer was at
the rear of the building when he observed a car pull into the back parking
lot. A man, later identified as Madrid, got out of the
driver’s seat and walked toward the apartment building and toward the officer,
leaving the headlights on. Because it
was an older model vehicle, the officer assumed the headlights had to be turned
off. A female got out of the front
passenger seat of the vehicle and began to walk in the same direction as Madrid. Madrid
turned, walked back toward her and handed her the keys to the car, saying
something that the officer was unable to understand. Madrid
then made a call on his cell phone and the officer heard him say something to
the effect of “watch out; the police are here.”
¶3 At this point the officer stepped out of the shadows,
identified himself to Madrid, and asked to
whom Madrid
was speaking. Madrid became extremely upset, telling the
officer it was none of his business, swearing, and walking toward the officer
in an aggressive posture. The officer
told Madrid
he was there to investigate a noise complaint in apartment C. Madrid
responded that there was always noise there, no officer had come before, and he
should not be there now. The officer
explained that he was concerned about who Madrid
was speaking to because he did not want Madrid
to warn the people in apartment C that he (the officer) was there. As Madrid
came closer, the officer could smell the strong odor of intoxicants coming from
him and saw that his eyes were glassy and bloodshot and his speech was slurred. On cross-examination, the officer
acknowledged that in his report he did not write that Madrid had bloodshot and
glassy eyes until just prior to his description of the field sobriety tests,
but he indicated he first observed this when Madrid initially passed slowly by
him.
¶4 Madrid
continued yelling at the officer in an angry and aggressive manner, telling him
that he should get off his property and that he did not have a right to be
there. In response, the officer stepped
onto the sidewalk. Because of Madrid’s belligerence,
the officer called his partner, who was at the front of the building, to come
to the back for his protection.
¶5 Although the officer wanted Madrid
to stop and speak to him further, Madrid
went into his apartment, apartment A.
The two officers spoke with the female who had gotten out of the
car. She apologized for Madrid’s behavior and
said he was acting that way only because he was drunk. She went back to the car and turned off the headlights.
¶6 The officer knocked on Madrid’s
apartment door in an attempt to get Madrid
to come out and speak with him. However,
the officer did not believe Madrid
knew he knocked. Subsequently, Madrid did come out of
his apartment, yelling expletives and telling officers to leave the yard of his
apartment because they had no right to be there. At this point the officer detained Madrid because he
believed that he might have been driving while intoxicated. The officer asked Madrid
if he had been consuming alcohol and Madrid
answered he had had approximately four beers.
¶7 The officer administered the standardized field sobriety
tests to Madrid. On the Horizontal Gaze Nystagmus (HGN) test,
the officer observed all six “clues” indicating impairment. In addition, Madrid was swaying during this test. At the beginning of the test, Madrid told the officer
that two weeks ago he had struck his head against a rock and that caused a
slight cut to his head. He also said he
did not seek medical attention and did not believe he had any lingering side
effects. On cross-examination, the
officer disagreed that a head injury could explain the six “clues” on the HGN
test because, he stated, he observed equal tracking ability and equal pupil
size in each eye and that would not be the case if someone had suffered a head
injury, such as a concussion, immediately before the HGN test.
¶8 On the walk-and-turn test, the officer observed four
“clues”: Madrid stepped out of the instructional
position numerous times to maintain his balance, stepped off of the line,
raised his arms more than six inches away from his body, and he “missed heel to
toe.” The officer viewed this as a
failure of the test because two or more clues is a failure.
¶9 On the one-leg-stand test, Madrid used his arms for balance and put his
foot down three times. The officer considered
this conduct to show all four “clues” of impairment.
¶10 At this point, the officer placed Madrid under arrest for OWI. Madrid
was then transported to the Watertown Police Department where the officer read
the “informing the accused” document.
¶11 The circuit court determined that the officer did not detain Madrid until Madrid
came out of his apartment after having gone into it. The court concluded that the officer had reasonable
suspicion at that time to believe that Madrid had been operating a vehicle
while under the influence of an intoxicant based on his leaving the headlights
on, the odor of intoxicants, his bloodshot and glassy eyes, his slurred speech,
his loud and aggressive manner, and the statement by the passenger that he was
drunk. With the additional information
of his performance on the field sobriety tests, which the court found indicated
impairment, the court concluded there was probable cause to arrest him for
OWI. Accordingly, the court concluded
that Madrid improperly
refused to submit to a chemical test, and it revoked his operating
privilege. See Wis. Stat. § 343.305(9)
and (10).
DISCUSSION
¶12 Madrid’s
primary argument on appeal is that the officer lacked probable cause to arrest
him. The first part of his argument is
that the officer was located within the curtilage
of Madrid’s
apartment and therefore any observations he made while at that location could
not lawfully be used to establish probable cause. The State responds that Madrid
did not raise this argument below, the court therefore did not rule on it, and
from the record it is not clear whether or not the officer was on the curtilage
of Madrid’s
apartment. Madrid replies that he did raise it and points
to certain references in his argument to the officer’s location. He also contends that, implicit in the notion
of probable cause, is that the observations must be lawful and this includes
the issue of curtilage.
¶13 We agree with the State that Madrid did not bring the issue of the
officer’s presence on the curtilage of his apartment to the attention of the
circuit court in a way that indicated that the court was expected to rule on
it. Most significantly, in argument to
the court after the evidentiary hearing, Madrid’s
counsel stated: “By way of that diagram,
it would appear when he officially had contact, that’s in fact on Mr. Madrid’s property. I don’t want to get into legal terms like
curtilage or something, Judge; but certainly can be construed that way.” Rather than indicating to the court that it
is being asked to decide whether the officer was located on the curtilage of Madrid’s apartment, this statement informs the court that
Madrid is not
raising that issue for the court’s determination.
¶14 The general rule is that we do not decide issues on appeal that
were not properly raised in the circuit court, and this rule is particularly
applicable when the issue involves questions of fact not resolved by the
circuit court. See Evjen v. Evjen, 171 Wis. 2d 677, 688, 492
N.W.2d 361 (Ct. App. 1992). The issue of
curtilage presents a mixed question of fact and law. State v. Martwick, 2000 WI 5, ¶16,
231 Wis. 2d
801, 604 N.W.2d 552. We accept the
circuit court’s findings of fact unless they are clearly erroneous and we then
evaluate the application of the legal standard for curtilage to the facts found
by the circuit court. Id., ¶18. Because the circuit court was not asked to
decide the curtilage issue, it made no findings of fact and we therefore have
no findings to review. Although we could
review the application of a legal standard to undisputed facts in a record, if
the record was sufficiently developed, in this case the record on curtilage is
not sufficiently developed for us to conclude that the necessary facts to meet
the legal standard are undisputed.
¶15 Accordingly, we conclude that Madrid has waived the right to raise the
curtilage issue on appeal and we will not address it.
¶16 Although not contained in a separate heading or developed as a
separate argument, Madrid appears to argue that the officer detained Madrid
when he was first going into his apartment, and at that time he did not have
reasonable suspicion to detain him. See Terry
v. Ohio, 392 U.S. 1, 21-22 (1968). However, the circuit court determined that a
detention did not occur at that time because Madrid did not stop, although the officer
wanted him to. The State points this out
in its brief in response, and in his reply brief Madrid does not explain why the court’s
determination on this point is erroneous, either legally or factually. Accordingly, we take this as a concession
that the circuit court was correct on this point. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525
N.W.2d 99 (Ct. App. 1994) (proposition asserted by respondent on appeal and not
disputed in the reply brief is taken as admitted).
¶17 We now turn to the issue whether there was probable cause for Madrid’s arrest. At a refusal hearing pursuant to Wis. Stat. § 343.305(9), the State
must present evidence sufficient to establish an officer’s probable cause to
believe the person was driving or operating a motor vehicle while under the
influence of an intoxicant. State
v. Nordness, 128 Wis.
2d 15, 35, 381 N.W.2d 300 (1986).
Probable cause is that quantum of evidence that would lead a reasonable
police officer to believe the defendant probably committed a crime, and it is
measured by the totality of circumstances within the arresting officer’s
knowledge at the time of the arrest. Id. The State’s burden of persuasion in a refusal
hearing is substantially less than at a suppression hearing: the State “need only show that the officer’s
account is plausible, and the court will not weigh the evidence for and against
probable cause or determine the credibility of the witnesses” as it must do at
a suppression hearing. State
v. Wille, 185 Wis.
2d 673, 681, 518 N.W.2d 325 (Ct. App.
1994).
¶18 In reviewing a circuit court’s determination on probable cause,
we uphold the findings of fact unless they are clearly erroneous and review de
novo whether those facts satisfy the standard of probable cause. See County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603
N.W.2d 541 (1999).
¶19 Based on the facts found by the circuit court and the
undisputed facts, we conclude there was ample basis for probable cause. The officer had probable cause to believe Madrid had been consuming alcohol because Madrid smelled of alcohol,
he said he had had approximately four beers and his female passenger said he
was drunk. The following circumstances
taken together are more than adequate for a reasonable officer to believe that
his consumption of alcohol had impaired his ability to drive safely: his failing to turn off the headlights on his
car, his belligerent and disorderly conduct toward the officer, his glassy and
bloodshot eyes, his slurred speech, the female passenger’s statement that he
was drunk, and his performance on the field sobriety tests.
¶20 Madrid contends that the
results of the HGN test should not be considered because the officer dismissed Madrid’s head injury as
a possible cause of the results.
However, based on what Madrid himself told the officer about hitting his
head—that it occurred two weeks ago, that he had a minor cut, that he did not
go the hospital, and that he had no side effects—it was reasonable for the
officer to conclude that the incident did not explain the results of the
test. Moreover, even if the prior
incident were a plausible explanation in these circumstances, an officer need
not accept an innocent explanation for events when there is a reasonable
explanation that supports probable cause.
State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125.
¶21 Madrid
also contends that the officer’s testimony on his performance on the
walk-and-turn and one-leg-stand tests failed to demonstrate any
impairment. We disagree. The officer’s description of Madrid’s performance on both
tests provide a reasonable basis to infer that his balance and coordination were
impaired.
CONCLUSION
¶22 We conclude the circuit court correctly determined that the
officer had probable cause to arrest Madrid
for OWI and therefore correctly determined that his refusal to submit to a test
under Wis. Stat. § 343.305(3)(a)
was improper.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.