COURT OF APPEALS DECISION DATED AND FILED June 18, 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. |
2008TR5657 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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Plaintiff-Respondent, v. Michael A. Descamps,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 DYKMAN, J.[1] Michael
Descamps appeals from a judgment of conviction for operating a motor vehicle while
under the influence of an intoxicant (OWI) in violation of Wis. Stat. § 346.63. He argues that he
was arrested without probable cause when he was ordered out of his vehicle to
perform field sobriety tests. We
conclude that Descamps was not arrested when he was ordered out of his car and
therefore has not established a violation of his constitutional rights. Accordingly, we affirm.
FACTS
¶2 On April 19, 2008, Rock County Deputy Sheriff Luke Ducharme pulled
Descamps over in
¶3 Descamps moved to suppress the results of the field sobriety tests, claiming that a demand to do field sobriety tests based only on the odor of intoxicants constitutes an unreasonable seizure. The trial court denied the motion, concluding that Descamps had the right to say no to the officer’s order, and that the continued temporary detention did not amount to an arrest before the execution of the field sobriety tests. Descamps appeals.
STANDARD OF REVIEW
¶4 “In reviewing a motion to suppress, we accept the circuit
court’s findings of fact unless they are clearly erroneous; the correct
application of constitutional principles to those facts presents a question of
law, which we review de novo.” State
v. Drew, 2007 WI App 213, ¶11, 305
DISCUSSION
¶5 Descamps argues that an order to perform field sobriety tests, as opposed to a request, effects an arrest. Thus, Descamps argues, he was arrested when he was ordered out of his car. Descamps then argues that he was arrested without probable cause because “the act of speeding coupled with an odor of alcohol and nothing more” does not amount to probable cause to arrest for OWI.
¶6 The County responds that Ducharme was justified in requesting
that Descamps exit the vehicle after the traffic stop based on reasonable
suspicion that Descamps was intoxicated.[2] It argues that Ducharme’s observations
provided reasonable suspicion to suspect Descamps of driving under the
influence. Therefore, the County
contends, Ducharme conducted an investigatory stop and brief detention of
Descamps, supported by reasonable suspicion, to determine if Descamps was
operating under the influence. We conclude
that the undisputed facts in the record establish that Descamps was not
arrested when he was ordered out of his car, and that Ducharme’s detention of
Descamps was not an illegal seizure under the
¶7 “The Fourth Amendment to the United States Constitution and art.
I, § 11 of the Wisconsin Constitution both protect citizens from
unreasonable searches and seizures.” State
v. Pallone, 2000 WI 77, ¶28, 236
¶8 Generally, a police officer may reasonably stop an automobile
when the facts establish reasonable suspicion to believe that the individual is
or was violating the law. See State v. Colstad, 2003 WI App 25, ¶8,
260
¶9 We first reject Descamps’ argument that his subjective belief
as to whether he was free to leave is relevant to our arrest analysis. Descamps points to the subjective test in State
v. Doyle, 96
¶10 Using an objective test, we conclude that Descamps was not
under arrest when Ducharme ordered him out of his car.
¶11 Quartana argued that he had been unlawfully arrested when the police
transported him to the scene of the crime.
¶12 Similarly, we have said that the use of handcuffs on an
individual does not automatically effect an arrest. In State v. Marten-Hoye, 2008 WI App
19, ¶2, 307 Wis. 2d 671, 746 N.W.2d 498, police stopped the defendant to
determine if she was violating a curfew ordinance. After she was told that she was free to
leave, Marten-Hoye began to yell obscenities at the officers.
¶13 Finally, the supreme court has found that a police order to an
individual at gunpoint does not automatically effect an arrest. In Jones v. State, 70
¶14 As in Quartana, Marten-Hoye, and Jones, a reasonable person in Descamps’ position would not believe that he or she was under arrest. Like Quartana, Descamps was temporarily detained in connection with an investigation. Both Quartana and Descamps were given orders by the investigating police officer. Also, Descamps was not detained for an unusually long period of time or brought to a more institutional setting such as a police station or detention center. Similar to Marten-Hoye, Descamps was not under arrest because he would have been free to go if he passed the field sobriety tests. Like Jones, Descamps was ordered out of the car so that the officer could continue an investigation. Unlike Quartana, Marten-Hoye, and Jones, where the police officers acted in a more intrusive manner, Descamps was never placed in the back of a police car, placed in handcuffs, told that he was under arrest, or ordered to comply with police at gunpoint. Thus, we conclude that under the totality of circumstances, Officer Ducharme’s order to Descamps was not an arrest. Accordingly, we affirm.
By the Court.—Judgment affirmed.
Not recommended
for publication in the official reports.
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) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The County does not specifically respond to Descamps’ argument that he was under arrest because the officer ordered him out of the car. Instead, the County relies on the initial testimony of the officer saying that he “asked” Descamps to get out of the car so he could perform the field sobriety tests. For that reason, the County argues only that the officer had reasonable suspicion to ask Descamps to perform the field sobriety tests. See State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659 N.W.2d 394 (an officer may extend an initial traffic stop when he or she becomes aware of additional suspicious factors which give rise to an articulable suspicion that the person has or is committing an offense). However, the trial court stated that it would “assume” that Ducharme “ordered” Descamps out of the vehicle. Therefore, because we accept the trial court’s findings of fact unless they are clearly erroneous, State v. Drew, 2007 WI App 213, ¶11, 305 Wis. 2d 641, 740 N.W.2d 404, we will address whether the officer’s order effected an arrest, and not if the officer had reasonable suspicion to request that Descamps perform field sobriety tests based on specific and articulable facts.
[3] Terry
v.