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COURT OF APPEALS
DECISION
DATED AND FILED
September 23, 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 II
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In the matter of the Refusal of Kevin D. Burton:
State of Wisconsin,
Plaintiff-Respondent,
v.
Kevin D. Burton,
Defendant-Appellant.
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APPEAL from an order of the
circuit court for Manitowoc
County: patrick
l. willis, Judge. Affirmed.
¶1 SNYDER, J. Kevin
D. Burton appeals from an order for revocation of his operating privileges for
a period of three years. He contends
that the circuit court erred in revoking his operating privileges because his
arrest for operating a motor vehicle while intoxicated was not supported by
probable cause. We disagree and affirm the order.
BACKGROUND
¶2 On April 10, 2008, Manitowoc County Sheriff’s Deputy Jeff
Horneck received a dispatch advising of a hit-and-run accident involving a
motorcycle and another vehicle. Dispatch
also advised that the male motorcycle operator had gone to a nearby garage and
hid inside for some time and that a vehicle, a black Cadillac, pulled up and a
male left the garage and entered that vehicle and left the scene. The information was provided by witnesses who
identified themselves to dispatch, and they were continuously reporting their
observations by cell phone. Dispatch
informed Horneck that the motorcycle operator was wearing a darker colored
jacket, was possibly in his fifties, had frizzy hair, and that the Cadillac was
traveling eastbound on Highway V.
¶3 Shortly after receiving the information, Horneck arrived in
the area and observed a black Cadillac travelling on Highway V. Horneck activated the emergency lights and initiated
a traffic stop. After Horneck pulled in
behind the Cadillac, he observed that the passenger, later identified as Burton, was a male who
matched the description given by the witnesses.
¶4 Horneck approached on the passenger side of the vehicle with
his weapon drawn and ordered the passenger out of the vehicle.
Burton
did not comply right away, so Horneck placed his hand on him and ordered him
out of the vehicle. Once Burton exited the
vehicle, Horneck ordered him to lay face down on the ground and place his hands
behind his back to be handcuffed. Burton was handcuffed and
patted down for weapons. Before putting
handcuffs on Burton,
Horneck holstered his weapon and it remained holstered throughout the remainder
of the stop.
¶5 Horneck informed Burton that
he received a complaint of a hit-and-run involving a motorcycle and a vehicle
and that Burton
was identified as the operator of the motorcycle. When Horneck questioned Burton
about operating a motorcycle, Burton
initially denied operating his motorcycle, saying that it was at his shop. However, after Horneck informed Burton that witnesses saw him operating the motorcycle, Burton admitted that he had
been driving drunk that night, but denied hitting anyone or being involved in
an accident.
¶6 Horneck then advised Burton
that he would be investigating the matter further and transported Burton, while still
handcuffed, to a bank parking lot near the scene of the accident. The bank is located less than one mile from
the location of the traffic stop of the Cadillac. At the bank, Horneck learned from the
witnesses that there was no other vehicle involved and that the operator of the
motorcycle crashed the motorcycle on his own. The witnesses reported that they called the sheriff’s
department after they observed Burton
driving erratically. Horneck testified
that from the moment he initiated the questioning on the scene, he noticed that
Burton had a
strong odor of intoxicants and bloodshot glassy eyes.
¶7 Horneck then drove Burton
to a local hospital for further investigation. Horneck noted that the crash occurred when
there were no other factors involving weather or traffic that would have caused
it. He asked Burton
if he felt impaired, and Burton
stated that he did. Upon observing that Burton was unsteady, Horneck asked Burton to submit to field sobriety tests. When Burton
refused to perform the Horizontal Gaze Nystagmus test and the Walk-and-Turn
test, Horneck advised him that he would take it as a refusal to complete the
tests. Burton then refused to perform the One Leg
Stand test, but a preliminary breath test showed a result of .209 percent.
¶8 Horneck advised Burton
that he was under arrest for OWI. Horneck
provided Burton with the information required by
Wisconsin’s
implied consent statute, see Wis. Stat. § 343.305(4), and Burton checked the “no”
box on the Informing the Accused form, thereby refusing to submit to an
evidentiary chemical test.
¶9 Prior to trial, Burton
moved to suppress any evidence obtained during and following the traffic stop
on grounds his arrest was not supported by probable cause and to suppress any
statements he made on grounds that he was not provided with the requisite Miranda
warnings prior to custodial interrogation. The circuit court granted Burton’s motion seeking suppression of
statements he made prior to a Miranda warning, but denied his
motion to suppress all evidence for lack of probable cause to arrest. On September 8, 2008, a jury acquitted Burton, finding that he
had not operated while intoxicated or with a prohibited alcohol
concentration.
¶10 The circuit court subsequently took up the issue of Burton’s license revocation
stemming from his refusal to submit to the chemical blood test under Wis. Stat. § 343.305(4). At the refusal hearing held on November 21,
2008, the circuit court concluded that Burton
unreasonably refused to submit to the test. The court revoked Burton’s driving privilege for a period of
thirty-six months. Burton appeals.
DISCUSSION
¶11 Burton
asserts that the circuit court erred in finding that he improperly refused to
submit to an evidentiary chemical test of his blood. Under Wisconsin law, when
a driver is alleged to have improperly refused to submit to a blood test, the
issues are limited to (1) whether the officer stopping the driver had probable
cause to believe the driver was operating a motor vehicle while under the
influence of alcohol, (2) whether the officer properly informed the driver of
his or her rights and responsibilities under the implied consent law, and (3)
whether the defendant improperly refused the test. Wis.
Stat. § 343.305(9)(a)5.
¶12 Burton
narrows the issue to the first factor:
probable cause. He contends that
Horneck did not have probable cause to arrest for OWI at the moment custody
ensued; that is, at the traffic stop when Horneck approached the Cadillac with
his weapon drawn, physically took Burton out of the car, instructed Burton to
lie face down, and handcuffed him. This requires us to examine two questions: (1) At what point was Burton
arrested for OWI and (2) were the totality of the circumstances at that point
such that Horneck had probable cause to arrest Burton for OWI.
¶13 We begin by identifying the moment of arrest for OWI. For an inquiry such as this, there is no
bright-line rule. State v. Marten-Hoye,
2008 WI App 19, ¶27, 307 Wis. 2d 671, 746 N.W.2d 498, review denied, 2008 WI 40, 308 Wis. 2d 610, 749 N.W.2d 661. For example, the Wisconsin Supreme Court has
stated that an investigative stop does not become an arrest simply because the
police draw the weapons. State
v. Swanson, 164 Wis. 2d 437, 448, 475
N.W.2d 148 (1991), abrogated on other
grounds by State v. Sykes, 2005 WI 48, 279
Wis. 2d 742,
695 N.W.2d 277. The court also recognized
that the use of handcuffs does not necessarily transform an investigative stop
into an arrest. Swanson, 164 Wis. 2d at 448. Thus, the question of arrest turns on
the facts of each case.
¶14 Burton contends that he was
under arrest at the moment Horneck appeared alongside the Cadillac with his gun
drawn and ordered Burton
to lie face down and be handcuffed. The
State counters that Burton
was not under arrest until he was formally placed under arrest at the hospital.
It asserts that the restraint used
during the hit-and-run investigation was the minimum amount necessary under the
circumstances. The circuit court
concluded that “once the officer transported the defendant from the scene of
the accident, eight miles to the hospital, the defendant was under arrest for
Fourth Amendment purposes.” We agree.
¶15 During the course of a traffic stop, “officers may try to
obtain information confirming or dispelling their suspicions.” State v. Quartana, 213 Wis. 2d 440, 446, 570
N.W.2d 618 (Ct. App. 1997). An investigatory detention is not the same as
a formal arrest:
By its express language, [Wis. Stat.] § 968.24 … authorizes the police to move a
suspect short distances during the course of a temporary investigation. The statute states that the police may
temporarily detain and question an individual “in the vicinity where the person
was stopped.” Therefore, it is clear that
the law permits the police, if they have reasonable grounds for doing so, to
move a suspect in the general vicinity of the stop without converting what
would otherwise be a temporary seizure into an arrest.
Quartana, 213 Wis. 2d at 446 (citation
omitted). More recently, our
supreme court confirmed:
The predicate permitting seizures on suspicion short of
probable cause is that law enforcement interests warrant a limited intrusion on
the personal security of the suspect. The scope of the intrusion permitted will vary
to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative
detention must be temporary and last no longer than is necessary to effectuate
the purpose of the stop. Similarly, the
investigative methods employed should be the least intrusive means reasonably
available to verify or dispel the officer’s suspicion in a short period of
time.
State v. Vorburger, 2002
WI 105, ¶76, 255 Wis.
2d 537, 648 N.W.2d 829 (citation omitted).
¶16 Our supreme court has adopted an objective test to determine
the moment of arrest. Swanson, 164 Wis. 2d at 446. In Wisconsin,
the test for whether a person is arrested is whether a reasonable person in the
defendant’s position would believe he or she was in custody given the degree of
restraint under the circumstances. Id. at
446-47. “The circumstances of the
situation including what has been communicated by the police officers, either
by their words or actions, [are] controlling under the objective test.” Id.
at 447.
¶17 Here, Horneck was responding to a dispatch about a collision that
may have involved injuries and was caused by a person who fled the scene, broke
into a garage, and was whisked off by someone in a Cadillac. As we read the facts, Horneck began to deescalate
the conditions of Burton’s
detention as his investigation of the hit-and-run continued. Before placing handcuffs on Burton, Horneck holstered his weapon and it
remained holstered for the rest of the investigation. After Horneck had secured Burton, he promptly explained his reason for
the detention and his need to move the investigation to the scene of the
accident where witnesses were present. The
scene of the accident was less than one mile away, and there is no indication
in the record to suggest that Horneck’s investigation extended beyond a
reasonable amount of time under the circumstances. After arriving at the scene of the accident,
Horneck learned that some of the information provided by dispatch was incorrect.
¶18 In the meantime, Horneck had become aware of facts that led him
to conclude Burton
may have been operating his motorcycle while intoxicated. If, during a valid traffic stop, an
officer becomes aware of additional information that would give rise to an
objective, articulable suspicion that criminal activity is afoot, that officer
need not terminate the encounter simply because further investigation is beyond the scope of the initial stop. State v. Betow, 226 Wis. 2d 90, 94-95, 593
N.W.2d 499 (Ct. App. 1999). Although
this presents a new and distinct
investigation, in reality there
may not be a bright line separating the two investigations; rather, the first investigation may overlap the second without any outward
indication of a shift. State
v. Malone, 2004 WI 108, ¶24, 274 Wis.
2d 540, 683 N.W.2d 1. That is how
Horneck’s investigation of Burton’s
driving progressed.
¶19 We conclude, as the circuit court did, that the level of
restraint applied after the initial stop was such that a reasonable person
would conclude that he or she was not free to leave and custodial questioning
ensued. A reasonable person would have
known that once the witnesses were confronted, the officer would know that a
hit-and-run had not occurred and release would be imminent. The detention, therefore, did not escalate
into an arrest until the investigation shifted from the hit-and-run report to
Horneck’s focus on OWI. At that point, Horneck
advised Burton
that he was going to transport him to a hospital eight miles away to continue
his OWI investigation. Horneck did not
remove Burton’s
handcuffs until they arrived at the hospital and Horneck initiated field
sobriety tests. A reasonable person
would conclude that the level of restraint, duration of custody, and diminishing
potential for release amounted to a formal arrest. With that in mind, we turn our attention to
the question of probable cause at the moment of arrest.
¶20 We review probable cause under a de novo standard of review. See County of Jefferson
v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541
(1999). Here, the issue arises in the
context of a refusal. The test for probable cause under the
refusal hearing statute is greater than the reasonable suspicion necessary to
justify an investigative stop, but less than the level of proof required to
establish probable cause for arrest. Id. at 314; State v. Wille, 185 Wis. 2d 673, 681, 518
N.W.2d 325 (Ct. App. 1994) (“The State’s burden of persuasion at a refusal
hearing is substantially less than at a suppression hearing.”). We look only to see if the State established
that the arresting officer had probable cause to believe that Burton was operating a motor vehicle while
under the influence of an intoxicant. See State v. Nordness, 128 Wis.
2d 15, 35, 381 N.W.2d 300 (1986). The evidentiary scope of the refusal hearing
is narrow, and the court simply ascertains the plausibility of the arresting
officer’s account. See id. at 35-36.
¶21 At the refusal hearing, the circuit court held that its ruling
on Burton’s
pretrial motion to suppress was the law of the case. The court had determined that the arrest
occurred when Horneck transported Burton
to the hospital, which was located eight miles away. Burton
reiterates his position that the arrest occurred at the moment he was pulled
from the Cadillac and handcuffed, and argues that Horneck had insufficient
information at that time to make an OWI arrest. He emphasizes that Horneck was “misinformed”
about the hit-and-run accident and therefore the only valid information Horneck
had at the time of the traffic stop was that an accident had occurred and that Burton matched an
eyewitness description of the driver who had fled the scene. Burton notes
that Horneck never personally observed Burton’s
driving, balance or speech.
¶22 The State counters that, even with the suppression of Burton’s
admission that he was driving drunk, probable cause supporting the arrest arose
from the following circumstances: Horneck
knew that there had been a traffic accident, he knew the weather was not a
factor, he noticed that Burton had bloodshot and glassy eyes, he smelled a
strong odor of intoxicants on Burton, and eye witnesses had reported that
Burton was driving erratically before he crashed.
¶23 In State
v. Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996), our supreme
court concluded that there was probable cause to arrest for OWI when police found Kasian injured
at the scene of a one-car accident, smelled intoxicants on Kasian, and noted
Kasian’s speech was slurred. Similarly,
in Wille,
185 Wis. 2d at
683-84, we concluded that police had probable cause to arrest after Wille
struck a car parked on the shoulder of a highway and the police smelled
intoxicants on Wille at the hospital, knew that a firefighter had smelled
intoxicants on Wille as well, and Wille told them he had “to quit doing this.” Notably, neither case involved a police
officer’s personal observation of the defendant’s driving prior to the accident
and neither benefitted from clues obtained during field sobriety tests. Nonetheless, under the circumstances of each
case, the officer had probable cause to make the arrest.
¶24 Probable
cause in the context of an OWI arrest may be demonstrated in many ways. Here, Horneck had eyewitness reports that Burton had been driving
erratically, was involved in an accident, and fled the scene. Also, in the first moments of the traffic
stop, Horneck personally noted Burton’s
glassy, bloodshot eyes and the strong smell of intoxicants. He had all of that information prior to
transporting Burton
to the hospital. That is sufficient to lead a reasonable
officer to believe a violation of the law has occurred, particularly in light
of the lower standard required at a refusal hearing where the court “need only
be persuaded that the State’s account is plausible.” Id.
at 681.
CONCLUSION
¶23 We conclude the circuit court properly distinguished between
custody for Miranda purposes and formal arrest. We further conclude that, at the moment of
arrest, Horneck had probable cause to arrest Burton
for OWI and that Burton’s
driving privilege was properly revoked for refusal to submit to a chemical
breath test under Wis. Stat. §
343.305(9)(a)5.c. We therefore affirm.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.