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COURT OF APPEALS
DECISION
DATED AND FILED
November 23, 2010
A.
John Voelker
Acting 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 I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Javier M. Martinez,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: TIMOTHY
M. WITKOWIAK, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. After his pretrial motion
to suppress evidence was denied, Javier M. Martinez pled guilty to possessing
more than 10,000 grams of marijuana with the intent to deliver, contrary to Wis. Stat. § 961.41(1m)(h)5.
(2007-08). Martinez
appeals, arguing that the trial court erroneously denied his suppression motion
because there was no valid basis for the traffic stop and the stop was
unreasonably extended. Because we
conclude that the trial court’s findings of fact are not clearly erroneous and
support the suppression decision, we affirm the judgment of conviction.
BACKGROUND
¶2 Martinez
was pulled over for a traffic stop and consented to the search of his
vehicle. The drugs at issue were found
in Martinez’s
trunk. He moved to suppress evidence of
the drugs on grounds that there was not a valid basis for the stop, the stop
became unreasonable as it continued and Martinez’s
consent to search the trunk was invalid.
¶3 At the suppression hearing, Milwaukee County Sheriff’s
Department Deputy Brad Lessila testified as follows. At 8:53 p.m., he was dispatched to look for a
possible intoxicated or impaired driver operating a white Toyota
with a New Mexico
license plate on the expressway near the Marquette Interchange. As he drove he “ran the plate” and learned
“that the vehicle was listed to a rental company.” Lessila saw the vehicle, which was driving in
the middle lane of traffic, and followed it.
¶4 Lessila observed the vehicle “for between a half mile and one
mile.” He saw the Toyota twice cross about one foot into the
left lane and then return to the middle lane, without signaling a lane
change. Based on these lane deviations,
Lessila pulled the Toyota
over.
¶5 Lessila spoke with Martinez,
who was the only occupant in the vehicle.
Lessila asked him for his driver’s license and Martinez
provided either a license or identification card from New Mexico.
Lessila asked Martinez where he was going
and Martinez said he was driving from New Mexico to see his aunt in Madison, Wisconsin. Lessila said he asked Martinez
if he was tired, noting that Martinez
had been deviating from his lane. Martinez “said he was a
little tired.”
¶6 While Lessila was talking to Martinez,
he saw the rental car agreement in Martinez’s
lap and asked if he could see it. Martinez gave the agreement to Lessila, who read it and
learned that Martinez
was not listed as an authorized driver on the agreement. Martinez told
Lessila that the person listed on the rental agreement had given Martinez permission to
drive the vehicle. Martinez said he was not aware that he could
not operate a vehicle that was not rented to him.
¶7 Lessila’s observations of Martinez
did not lead him to believe that Martinez
was intoxicated. However, given
Lessila’s drug interdiction training, he became suspicious that Martinez might be a drug courier, based on the following
facts: Martinez
was driving a rental car from a “source state,” he was not listed on the rental
agreement and he had a new United
States map and a bag in the back seat. Lessila asked Martinez
if he could “take a look in the vehicle,” and Martinez replied, “Yeah, no problem.”
¶8 Lessila asked Martinez “to pop
the trunk,” which Martinez
did. After conducting a brief frisk of Martinez and asking him
to stand by the median wall, Lessila looked in the trunk and saw a black duffel
bag and suitcase. Lessila asked what was
in the bags and Martinez
indicated they contained “clothes and stuff.”
Lessila opened the duffel bag and “saw coffee grounds on top of … tan
colored bricks,” which Lessila believed contained drugs. Lessila testified that “[l]ess than five
minutes” passed from the time he made contact with Martinez to the time he found the drugs in
the trunk. Lessila arrested Martinez and ticketed him
for deviating from his designated lane. See Wis.
Stat. § 346.13(3).
¶9 Martinez
also testified at the suppression hearing.
He said he had left New Mexico at 6
p.m. the day before he was stopped in Milwaukee
and had driven most of the time, stopping only to refuel and, on one occasion,
sleep for three hours. Martinez said he was not aware that the
vehicle behind him was a sheriff’s vehicle until he was pulled over. He said that even though he had been driving
for a long time with little sleep, he “was well aware of what I was doing when
I was driving” and had not drifted into another lane.
¶10 Martinez’s
testimony concerning what occurred when Lessila started talking with him was
generally consistent with that of Lessila.
However, Martinez
said Lessila did not mention any lane deviation. Martinez said
that Lessila asked him if he had anything illegal in the car and Martinez told him
no. Martinez
said Lessila then asked to search the vehicle and Martinez told him, “Sure.” On cross-examination, Martinez agreed that at no point did he ever
tell Lessila that Lessila could search his car but not the trunk. Martinez
said that after he was pulled over, he did not feel that he was free to leave
at any point.
¶11 The trial court denied Martinez’s
suppression motion. It explicitly found
Lessila’s testimony to be credible and accepted the deputy’s version of
events. It found that Lessila had seen Martinez deviate from his
lane twice, crossing one foot into the left lane, without using his turn
signal. Based on that finding, the trial
court concluded that Lessila had probable cause to stop Martinez’s vehicle because Lessila had
observed a traffic violation. The trial
court also concluded that Martinez was legally
seized at the time he gave consent for Lessila to search the vehicle, and it
found that Martinez’s
consent was voluntarily given.
¶12 Martinez
subsequently entered a guilty plea and was convicted. Martinez
was sentenced to five years of initial confinement and five years of extended
supervision. This appeal follows.
DISCUSSION
¶13 Martinez, who does not challenge the trial court’s findings of
fact, argues that his suppression motion should have been granted for two
reasons: (1) the deputy lacked
reasonable suspicion to stop Martinez based on two one-foot lane deviations;
and (2) once the deputy determined that Martinez was not operating under the
influence, his further questioning of Martinez “was an unreasonable extension
of the initial stop.” We consider each issue in turn.
I. Validity of the stop.
¶14 Martinez argues that neither the
anonymous tip concerning Martinez’s
driving nor the deputy’s observations of two lane deviations provided
reasonable suspicion to support an investigatory stop. In response, the State argues that the stop
was valid because “Lessila had probable cause to stop Martinez for a traffic violation that he
personally observed.” (Emphasis
omitted.) We agree with the State.
¶15 “Whether there is probable cause or reasonable suspicion to
stop a vehicle is a question of constitutional fact.” State v. Popke, 2009 WI 37, ¶10, 317
Wis. 2d 118,
765 N.W.2d 569. “A finding of
constitutional fact consists of the [trial] court’s findings of historical
fact, which we review under the ‘clearly erroneous standard,’ and the
application of these historical facts to constitutional principles, which we
review de novo.” Id. (citation omitted). Popke held that “[a]n officer may
conduct a traffic stop when he or she has probable cause to believe a traffic
violation has occurred.” Id.,
¶13. Popke concluded that
there was probable cause to believe a traffic violation had occurred where the
driver’s car “‘swerved’ into the left lane of traffic and that resulted in the
defendant’s vehicle being three-quarters left of the center of the road.” Id.,
¶¶16-17 (citing Wis. Stat. § 346.05,
which prohibits operating left of center).
¶16 Similarly, in this case the trial court found—and Martinez no
longer disputes—that Lessila observed Martinez’s vehicle as it crossed one foot
into the left lane twice, without signaling a lane change. Based on that observation, Lessila had
probable cause to stop Martinez
for deviating from his designated lane. See Wis.
Stat. § 346.13(3).
¶17 Martinez
disagrees with this analysis. He argues
that “two minor deviations of about one foot over the lane marker in the course
of one and a half miles” is insufficient to justify a stop. He cites as persuasive authority State
v. Tischer, No. 2009AP992-CR, unpublished slip op. (WI App Jan. 14,
2010), where the court held that there was not reasonable suspicion that a
driver was operating while intoxicated where he “‘rode’ the dividing lane on
his left but did not cross it.” See id.,
¶16. We are not convinced that Tischer
compels a different result, as Tischer did not involve a case where
the lane marker was actually crossed, as is the case here. Driving one foot into an adjacent lane
provides sufficient probable cause that one has deviated from one’s designated
lane of traffic, contrary to Wis. Stat. § 346.13(3).
¶18 For these reasons, we reject Martinez’s challenge to the validity of the
traffic stop. Lessila had probable cause
to believe that Martinez
had committed a traffic violation and, therefore, the stop was valid. See
Popke,
317 Wis. 2d
118, ¶17.
II. Extension of the initial stop.
¶19 Martinez
argues that even if the initial stop was valid, Lessila’s investigation beyond
issues related to operating while under the influence “converted the stop to an
unreasonable one.” Martinez
asserts that once Lessila determined that “Martinez was not intoxicated, he should have
terminated the stop.” We are not
convinced.
¶20 If an officer, during the course of a valid traffic stop,
“becomes aware of suspicious factors or 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. Malone, 2004 WI 108, ¶24,
274 Wis. 2d
540, 683 N.W.2d 1. As the State points
out in its brief, Lessila became aware of numerous facts during the course of
his investigation of Martinez’s
driving that gave “rise to an objective, articulable suspicion that criminal
activity [was] afoot.” See id. For instance, Lessila learned that Martinez was driving a
rental car for which he was not an authorized driver, was driving from a source
state and had a new map and bag in the back seat of his car. In his reply brief, Martinez offers no argument with respect to
the State’s assertion that these facts provided reasonable suspicion to
continue the stop. The State’s argument
is therefore deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC
Secs. Corp., 90 Wis.
2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed
admitted). We reject Martinez’s argument that the drugs should
have been suppressed based on the continuation of the traffic stop. See Malone, 274 Wis. 2d 540, ¶24.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.