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COURT OF
APPEALS DECISION DATED AND
RELEASED January
18, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1416-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CARL
H. ZAHN,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MICHAEL B. TORPHY, JR., Judge.
Affirmed.
VERGERONT,
J.[1] Carl
Zahn appeals from a judgment convicting him of operating a motor vehicle while
intoxicated in violation of § 346.63(1)(a), Stats. Zahn contends
that certain evidence should have been suppressed because he was driven to the
police station to perform field sobriety tests without his consent and without
probable cause for an arrest. We
conclude that Zahn consented to go to the police station for the field sobriety
tests. We therefore affirm the
conviction.
City
of Madison Police Officer Susan Carnell was the only witness to testify at the
suppression hearing. She testified on
direct examination as follows. She was
driving on Lakeside Street in Madison at approximately 8:50 p.m. on January 3,
1994, when a pickup truck with a snowplow attached, coming from the opposite
direction, encroached into her lane such that she had to move to the right of
her lane to avoid being struck. She activated
her vehicle emergency lights, made a U-turn, and followed the pickup onto
Gilson Street. The truck pulled into a
lit driveway. She got out of her squad
car and went up to the truck. The
sidewalk and street conditions were icy and snowy and she almost fell. At Carnell's request, Zahn showed her his
driver's license. There was an odor of
intoxicants coming from him even as she stood outside his vehicle. She also observed from the garage light that
his eyes were bloodshot. Zahn denied
having consumed alcohol, stating that he had taken cough medicine.
Officer
Carnell asked Zahn if he would be willing to take field sobriety tests and he
said yes. She told him that due to
weather conditions she did not feel it was to his advantage to do the field
sobriety tests on slippery, snowy pavement and she suggested that they go to
the police station downtown to take the field sobriety tests. He said that was okay. She drove him in her squad car to the
station. He was not handcuffed. On the way to the station, she told him that
he would be receiving a ticket for deviating from his lane of traffic, but that
he was not under arrest for operating a motor vehicle while under the
influence. She told him that that
determination would be made after the results of the field sobriety tests which
he had consented to take. The drive to
the police station took five minutes.
On
cross-examination, Zahn's counsel read to Officer Carnell this portion of her
report on the incident which, Carnell testified, she made the day after the
stop:
I then asked Zahn if he would be willing to submit to
field sobriety tests and he told me that he would.... I asked him to exit his vehicle with his dog and asked if it
would be okay if Officer Tripke could legally park his vehicle and he said that
would be okay.... Mr. Zahn and his dog
were placed temporarily in the rear of my marked squad and I asked Zahn if
there was a phone number of somebody who I could call to come and pick up the
dog as it would be necessary to transport him to the Madison Police Department
to complete the field sobriety tests....
He was taken from the scene with his consent to the Madison Police
Department to complete the field sobriety tests due to the fact that conditions
on nearby sidewalks and streets were slippery and not conducive to providing
optimal conditions for Mr. Zahn to perform the tests.
Officer Carnell testified that the report was true. She also testified on cross-examination as
follows. It did not occur to her to ask
the squad car, which she had called as back-up, to bring a shovel. That squad car brought a portable breath
test which she did not use. Two of the
four field sobriety tests she performed at the station--the alphabet test and
the horizontal gaze nystagmus test--are not affected by slippery
conditions. There was a flat surface
free of snow closer than the station--Kohl's Supermarket--but she did not ask
Zahn about that. Officer Carnell
explained on redirect that she did not take Zahn to Kohl's because that is a
public place and there was no place suitable there to do a field sobriety test.
The
trial court issued a brief written decision stating that the evidence presented
at the hearing provided no dispute on the violation of § 346.13(1), Stats., which requires that drivers
drive entirely within a single lane, and that § 345.22, Stats., allows for arrest without a
warrant for traffic regulations. The
decision also stated, "In the Court's view, the evidence presented
provided no real dispute that the defendant consented to the transportation to
and further testing at the City-County Building." The court concluded that, "Either or
both of these circumstances defeats the motion [to suppress]."
We
first consider whether Zahn consented to go with Officer Carnell to the police
station for the field sobriety tests rather than have them performed at the
location of the stop, or some other location nearer than the police
station. Zahn does not dispute that the
stop, Carnell's questioning of him, and the administration of field sobriety
tests in the vicinity of the stop are constitutional under Terry v. Ohio,
392 U.S. 1 (1968). Zahn's argument is
that taking him to the police station for the tests violated Terry,
as codified in § 968.24, Stats.,
which provides:
After having
identified himself or herself as a law enforcement officer, a law enforcement
officer may stop a person in a public place for a reasonable period of time
when the officer reasonably suspects that such person is committing, is about
to commit or has committed a crime, and may demand the name and address of the
person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in
the vicinity where the person was stopped.
Zahn
apparently concedes that if he consented to go to the police station for the
tests, there would be no statutory or constitutional violation. However, he contends that he did not
consent, in the constitutional sense, because he simply "acquiesced in
[Carnell's] display of authority."
He bases this argument on this phrase in Carnell's report, in
particular, the italicized portion:
"I asked Zahn if there was a phone number of somebody who I could
call to come and pick up the dog as it would be necessary to transport him
to the Madison Police Dept. to complete the field sobriety tests." (Emphasis added.)
We
assume, without deciding, that Zahn is correct in asserting that the standard
for consent in this context is the same as that established for consent to a
warrantless search. In the context of a
warrantless search, the burden is on the State to show by clear and positive
evidence that the consent was free, intelligent, unequivocal and specific,
without any duress or coercion, actual or implied. State v. Johnson, 177 Wis.2d 224, 233, 501 N.W.2d
876, 879 (Ct. App. 1993). The test for
voluntariness of consent is whether, under the totality of the circumstances,
it was coerced. Id.
In
reviewing a trial court's denial of a suppression motion, we will not disturb
the court's findings of historical fact unless they are clearly erroneous;
however, the application of the facts to the constitutional requirement of
consent presents a question of law, which we review de novo. Id. at 230-31, 501 N.W.2d at
878.
With
respect to the issue of consent, the trial court stated only that, "the
evidence presented provided no real dispute that the defendant consented to the
transportation to and further testing at the City-County Building." Although the trial court did not make
specific findings of fact as to the conversation between Officer Carnell and
Zahn concerning going to the police station to take the field sobriety tests,
we may assume on appeal that such findings were made implicitly in favor of its
decision. See State v. Hubanks,
173 Wis.2d 1, 27, 496 N.W.2d. 96, 105 (Ct. App. 1992), cert. denied, 114
S. Ct. 99 (1993). We assume, therefore,
that the trial court found Officer Carnell's direct testimony to be credible,
and that it found her report did not conflict with her direct testimony. These implicit findings are supported by the
record. Zahn has emphasized the
sentence in Officer Carnell's report that states she said it was
"necessary" that they go to the police station for the field sobriety
tests. However, if the next sentence is
considered as well, a reasonable interpretation of both sentences is that it
was necessary to transport Zahn to the police station, without his dog, because
Zahn had agreed that the conditions at the location of the stop were not
optimal for him to take the field tests.
Officer Carnell's direct testimony supports this interpretation of the
report.
We
now consider whether the facts, as implicitly found by the trial court, show by
clear and positive evidence that Zahn freely, intelligently, unequivocally and
specifically agreed to go to the police station for the tests without any
duress or coercion, actual or implied.
We conclude they do.
Taking
the facts as implicitly found by the trial court, Officer Carnell suggested to
Zahn that they go to the police station to take the field sobriety tests
because of the slippery conditions at the scene of the stop. He said that was okay. There is nothing to suggest he felt he had
to agree, or that his consent was equivocal.
The conditions at the scene were slippery and it was reasonable for him
to want the best conditions for the field sobriety tests, two of which involve
either walking or balance. He was not
handcuffed, and he was told in the car that he was not under arrest for driving
while under the influence. The fact
that Officer Carnell did not suggest that they go to Kohl's, which was closer
than the police station, does not imply any coercion: Officer Carnell's explanation that Kohl's is a public place and
that there was no suitable place there for administering a field sobriety test
is a reasonable one. Nor does Officer
Carnell's failure to ask the back-up squad car to bring a shovel imply
coercion.
Zahn
relies on Bumper v. North Carolina, 391 U.S. 543 (1968), in which
the Court concluded there was no consent because there was simply
"acquiescence to a claim of lawful authority." In Bumper, the officer
announced that he had a warrant to search a house and an occupant therefore
allowed the search. This did not
constitute consent, the Court held, because the announcement that the officer
had a warrant was, in effect, an announcement that the occupant had no right to
resist the search; the agreement to the search in those circumstances was
"coerced" by the show of authority.
Id. at 550. There
is nothing comparable in the facts of this case.
The
facts in Johnson are also dissimilar in significant ways. In that case, both the officer and Johnson
testified that the officer did not request permission to enter the apartment
and Johnson did not give permission.
The court refused to infer consent from Johnson's failure to object to
the entry. Johnson, 177
Wis.2d at 234, 501 N.W.2d at 880. In
marked contrast to those facts, Zahn said "okay" when Officer Carnell
suggested they go to the station for the field sobriety tests because of the
slippery conditions.
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.