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COURT OF
APPEALS DECISION DATED AND
RELEASED February
1, 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. 95-1589
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH
R. PRZYBILLA,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Marquette County: DONN H.
DAHLKE, Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal decided pursuant to
§ 752.31(2)(c), Stats. Joseph R. Przybilla appeals from an order
revoking his operating privileges. The
issue is whether a police chief had probable cause to arrest Przybilla for
operating a motor vehicle while intoxicated (OMVWI). Przybilla argues that the chief did not, and that the fruits of
the chief's search should have been suppressed. We conclude that the chief's actions were first permitted under
the "community caretaker" exception to the Fourth Amendment's warrant
requirement and that he eventually reasonably suspected and then had probable
cause to believe that Przybilla was guilty of OMVWI. We, therefore, affirm.
BACKGROUND
On
March 7, 1995, the City of Montello Police Chief received information that a
man was slumped over the wheel of a vehicle in a parking lot. He went to the lot and found a man in a
station wagon with his feet underneath the steering wheel and his upper body
slumped over to the passenger side of the car.
He saw no open windows in the car, and noticed that the engine was
running at a fast idle. He was
concerned about carbon monoxide poisoning, and opened the driver's side
door. He immediately noticed a very strong
odor of intoxicants. He removed the
man's foot from the gas pedal, reached over and put his hand on the man's neck
to make sure that he was still alive.
He felt a pulse and noted that the man's body was warm. He began to try to awaken him.
The
chief yelled at the man, and he finally opened his eyes. The chief asked him if he needed medical
attention, and the man answered with a slurred, "no." The chief then went back to his squad car
and notified the dispatcher that there was no medical emergency. Upon returning to the car, he noticed that
the man had shut off the car's ignition and was trying to put the keys into his
pocket. He then slumped back over in
the seat.
After
the chief awoke the man again, he asked him for identification. The man did not produce identification;
instead he demanded a lawyer. The chief
asked the man if he had been drinking.
The man responded that he wanted a lawyer. The chief asked the man to get out of the car and he received the
same response.
The
chief testified:
Finally,
I did escort the gentleman out of the vehicle.
....
I had him up
against the vehicle, and he kind of leaned up, using his hands on the vehicle,
and again I asked him to identify himself,—he refused,—all he stated to me, I
was in big trouble, once he gets a hold of his lawyer. I requested him to do some field sobriety
tests, again the response was, he wanted a lawyer.
The
chief noticed that the man's balance was very poor and that he had to use the
vehicle to "retain" himself.
He again noticed the man's slurred speech when he asked for a lawyer,
and he saw that the man's eyes were glazed over. The chief felt that from past experience, the man was very much
under the influence of an intoxicant.
He handcuffed the man, put him in his squad car, and took him to the
Marquette County Sheriff's Department.
There, the man identified himself as Joseph Przybilla and refused to
take an intoxilyzer test. The chief
charged Przybilla with OMVWI.
DISCUSSION
Przybilla raises three
issues. In the first, he asserts: "The Constitution does not permit
police officers to break into cars in order to wake people up." While that might be true in the abstract, as
the facts we have recited show, that is not what happened. The chief testified that he opened
Przybilla's car door to see if he was the victim of carbon monoxide poisoning. This is what has been described as the
"community caretaker" exception to the Fourth Amendment to the United
States Constitution which addresses police activities separate from the
detection, investigation or acquisition of evidence relating to a criminal
violation. State v. Anderson,
142 Wis.2d 162, 166, 417 N.W.2d 411, 413 (Ct. App. 1987). In that case, we said:
The ultimate
standard under the fourth amendment is the reasonableness of the search or
seizure in light of the facts and circumstances of the case. In a community caretaker case, this requires
a balancing of the public need and interest furthered by the police conduct
against the degree of and nature of the intrusion upon the privacy of the
citizen. This test requires an
objective analysis of the circumstances confronting the police officer, including
the nature and reliability of his information, with a view toward determining
whether the police conduct was reasonable and justified.... Overriding this entire process is the
fundamental consideration that any warrantless intrusion must be as limited as
is reasonably possible, consistent with the purpose justifying it in the first
instance.
Id. at 168-69, 417 N.W.2d at 413-14 (citations and footnote omitted).
The
community caretaker exception to the Fourth Amendment applies to Przybilla's
case. The chief testified that the
reason he opened the car door was to see if Przybilla was a victim of carbon
monoxide poisoning because the engine was running at a fast idle with closed
windows. This was a limited search, and
a reasonable one. Indeed, had the chief
decided not to check Przybilla, his inaction would have been unreasonable. At this point, the search was
constitutionally permissible because it was consistent with the community
caretaker exception to the Fourth Amendment.
Once
the chief opened the car door, he obtained further information. He testified: "Well the first thing
that hit me was a very strong odor of intoxicants ...." This is, of course, evidence that Przybilla
might be intoxicated. Przybilla notes
that in State v. Seibel, 163 Wis.2d 164, 180-83, 471 N.W.2d 226,
233-35, cert. denied, 502 U.S. 986 (1991), the court determined that the
crossing of the center line of a highway for no justifiable reason, the
possible smell of intoxicants on the driver's breath, companions who smelled of
intoxicants, and the driver's belligerent behavior provided the police with
reason to suspect, but not probable cause, that the driver was operating a
motor vehicle while intoxicated.
Przybilla also asserts that in State v. Swanson, 164
Wis.2d 437, 453 n.6, 475 N.W.2d 148, 155 (1991), the court decided that driving
on a sidewalk and nearly striking a pedestrian, an odor of intoxicants, and the
time of the accident constituted reasonable suspicion, but not probable cause,
that a driver was guilty of OMVWI. We
agree that the facts in Seibel and Swanson are not
sufficient to permit a valid arrest for OMVWI.
But those were not the facts confronting the chief during his
investigation and arrest of Przybilla.
The
chief noticed a very strong odor of intoxicants, not the possible odor of
intoxicants in Seibel or the odor of intoxicants in Swanson. Next, after inquiring whether
Przybilla needed medical attention, the chief noted that Przybilla slurred his
speech, another indication of intoxication.
As the Seibel and Swanson courts noted, a
combination of factors gave the officers reason to suspect that a driver was
guilty of OMVWI. We conclude that
Przybilla's body position, the very strong odor of intoxicants and Przybilla's
slurred speech gave the chief reason to suspect that Przybilla was guilty of
OMVWI.
Once
police reasonably suspect that a person has, is, or is about to commit a crime,
they may stop that person. This
principle originated with Terry v. Ohio, 392 U.S. 1 (1968). The legislature codified Terry 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.
In
State v. Richardson, 156 Wis.2d 128, 143-44, 456 N.W.2d 830, 836
(1990), a valid Terry stop permitted the police to order a man
out of a vehicle and pat him down for weapons.
And that, in part, is what happened to Przybilla. After he declined the chief's request to get
out of his car, the chief removed him.
The chief could have patted Przybilla down for weapons, though he did
not testify that he did so. Instead,
the chief noted that Przybilla's eyes were glazed over, that his speech
continued to be slurred, he exhibited poor balance and he refused to take field
sobriety tests. From having made
numerous OMVWI arrests, the officer concluded that Przybilla was under the
influence of an intoxicant.
Having
conducted a community caretaker investigation which led to a Terry stop
and investigation, the only Fourth Amendment question which remains is whether
the chief had probable cause to arrest Przybilla when he handcuffed him and led
him to his squad car. We conclude that
a very strong odor of intoxicants, slurred speech, glazed eyes, a refusal to
take field sobriety tests[1]
and poor balance constitute enough evidence to give the chief probable cause to
believe that Przybilla was guilty of OMVWI and to arrest him.
Przybilla's
second argument asserts: "A
reasonable person would not think a person sleeping in a car constituted an
emergency." This an attack on what
Przybilla believes was the trial court's rationale for rejecting his
assertions. But we review
constitutional questions de novo.
State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457, 465
(1984). We have already concluded that
the chief's actions did not violate the Fourth Amendment and, therefore, we
need not pursue this issue further.
Przybilla's
third issue reads: "The arrest of
the defendant, which was occasioned by the officer forcibly pulling the
defendant out of the vehicle and throwing him up against the car, was not based
upon probable cause." We will
address this issue shortly, but we first address counsel's characterization of
the facts.
Supreme
Court Rule 20:3.3 requires an attorney to exercise candor toward a
tribunal. We contrast counsel's
characterization of the facts with the testimony of the only witness, the
chief, who testified on direct examination as to the circumstances surrounding
Przybilla's removal from his vehicle:
A. I continued to ask [Przybilla] to
identify himself—he continued with the response he wanted a lawyer. I asked him to get out of the vehicle—he
continued with the response he wanted a lawyer—asked him if he had been
drinking,—he continued with the response he wanted a lawyer. Again asked him to get out of the car,—at
that point I probably explained to him there were two ways of doing things, it
was his way or my way. Finally I did
escort the gentleman out of the vehicle.
Q. And after you got him out of the
vehicle, what happened?
A. I
had him up against the vehicle, and he kind of leaned up, using his hands on
the vehicle, and again I asked him to identify himself,—he refused,—all he stated
to me, I was in big trouble, once he gets a hold of his lawyer. I requested him to do some field sobriety
tests, again the response was, he wanted a lawyer.
On cross-examination, the chief testified that he
"physically removed" Przybilla from his car, and leaned him up
against it. And on redirect, the chief
testified to the following:
Q. Chief, when you indicated
that you—after you got the defendant out of his vehicle, you leaned him against
the car?
A. For his own safety.
Q. Why for his own safety?
A. Because
I felt the individual was under the influence.
Nowhere is there testimony that the chief threw
Przybilla up against a car.
The
difference between the statement in Przybilla's brief and the record is
significant. It goes beyond the comment
to SCR 20:3.3 which provides: "The
advocate's task is to present the client's case with persuasive force." We anticipate that in the future, counsel
will more carefully compare the record with her brief.
We
return to the merits of Przybilla's third issue. This is his first issue again, cast in a somewhat different
light. Przybilla argues that the chief
did not have probable cause to arrest him because all the chief observed was an
odor of intoxicants, glazed eyes, and slurred speech. He asserts that Seibel and Swanson were
cases with substantially more egregious facts than those confronting the chief
in this case. Przybilla's argument is
based upon his contention that he was arrested when he was removed from his
vehicle. He asserts that because force
was used on him when he was physically removed from his car and held against
it, a reasonable person would have considered himself or herself to be in
custody.
In
Swanson, 164 Wis.2d 446, 475 N.W.2d 152, the court adopted an
objective test to determine when an arrest occurs. That test is whether a reasonable person in Przybilla's position
would have considered himself or herself to be in custody given the degree of
restraint under the circumstances. Id.
at 446-47, 475 N.W.2d at 152.
Swanson is instructive because in that case, the defendant was
detained as a result of a routine traffic stop and was asked to do field
sobriety tests. He asserted that an
arrest occurred when he was being patted down after he exited his car but
before he performed field sobriety tests.[2] Id. at 447-48, 475 N.W.2d at
152-53.
Swanson is also instructive because the court's reasoning
included a discussion of whether the use of force transforms a Terry stop
into an arrest. The court said:
In far more
intrusive circumstances than this, courts in a number of jurisdictions have
found certain police action to be consistent with a Terry
investigative detention. For example,
this court found that an investigative stop does not become an arrest merely
because the police draw their weapons. Jones
v. State, 70 Wis.2d 62, 70, 233 N.W.2d 441 (1975). Furthermore, many jurisdictions have
recognized that the use of handcuffs does not necessarily transform an
investigative stop into an arrest. See
United States v. Glenna, 878 F.2d 967, 972 (7th Cir. 1989), and United
States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983). Additionally, the use of force does not
necessarily transform an investigative stop into an arrest. [United States v. Laing], 889
F.2d 281, 285 (D.C. Cir. 1989), cert. denied, 110 S.Ct. 1306
(1990). With these cases in mind, we
find it unreasonable to conclude that the request for a field sobriety test
under these circumstances should necessarily transform the routine traffic stop
into a formal arrest.
Swanson, 164 Wis.2d at 448-49, 475 N.W.2d at 153. See also State v. Washington, 120 Wis.2d
654, 661-62, 358 N.W.2d 304, 307-08 (Ct. App. 1984) (four officers, drawn guns, an alleged blocking of a car and
an intensive frisk did not rise to the level of an arrest), aff'd, 134
Wis.2d 108, 396 N.W.2d 156 (1986).
The
court's conclusion in Swanson, that a request to perform a field
sobriety test is not an arrest, cannot itself govern the result here. The chief who arrested Przybilla testified
that he "escorted" and "physically removed" Przybilla from
the car. This is more intrusive then a
request to take field sobriety tests.
But, we are also persuaded by the cases holding that more intrusive
circumstances than those presented in Swanson are consistent with
a Terry stop. Those cases
require the force to be unreasonable before a stop is transformed into an
arrest. See, e.g., Laing,
889 F.2d at 285-86; Washington, 120 Wis.2d at 662, 358 N.W.2d at
308. We conclude that the force exerted
in this case, i.e., the physical removal of Przybilla from his car and
his being leaned up against it, was reasonable under the circumstances and did
not transform the stop into an arrest.
And,
we are persuaded by the reasoning the court used in Swanson to
justify field sobriety tests under a Terry stop:
If we were to hold
otherwise, then the motorist that has been detained pursuant to a traffic stop
and suspected of drunk driving would be considered "in custody" and
entitled to all of the protections provided by Miranda.[3] The Berkemer[4]
Court explained that, "the safeguards prescribed by Miranda
become applicable as soon as a suspect's freedom of action is curtailed to a
`degree associated with formal arrest.'"
Berkemer, 468 U.S. at 440 (quoting California v.
Beheler, 463 U.S. 1121, 1125 (1983)).
Adopting the scenario posited by the State, police would then be forced
to warn all detained motorists of their constitutional Miranda rights
as they would be considered "in custody." This would produce the absurd result that motorists, such as
Swanson, could refuse to perform a field sobriety test consistent with their
rights against self-incrimination under the fifth amendment. Therefore, in line with the Supreme Court
decision in Berkemer, we hold that Swanson was not under arrest
at the time of search because a reasonable person in Swanson's position would
not believe that he was under arrest after merely being requested to perform a field
sobriety test during a routine traffic stop.
Swanson, 164 Wis.2d at 449, 475 N.W.2d at 153 (footnotes added).
Were
we to adopt Przybilla's argument, a result similar to the one rejected in Swanson
would occur. An officer would be
required to provide Miranda warnings to motorists the officer
reasonably suspected of OMVWI because removing motorists from their cars would
be an arrest. It would also permit the
motorists to refuse to perform field sobriety tests consistent with their
rights under the Fifth Amendment. Swanson,
164 Wis.2d at 449, 475 N.W.2d at 153.
This is the same "absurd result" the court refused to reach in
Swanson. We decline to
reach it. We conclude that a reasonable
person in Przybilla's position would not have considered himself or herself to
be in custody until placed in the chief's car for transport to the sheriff's
department. Thus, the observations the
chief made after Przybilla was removed from the car could properly be
considered for the purpose of determining whether probable cause existed to
arrest him for OMVWI. And, as we
concluded earlier, the facts, taken together, do constitute probable cause to
arrest. Accordingly, we affirm.
By
the Court.—Order affirmed.
Not recommended for
publication in the official reports. See
Rule 809.23(1)(b)4, Stats.
[1] In State v. Babbitt, 188 Wis.2d
349, 359-60, 525 N.W.2d 102, 105 (Ct. App. 1994), we concluded that the refusal
to take field sobriety tests was evidence of consciousness of guilt.