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COURT OF
APPEALS DECISION DATED AND
RELEASED December
28, 1995 |
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(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1600-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL
D. GUNDLACH,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: PATRICK J. FIEDLER, Judge.
Affirmed.
VERGERONT,
J.[1] Michael
Gundlach appeals from a judgment convicting him of operating a motor vehicle
while under the influence of an intoxicant, in violation of
§ 346.63(1)(a), Stats. He contends the trial court erroneously
denied his motion to suppress all testimony and evidence obtained following his
stop by a police officer from the Mount Horeb Police Department. He alleges that: (1) the traffic stop was unlawfully expanded to investigate
whether he was intoxicated without a reasonable suspicion; (2) he was
unlawfully detained after he successfully performed field sobriety tests; and
(3) there was no probable cause to arrest because he successfully
performed the field sobriety tests. We
reject each of these contentions and affirm.
Only
Officer Timothy Milas of the Village of Mount Horeb Police Department testified
at the suppression hearing. He has been
a sergeant with the department for nine years.
He has been employed by the department for fifteen years. During his fifteen years of service, he has
stopped or arrested approximately 275 people under the influence of
intoxicants. He has attended numerous
in-service training sessions on signs of people who are under the influence of
intoxicants, including standard field sobriety test training, the old alcohol
sensor training and intoxilyzer training.
On
August 6, 1994, Milas stopped Gundlach on West Main Street in Mount Horeb
because the motorcycle Gundlach was operating had a defective turn signal or
parking lamp. He knew Gundlach from
previous contacts. When Gundlach
stopped the motorcycle, he leaned to the right, nearly tipping the motorcycle
over. He also had difficulty
maintaining the balance of his motorcycle.
Milas noticed a strong odor of alcohol on Gundlach's breath. Milas asked for Gundlach's driver's license
and found that Gundlach had an instructional permit to operate the
motorcycle. This permit allows
operation of a motorcycle during daylight hours with eye and head protection
and does not allow passengers. Gundlach
had a passenger on the motorcycle.
On
his initial contact, Milas asked Gundlach to remove his sunglasses, which he
did. Gundlach told Milas that his right
eye was bloodshot, not from drinking, but from an accident or fight. Milas noted that the left eye was also
slightly bloodshot.
Milas
asked Gundlach if he would perform field sobriety tests for him and Gundlach
said he would. For the first test,
Milas instructed Gundlach to recite the alphabet from A to Z. Gundlach recited the letters slowly, with a
slightly slurred speech that caused a bit of difficulty in reciting the
letters. For the finger-to-nose test,
Milas told Gundlach he would demonstrate the test for him. While Milas was explaining this test, Gundlach
began to perform it. Milas asked
Gundlach to wait until he was finished explaining. After Milas finished the instructions, Gundlach performed this
test very slowly and precisely.
Milas
next explained and demonstrated the one-leg balance stand to Gundlach. He explained that Gundlach was to stand with
his feet together, arms at his side, raise one foot off the ground
approximately six inches, and count to thirty, as in one-one-thousand,
two-one-thousand and so on. Gundlach
counted to twenty-one before he had to put his foot down to maintain his
balance. He had to hold his arms out to
maintain his balance. Gundlach told
Milas both before and after he performed this test that he was unable to
perform this test, but did not give any physical or medical reason why he could
not. Milas then explained the
heel-and-toe walk test and Gundlach did "fairly well" on that, though
not "real well."
While
Gundlach was waiting for test instructions, Milas observed him weaving back and
forth while he was standing, in a figure-eight-type motion. Gundlach also seemed nervous, pacing and shifting
weight, and his hands were trembling.
Milas knew Gundlach because Gundlach lives down the street and around
the corner from him and Milas had seen him numerous times; they had talked in
the past. Because of this, Milas did
not believe that Gundlach's nervousness was the result of being stopped by him
as a police officer.
The
next test Milas asked Gundlach to perform was the horizontal gaze nystagmus
(HGN). Milas observed that Gundlach's
left eye did not pursue smoothly and the right and left eyes had jerkiness
before the forty-five degree onset.
Jerkiness of the eye is an uncontrollable response to drinking and
indicates a certain degree of alcohol concentration.
Gundlach
told Milas that he had come from a Packer football game at the stadium in Madison,
that he had approximately six to eight sixteen-ounce beers there, and that he
had stopped at Jake's Bar in Pine Bluff where he had consumed approximately two
twelve-ounce beers. Milas did not ask
Gundlach at that time when he had the beers.
Based
on Gundlach's difficulty with the motorcycle and maintaining his balance when
he was stopped, his weaving back and forth, the strong odor of alcohol, and his
performance on the field sobriety tests, Milas formed the opinion that
Gundlach's ability to safely operate the motorcycle was greatly impaired. Milas considered Gundlach to be an
experienced operator because he knew Gundlach did off-road bike riding with
Milas's son.
The
trial court concluded that the detention was lawful because the defective turn
signal and/or parking light was a valid reason for the stop initially, and the
tipping of the motorcycle when being stopped and the odor of alcohol created a
reasonable suspicion that justified Milas investigating further. Gundlach's performance on each of the tests,
the court found, was a reasonable basis for continuing with the next test. The court stated that the question of
probable cause to arrest was a "closer call," but it concluded that
all the circumstances combined, and considering Milas's experience, did
constitute probable cause to arrest for driving while under the influence of an
intoxicant.
In
reviewing a trial court's denial of a motion to suppress evidence, we must
uphold the court's findings of fact unless they are against the great weight
and clear preponderance of the evidence.
See State v. Whitrock, 161 Wis.2d 960, 973, 468
N.W.2d 696, 701 (1991). However,
whether a search and seizure meets constitutional standards is a question of
law, which we review de novo. State
v. Richardson, 156 Wis.2d 128, 137-138, 456 N.W.2d 830, 833 (1990).
To
execute a valid investigatory stop consistent with the Fourth Amendment
prohibition against unreasonable searches and seizures, a law enforcement
officer must reasonably suspect, in light of his or her experience, that some
kind of criminal activity has taken or is taking place. Richardson, 156 Wis.2d at 139,
456 N.W.2d at 834. An investigatory
stop is permissible when the person's conduct may constitute only a civil
forfeiture. State v. Krier,
165 Wis.2d 673, 678, 478 N.W.2d 63, 65-66 (Ct. App. 1991). Upon stopping the individual, the officer
may make reasonable inquiries to dispel or confirm the suspicions that
justified the stop. Terry v. Ohio,
392 U.S. 1, 22 (1968).
In
assessing whether there exists reasonable suspicion for a particular stop, we
must consider all the specific and articulable facts, taken together with the
rational inferences from those facts. State
v. Dunn, 158 Wis.2d 138, 146, 462 N.W.2d 538, 541 (Ct. App. 1990). The question of what constitutes reasonable
suspicion is a common sense test: under
all the facts and circumstances present, what would a reasonable police officer
reasonably suspect in light of his or her training and experience. State v. Jackson, 147 Wis.2d 824,
834, 434 N.W.2d 386, 390 (1989).
Gundlach
argues that when Milas stopped him, he had reasonable suspicion for the stop
because of the defective lamp, but that there was no basis for investigating
further by asking him to perform the field sobriety tests. We disagree.
In
addition to the strong odor of alcohol that Milas noted when he stopped
Gundlach, Gundlach had difficulty maintaining his balance on the motorcycle
when he stopped it, nearly tipping it over.
Also, Milas noticed that Gundlach's eyes were bloodshot. We conclude that these facts, together with
reasonable inferences drawn from them, provide a basis for a reasonable
suspicion that Gundlach had consumed alcohol and that his ability to operate the
motorcycle was impaired as a result, such that Milas could investigate further
by asking Gundlach to take field sobriety tests.
Gundlach
argues that he could have had difficulty in maintaining the balance of the
motorcycle because he had a passenger and was just learning to operate a
motorcycle. But Milas could reasonably
rely on his knowledge that Gundlach was experienced in operating off-road
vehicles. While there may be an
innocent explanation for Gundlach's difficulty in balancing, Milas was not
required to draw that inference as long as the inference he did draw was
reasonable. Similarly, while Gundlach
offered an innocent explanation for his right eye being bloodshot, Milas was
not required to accept that explanation given that the left eye was also
slightly bloodshot. "[I]f any
reasonable suspicion of past, present, or future criminal conduct can be drawn
from the circumstances notwithstanding the existence of other inferences that
can be drawn, officers have the right to temporarily freeze the situation in
order to investigate further." Jackson,
147 Wis.2d at 835, 434 N.W.2d at 391.
We
also conclude that detaining Gundlach to perform each successive field sobriety
test was not unlawful. Upon detaining a
suspect, the officer must act diligently to confirm or dispel the suspicion that
justified the detention. United
States v. Sharpe, 470 U.S. 675, 686 (1985). The question is not how long the detention lasts, but whether the
officer diligently pursued a means of investigation that was likely to confirm
or dispel his or her suspicions quickly.
Id. Here there was
a reasonable basis, considering all the circumstances surrounding Gundlach's
performance of each test, to request that Gundlach perform the next test.
Although
Gundlach was able to recite the alphabet, he did this with difficulty and his
speech was slurred. Milas knew Gundlach
and had spoken to him before. He was
also familiar, from his experience, with the fact that slurred speech is a sign
of alcohol consumption. These facts,
together with rational inferences from these facts, reasonably warrant further
testing.
It
was also reasonable that Gundlach's performance on the finger-to-nose test did
not dispel Milas's suspicion that Gundlach was under the influence of
intoxicants. Gundlach did not wait for
the demonstration, as Milas instructed him.
When Gundlach performed the test, he did it slowly and precisely. It was reasonable for Milas to draw the
inference from these facts that Gundlach's concentration might be impaired and
to request that he perform another test to dispel this suspicion.
Gundlach
could not maintain his balance on one leg up to the count of thirty. Even up to the count of twenty-one, he could
not do so while keeping his arms at his side.
The fact that Gundlach told Milas before performing this test that he
could not do it does not mean that it is not rational to draw the inference
that Gundlach's inability to perform might be due to intoxication. Since Gundlach offered no medical or
physical explanation of his inability to perform, his prior excuse could
reasonably be interpreted as an expression of his knowledge that he would not
be able to perform the test in his intoxicated condition.
Although
Gundlach did "fairly well" on the heel-and-toe test, Milas observed
that Gundlach was weaving back and forth while he was standing waiting for
instructions. This unsteadiness was a
reasonable basis for administering another test--the HGN test. It is reasonable that Milas's suspicions
were not dispelled in spite of Gundlach's performance of the heel-and-toe test,
given Gundlach's other behavior.
On
the HGN test, Gundlach's left eye did not pursue smoothly and the right and
left eyes had a jerkiness, all clues to intoxication.
Gundlach
next argues that he successfully performed each of the five field sobriety
tests and therefore there was no probable cause to arrest him for operating
while under the influence of an intoxicant.
In support of this argument, Gundlach relies on the cross-examination of
Milas, in which Milas acknowledged that Gundlach said the ABC's correctly, did
touch his finger to his nose as instructed, and did pass the heel-and-toe
test. Milas also acknowledged that the
United States Department of Transportation guidelines define the fail line for
the HGN test as four clues out of six, and he observed only three. Gundlach did not ask Milas the fail line for
the one leg stand test, but Milas did testify that there were eight clues for
that test and he observed two--Gundlach's putting his leg down at the count of
twenty-one and raising his arms.
Probable
cause requires that a police officer have facts and circumstances within his or
her knowledge sufficient to warrant a reasonable person to conclude that the
defendant has committed or is in the process of committing an offense. Richardson, 156 Wis.2d at 148,
456 N.W.2d at 838. The information
available to the officer must lead a reasonable person to believe that guilt is
more than a mere possibility. Id. In determining whether or not an officer has
probable cause, the court must look at the totality of the circumstances within
the officer's knowledge at the time. Id. The evidence need not reach the level of
beyond a reasonable doubt or even show that guilt is more likely than not. Id.
We
reject Gundlach's proposition that Milas could not consider any of the
surrounding circumstances as long as Gundlach was able to perform the act
requested for a particular test. We
also reject the proposition that Milas could not consider the clues indicating
intoxication for a particular test if the number of clues was below the fail
line established by the Department of Transportation for a particular
test. Gundlach offers no authority for
these propositions. All of the facts
and circumstances within Milas's knowledge must be examined to determine if
probable cause exists. This includes
all of Gundlach's behavior observed by Milas, as well as Milas's training and
experience and his prior knowledge of Gundlach.
We
agree with the trial court that the probable cause question is a close one, but
we are satisfied that the evidence meets the constitutional standard. Gundlach's speech was slurred. He had balance problems, not only when he
initially stopped the motorcycle, but during and between the tests. His behavior indicated difficulty in concentrating
and also nervousness. His eyes were
bloodshot. There was a strong odor of
alcohol. Milas also had information
from knowing Gundlach previously. He
knew Gundlach's normal speech, that Gundlach is experienced in driving off-road
vehicles, and that Gundlach is familiar with him and would not normally be
nervous in his presence, even if he were in uniform. Although Milas did not know the time of Gundlach's alcohol
consumption when he arrested Gundlach, the amount of alcohol consumed, in
combination with all the other circumstances, was a factor he could properly
take into account.
We
also agree with the trial court that Milas's experience in detaining and
arresting intoxicated persons is a significant factor in evaluating probable
cause. Milas expressed his opinion that
Gundlach did not pass all the field tests.
He considered the jerkiness of Gundlach's eyes significant. He considered his performance of the one leg
test to be deficient. He considered the
manner in which Gundlach performed other tests to indicate intoxication.
Gundlach's
approach is to analyze each factor separately and either offer an alternative
innocent explanation or contend that that factor does not show probable
cause. However, when we analyze the
totality of the circumstances, in light of Milas's training, experience and
prior knowledge of Gundlach, we are satisfied that Milas had facts and
circumstances within his knowledge sufficient to warrant a reasonable belief
that Gundlach was operating a motor vehicle while under the influence of an
intoxicant.
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.