COURT OF
APPEALS DECISION DATED AND
RELEASED February
22, 1996 |
NOTICE |
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. 95-1926-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
VERONICA
L. REITER,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MARK J. FARNUM, Judge. Affirmed.
SUNDBY,
J. Defendant Veronica L. Reiter appeals from a judgment
denying her motion to suppress "for use as evidence at trial all evidence
obtained, directly or indirectly, as a consequence of the taking into custody
of the defendant" on September 9, 1994, on the following grounds: (1) Madison police officer Aileen
Seymour arrested Reiter without probable cause in violation of her right to be
free from an unlawful search and seizure; (2) there is a direct causal
connection between Reiter's arrest, statements which she made, observations of
Officer Seymour of the defendant, and a chemical test administered to determine
her blood alcohol content; and (3) the injuries suffered by Reiter in a
traffic accident which Officer Seymour was investigating rendered Officer
Seymour's field sobriety tests after Reiter's arrest "unreliable" as indicia
of intoxication. We[1]
affirm the order.
It
is undisputed that Officer Seymour placed Reiter in her squad car so that she
could investigate Reiter's possible intoxication after a back-up officer
arrived. She testified that at this
point, she "took [the defendant] into custody." Officer Seymour testified that she placed
Reiter in her squad car so that "she would not be walking into
traffic."
When
the back-up officer arrived, Officer Seymour took Reiter in the squad car to an
area approximately 200 yards from the scene of the accident to perform field
sobriety tests. Seymour did not ask
Reiter whether she would agree to be so transported. Officer Seymour then performed standard field sobriety tests and
concluded that Reiter failed the tests.
After these tests, Officer Seymour told Reiter that she was under arrest
and put her back into the squad car.
The
trial court denied Reiter's motion, relying principally on State v.
Swanson, 164 Wis.2d 437, 475 N.W.2d 148 (1991). In Swanson, the police officer
detected an odor of intoxicants on Swanson's breath and directed him to the
squad car for field sobriety tests.
Before placing Swanson in the squad car, the officer performed a pat-down
search. Departmental policy required
the officer to perform a pat-down search prior to placing anyone in the squad
car. Id. at 442, 475
N.W.2d at 150. Officer Seymour
testified that she routinely patted down any person she intended to place in
the squad car.
However,
the officers in Swanson did not conduct field sobriety tests
because they were dispatched to provide back-up assistance at a domestic
disturbance. The officers therefore
arrested Swanson without conducting field sobriety tests, handcuffed him and
placed him in the squad car, took him to the place where the domestic
disturbance had occurred where Swanson escaped when the officers left him
alone. Id. at 442-43, 475
N.W.2d at 150-51. Thus, many of the
facts of Swanson are present in this case. Presumably, therefore, Swanson
is at least persuasive on the issues Reiter raises.
The
Swanson court concluded:
"Viewed objectively, a reasonable person in Swanson's position
would not believe that the degree of restraint exercised to perform a field
sobriety test during a routine traffic stop was similar to that of formal
arrest." Id. at 444,
475 N.W.2d at 151. The court concluded
that the "purpose of the search here was a pat down frisk for weapons
before the officers placed Swanson in the squad car to perform a field sobriety
test." Id. at 454,
475 N.W.2d at 155. The court concluded,
however, that the officer's search of Swanson exceeded its permissible scope
because he had no reason to believe that Swanson's pockets contained an object
that could be used as a weapon. Id.
at 454, 475 N.W.2d at 155-56. The court
affirmed the suppression of marijuana found in one of Swanson's pockets.
While
the court rejected the intrusive search made of Swanson because the officer
lacked probable cause to arrest, it did not find that the pat-down search
before placing a person being investigated into the squad car was
unreasonable. The court abrogated the
former subjective test to determine when a person was under arrest and, for
"consistency and practical reasons," adopted an objective test which
assesses the totality of the circumstances to determine the moment of arrest
for Fourth Amendment purposes. Id.
at 446, 475 N.W.2d at 152. The court
concluded that in the circumstances then present, a reasonable person in
Swanson's situation would not have considered himself to be under arrest. Id. at 448, 475 N.W.2d at 153.
The
court approved the statement of the United States Supreme Court in Berkemer
v. McCarty, 468 U.S. 420, 440 (1984), that persons temporarily detained
pursuant to a routine traffic stop are not "in custody." 164 Wis.2d at 447, 475 N.W.2d at 152. The United States Supreme Court explained
that the usual traffic stop is more analogous to a Terry[2]
stop than a formal arrest; it is typically brief in duration and public in
nature. Id. Here, applying an objective test to the
totality of the circumstances, we conclude that Officer Seymour could have had
a reasonable suspicion that further investigation of Reiter's condition was
justified. Reiter had just rear-ended
another vehicle and Officer Seymour noted a moderate odor of alcohol on
Reiter's breath and rapid speech and glassy eyes.
Officer
Seymour's first priority was to investigate the accident and determine the
condition of the passengers in the vehicle which Reiter had rear-ended. Reiter herself expressed to Officer Seymour
her concern that she may have injured someone in the other vehicle. Additionally, the accident happened at a
busy night-time intersection and the weather conditions were dark and
rainy. The trial court found: "[T]he detaining of Ms. Reiter ... in
the back of a police vehicle, was done for her own safety" and to permit
Officer Seymour to investigate. The
trial court also observed that Reiter was "w[a]ndering in an unsafe manner
in a very ... busy area of the City."
These findings are not clearly erroneous.
Prior
to Swanson, a possible arrestee in Reiter's situation may well
have concluded that she was under arrest.
Certainly, Reiter's freedom to leave was restricted; the arresting
officer intended to restrain her; and the potential arrestee reasonably
believed or understood that she was in custody. See Swanson, 164 Wis.2d at 445-46, 475
N.W.2d at 152. However, under Swanson's
objective test, the totality of the circumstances leads to the conclusion that
Reiter was detained solely for investigatory purposes. Thus, as in Swanson, the
situation presented by this appeal "is characterized as a routine traffic
stop and detention." Id.
at 448, 475 N.W.2d at 153.
We
consider it significant that Swanson was the unanimous decision
of both the court of appeals and the supreme court. Undoubtedly, the members of our court and the supreme court were
influenced by the fact that a person who drives a car onto a sidewalk, narrowly
missing a pedestrian, cannot complain if the police take reasonable steps to
investigate the cause of such unusual operation of a vehicle. See id. at 442, 475
N.W.2d at 150. Likewise, an operator of
a vehicle which rear-ends another vehicle cannot complain that it was
unreasonable for the police to investigate the cause of such conduct.
Before
ending this opinion, we must note that a routine pat-down of a potential
arrestee before a police officer places the person in a squad car is imminently
reasonable. It is a surprising
suggestion that an officer conducting an investigation which requires placing a
person in the officer's squad car may not do a Terry pat-down to
protect the officer from the possibility that the potential arrestee is
armed. Reiter's attack on the search in
this case is not based on the reasonableness of the officer's pat-down policy
but on the lack of "a scintilla of evidence to justify a belief by the
officer that [Reiter] was armed and dangerous." The cases Reiter relies on did not involve situations where it
was necessary to place the person being investigated in a position where that
person could harm the officer if he or she were armed. It is true that in the investigatory case,
the justification for the pat-down search is created by the officer and not by
the potential arrestee. However, such a
search does not require a reasonable suspicion that the potential arrestee is
armed, but only that the person is being placed in a situation in which the
person could present an extreme danger to the safety of the officer if the
search were not conducted. We conclude
that the Fourth Amendment's requirement of reasonableness is satisfied by such
a search.
Finally,
Reiter attacks the reasonableness of the sobriety tests because she was injured
and bleeding. However, Officer Seymour
asked Reiter if she was suffering from any condition which would prevent her
from performing the field sobriety tests and Reiter responded "No,"
that she was fine, but was worried about other people. Reiter could have refused to perform the
tests and relied on her injuries to justify her refusal. However, she elected to perform the tests
required by Officer Seymour. We
conclude that, under the circumstances, Officer Seymour acted reasonably in
administering the field sobriety tests to Reiter.
By
the Court.--Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.