COURT OF APPEALS DECISION DATED AND FILED March 4, 2015 Diane M. Fremgen Clerk of Court of Appeals |
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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. |
Cir. Ct. No. 2014TR3551 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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County of Winnebago, Plaintiff-Appellant, v. Pavel Ford, Defendant-Respondent. |
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APPEAL from an order of the circuit court for Winnebago County: THOMAS J. GRITTON, Judge. Affirmed.
¶1 GUNDRUM, J.[1] The County of Winnebago appeals from the circuit court’s order dismissing this case following the court’s suppression of evidence stemming from the arrest of Pavel Ford for operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood. The County contends the court erred in concluding that the arresting deputy lacked probable cause to arrest Ford and procure a sample of his blood. Because we conclude that the County failed to meet its burden to demonstrate that the deputy had probable cause, we affirm.
Background
¶2 Ford was arrested, a sample of his blood was procured, and he was charged with a first offense violation of Wis. Stat. § 346.63(1)(am), operating a motor vehicle with “a detectable amount of a restricted controlled substance in his … blood.” See id. He moved to suppress the evidence. He and the two Winnebago County sheriff’s deputies involved with his arrest were the only witnesses to testify at the suppression hearing on Ford’s motion. Their relevant testimony is as follows.
¶3 Deputy Nathan Olig testified that around 3 p.m. on
January 19, 2014, he was dispatched to investigate a report of vehicles racing
on an oval track on frozen Lake Winnebago.
Once there, he observed two vehicles going around such a track
approximately 100 yards from the shoreline, with other individuals and vehicles
inside the ring of the track. The
snowmobile patrol made contact with Ford, who was the driver of one of the
vehicles, and ordered him to the shoreline near Olig. When Ford’s vehicle was within about ten to
fifteen feet of Olig, Olig smelled the odor of marijuana coming from inside it. Olig testified that he “explained to [Ford]
that it was [Olig’s] understanding that [Ford] had smoked marijuana within a
half hour of operating a motor vehicle and [Ford] confirmed [Olig’s] understanding.”
¶4 On cross-examination, Olig acknowledged that he had initially
indicated to another deputy that his visual estimation was that the individuals
on the track were between 400 and 500 yards from Olig. He confirmed that he had written in his
report of the incident that one of the deputies had indicated to him that Ford
had admitted to using marijuana, but testified that he could not recall which deputy
told him this. Olig also acknowledged
that he administered field sobriety tests to Ford, but that based on the
results of those tests, he did not believe there was probable cause to arrest
Ford “for OWI.”
¶5 Testifying next, Deputy Jason Rippl stated he was performing his duties on a snowmobile when he made contact with Ford on the frozen lake and smelled the odor of marijuana coming from inside of Ford’s vehicle. On cross-examination, Rippl confirmed that he had asked Ford about the marijuana smell and Ford indicated that “some people” had been in his vehicle about a half hour earlier and had been smoking marijuana, causing it to smell as it did. Rippl further acknowledged that Ford never admitted to him that he had smoked marijuana and that Rippl never found any illegal substances during a subsequent search of Ford’s vehicle. Rippl confirmed that from where Olig was standing on shore, Olig had been around 400 to 500 yards from the vehicles on the ice.
¶6 Ford then testified on his own behalf. Through his counsel’s questioning, Ford confirmed that when deputies approached him in his vehicle on the lake, they stated they could smell marijuana; he told the deputies “somebody else” had been smoking in the vehicle prior to him getting in it; he never told them he himself had smoked marijuana; and he passed field sobriety tests. Ford further confirmed in reference to a Google map exhibit that he drove a distance of approximately 2265 feet from where he made contact with the deputy by the oval track to where Olig was located on the shore.
¶7 Following the hearing, the circuit court issued it decision, drawing parallels between this case and the case in State v. Graske, Nos. 2009AP1933-CR, 2009AP1934, unpublished slip op. (WI App Mar. 24, 2010):
What is interesting between the two cases is … bottom line the Court of Appeals says … the marijuana smell wasn’t enough in and of itself to arrest the individual in the Graske case and they suppress some of the statements.
Now, … [Ford’s counsel], I noticed at the end of your request you ask that statements be also suppressed, I think from a statement standpoint … it is a little different case because that individual in Graske was physically placed under arrest on a warrant and as a result, Miranda[[2]] was appropriate for him. That’s not the case here.
So the question of Mr. Ford in this case I think is an investigatory question and he indicates that they had smoked the marijuana earlier.
A couple of things, also, that I think are relevant for whether or not there was reason to arrest Mr. Ford under these circumstances was a search of the vehicle. It accounted for nothing being found. He passed the field sobriety tests. So if I’m remembering correctly, and I have looked back at the transcript as well, really the only thing we have is that there was some smell, an odor of marijuana coming from the car, and that’s where I think Graske is helpful.
In Graske they indicate [an odor of marijuana coming from the car] by itself without a link to more is insufficient evidence for the arrest for driving while under the influence of a controlled substance[] so I think the officer had every right to go through the process but I don’t think there is probable cause in the end for the arrest, and so for that purpose I’m going to suppress the blood test that was as a result of the arrest. (Emphasis and footnote added.)
The circuit court subsequently entered an order suppressing the evidence and dismissing the case. The County appeals.
Discussion
¶8 Probable
cause “must be assessed on a case-by-case basis, looking at the totality of the
circumstances.” State v. Lange,
2009 WI 49, ¶20, 317 Wis. 2d 383, 766 N.W.2d 551. “Probable cause to arrest is the quantum of
evidence within the arresting officer’s knowledge at the time of the arrest
which would lead a reasonable police officer to believe that the defendant
probably committed or was committing a crime.”
State v. Secrist, 224
Wis. 2d 201, 212, 589 N.W.2d 387 (1999).
This is an objective standard based upon the information
available to the officer. State v. Kutz, 2003 WI App 205, ¶12, 267 Wis. 2d
531, 671 N.W.2d 660. In reviewing a
motion to suppress evidence based on a lack of probable cause, we
uphold the circuit court’s fact finding unless clearly erroneous. Id., ¶13. If the facts are not in dispute, or when we
uphold the circuit court’s factual findings, all that remains is the question
of whether the facts fulfill the probable
cause standard. See id.
This court reviews that question de
novo. Id.
¶9 At a suppression hearing, the government bears the burden of persuading the court that probable cause existed to arrest the defendant. See State v. Wille, 185 Wis. 2d 673, 682, 518 N.W.2d 325 (Ct. App. 1994). The weight of testimony and credibility of witnesses are to be determined by the trier of fact, and where the circuit court is the trier of fact, we will not disturb its factual findings so long as they at least can be reasonably inferred from the credible evidence. See Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980). “Such deference to the [circuit] court’s determination of the credibility of witnesses is justified … because of ‘… the superior opportunity of the [circuit] court to observe the demeanor of witnesses and to gauge the persuasiveness of their testimony.’” Id. (citation omitted).
¶10 The
question before us in this case is whether, based upon the totality of the circumstances
as evidenced by the undisputed facts and those facts found by the circuit court
which are not clearly erroneous, a reasonable law enforcement officer
possessing such facts would have reasonably believed Ford probably committed a
crime—here the crime of operating a motor vehicle with a detectable amount of a
restricted controlled substance in his blood.[3] As the County points out, the elements for
this offense are that a defendant (1) drove or operated a motor vehicle on a
highway and (2) had a detectable amount of a restricted controlled substance in
his or her blood while doing so. See
Wis. Stat. § 346.63(1)(am); see
also Wis JI—Criminal
2664B. Ford raises no challenge to the
first element, but argues that at the time of arrest the deputies did not
possess probable cause that he had a detectable amount of a controlled
substance in his blood while operating his vehicle.
¶11 In
its oral ruling, the circuit court commented:
“So the question of Mr. Ford in this case I think is an investigatory
question and [Ford] indicates that they had smoked the marijuana
earlier.” (Emphasis added.) We interpret this comment by the court as an
acceptance of Rippl’s testimony that when Rippl had asked Ford about the smell
of marijuana coming from Ford’s vehicle, Ford told Rippl that “some people” had
been inside Ford’s vehicle about a half hour earlier and had been smoking
marijuana, causing the odor.[4] Immediately following this comment by the
court, the court noted that a search of Ford’s vehicle resulted in no evidence
of marijuana and Ford passed field sobriety tests, which would support the
conclusion that Ford was not impaired by marijuana.[5] The court then stated:
[R]eally the only thing we have is that there was some smell, an odor of marijuana coming from the car, and that’s where I think Graske is helpful.
In Graske
they indicate [an odor of marijuana coming from the car] by itself without a link to more is insufficient evidence for the
arrest for driving while under the influence of a controlled substance[] so I think the officer [in this case] had
every right to go through the process but
I don’t think there is probable cause in the end for the arrest, and so for
that purpose I’m going to suppress the blood test that was as a result of the
arrest. (Emphasis added.)
¶12 Graske involved the smell of
marijuana in a vehicle occupied by a driver and a passenger. Graske,
Nos. 2009AP1933-CR, 2009AP1934, unpublished slip op., ¶2. We ultimately held that because there was only
an odor of marijuana and no admissible evidence specifically connecting the cause
of the odor to the driver’s, as opposed to the passenger’s, consumption of
marijuana, “the necessary link to establish probable cause” did not exist to
conclude that the driver had operated the motor vehicle with a detectable amount
of a controlled substance in his blood. Id., ¶8 (citing Secrist, 224 Wis. 2d at 217-18).
¶13 Our
supreme court’s decision in Secrist
is also instructive. In that case, an officer
smelled a strong odor of marijuana coming from a vehicle and arrested the driver,
who was the lone occupant of the vehicle, on drug charges. Secrist,
224 Wis. 2d at 205. A search
incident to arrest led to evidence of drugs. Id. The defendant argued that the odor of burned
marijuana was insufficient to establish that he was the one who smoked the
marijuana. Id. at 213. In
rejecting the defendant’s position, the court held that “the odor of a
controlled substance provides probable cause to arrest when the odor is
unmistakable and may be linked to a specific person.” Id.
at 204. In reaching this
conclusion, the court stated that under the totality of the circumstances test,
where “the odor is not strong or recent, if the source of the odor is not near
the person, if there are several people in the vehicle, or if a person offers a
reasonable explanation for the odor,” probable cause to believe the person is
linked to the drug is diminished. Id. at 218.
¶14 In
the present case, with the circuit court’s comments, see supra, ¶11, which
we interpret as an acceptance of Rippl’s testimony, its comments about finding
no drug evidence during the search of Ford’s vehicle and Ford “pass[ing] the
field sobriety tests,” and its paralleling of this case to Graske as it did, we can only read the court’s final statement
on probable cause as an indication that it found there was no evidentiary link
demonstrating that it was Ford’s—as opposed to someone else’s—consumption of
marijuana that caused the marijuana odor.
¶15 Essentially,
it appears the circuit court found credible (1) Rippl’s testimony that Ford
told him that other individuals had been smoking marijuana in the vehicle and were
the cause of the marijuana odor, (2) Ford’s testimony that he told the deputies
this, and (3) Ford’s testimony that he never told any of the deputies he had
smoked marijuana. The court’s acceptance
of Ford’s testimony that he never told any of the deputies he had smoked
marijuana is essentially a rejection of Olig’s testimony that Ford had
indicated to Olig that Ford had smoked marijuana within a half hour of
operating the vehicle.[6]
¶16 The
circuit court had the opportunity to directly observe the demeanor of the
witnesses and weigh their testimony. We cannot
say the court erred in its apparent belief in Ford’s testimony that he never
told any deputies he had smoked marijuana; after all, such testimony is at
least consistent with other evidence, as found by the court, that no evidence
of drug use was discovered during a search of Ford’s vehicle and Ford passed field
sobriety tests. Further, we must
interpret the court’s comments in a manner consistent with its ultimate
holding. See State v. Long, 190 Wis. 2d 386, 398, 526 N.W.2d 826 (Ct.
App. 1994) (“Even when a [circuit] court fails to make express findings of fact
necessary to support its legal conclusions, we assume that the [circuit] court
made such findings in the way that supports its decision.”).
¶17 Further,
of substantial significance, it was the County’s burden to show at the hearing that
the deputies had probable cause, and there was no clear evidence presented that
Ford actually was the only person in the vehicle when the deputies smelled
marijuana coming from it. Even accepting
all the other findings of the circuit court, the deputies would have had
probable cause to arrest Ford and test his blood if there had simply been
undisputed testimony or a supportable finding by the circuit court that Ford
was the only person in his vehicle when the deputies smelled the odor of
marijuana emanating from it. As our
supreme court has cited with approval, “[a]n odor of burnt marijuana creates an
inference that marijuana is not only physically present in the vehicle, but
that some of it has been smoked recently.”
Secrist, 224
Wis. 2d at 210-11 (quoting State
v. Judge, 645 A.2d 1224, 1228 (1994)).
Accordingly, if Ford had been the driver and only occupant when the odor
was detected, a reasonable officer could make a reasonable inference that Ford’s
blood likely contained a detectable amount of a controlled substance,
justifying the arrest and blood draw.[7] However, no evidence that Ford was alone in
the vehicle was presented and the court made no such finding, explicitly or
implicitly. We cannot assume this fact from
the testimony presented; indeed, it would be error to do so, in that any
assumptions we make must be made in a manner which supports the circuit court’s
ruling. See Long, 190 Wis.
2d at 398. Based on the record made at
the suppression hearing, the County failed to meet its burden to establish the
link between the odor of marijuana and Ford’s personal consumption of the drug
as the source of that odor.
¶18 Considering
all of the above, we conclude that the circuit court did not err in its ultimate
determination that the County did not meet its burden of showing the deputies had
probable cause to arrest Ford and procure a blood sample.
By the
Court.—Order affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2013-14). All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
[2] Miranda v. Arizona, 384 U.S. 436 (1966).
[3] The County states in its brief-in-chief that the restricted controlled substance at issue is Delta-9 Tetrahydrocannabinol. Ford does not dispute this.
[4] While the circuit court’s reference to “they” in this statement, if taken out of context, could potentially be read as a reference to other persons and Ford smoking marijuana, the court’s subsequent comments clearly indicate that it at no point made a finding that Ford had consumed marijuana himself.
[5] While impairment is not the question on a charge of operating a motor vehicle with a detectable amount of a restricted controlled substance, passing field sobriety tests would support, at least somewhat, an inference that Ford did not have marijuana in his system. Of course, we assume a person could also have “a detectable amount” of Delta-9 THC in his or her system and yet pass field sobriety tests.
[6] The County acknowledges in its brief-in-chief that if the circuit court had found Ford’s testimony regarding smoking marijuana credible and Olig’s testimony not credible, “the County would not be appealing its determination.” The County states that the court never made such a credibility determination. It appears to us that the court, at least implicitly, did indeed make such a credibility determination.
[7] Although evidence also existed from which the deputies alternatively could have inferred that a person or persons other than Ford caused the odor, namely Ford’s statement to Rippl to this effect, the deputies would not have been bound to accept that inference. State v. Kutz, 2003 WI App 205, ¶12, 267 Wis. 2d 531, 671 N.W.2d 660 (“When a police officer is confronted with two reasonable competing inferences, one justifying arrest and the other not, the officer is entitled to rely on the reasonable inference justifying arrest.”).