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COURT OF APPEALS DECISION DATED AND FILED October 26, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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 from an order of the circuit court for Fond du Lac County: Robert J. Wirtz, Judge. Affirmed.
¶1 NEUBAUER, P.J.[1] John E. Ahern appeals from an order finding that he unlawfully refused to take a test for intoxication after arrest, contrary to Wis. Stat. § 343.305(9). Ahern contends that the circuit court erred in finding his refusal to submit to an evidentiary chemical test unreasonable. Ahern argues that his refusal was reasonable because the arresting officer did not have sufficient reasonable suspicion or probable cause to legally detain him. Based on the totality of the circumstances, we conclude that the officer had reasonable suspicion justifying an investigatory stop of Ahern’s vehicle and, therefore, Ahern’s refusal to submit to an evidentiary chemical test was unreasonable. We affirm the order.
FACTS
¶2 The facts underlying Ahern’s
conviction for operating a motor vehicle while under the influence of an
intoxicant (OWI) were testified to at a combined hearing addressing Ahern’s
refusal and his motion to suppress.
Deputy Panagiotis Vergos, of the Fond du Lac County Sheriff’s
Department, testified that on September 25, 2010, at 1:00 a.m. in the morning,
he observed a SUV parked in the middle of the Baudry Lane roadway with the
engine running and its taillights on.
Vergos was traveling northbound on Highway 45 when he first passed
Baudry Lane. Vergos observed that the
SUV was “stopped in the roadway.” Vergos estimated that Ahern’s vehicle was
approximately eighteen to thirty inches from the edge of the roadway and did
not leave sufficient room for other traffic to drive around it. After Vergos passed Baudry Lane, he turned around on
Highway 45, headed south on Highway 45, and then pulled up behind the SUV to
check on it. Before the police car came
to a stop, Vergos turned his emergency lights on. Baudry Lane is a two-way, dead-end street,
with some residences at the end of the street.
The driver of the vehicle exited and approached the police car.
¶3 The driver of the vehicle
was identified as Ahern. When Ahern was
speaking to Vergos, Vergos observed that Ahern had red and bloodshot eyes. Vergos told Ahern to get back into his car,
which Ahern did, and then Vergos walked on the passenger side of the vehicle to
speak with the female passenger sitting in the front seat. Vergos asked both Ahern and the passenger questions
separately to gather information on the purpose of sitting in the SUV and
received conflicting statements. Vergos
gave Ahern a field sobriety test, which he failed, followed by a preliminary
breath test, which Ahern also failed.
Ahern was arrested for OWI and transported to the Fond du Lac County
Sheriff’s Department for processing.
Vergos read the form titled Informing the Accused to Ahern and Ahern
refused to take the test twice.
¶4 Ahern filed a motion to
dismiss the refusal charge and a motion to suppress based upon lack of
reasonable suspicion or probable cause to detain. The circuit court denied Ahern’s motion to
suppress and found Ahern unlawfully refused to take the test for intoxication
after arrest. Ahern appeals.
DISCUSSION
¶5 Ahern does not challenge
the underlying facts relating to the time and street location where his SUV was
detained. The narrow issue on appeal is
whether Vergos had reasonable suspicion necessary to conduct a lawful traffic stop
of Ahern’s vehicle.[2] Based on our review of the record, we
conclude that he did.
¶6 Ahern’s motions and
arguments on appeal assert Fourth Amendment violations resulting from an
unreasonable seizure. Both the Fourth
Amendment of the United States Constitution and article I, § 11, of the
Wisconsin Constitution guarantee to all citizens the right to be free from
unreasonable searches and seizures.
Because an investigatory stop is a “seizure” within the meaning of the
Constitution, a law enforcement officer, before stopping an individual, must
reasonably suspect, in light of his or her training and experience that the
individual is, or has been violating the law.
Terry v. Ohio, 392 U.S. 1, 20-22 (1968); State v. King, 175 Wis.
2d 146, 150, 499 N.W.2d 190 (Ct. App. 1993); Wis.
Stat. § 968.24. An officer
may perform an investigatory stop of a vehicle based on a reasonable suspicion
of a noncriminal traffic violation. State
v. Colstad, 2003 WI App 25, ¶11, 260 Wis. 2d 406, 659 N.W.2d 394.
¶7 In order to be
constitutionally valid, the officer’s suspicion must be based on “specific and
articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion” on a citizen’s liberty. Terry, 392 U.S. at 21. It is a commonsense test; what is reasonable
in a given situation depends on the totality of the circumstances. State v. Anderson, 155 Wis. 2d 77,
83-84, 454 N.W.2d 763 (1990).
¶8 In reviewing a circuit
court’s ruling on a motion to suppress evidence, we will uphold the court’s
findings of historical fact unless they are clearly erroneous. State v.
Arias, 2008 WI 84, ¶12, 311 Wis.
2d 358, 752 N.W.2d 748. Whether police conduct
violated the constitutional guarantee against unreasonable searches and
seizures is a question of constitutional fact that we review de novo. Id.,
¶11.
¶9 Here,
the circuit court found that “the officer did articulate reasonable criteria
for why he stopped [Ahern’s] car.” The
court reasoned:
[Vergos] said he thought it was abnormal and suspicious given the time of day, the lack of a busy street…. [H]ere’s a person who is just stopped there, doing nothing but stopped in the middle of the road, not near any particular residence. That alerted the officer’s attention to see what’s going on with this car that they’re stopped and sufficiently into the middle of the road, as I find, that the car wouldn’t have a reasonable explanation for being there that far into the road….
[I]f you were going to park your car, I think you would have gotten it over further to the side of the road. He’s got his lights on, but he’s not moving.
The circuit court determined that Vergos was justified in finding out what was occurring at “1:00 in the morning down a dead-end road, where you’re not moving and you’re just stuck there in the middle of the road.” We agree.
¶10 At the time
of the stop, Vergos had reason to believe that Ahern was violating a
noncriminal traffic law. Although not
articulated by Vergos at the suppression hearing, his testimony that the
vehicle “wasn’t pulled over as far as it can go” and that “a portion of his
vehicle appeared to be in the middle of the roadway” supports the finding that
Ahern committed a traffic violation.[3] See Wis. Stat.
§ 346.54(1)(d) (providing that “[i]n parallel parking, a vehicle
shall be parked facing in a direction of traffic with the right wheels within
¶11 In reaching
our conclusion, we reject Ahern’s contention that, because of new laws
prohibiting texting while driving, “[t]he way the vehicle was positioned has
now become commonplace” and therefore could not give rise to reasonable
suspicion. Ahern ignores that, even if
texting, a motorist is obligated to pull over and safely park his or her
vehicle in compliance with traffic laws.
Further, the potential availability of an innocent explanation does not
prohibit an investigative stop:
[P]olice officers are not required to rule out the possibility of innocent behavior before initiating a brief stop .... [I]f any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.
State v.
Griffin, 183 Wis. 2d 327, 333,
515 N.W.2d 535 (Ct. App. 1994) (citation omitted; alterations in original). As did the circuit court, we conclude, under
the totality of circumstances, that Vergos had reasonable suspicion that Ahern was violating
the law. As such, Ahern was lawfully
detained at the time of his refusal.
CONCLUSION
¶12 Based on our conclusion that Vergos had the requisite reasonable suspicion to effect a stop, we affirm the circuit court’s order deeming Ahern’s refusal unreasonable.
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) (2009-10). All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2] The parties’ dispute whether Vergos had probable cause to stop Ahern’s vehicle based on Ahern’s violation of Wis. Stat. § 346.54(1)(d). Based on our conclusion that Vergos had reasonable suspicion to conduct an investigative stop of Ahern’s vehicle, we do not address the issue except to note that the circuit court’s findings support the existence of probable cause as to the traffic violation.
[3] Ahern contends that the State never introduced the issue of a violation of Wis. Stat. § 346.54(1)(d) before the circuit court. Ahern is mistaken. The record of the motion hearing reflects that the State not only brought this specific provision to the circuit court’s attention, but read the provision to the court.