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COURT OF APPEALS DECISION DATED AND FILED September 20, 2012 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 from a judgment of the circuit court for Wood
County: TODD P. WOLF, Judge. Affirmed.
¶1 HIGGINBOTHAM, J.[1] William
Hartman appeals the circuit court’s judgment revoking his operating privileges
for one year on the ground that he refused to submit to a chemical test of his
blood after being placed under arrest for operating a vehicle while intoxicated
in violation of Wis. Stat. § 346.63(1)(a). Hartman contends that he had the right to
refuse to submit to the chemical test because the deputy sheriff who questioned
him did not have a reasonable suspicion that he was involved in criminal
activity and therefore unlawfully placed him under arrest.
¶2 We do not reach the issue
of reasonable suspicion because we conclude the deputy did not “seize” Hartman
within the meaning of the Fourth Amendment.
Rather, we conclude that the deputy engaged in a consensual encounter
with Hartman from which a reasonable person in Hartman’s position would have
felt free to leave and terminate the encounter.
Accordingly, we conclude that Hartman was lawfully placed under arrest
and therefore his operating privileges were properly revoked. We affirm.
BACKGROUND
¶3 The following facts are
undisputed and are taken from the refusal hearing transcript. On October 14, 2010, Wood County Deputy
Sheriff Bren Derringer was dispatched to investigate a suspicious person who
was attempting to hide behind a sign at the entrance to a park. On the drive to the park, the deputy also
received information about an individual who drove a damaged vehicle into a
Kwik Trip parking lot and left the scene. Dispatch described to the deputy the
individual at the park entrance but did not describe the individual at the Kwik
Trip parking lot. The deputy did not
know at the time whether the two reports were related and went to the park only
to investigate the report of a suspicious man.
¶4 At approximately 7:50
p.m., the deputy arrived at the park and noticed an individual who matched the
description given by the dispatcher. The
deputy observed that Hartman was walking further into the park and appeared to
be talking on his cell phone. Without
activating the lights on his squad car, the deputy pulled up behind Hartman and
asked him whether he would be willing to speak.
The deputy asked Hartman to identify himself and explain what he was
doing in the area. Hartman identified
himself but provided evasive answers as to why he was in the park. As he spoke, Hartman swayed back and forth and
slurred his speech. During the
encounter, the deputy detected the odor of intoxicants on Hartman’s
breath.
¶5 Two to five minutes after
questioning, the deputy asked Hartman whether he knew about an abandoned
vehicle at the Kwik Trip. At first,
Hartman denied having knowledge about the abandoned vehicle. However, when the deputy persisted in his
questioning, Hartman admitted that he crashed the vehicle. In addition, Hartman admitted that he had
consumed alcohol before crashing the vehicle, including mixed drinks and
shots. Hartman further noted that he had
not consumed alcohol since the crash.
¶6 Based on this information,
the deputy gave Hartman a preliminary breath test, which showed that Hartman
had a blood alcohol content of .198. The
deputy proceeded to read Hartman an Informing the Accused form, which notified
Hartman that if he refused to consent to chemical testing, his operating
privileges would be revoked. Hartman
refused to submit to a chemical test of his blood. Therefore, the deputy filed a notice of intent
to revoke Hartman’s operating privileges.
¶7 Following his arrest,
Hartman retained counsel and requested a hearing regarding his refusal to
submit to the chemical test. The sole
witness to testify at the hearing was the deputy. At the hearing, Hartman did not contest that
the deputy had probable cause to arrest him after learning that he operated the
abandoned vehicle while intoxicated. In
addition, Hartman did not contest that, after being read the Informing the
Accused form, he refused to take the chemical test. Instead, Hartman challenged whether the deputy
had reasonable suspicion to stop him based on the report the deputy received
from dispatch. Hartman argued that the
deputy did not have reasonable suspicion because the deputy had no reason to
believe that Hartman was engaged in criminal activity.
¶8 Based on the deputy’s
testimony, the court determined, under the totality of the circumstances, that
the deputy had reasonable suspicion to conduct an investigatory stop. The court further determined that the deputy
had probable cause to arrest Hartman after observing signs of intoxication and
upon learning that Hartman had crashed the abandoned vehicle after consuming
alcohol. Therefore, the court revoked
Hartman’s operating privileges for one year in accordance with Wis. Stat. § 343.305(10)(b)2.
DISCUSSION
¶9 There are two issues on
appeal: (1) whether a defendant may contest whether an investigatory stop
is justified by reasonable suspicion at a refusal hearing; and (2) whether
the deputy violated Hartman’s right under the Fourth Amendment to be free from
unreasonable searches and seizures. We
conclude that, at the refusal hearing, Hartman had the right to challenge
whether the deputy’s questioning was justified by reasonable suspicion. However, we conclude that the deputy did not
need reasonable suspicion to question Hartman because Hartman was not “seized”
within the meaning of the Fourth Amendment.
A.
THE LAWFULNESS OF AN
INVESTIGATORY STOP IS AN APPROPRIATE ISSUE FOR A REFUSAL HEARING
¶10 The State argues that
Hartman is prohibited from challenging the lawfulness of an investigatory stop
because Wis. Stat. § 303.305(9)(a)5.
specifies the issues that may be raised at a refusal hearing and does not
explicitly state that a defendant may challenge at a refusal hearing whether an
investigatory stop was justified by reasonable suspicion. In addition, the State argues that Hartman is
precluded from raising the issue of reasonable suspicion because Hartman gave
the State no notice prior to the refusal hearing that he intended to raise the
issue.
¶11 Hartman responds that
whether the deputy had reasonable suspicion to conduct an investigatory stop is
an issue which may be challenged at a refusal hearing because, if the deputy
lacked reasonable suspicion, the arrest was unlawful. In addition, Hartman contends that he was not
required to notify the State before the refusal hearing that he intended to
raise the issue of reasonable suspicion because the State had the burden to
show that Hartman was lawfully placed under arrest.
¶12 At the hearing, the court
asked defense counsel whether it needed to determine that the deputy had
reasonable suspicion to conduct an investigatory stop as part of a refusal
hearing. The court initially expressed
its belief that it only needed to consider whether the deputy had probable
cause to arrest Hartman. However, the court ultimately determined that the
deputy had reasonable suspicion to conduct an investigatory stop and that, based
on the deputy’s questioning during the investigatory stop, the deputy obtained
probable cause to arrest Hartman.
Accordingly, the court revoked Hartman’s operating privileges for
refusing to submit to a chemical test following his arrest.
¶13 The Wisconsin Supreme Court
recently concluded that under a proper construction of Wis. Stat. § 343.305(9)(a)5.,[2]
a defendant may contest at a refusal hearing whether an officer had reasonable
suspicion or probable cause to conduct a traffic stop. See State v. Anagnos, 2012 WI 64, ¶42, 341 Wis. 2d 576, 815
N.W.2d 675. In Anagnos, the circuit court refused
to revoke the defendant’s operating privileges because the officer conducted a
traffic stop without first observing the defendant commit a traffic
violation. Id., ¶16. On appeal, we concluded that it was proper
for the court to inquire into whether the officer had reasonable suspicion to
stop the defendant because without reasonable suspicion the defendant could not
have been lawfully placed under
arrest. See State v. Anagnos,
2011 WI App 118, ¶15, 337 Wis. 2d 57, 805 N.W.2d 722, review granted, 2012 WI 64, 341 Wis. 2d 576, 815 N.W.2d 675. On review, the Wisconsin Supreme Court
agreed, construing the phrase “lawfully placed under arrest” in Wis. Stat. § 343.305(9)(a)5.a. to
mean that “[a] circuit court may entertain an argument that the arrest was
unlawful because the traffic stop that preceded it was not justified by
probable cause or reasonable suspicion.”
Anagnos, 341 Wis. 2d 576, ¶42.
¶14 Accordingly, we reject the
State’s contention that Hartman improperly raised the issue of reasonable
suspicion at the refusal hearing. Under
the plain meaning of Wis. Stat. § 343.305(9)(a)5.,
as interpreted by the Wisconsin Supreme Court in Anagnos, we conclude that
Hartman had the right at the refusal hearing to contest whether the deputy had
reasonable suspicion. We also reject the
State’s contention that Hartman was required to provide notice that he intended
to raise the issue of reasonable suspicion at the hearing. Pursuant to Wis.
Stat. § 343.305(9)(a), “[n]either party is entitled to pretrial
discovery in any refusal hearing” except that the court may order, upon a
timely request and a showing of cause, that the defendant be allowed certain
discovery. Moreover, the State cites to
no legal authority in support of its contention that Hartman waived the issue
by failing to provide notice to the State. Thus, we conclude that Hartman
properly raised the issue at the refusal hearing.
B. THE
DEPUTY ENGAGED IN A CONSENSUAL ENCOUNTER
¶15 Having determined that
Hartman was entitled to contest the lawfulness of his arrest at the refusal
hearing, we turn to whether the deputy’s questioning was lawful. Hartman argues that the initial two to five
minutes of questioning were unlawful because the deputy had no reason to
believe criminal activity was afoot based on a report of a “suspicious” person
hiding behind a sign near a park entrance.[3] Thus, Hartman argues that he was “seized”
within the meaning of the Fourth Amendment and that the seizure was
unreasonable because the deputy did not have a reasonable suspicion that
criminal activity was afoot.
¶16 The State contends that the
deputy did not need a reasonable suspicion that criminal activity was afoot
because the encounter was consensual.
The State points out that the deputy asked Hartman whether he would be
willing to speak and Hartman volunteered answers. Hartman responds that the State waived this
issue by failing to raise it at the refusal hearing.
¶17 We agree with Hartman that
the State did not explicitly argue to the court that the deputy’s questioning
constituted a consensual encounter.
However, we conclude that, because there is a sufficient record of the
evidentiary facts and no material fact is in dispute, we may address whether
Hartman was “seized” under the Fourth Amendment. See State v. Griffith, 2000 WI 72, ¶24,
236 Wis. 2d 48, 613 N.W.2d 72 (determining that even though the Fourth
Amendment issue was not raised at the circuit court level, it was appropriate
to address it where there was a sufficient record of the evidentiary facts and
no factual dispute). Accordingly, we determine de novo whether, under the
undisputed facts, the deputy’s questioning constitutes a “seizure” within the
meaning of the Fourth Amendment. Id.;
State
v. Young, 2006 WI 98, ¶17, 294 Wis. 2d 1, 717 N.W.2d 729 (stating
that whether a defendant was “seized” is a question of constitutional fact
subject to de novo review).
¶18 As noted above, the Fourth
Amendment of the United States Constitution protects an individual’s right to
be free from unreasonable searches and seizures. U.S.
Const. amend IV. However, a
police officer may, under appropriate circumstances, “seize” a person to
investigate potential criminal behavior without violating that person’s Fourth
Amendment right. See State v. Waldner, 206 Wis. 2d 51, 54-55, 556 N.W.2d 681
(1996) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). Nonetheless, “[n]ot all police-citizen
encounters are seizures.” State
v. Kelsey C.R., 2001 WI 54, ¶30, 243 Wis. 2d 422, 626 N.W.2d
777. A person is “seized” within the
meaning of the Fourth Amendment “only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave.” United States v. Mendenhall,
446 U.S. 544, 554 (1980); State v. Williams, 2002 WI 94, ¶22,
255 Wis. 2d 1, 646 N.W.2d 834. Notably,
“[w]hile most citizens will respond to a police request, the fact that people
do so, and do so without being told they are free not to respond, hardly
eliminates the consensual nature of the response.” Immigration and Naturalization Serv. v.
Delgado, 466 U.S. 210, 216 (1984).
¶19 It is well established that
a reasonable person would not feel free to leave when his liberty is restrained
by means of physical force or a show of authority. State v. Harris, 206 Wis. 2d
243, 253, 557 N.W.2d 245 (1996). A
non-exhaustive list of factors indicating a reasonable person would not feel
free to leave include “the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.”
State v. Jones, 2005 WI App 26, ¶10, 278 Wis. 2d 774, 693
N.W.2d 104 (quoting Mendenhall, 466 U.S. at 554-55); see also Michigan v. Chesternut,
486 U.S. 567, 575 (1988) (concluding that a police officer had not made a
sufficient showing of authority when he slowly followed the defendant in his
police car but did not activate a siren or flashers, order the defendant to
stop, display weapons, or maneuver the police car to block the defendant or
control his movement).
¶20 Hartman argues that he was
“seized” by the deputy “[a]s soon as the deputy showed his authority by
introducing himself and asking Hartman to provide identification.” Hartman asserts that at that point he had no
choice but to answer the deputy’s questions.
We disagree and conclude that, under an objective test, Hartman answered
the questions put to him voluntarily and therefore was not “seized” under the
Fourth Amendment.
¶21 The following facts in the
record support our conclusion. The
deputy did not activate his squad car lights when he pulled up behind
Hartman. The deputy asked Hartman
whether he would be willing to speak and Hartman agreed by answering questions.
There is no indication in the record
that the deputy was accompanied by other officers or displayed a weapon. There is also no indication that the deputy
physically touched Hartman or used threatening language or a tone of voice to
indicate to Hartman that he could not refuse.
¶22 Based upon the totality of the
circumstances, a reasonable person would have felt free to leave because the
deputy did not use physical force or make a sufficient showing of authority to
demonstrate otherwise. We note that the
only factor suggesting that Hartman would not have felt free to leave is that
the deputy parked his squad car in a way to make it difficult for Hartman to
leave the park. However, that factor
alone does not turn a consensual encounter into a seizure. See Mendenhall, 466 U.S. at 554
(concluding that courts must consider “all of the circumstances surrounding the
incident”). Although this factor weighs in favor of
concluding that Hartman was “seized,” we do not weigh this factor so heavily as
to outweigh all the other factors relevant to our analysis.
¶23 Accordingly, we conclude
that Hartman was not “seized” within the meaning of the Fourth Amendment. We emphasize that the deputy’s testimony
regarding his subjective intent to detain Hartman is wholly irrelevant to the
question of whether the encounter was consensual. State v. Reichl, 114 Wis. 2d
511, 515, 339 N.W.2d 127 (Ct. App. 1983) (noting that a deputy’s subjective
intent is relevant “only to the extent it was conveyed” to the defendant). There is no indication in the record that the
deputy conveyed to Hartman that had Hartman tried to walk away from him, he
“probably would have continued to try to speak to [Hartman]” and would not have
allowed Hartman to leave the park.
Accordingly, we disregard the deputy’s subjective intent and instead
make our decision based on the objective fact that the deputy approached
Hartman to ask whether he would be willing to talk and a reasonable person
would have felt free to decline.
¶24 In light of the above facts,
we also conclude that the deputy had probable cause to arrest Hartman. Probable cause for arrest is defined as
“proof that would lead a reasonable police officer to believe that a person
probably committed a crime.” County
of Jefferson v. Renz, 231 Wis. 2d 293, 302, 603 N.W.2d 541
(1999). Here, the deputy had probable
cause because Hartman’s admission is proof that would lead a reasonable officer
to believe Hartman had probably operated a vehicle while intoxicated in
violation of Wis. Stat. § 346.63(1)(a). Indeed, Hartman concedes that, if the initial
questioning was lawful, then the deputy had probable cause to arrest him based
on his later admission. Because Hartman
refused to submit to a chemical test following his lawful arrest, the court
correctly revoked his operating privileges for one year. Therefore, we affirm.
By the Court.—Judgment
affirmed.
This opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by a one judge pursuant to Wis. Stat. § 752.31(2)(c) and (3) (2009-10). All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2] Wisconsin Stat. § 343.305(9)(a)5. limits a court to considering the following issues:
a. Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol … and whether the person was lawfully placed under arrest for violation of [an OWI-related statute] ….
b. Whether the officer complied with sub. (4) [by reading the proper information to the defendant].
c. Whether the [defendant] refused to permit the [chemical] test….
(Emphasis added.)
[3] Hartman also contends that an anonymous tip about a suspicious person is insufficient to justify an investigatory stop when there is no known information about the informant’s veracity, reliability and basis of knowledge. See Alabama v. White, 496 U.S. 325, 328 (1990). Because we conclude that Hartman was not “seized” within the meaning of the Fourth Amendment, we need not address this argument.