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COURT OF
APPEALS DECISION DATED AND
RELEASED February
27, 1997 |
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-2407
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COLUMBIA
COUNTY,
Plaintiff-Respondent,
v.
KEITH
A. BALLWEG,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Columbia County: RICHARD REHM, Judge. Reversed and cause remanded with
directions.
DEININGER,
J.[1] Keith
Ballweg appeals from a judgment convicting him of first offense operating a
motor vehicle while intoxicated (OMVWI), in violation of § 346.63(1), Stats.
He claims the trial court erred in denying his motion to suppress
evidence. We agree, concluding
that: (1) Ballweg was arrested
at the scene of the traffic stop; and (2) the county has failed to
establish that the officer at the scene had probable cause to arrest Ballweg
for OMVWI. Accordingly, we reverse.
BACKGROUND
In
the early evening of December 20, 1995, Village of Fall River Police Officer
Shawn Finnegan clocked Ballweg's vehicle travelling at 73 mph in a 55 mph zone
on State Highway 16. Finnegan pursued
the speeding vehicle. The officer
testified that while in pursuit, he observed Ballweg's vehicle make an
"erratic" right turn. During
cross-examination, Finnegan clarified this by saying that the pursued vehicle
did not fishtail, skid or make any lane deviations, but that in his opinion the
right turn was made too fast.
After
stopping Ballweg, Finnegan detected an odor of intoxicants coming from the
vehicle and observed that Ballweg's eyes were red, bloodshot and glassy. In response to Finnegan's question, Ballweg
admitted that he had been drinking at a birthday party with co-workers. Finnegan testified that Ballweg's speech was
"very slurred."
Due
to the pursuit, the traffic stop was actually accomplished in the City of
Columbus. Finnegan therefore radioed
for assistance from the Columbus Police Department, and two officers from that
agency responded to the scene. The
Columbus officers, for reasons that are not entirely clear, then contacted the
Columbia County Sheriff's Department.
The decision was made to transport Ballweg to the Columbus Police
Department where a Columbia County sheriff's deputy would administer field
sobriety tests. There is nothing in the
record explaining why field sobriety tests were not conducted at the scene of
the stop.
Officer
Finnegan then asked Ballweg to get out of his car. Finnegan handcuffed him behind his back and transported him to
the Columbus Police Station. Finnegan
testified that he told Ballweg that he was not under arrest but that the
handcuffs were required by departmental policy for a squad car transport. Finnegan further testified that Ballweg was
not under arrest for either OMVWI or for speeding, but he acknowledged that
Ballweg was not "free to leave" at the scene, during the transport or
at the Columbus Police Station.
Subsequently,
the Columbia County deputy conducted field sobriety tests at the Columbus
Police Station and issued a citation for OMVWI. Another officer gave Ballweg an Intoxilyzer breath test. Ballweg moved to suppress all evidence
obtained after the point at which he was handcuffed and transported, claiming
he was arrested at the scene of the stop without probable cause for OMVWI. The trial court denied the motion,
concluding that Ballweg had not been arrested at the scene but only later by
the deputy at the police station.
Ballweg then pleaded no contest and was convicted of OMVWI.
ANALYSIS
a. No Contest Plea—Waiver Rule
Although
the county has not raised the issue, we note at the outset that Ballweg, unlike
a criminal defendant,[2]
waived his right to appeal the denial of his suppression motion by pleading no
contest to a civil forfeiture offense. See
County of Racine v. Smith, 122 Wis.2d 431, 434, 362 N.W.2d 439,
441 (Ct. App. 1984). The waiver rule is
not a matter of appellate subject matter jurisdiction, however. On a proper record, we may exercise our
discretion and consider the merits of the appeal despite the no contest
plea. State v. Riekkoff,
112 Wis.2d 119, 123-24, 332 N.W.2d 744, 747 (1983).
As
we did in County of Ozaukee v. Quelle, 198 Wis.2d 269, 275-76,
542 N.W.2d 196, 198 (Ct. App. 1995), we decline to apply the waiver rule in
this case. First and foremost, the
county has not asked that we apply the waiver rule. And, as in Ozaukee, 198 Wis.2d at 275, 542 N.W.2d
at 198, "since the issue raised on appeal was squarely presented before
the trial court and testimony was taken regarding the issue, we have an
adequate record." Finally, as was
also the case in Ozaukee, it does not appear that this appeal was
taken to circumvent a sentence that was more severe than expected. "All indications are that this was a
garden-variety first offender driving while intoxicated case and the penalty
assessed was no greater or lesser than usual." Id. at 276, 542 N.W.2d at 198.
b. Probable Cause to Arrest at the Scene of
Stop
As he did in the trial
court, Ballweg argues that his handcuffing and transport from the scene of the
stop constituted an arrest, and that at the time of the arrest, Officer
Finnegan did not have probable cause to arrest him for OMVWI. Ballweg asserts that the county conceded the
lack of probable cause to arrest him for OMVWI until after the deputy had
administered field sobriety tests at the Columbus Police Station, because the
county took the position in the trial court that no arrest occurred until that
point in time.
While
"concession" may be too strong a word, the county never attempted in
the trial court, nor does it on this appeal, to validate Officer Finnegan's
actions at the scene by establishing that Finnegan had probable cause to arrest
Ballweg for OMVWI before transporting him to the police station.[3] Because the trial court agreed with the
county's contention that Ballweg had not been arrested at the scene, it
specifically declined to address the issue of probable cause. In its brief, the county devotes but one
sentence to the issue: "It is
clear that Officer Finnegan certainly had probable cause to believe that Mr.
Ballweg could be under the influence of an intoxicant." The county, however, fails to develop this
argument with citations to authority or to the record.
Whether
Officer Finnegan had probable cause to arrest Ballweg for OMVWI at the scene of
the stop is a question of law which we determine de novo. State v. Babbitt, 188 Wis.2d
349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994).
We decline to do so here, however.
This issue has not been properly developed by the county, either here or
in the trial court. See Swatek v.
County of Dane, 192 Wis.2d 47, 52 n.1, 531 N.W.2d 45, 47 (1995) (court
of appeals has no duty to consider issues not presented) and State v.
Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) (we
may decline to review issues inadequately briefed).
We
conclude that in the absence of any meaningful attempt by the county to justify
an arrest at the scene of the stop, it has failed to establish that Officer
Finnegan had probable cause to arrest Ballweg for OMVWI before he handcuffed
and transported Ballweg to the Columbus Police Station.
c. Officer Finnegan's Arrest of Ballweg
Our
decision, as did the trial court's, turns on whether Ballweg was under arrest
when Officer Finnegan handcuffed and transported him from the scene of the
stop. This determination is one of law
which we review de novo, owing no deference to the trial court's decision. State v. Clappes, 117 Wis.2d
277, 280‑81, 344 N.W.2d 141, 143 (1984).
We conclude that Officer Finnegan arrested Ballweg when he handcuffed
and transported him, since "a reasonable person in the defendant's
position would have considered himself ... to be `in custody,' given the degree
of restraint under the circumstances."
State v. Swanson, 164 Wis.2d 437, 446-47, 475 N.W.2d 148,
152 (1991).
In
determining whether Ballweg was in custody, Officer Finnegan's assertion that
he had not arrested Ballweg merits our consideration, but only as a part of the
totality of circumstances to which the Swanson objective test for
arrest must be applied. Indeed, the
supreme court opted for the objective test in part to "alleviate the need
to assess the subjective understandings of the parties and ... the self‑serving
declarations of the police officers or suspects."[4] Swanson, 164 Wis.2d at 446,
475 N.W.2d at 152. Here, the officer's
assertion is overcome by the significant degree of restraint applied to Ballweg
by handcuffing him and transporting him from the scene of the stop to the
police station. Officer Finnegan
acknowledged that throughout this process, Ballweg was not free to leave. We conclude that a reasonable person in
Ballweg's position would have agreed with Finnegan on this point.
Section
968.24, Stats., which codifies
the holding of Terry v. Ohio, 392 U.S. 1 (1968), provides as
follows:
After having identified himself or herself as a law
enforcement officer, a law enforcement officer may stop a person in a public
place for a reasonable period of time when the officer reasonably suspects that
such person is committing, is about to commit or has committed a crime, and may
demand the name and address of the person and an explanation of the person's
conduct. Such detention and
temporary questioning shall be conducted in the vicinity where the person was
stopped.
(Emphasis supplied).
Absent a showing that weather conditions, the medical condition of the
suspected intoxicated driver or some other exigency precluded further
investigation at the scene, the inherently coercive handcuffed transport of
Ballweg to a police station vastly exceeded the minimal intrusion of a typical
traffic stop. See Swanson, 164 Wis.2d at 447, 475 N.W.2d
at 152 (traffic stop, like Terry stop, is typically brief and
public in nature) (citing Berkemer v. McCarty, 468 U.S. 420
(1984)).
The
trial court correctly noted that Ballweg's custodial excursion for the express
purpose of administering field sobriety tests is not "a wise procedure to
be followed."[5] The court also observed that "[i]t is
unusual to have someone taken to a law enforcement station without further
having been done here," and that the handcuffed transport "speaks of
custody and speaks of arrest." We
concur with all of these sentiments, and disagree only with the trial court's
ultimate legal conclusion.
Since
the county has not established probable cause for an arrest at the scene of the
stop, Ballweg's custodial transport to the police station violated his Fourth
Amendment right to be free from unreasonable seizure.[6] We therefore set aside the judgment of
conviction and direct that all evidence obtained subsequent to Ballweg's
handcuffing and placement in Officer Finnegan's squad car be suppressed.
By
the Court.—Judgment reversed
and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[3] The county argued in the trial court that
"reasonable cause," not "probable cause," governed the
arrest because this was a civil forfeiture action. It quickly abandoned the argument, however, and asserted "[t]he
issue is really when did the arrest happen." And, in discussing State v. Swanson, 164 Wis.2d
437, 475 N.W.2d 148 (1991), which both parties concede governs this appeal, the
county told the trial court "the Wisconsin Supreme Court wants the
officers to conduct the field sobriety tests ... we don't want you to get them
under arrest until you do the field sobriety tests." The prosecutor acknowledged that he did not
know why tests were not performed at the scene, and the record provides no
answer.
[4] During argument in the trial court, the
parties, while citing State v. Swanson, 164 Wis.2d 437, 446, 475
N.W.2d 148, 152 (1991), also referred to the three elements of the prior
subjective test for arrest abandoned by the Swanson court. As a result, it appears the trial court may
have given undue weight to Officer Finnegan's belief that Ballweg was not under
arrest:
I'm finding that the officer did state to the defendant
that he in fact was not under arrest, that he was being transported in cuffs
pursuant to department policy. And that
in my mind completely, from an objective standpoint, negates the actual arrest
of the defendant at the point that he was transported to the police
department.
[5] In addition to the Fourth Amendment concerns
such a procedure raises, the Swanson court observed that
arresting OMVWI suspects prior to the administration of field sobriety tests
would lead to the "absurd result" of giving suspects grounds under
the Fifth Amendment to refuse to perform the sobriety tests. State v.
Swanson, 164 Wis.2d 437, 449, 475 N.W.2d 148, 153 (1991).