COURT OF APPEALS
DATED AND FILED
February 3, 2010
David R. Schanker
Clerk of Court of Appeals
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.
STATE OF WISCONSIN
IN COURT OF APPEALS
Bradley A. Krahn,
from a judgment of the circuit court for
¶1 NEUBAUER, P.J. Bradley A. Krahn appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI), third offense, contrary to Wis. Stat. § 346.63(1)(a). Krahn contends that the trial court erred in denying his motion to suppress evidence stemming from his illegal arrest. Krahn does not challenge the initial stop of his vehicle; however, he argues that the temporary detention was converted to an arrest when he was transported less than a mile from the scene of a traffic stop to the police station for the administration of field sobriety testing because of hazardous road conditions. Based on the totality of the circumstances, we conclude that the police acted within the scope of a temporary detention and that a reasonable person in Krahn’s position would have understood that he or she was not under arrest. We affirm the judgment.
¶2 The facts underlying Krahn’s conviction were testified to at
the hearing on his motion to suppress by both officers involved. Officer Steven Falk of the City of Plymouth
Police Department testified that on December 7, 2008, at approximately 1:40
a.m., he was patrolling
¶3 Daniels testified that he received a dispatch call regarding Falk’s traffic stop. He went to assist Falk. Falk informed Daniels that he stopped Krahn’s vehicle for operating without its lights on and that he noticed an odor of intoxicants. Daniels approached Krahn, who was still seated in his vehicle, and explained who he was. Daniels noticed “an odor of intoxicants emitting from his person” and asked Krahn if he had been drinking that evening. Krahn replied that he had, but was not sure how much. Daniels asked Krahn to step out of the vehicle and looked for a place to perform field sobriety testing. Daniels testified that there had been a snowstorm and “the sidewalks were covered in snow and ice, and the road was very slushy, and it was also fairly cold outside. So to give [Krahn] a proper arrangement to perform the tests, I decided it wouldn’t be proper to do it at the scene of the traffic stop.” Daniels testified that “we usually take [drivers] to the police department” for field sobriety testing.
¶4 According to Daniels, the police department is about one mile, “[m]aybe less,” from the scene of the traffic stop. Daniels testified:
I advised [Krahn] due to the circumstances, I was going to be detaining him pending further investigation. Per department policy and for my safety, he was handcuffed in the back. I advised him he was not in custody; and if we would go to the [police department] and he would perform his tests satisfactory, I would transport him back to his vehicle, and he would be free to go.
When placing him in the back of his squad car, Daniels specifically informed Krahn that he was being handcuffed for safety reasons and to comply with department policy. Daniels, who was the sole officer in the squad car, transported Krahn to the police department in approximately one minute. Krahn was taken to the main hallway where his handcuffs were removed and he was asked to perform field sobriety testing.
¶5 Krahn was later arrested and charged with OWI and operating with a prohibited alcohol concentration, third offense. Krahn filed a motion to suppress evidence based on an illegal arrest resulting from the use of handcuffs and being transported in the back of the police squad from the scene of the traffic stop. Following a motion hearing on April 28, 2009, the trial court denied Krahn’s motion based on its determination that “the detention was brief and narrow considering the circumstances” and that because of the weather conditions “which [Krahn] could plainly see, objectively he should have known he was not under arrest, but being detained to do field tests.” Krahn subsequently pled no contest to OWI, third offense. He now appeals.
¶6 Krahn does not challenge the initial stop of his vehicle
under Terry v. Ohio, 392 U.S. 1 (1968), nor does he challenge the
underlying facts relating to the weather and road conditions or the information
provided to him by the police during the incident. Therefore, the narrow issue on appeal is
whether Krahn was under arrest when he was transported from the scene of his
original detention to the police station or whether the police were acting
within the scope of a temporary investigative detention. Our review is de novo and is limited to
whether the facts as found by the trial court satisfy the reasonable
requirement for a warrantless search and seizure under the Fourth
¶7 Our decision in Quartana sets forth “the analysis to
be conducted when a person under a Terry investigation is removed from
one place to another.” Quartana,
¶8 Generally, when a person under investigation pursuant to a Terry
stop is moved from one location to another, we employ a two-step inquiry:
(1) Was the person moved within the “vicinity”? and (2) Was the purpose in moving the person within the vicinity reasonable? Quartana, 213
¶9 Both parties look to Quartana for guidance on the
question of when a valid temporary detention is transformed into an
arrest. At the outset, the Quartana
court observed that “[a] restraint of liberty does not ipso facto prove that an
arrest has taken place.”
¶10 Krahn contends that the facts of his case are distinguishable
from those presented in Quartana because (1) he was
transported to a police department, an institutional setting, for further
investigation and (2) his hands were handcuffed behind his back during the
transport, restricting his movement. While the Quartana court did consider the fact
that the defendant was not transported to “a more institutional setting, such
as a police station or interrogation room,” it was but one factor in the
totality of circumstances analysis.
¶11 Finally, Krahn compares his detention to that in Florida
v. Royer, 460 U.S. 491 (1983). While Royer involved a transport to a
“police interrogation room,” the court’s conclusion that “as a practical matter,
Royer was under arrest,” was based in part on the fact that Royer was “never
informed that he was free” to leave.
¶12 Here, it is undisputed that the weather and road conditions
were hazardous and necessitated a move to ensure a suitable location to conduct
the field sobriety tests, as well as for safety reasons, especially given the
early morning hour of the stop. The police
had reasonable grounds for the temporary detention and transportation to the
nearby police station where they could quickly confirm or dispel their
suspicions. The conditions of
transportation did not transform the temporary seizure into an arrest. Krahn does not dispute the officer’s testimony
that he expressly informed Krahn that he was being detained only temporarily,
that he was being transported to the police station for the purpose of
conducting field sobriety testing, that he was being handcuffed for safety and
security reasons, and that he would be free to go provided he performed
satisfactorily on the field sobriety testing. We are satisfied that, under the totality of
the circumstances, a reasonable person in Krahn’s position would not have
believed himself or herself to be under arrest.
See Quartana, 213
¶13 We conclude that the police officer’s transport of Krahn to the police station for field sobriety testing was within the scope of the temporary investigative detention under Terry. We further conclude that the conditions of transport and location of testing did not serve to transform the investigative detention into an arrest. We therefore uphold the trial court’s denial of Krahn’s motion to suppress and affirm the judgment of conviction.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
note that Krahn was transported approximately one mile or less from the scene
of the traffic stop to the police department.
This is the same distance the defendant in State v. Quartana, 213
 Common sense dictates that safety concerns for both the officer and the public would justify the use of handcuffs when a single officer is operating a vehicle and is therefore not able to maintain surveillance over a passenger.
also reject Krahn’s contention that Daniels’ retention of Krahn’s driver’s
license during the transport weighs in favor of a determination that he was
illegally seized once he was transported from the scene of the initial traffic
stop. While Krahn relies on State
v. Luebeck, 2006 WI App 87, 292
additionally cites to Hayes v. Florida, 470