COURT OF APPEALS
DATED AND FILED
May 20, 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
Cody R. Dewitt,
from a judgment of the circuit court for
¶1 VERGERONT, J. Cody Dewitt appeals the judgment of conviction for operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC) of .08 or more, in violation of Wis. Stat. § 346.63(1)(a) and (b) (2007-08), second offense. He contends that his detention by an off-duty police officer for ninety minutes until the arresting officer arrived was not a de facto arrest supported by probable cause, as the circuit court ruled, but rather was an unreasonably long investigative detention. According to Dewitt, the circuit court therefore erred in denying his motion to suppress evidence. For the reasons we explain below, we conclude that the investigative detention was not unreasonably prolonged, and we affirm on this ground.
¶2 Dewitt was pulled over by off-duty
¶3 Officer Johnson testified as follows. He was driving home from his job at the Hillsboro Police Department when he saw Dewitt’s pickup truck driving fast toward a red light where other cars were stopped, then lock its brakes and swerve into the oncoming lane of traffic to avoid hitting the vehicles. Dewitt’s truck then passed Officer Johnson, who observed the truck jump the curb, nearly hitting a flag pole, and return to the road where it hit the curb several more times. Officer Johnson, who was driving his personal vehicle and still wearing his uniform, followed Dewitt for approximately two miles, pulled alongside him, and motioned to Dewitt to pull over. Dewitt pulled over and parked at the side of the road. Officer Johnson called the Reedsburg Police Department, whose dispatcher informed him that their officers were busy and it would be awhile before they could send a car. Officer Johnson told the dispatcher that he would remain parked behind Dewitt “for safety reasons,” until an officer was available.
¶4 Officer Johnson walked up to Dewitt’s truck and noted that
Dewitt’s knuckles were bloody. Dewitt
explained that he had been drinking earlier in a tavern and got into a
fight. During this initial exchange,
Officer Johnson noticed that Dewitt’s eyes were bloodshot and his speech was
slurred. He also noticed the odor of
intoxicants coming from the vehicle. Officer Johnson informed Dewitt that he was an
off-duty police officer acting as a civilian and, while he was unable to keep Dewitt
there, he would stay with Dewitt until a Reedsburg police officer arrived. Dewitt replied that he would wait for the
police to arrive and apologized for his driving behavior. On cross-examination, Officer Johnson
testified that, while he told Dewitt he did not have to stay, he also told him
that, due to his driving behavior, he would not allow him to leave in his
vehicle. Officer Johnson testified that he
did not arrest Dewitt or read him his Miranda
rights during the time they waited for a Reedsburg police officer to arrive. He explained that he also works as a
¶5 Dewitt testified that he asked Officer Johnson if he could
leave because he had to get to work by 7 a.m. in
¶6 Officer Geffert testified that she received the call concerning Dewitt at about 4:40 a.m. but was busy with a domestic disturbance and could not arrive on the scene until about 5:30 a.m. Upon arrival, Officer Geffert spoke with Officer Johnson about the circumstances leading up to the stop, and then spoke to Dewitt. Officer Geffert then administered field sobriety tests and arrested Dewitt.
¶7 The circuit court partially granted a motion to suppress evidence. The court concluded that, although Officer Johnson did not make a formal arrest, there was a de facto arrest that was supported by probable cause. Because Officer Johnson did not read Dewitt his Miranda rights, the court concluded that Dewitt’s statements made before Officer Geffert’s formal arrest must be suppressed. However, the circuit court denied the motion as it pertained to suppression of the field sobriety test results because they are not testimonial evidence and, thus, not subject to suppression on Miranda grounds.
¶8 On appeal Dewitt contends that the circuit court erred in concluding that his detention by Officer Johnson was a de facto arrest, or any type of arrest. His position is that there was no arrest but, rather, an investigative stop that was unreasonably long and therefore a violation of his Fourth Amendment right to be free from unreasonable seizure. The State responds that it conceded in the circuit court that Dewitt could have reasonably believed he was in custody. According to the State, the court properly concluded that there was a de facto arrest and properly concluded the de facto arrest was supported by probable cause.
¶9 When we review a decision on a motion to suppress evidence,
we uphold the circuit court’s findings of fact unless they are clearly
erroneous, and we review de novo the application of the constitutional
principles to those facts. State
v. Kramer, 2008 WI App 62, ¶8, 311
¶10 The Fourth Amendment to the United States Constitution protects
against unreasonable searches and seizures, and an investigative detention is a
seizure under the Fourth Amendment. State
v. Post, 2007 WI 60, ¶10, 301
¶11 In determining whether a detention is too long to be justified
as an investigative stop, courts “examine whether the police diligently pursued
a means of investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S.
675, 686 (1985) (citations omitted) (reversing lower court decision that twenty-
to forty-minute detention alone transformed an investigative stop into a de
facto arrest). If an investigative stop
continues indefinitely, at some point it can no longer be justified as an
investigative stop and it becomes a de facto arrest. See id. at 685. However, “a hard and fast time limit rule has
been rejected.” State v. Wilkins, 159
¶12 The unstated premise of Dewitt’s argument is that, if the seizure was an unreasonably long investigative detention, it did not thereby become an arrest, which would be lawful if supported by probable cause. His premise, as we understand it, is that an unreasonably long detention is unlawful regardless of whether there is probable cause. Indeed, Dewitt does not contend that there was not probable cause to arrest him. We need not rule on the correctness of this premise because we conclude the investigative detention was not unreasonably prolonged.
¶13 We assume for purposes of discussion that Dewitt was “seized” within the meaning of the Fourth Amendment when Officer Johnson pulled behind Dewitt’s vehicle and informed him that he [Dewitt] would “be waiting for the Reedsburg Police Department.” We conclude that Officer Johnson’s detention of Dewitt until a Reedsburg police officer was available was not unreasonable.
¶14 In assessing whether the stop was unreasonably prolonged, we look
to the law enforcement purposes of the stop and the time reasonably needed to
accomplish those purposes. State
¶15 Dewitt has presented no evidence to show that Officer Geffert,
or any other Reedsburg police officer, could have arrived any earlier; nor does
he argue that it was unreasonable for Officer Johnson to rely on his
understanding of county policy in not conducting the field sobriety tests and
arrest himself. Finally, Dewitt has not
shown that the ninety-minute delay was longer than reasonably needed to
accomplish the purpose of the stop. See State v. Vorburger, 2002 WI 105,
¶16 We conclude that it was reasonable for Officer Johnson to detain
Dewitt for safety reasons and to avoid breaking department rules by waiting for
an available on-duty officer to perform field sobriety tests and arrest
Dewitt. The ninety-minute delay, while
inconvenient, was “temporary and last[ed] no longer than is necessary to
effectuate the purpose of the stop.” Royer,
¶17 Although our analysis differs from that of the circuit court, we affirm the court’s partial denial of Dewitt’s motion to suppress evidence and therefore 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)(f) and (3) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
circuit court used the term “implied arrest,” but we use instead the term “de
facto arrest,” the term used in cases discussing whether a detention has become
an arrest because it is unreasonably long.
 Neither party addresses the court’s ruling that, because there was a de facto arrest by Officer Johnson, certain statements Dewitt made to him before the Miranda warning had to be suppressed. Accordingly, we do not discuss this aspect of the court’s ruling.
 While Officer Johnson testified that he told Dewitt he could not hold him there, both Dewitt and the State agree that Dewitt reasonably believed he was not free to leave the scene.