COURT OF APPEALS
DATED AND FILED
November 24, 2010
A. John Voelker
Acting 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.
IN COURT OF APPEALS
from a judgment and an order of the circuit court for
¶1 BLANCHARD, J.
Julio Leon appeals from a judgment of conviction for operating a motor vehicle
while under the influence of an intoxicant (OWI), first offense, Wis. Stat. § 346.63(1)(a), and
from an order denying his suppression motion.
¶2 The only witness at the evidentiary hearing on
¶3 Deputy Uminski further testified that a vehicle associated
with Stacy and the man she was with (subsequently identified as
¶4 The deputy testified that when he first saw them, Stacy and Leon were “flailing their arms” while they were on the frontage road, “right outside their vehicle” in what “appeared to be some type of argument alongside the roadway.” On cross-examination, however, Uminski testified that he was not certain whether Stacy was in fact flailing her arms when he first saw her.
¶5 The deputy called for backup.
He pulled over “to sort out what was taking place, [and] separate the
parties.” He believed that “there may [have]
be[en] some type of disturbance in progress.”
When Uminski approached, Stacy was talking to
¶6 Deputy Uminski said he “separated” Leon and Stacy and began to try to communicate with Stacy, but this was difficult, because she was “acting frantically” and ignoring Uminski’s directions. Stacy “appeared to be intoxicated, agitated, [and] highly excitable” and the deputy “couldn’t gather much information from her.” The deputy further testified that Stacy “continued to come toward me, highly agitated, flailing her arms around, and the like, to the point, [that] … [I] believed she may strike me for whatever reason.” The deputy placed Stacy in custody “for her safety, and [the deputy’s] safety, and continued sorting out what the on-going issue was.”
¶7 When asked whether, while Stacy was acting in a wild manner,
¶8 After handcuffing Stacy and placing her in his squad car, Deputy
Uminski spoke with Leon, who identified himself by way of an
¶9 The deputy testified that
¶10 The deputy asked if
¶11 When specifically asked what he believed supported the decision to ask for field sobriety tests, the deputy responded:
I detected an odor of intoxicants coming from his breath. He admitted to drinking. In regard to the statement, I had people admit many different levels how much they had to drink. So, to make sure he was safe to drive or not drive, I asked him to perform the tests.
¶12 In its written decision, the circuit court found that the deputy
had reasonable suspicion to detain
¶13 Under the Fourth Amendment to the United States Constitution
and article I, § 11 of the Wisconsin Constitution, an investigatory
detention must be supported by the law enforcement officer’s reasonable
suspicion, grounded in specific, articulable facts and reasonable inferences
from those facts, that a person is or was violating the law. State v. Colstad, 2003 WI App 25,
question of what constitutes reasonable suspicion is a common sense test: under all the facts and circumstances
present, what would a reasonable police officer reasonably suspect in light of
his or her training and experience[?]”
¶15 Before detaining a person to conduct field sobriety tests, an officer must have reasonable suspicion that the person has been driving after the person “has consumed a sufficient amount of alcohol to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle.” See Wis. JI Criminal 2663.
¶16 In reviewing the circuit court’s determination that there was
reasonable suspicion to prolong the stop to request field sobriety tests, we
accept the circuit court’s findings of historical fact unless they are clearly
erroneous, and we review de novo the application of those facts to the
constitutional standard. State
v. Young, 2006 WI 98, ¶17, 294
¶17 Leon does not claim that the deputy acted unlawfully in
approaching and questioning Stacy and Leon about the disturbance, or in placing
Stacy in handcuffs. Instead,
¶18 We begin the analysis by noting that this case is somewhat
unusual in that the deputy lacked proof of reckless or inattentive driving by
¶19 This contrasts sharply with the many cases in which a law
enforcement officer has observed weaving, evasive driving, speeding,
excessively slow driving, or other erratic or dangerous behavior behind the
wheel that might reasonably be thought to correlate with impaired driving,
based on the training and experience of a reasonable officer. The vehicle that
¶20 When an officer is not aware of bad driving, then other factors
suggesting impairment must be more substantial.
For example, a speeding or significant lane violation at bar time
provides a far different context than is presented here.
¶21 Further, while the deputy was not required to credit Leon’s
claim of having had no more than one beer, along with food, approximately two
hours earlier, the deputy was not presented with a suspiciously vague admission
of “some” drinking or “a few” drinks, nor with an admission to multiple drinks or drinking hard liquor.
¶22 Turning to the point that apparently proved decisive to the circuit court, namely the roadside disturbance that drew the deputy to the scene, the deputy observed aberrant behavior by Stacy that appeared to be at least in part fueled by overconsumption of alcohol. Deputy Uminski acted lawfully and appropriately in stopping and responding to the Stacy’s apparently dangerous conduct.
¶23 Yet the record is simply devoid of facts from which reasonable inferences could be drawn that Leon did anything in connection with his interactions with an apparently intoxicated Stacy suggesting impairment. Even assuming all reasonable inferences against Leon regarding his role in an argument that included “flailing” of arms by both parties, such facts would not suggest to a reasonable police officer, based on his or her training and experience, that Leon had been driving while impaired or with a prohibited blood alcohol level.
¶24 Depending on details, bizarre or unruly conduct can be viewed
as indicia of impairment; this is consistent with the required “common sense” approach.
See, e.g., State v. Krause, 168
¶25 One factor not explicitly mentioned by the deputy, nor cited by
the circuit court or the County, but that could be considered at least to a
small degree in favor of the circuit court’s legal conclusion, is that this
incident occurred late on a Friday evening.
¶26 The totality of the circumstances on the undisputed facts
suggest that at the time the deputy came upon them, Stacy was acting in a wild
manner and Leon was simply reacting to that behavior. The deputy did not testify to the contrary,
either in any detail or in summary fashion.
When approached by the deputy,
¶27 The County argues in part, that “if Deputy Uminski had not
requested field sobriety tests and instead let the defendant go and there had
been a horrible accident, he would be vilified for not properly investigating
the situation before him.” This is not
the current legal standard in
¶28 While officers need not observe unlawful conduct to support a
finding of reasonable suspicion, Waldner, 206
¶29 We conclude that the deputy did not have reasonable suspicion to detain Leon to perform field sobriety tests, and that the circuit court erred in denying Leon’s motion to suppress evidence on these grounds. We therefore reverse the judgment, reverse the order denying the motion to suppress, and remand to the circuit court for further proceedings.
By the Court.—Judgment and order reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Because we conclude that the officer’s decision to
prolong his encounter with
 Neither side attempted to have the deputy, an experienced law enforcement officer, characterize the odor as strong, moderate, or weak, which can be a factor in determining reasonable suspicion, and the deputy did not imply any particular level of intensity.
 We are not limited to the record before the circuit court at the time
of the suppression hearing in our evaluation of the totality of circumstances
facing the deputy when he extended his encounter with
 In the absence of specific fact-finding, this court ordinarily
assumes facts that are reasonably inferable from the record in a manner that
supports the circuit court’s decision. See,
e.g., State v. Wilks, 117