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COURT OF APPEALS DECISION DATED AND RELEASED November 16, 1995 |
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.
95-1021
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL G. COSTIGAN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County:
PATRICK J. FIEDLER, Judge. Affirmed.
VERGERONT, J.[1] Michael
Costigan appeals from a judgment of conviction for driving under the influence
of an intoxicant in violation of § 346.63(1)(a), Stats., and driving with a prohibited blood alcohol
concentration in violation of § 346.63(1)(b). He contends: (1) the
frisk conducted by the police officer violated his Fourth Amendment right to be
free from unreasonable searches; (2) this unconstitutional search
constituted an arrest without probable cause; and (3) because the arrest
was illegal, all evidence obtained after this illegal arrest, including his
statements, observations of the officer, and the results of a breathalyzer
test, should have been suppressed by the trial court. We affirm the judgment of conviction. We conclude that the frisk did not constitute an arrest; that the
arrest occurred later, after field sobriety tests; and that there was probable
cause to arrest at that later time.
The only witness at the
suppression hearing was Tracy Fuller, a Wisconsin state patrol trooper. He testified that at approximately 1:30 a.m.
on the day of the arrest, he was traveling northbound on East Washington Avenue
in Madison when he observed the vehicle operated by Costigan drift to the
shoulder of the right lane, then drift towards the left lane and onto the left
shoulder without signaling, then jerk back suddenly into the left lane, then
straddle the line between the center lane and the left lane, then drift over to
the shoulder of the right lane before jerking back into the right lane. Fuller, who was directly behind Costigan about
two or three car lengths, activated his red and blue emergency lights. Costigan continued to travel north on East
Washington. After more than a
half-mile, he took an exit off East Washington, turned right at an intersection,
and stopped about 100 feet past the intersection. There was very little lighting and no traffic or people.
Fuller
got out of his car and went to the driver's side of Costigan's car. Fuller told Costigan he stopped him because
he was drifting across the road.
Costigan produced his Illinois driver's license. Fuller observed an odor of alcohol coming
from Costigan. Fuller told Costigan of
this observation. Costigan said he was
not going to lie, that he had just left Sergio's and had had a few drinks, and
that he would be happy to get out of the car and walk for Fuller. Fuller said he would like Costigan to get
out of the car for some field sobriety tests.
Costigan agreed and got out of the car.
Fuller then patted
Costigan around his waist area, pushing aside his jacket, which was open, but
not going under any other clothing.
This lasted no more than five or ten seconds. Fuller discovered nothing during this frisk. After observing Costigan perform the field
sobriety tests, Fuller told him he was under arrest for driving while
intoxicated.
The trial court denied
Costigan's motion to suppress. It
concluded that Fuller had reasonable grounds to suspect he might be in physical
danger from Costigan because of the early morning hours and the fact that the
car continued for more than a half-mile, away from a more traveled and
well-lighted area, to pull over in a spot that had little lighting and no
people or traffic. The court found the
frisk performed was minimal in scope and duration and reasonable for the
purpose of detecting whether Costigan carried any weapon. The court also found that at the time the
frisk occurred, Costigan was not under arrest, and that the arrest occurred
later after the field sobriety tests.
In reviewing the denial
of a suppression motion, we uphold the trial court's findings of facts unless they
are clearly erroneous. See State
v. Jackson, 147 Wis.2d 824, 829, 434 N.W.2d 386, 388 (1989). Whether those facts satisfy the
constitutional requirements presents a question of law, which we review de
novo. See id.
Costigan's argument on
appeal has four components:
(1) the frisk violated the Fourth Amendment because there are no
facts from which it can reasonably be inferred that Costigan was armed and
dangerous, as required by Terry v. Ohio, 392 U.S. 1 (1968), and United
States v. Brignoni-Ponce, 422 U.S. 873 (1975);[2]
(2) since Fuller conducted an illegal frisk, he "wittingly or not made an
arrest"; (3) since there was no probable cause to arrest when Fuller
conducted the frisk, the arrest was unlawful; and (4) since the arrest was
unlawful, all evidence obtained thereafter must be suppressed.
We do not decide whether
the frisk violated the Fourth Amendment because we conclude that, even if it
did, that violation does not automatically transform the frisk into an
arrest. Costigan has provided us with
no authority for this position. We are
convinced that we must apply the test articulated in State v. Swanson,
164 Wis.2d 437, 475 N.W.2d 148 (1991), to determine whether an arrest
occurred. The inquiry is whether a
reasonable person in the defendant's position would have considered himself or
herself to be in custody given the degree of restraint in the particular
circumstances. Swanson,
164 Wis.2d at 446-47, 475 N.W.2d at 152.
This is an objective test that assesses the totality of the
circumstances, including what was communicated by the words or actions of the
officer. Id. Applying this test, we conclude that the
frisk did not constitute an arrest.
In Swanson,
police officers stopped a car after seeing it drive onto the sidewalk and
almost hit a pedestrian. The officers
detected a strong odor of alcohol on Swanson's breath and directed him to come
over to the squad car for field sobriety tests. Before he got into the squad car, an officer conducted a pat-down
search because department policy required a pat-down search before placing
someone in a squad car. The officer
discovered a bag of marijuana in Swanson's pocket in the pat-down. The court concluded that the scope of the
pat-down exceeded that justified as a frisk for weapons under Terry. Swanson, 164 Wis.2d at 454-55,
475 N.W.2d at 155-56. It also concluded
that the search was not a search incident to an arrest because Swanson was not
under arrest at that time. Id.
at 452, 475 N.W.2d at 155.
In analyzing whether
Swanson was under arrest at the time of the pat-down, the court noted the brief
duration and public nature of the usual traffic stop. Swanson, 164 Wis.2d at 447, 475 N.W.2d at 152. It also noted that the officers did not tell
Swanson he was under arrest, give him Miranda warnings, handcuff
him or draw weapons. Id.
at 448, 475 N.W.2d at 153. The court
concluded that a person in Swanson's position would not believe he was under
arrest simply because he was asked to perform field sobriety tests. Id. Rather, reasonable people would understand that the request means
that if they pass the test, they are free to leave. Id. at 452, 475 N.W.2d at 155. The court rejected as unreasonable the view
that the request to perform field sobriety tests transformed the stop into a
search. Id. at 449, 475
N.W.2d at 153. In reaching this
conclusion, the court noted that other jurisdictions have held that more
intrusive circumstances--such as the use of handcuffs or physical force--do not
transform a Terry stop into an arrest. Id. at 448, 475 N.W.2d at 153. It also referred to Jones v. State,
70 Wis.2d 62, 233 N.W.2d 441 (1975), which held that a Terry stop
does not become an arrest merely because police draw their weapons.
In this case, Fuller
found nothing when he patted Costigan around the waist. And the scope of the frisk he conducted was
more limited than the pat-down search in Swanson. But the Swanson court's
analysis on the issue of arrest is instructive here. At the time Fuller frisked Costigan, he had stopped Costigan's
car, asked for his identification, asked him to get out of the car to take
field sobriety tests, and told him he had been drifting over the road and
smelled of alcohol. Costigan willingly
got out of the car to take the field sobriety tests. Fuller did not tell Costigan he was under arrest, give him Miranda
warnings, handcuff him, or draw a
weapon either before, during or immediately after the frisk. He used no physical force. Immediately after the frisk, Fuller
proceeded to conduct the field sobriety tests.
The facts in this case
are significantly different than those in Dunaway v. New York,
442 U.S. 200 (1979), on which Costigan relies.
Dunaway was taken to police headquarters in a police car and placed in
an interrogation room; he would have been physically restrained if he had
refused to accompany them. Id.
at 212-13. The facts also differ
significantly from those in State v. Pounds, 176 Wis.2d 315, 500
N.W.2d 373 (Ct. App. 1993). Relying on
the Swanson test, the court in Pounds held that a
reasonable person in Pounds' position would not have believed he was free to
leave the patrol car. Id.
at 322, 500 N.W.2d at 376. The officers
told Pounds he was free to leave, then a short time later located him, ordered
him to the floor at gunpoint, handcuffed him and put him in the patrol car. Id. at 321-22, 500 N.W.2d at
376.
We reject Costigan's argument
that the brief and limited frisk conducted by Fuller would make a reasonable
person conclude that he was not free to leave if he passed the tests. We conclude that an arrest did not occur by
virtue of the frisk.
We agree with the trial
court that Costigan's arrest took place after the field sobriety tests, when
Fuller told him he was under arrest and handcuffed him. Costigan does not argue that a reasonable
person would not believe himself or herself under arrest at that time. Nor does he contend that there was not
probable cause to arrest at that time.
We conclude therefore that Costigan is not entitled to the suppression
of any evidence.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.