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Even if field sobriety tests constitute a “search” under the Fourth Amendment, police may request them based on reasonable suspicion of impairment

Village of Little Chute v. Ronald A. Rosin, 2013AP2536, District 3, 2/25/14; court of appeals decision (1-judge; ineligible for publication); case activity

Rosin argues that field sobriety tests are searches under the Fourth Amendment because “[a]n inherent right as a human being is to control and coordinate the actions of [his or her] own body[,]” and, therefore “a fundamental expectation of privacy is implicated when a person is subject to the performance of [field sobriety tests].” (¶12). The  Village doesn’t respond to this argument, so the court of appeals deems it to be conceded. (¶13).

But treating FSTs as a Fourth Amendment search doesn’t change the quantum of evidence needed before an officer may request a driver to do them because the “probable cause” standard Rosin advances is nothing more than the “reasonable suspicion of impairment” standard already in effect, which requires some evidence beyond that supporting the initial traffic stop. (¶¶14-18, citing County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999)). To the extent Rosin argues for the “probable cause to arrest” standard adopted by People v. Carlson, 677 P.2d 310, 317-18 (Colo. 1984), the court rejects that standard as “inconsistent with our jurisprudence.” (¶19).

Applying the “reasonable suspicion of impairment” standard here, the court concludes the officer had sufficient basis to ask Rosin to perform FSTs. (¶¶22-24).

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