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Extension of initial seizure justified by totality of circumstances

State v. Joshua D. Winberg, 2016AP108-CR, District 3, 1/10/17 (one-judge decision; ineligible for publication); case activity (including briefs)

The police had reasonable suspicion to extend a traffic stop to investigate whether the driver was operating under the influence.

Winberg can’t win for losing, it seems. He was stopped after an officer ran a registration check on the vehicle he was driving and learned the owner (a woman) had a revoked license. Winberg challenged the stop, and the circuit court held the officer, who couldn’t see the driver, shouldn’t have assumed the revoked owner was driving and therefore shouldn’t have stopped the car. Not surprisingly, the court of appeals reversed the circuit court’s suppression order based on State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923. It held the initial stop was valid and that the officer could make contact with the driver and ask for identification, even though the driver was male, not female. The court of appeals declined to address whether extension of the stop beyond asking or identification was justified because the record on that point wasn’t developed. (¶¶3-4).

On remand, after further hearings, the circuit court held the officer should have made a reasonable attempt to identify whether the driver was male or female and, therefore, the stop was unreasonable under Newer. Moreover, it held the extension of the stop wasn’t supported by the totality of the circumstances. (¶¶5-11). Once again the court of appeals reverses.

First, the circuit court had no business revisiting the question of the initial stop:

¶15     “A trial judge may not simply reject instructions on remand because he [or she] disagrees with the appellate court’s legal analysis.” Burch v. American Family Mut. Ins. Co., 198 Wis. 2d 465, 477 n.1, 543 N.W.2d 277 (1996). As the State correctly argues, “a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.” State v. Stuart, 2003 WI 73, ¶23, 262 Wis. 2d 620, 664 N.W.2d 82 (citation omitted). Winberg offers no rebuttal of the State’s invocation of this principle, and we accordingly deem the argument conceded. See Hoffman v. Economy Preferred Ins. Co., 2000 WI App 22, ¶9, 232 Wis. 2d 53, 606 N.W.2d 590 (1999). There are otherwise no “cogent, substantial, and proper reasons” that would compel us to disregard our previous conclusion. Stuart, 262 Wis. 2d 620, ¶24.

Next, the officer’s question to Winberg about whether he was the owner of the car didn’t unreasonably extended the stop beyond its original purpose:

¶18     We agree with the State that this short colloquy did not unreasonably extend the traffic stop beyond the initial contact, especially since there were two occupants of the vehicle and one was female, matching the gender of the registered owner. Regarding the three-word question, nothing in [State v.] Williams[, 2002 WI App 306, 258 Wis. 2d 395, 655 N.W.2d 462,] supports the conclusion that, while an officer may ask for a driver’s identification, the officer cannot ask a question if he or she is subjectively aware of what the answer to that question is likely to be. See Williams, 258 Wis. 2d 395, ¶22; see also [State v.] Griffith, [2000 WI 72,] 236 Wis. 2d 48, ¶54[, 613 N.W.2d 72]. Moreover, law enforcement officers may “demand the name and address of the [stopped] person and an explanation of the person’s conduct.” Wis. Stat. § 968.24. Even if it appeared unlikely Winberg was the owner operating the vehicle without a valid license, it would defy common sense to bar [Officer] Bjorkman from being able to question the occupants to clarify the identity of the owner or operator and, if neither occupant was the owner, to ask how or why Winberg was operating the vehicle. See Griffith, 236 Wis. 2d 48, ¶¶38-39. Bjorkman’s questions about where Winberg had been that evening and where he was travelling were reasonable regardless of the underlying reason for the traffic stop, as the initial contact only lasted slightly over one minute and did not extend the stop beyond the time necessary to fulfill its purpose. See [State v.] Betow, 226 Wis. 2d [90,] 93[, 593 N.W.2d 499 (Ct. App. 1999)].

Finally, while the circuit court found a lack of credibility in the officer’s testimony about some of the indicia of intoxication, the totality of the circumstances provided a reasonable basis to suspect Winberg was intoxicated and, therefore, justified a continuation of the detention to investigate whether that was the case:

¶21     Even though the circuit court found Bjorkman’s observations lacked credibility regarding Winberg’s eyes and speech, … under the totality of the circumstances, Bjorkman had a basis to reasonably suspect Winberg was intoxicated in order to extend the stop for field sobriety testing. First, the circuit court found that Bjorkman detected an odor of intoxicants emanating from the vehicle. Although the court also determined Bjorkman failed to distinguish whether the source of that odor was Winberg, the passenger, or both of them, Bjorkman was entitled to investigate further as to whether Winberg was under the influence of an intoxicant as the driver, quite apart from whether the passenger may also have been impaired. …. Second, Winberg admitted to drinking, specifically that he “had a couple beers.”…. Finally, the time of the stop was 12:50 a.m., relatively close to “bar closing time,” and that may lend credence to possible intoxication if other factors are observed. ….

Coincidentally, the supreme court has just accepted review in a case raising the issue of whether an officer can extend a traffic stop to ask the driver for identification once the initial grounds for the stop have been dispelled. For more, see here.

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