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Moving driver 8 miles to conduct field sobriety tests didn’t transform stop into arrest

State v. Dane C. McKeel, 2016AP884-CR, District 4, 2/16/17 (one-judge decision; ineligible for publication); case activity (including briefs)

“Due to the extremely cold, windy, icy, and snowy conditions” police moved McKeel approximately 8 miles from where he was stopped to a local police department so that McKeel had the “best opportunity” to complete field sobriety tests. (¶¶4-5). Moving McKeel this far did not transform the stop into an arrest.

A person detained on reasonable suspicion  may be moved “in the general vicinity of the stop without converting what would otherwise be a temporary seizure into an arrest” if: 1) the person was moved within the vicinity—i.e., “within ‘a surrounding area or district,’ or the ‘locality’”—of the stop; and 2) the purpose in moving the person was reasonable. State v. Quartana, 213 Wis. 2d 440, 446-47, 570 N.W.2d 618 (Ct. App. 1997). Both criteria are met here.

¶13     The pertinent facts as found by the circuit court are that McKeel was stopped in a rural area, that he was driven eight miles to the Pittsville Police Department, and that the police station was the closest available location to safely administer the field sobriety tests. There were no open establishments before reaching the police station, and the transport to the station took approximately thirteen minutes. The circuit court noted that “in everyday language if a reasonable person was asked ‘was the stop in the vicinity of the Pittsville Police Department?’ The answer would be ‘yes’.” From this comment, it is evident that in the environs of this stop, the eight-mile, thirteen-minute drive to the Pittsville police station was within the surrounding area or locality of the stop. Based on the undisputed facts, in the circumstances specific to this stop, I conclude that McKeel was transported within the vicinity of the stop.

The court says that determining whether a transport is “too distant a transportation to be within the vicinity” is not only a matter of miles, but is based on all the relevant facts, because State v. Blatterman, 2015 WI 46, ¶26, 362 Wis. 2d 138, 864 N.W.2d 26, declined to set “the precise outer limits” of the term “vicinity.” (¶12). Thus, it refuses to hold McKeel was moved out of the vicinity based solely on the fact he was moved 8 miles. (¶¶14-20).

¶22     The pertinent facts as found by the circuit court are that “[i]t was frigidly cold, snowy, slippery and dangerous,” “it would have been unsafe to perform the field sobriety tests” at the stop, and “[i]t would be unfair to require the defendant to perform those tests in the frigid and snowy circumstances, as such a situation would have a high likelihood to create difficulties for the defendant in performing the tests whether the defendant was sober or not.” The court concluded that “the purpose for the move was clearly reasonable for both the safety of the officer and the defendant and also fairness to the defendant in the performance of the field sobriety tests.”

Alternatively, McKeel argues that, even apart from the fact he was moved, McKeel was arrested because a reasonable person in his situation would have considered himself to be in custody given the degree of restraint (including being frisked before getting into the squad car and being taken to a police station). State v. Swanson, 164 Wis. 2d 437, 446-48, 475 N.W.2d 148 (1991). The court of appeals rejects this claim, too, because McKeel was not handcuffed or otherwise restrained; was clearly told, and stated that he understood, that he was not under arrest; and was told he was being taken to a warm dry spot to perform the field sobriety tests. (¶¶24-28).

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