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Reasonable Suspicion – Investigatory Stop; Field Sobriety Testing; Citing Unpublished Opinions

State v. Allen L. Resch, 2010AP2321-CR, District 2, 4/27/11

court of appeals decision (1-judge, not for publication); for Resch: Christopher Lee Wiesmueller, Corinne N. Wiesmueller; case activity

Reasonable suspicion supported investigatory stop for possible burglary, where vehicle was parked in private business parking lot at 2:26 a.m., with engine running and lights off.

¶13      Specifically, as the trial court indicated, the time of day is an important factor in determining whether a law enforcement officer had a reasonable suspicion.  See Allen, 226 Wis. 2d at 74-75 (“[T]he time of day is another factor in the totality of the circumstances equation.”).  Here, the fact that it was near 2:30 a.m. when the deputy noticed Resch’s vehicle in the parking lot helped create a reasonable suspicion for the deputy to believe there was potential for criminal activity (i.e., burglary).

¶14      In addition to the factors surrounding the investigatory stop, the deputy’s experience is also part of a totality of circumstances consideration.  See State v. Lange, 2009 WI 49, ¶¶30-31, 317 Wis. 2d 383, 766 N.W.2d 551.  In the instant case, the deputy considered that in his experience as a sheriff’s deputy, it is rare to see a vehicle parked at that particular location of the parking lot, running and with its headlights off, especially at that time of day when the businesses in the area were closed.

Not clear there even was a stop at issue: the car was already stopped when the officer “approached the vehicle and made contact with Resch, the sole occupant,” ¶2. So far as the opinion suggests, the encounter was consensual, at least at inception (the officer then developed reasonable suspicion for OWI, but that is something else). It is a truism, that before an interaction may be deemed a “seizure” for purposes of fourth amendment analysis, the officer must assert, and the citizen yield to, his authority over the person. E.g., State v. Charles E. Young, 2006 WI 98, ¶37 (“If a reasonable person would have felt free to leave but the person at issue nonetheless remained in police presence, perhaps because of a desire to be cooperative, there is no seizure.”). And where the officer merely approaches an already-parked car without asserting authority such as directing the driver to shut off the engine, the encounter is consensual, not a seizure,  United States v. Barry, 394 F.3d 1070, 1074-75 (8th Cir.2005) (relying on what it terms “scores of other cases” supporting this conclusion). Seizure nonetheless may be found where the officer does something as simple as telling the driver to roll down the window, State v. Patterson, 2005 ME 26, 868 A.2d 188. Perhaps the officer here did assert his authority upon his approach so as to seize Resch, though the opinion is silent on the matter, but the key point is not to take for granted existence of a seizure.

Reasonable suspicion supported administration of field sobriety testing:

¶16      The standard for determining the legality of a field sobriety test is based on the same reasonable suspicion standard as the initial stop.  State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659 N.W.2d 394 (2003) (citing State v. Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d. 499 (Ct. App. 1999)).  If, during a valid traffic stop, a law enforcement officer “becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense or offenses” independent from those that prompted the initial stop, “the stop may be extended and a new investigation begun.”  Colstad,260 Wis. 2d 406, ¶19.  Thus, for the deputy to have had a reasonable suspicion to perform the field sobriety tests on Resch, he must have obtained new, specific, and articulable information following the initial stop, which combined with the reasonable inferences from both the new and preexisting information, led him to believe that Resch was operating a vehicle while under the influence of intoxicants.  See id.

¶23      Based on the trial court’s findings of fact and evidence presented at trial, the officer knew several articulable facts about Resch prior to administering the field sobriety tests:  he smelled of intoxicants; consumed at least “a little” alcohol; was sitting by himself in a vehicle, which was idling at the stop sign of a private parking lot with its headlights off; had lost the friends whom he allegedly had been following; gave no clear explanation as to what he was doing in the parking lot; and was stopped around 2:30 in the morning.  We conclude these facts and the reasonable inferences from them give rise to a reasonable suspicion that Resch had consumed enough alcohol to impair his ability to drive and to justify the deputy’s imposition of the field sobriety tests.

The court proceeds to distinguish State v. Meye, No. 2010AP336, unpublished slip op. (WI App July 14, 2010) (mere, if strong, odor of intoxicants not enough for reasonable suspicion), Here, the odor of alcohol was one of several relevant factors, not the sole factor, ¶¶18-20. (Meye is unpublished but citable for persuasive effect; however, see discussion immediately below.)

Improper citation to an ineligible opinion subjects counsel to sanction, ¶18 n. 2:

To support this proposition in their brief, Resch’s attorneys cite to an unpublished decision, State v. Schutz, No. 2008AP729, unpublished slip op. (WI App July 31, 2008), a case which is ineligible for consideration as persuasive authority.  See Wis. Stat. Rule 809.23(3)(b) (created by S. Ct. Order 08-02, 2009 WI 2 (eff. July 1, 2009)) (establishing a prohibition on citing unpublished cases issued prior to July 1, 2009).  After the State pointed out the error in its brief, Resch’s attorneys acknowledged their disregard of § 809.23(3)(b).  Nonetheless, Resch’s attorneys have committed a procedural violation.  We strongly admonish counsel for their lack of due diligence, an omission this court does not take lightly.  When an attorney violates procedural rules in this manner, this court has the authority to impose a fine.  See Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶12 n.3, 305 Wis. 2d 658, 741 N.W.2d 256.

Counsel here aren’t fined, but the court’s tongue-lashing may carry a worse sting. And just which unpublished decisions are ineligible for citation? They’re listed in Rule 809.23(3)(b): per curiam, memorandum opinion, summary or other order, and any pre-7/1/09 unpublished opinion. That leaves by default, “authored,” post-7/1/09 opinions. Meye came after 7/1/09, so was citable, while Schutz came before, if not by much, and therefore wasn’t. Might seem arbitrary, but it’s a bright-line, easy-to-see dividing line,  and as you can see from the court’s verbiage, the court intends to enforce it vigorously.

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