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State v. Cody R. Dewitt, 2009AP2393-CR, District IV, 5/20/10

court of appeals decision (1-judge; not for publication); for Dewitt: Thomas E. Hayes; BiC; Resp.

Detention for 90 Minutes not Unreasonable

Stop of motorist Dewitt by officer who, because he was off-duty, could not under departmental rules himself perform arrest, wasn’t unnecessarily prolonged by 90 minute delay until on-duty officer could show up.

¶15 Dewitt has presented no evidence to show that Officer Geffert, or any other Reedsburg police officer, could have arrived any earlier; nor does he argue that it was unreasonable for Officer Johnson to rely on his understanding of county policy in not conducting the field sobriety tests and arrest himself. Finally, Dewitt has not shown that the ninety-minute delay was longer than reasonably needed to accomplish the purpose of the stop. See State v. Vorburger, 2002 WI 105, ¶63, 255 Wis. 2d 537, 648 N.W.2d 829 (seventy-minute detention period not unreasonable where the period of detention related to the procurement and execution of the search warrant); State v. Colstad, 2003 WI App 25, ¶¶17-18, 260 Wis. 2d 406, 659 N.W.2d 394 (it was reasonable for officer to direct defendant to wait thirty to forty-five minutes while officer attended to injured child and investigated the scene); Wilkins, 159 Wis. 2d at 628 (sixty- to eighty-minute detention prior to arrest was reasonable under the circumstances).

¶16 We conclude that it was reasonable for Officer Johnson to detain Dewitt for safety reasons and to avoid breaking department rules by waiting for an available on-duty officer to perform field sobriety tests and arrest Dewitt. The ninety-minute delay, while inconvenient, was “temporary and last[ed] no longer than is necessary to effectuate the purpose of the stop.” Royer, 460 U.S. at 500.

Dewitt drove recklessly, had bloodshot eyes and slurred speech and (as if that weren’t enough) admitted that he had in fact been drinking, ¶¶3-4. The trial court ruled that the off-duty officer had accomplished a de facto arrest, but one supported by probable cause. Sounds about right; but it’s not the route the court of appeals chose. The reasonable-delay analysis exemplifies the permeability of the border between temporary stops and full-blown arrests. “‘Unfortunately, the line between a lawful Terry stop and an unlawful arrest is not bright.’” U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995). The test is so general, e.g., State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds, 2010 WI 8, irreconcilable results are virtually guaranteed over time. Still, it might be wondered why the court of appeals in this instance didn’t just say, as the trial court did, that probable cause was abundant. Perhaps because if you’ve got an arrest, even of the “de facto” variety, then Miranda warnings are required for an admissible statement. Better to encourage temporary-stop conclusions when given an alternative, and dispense with potential Miranda issues — unless you think this take is overly cynical.

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