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Traffic stop to investigate erratic driving wasn’t improperly extended

State v. Travis J. Rose, 2018 WI App 5; case activity (including briefs)

A police officer investigating reports of Rose’s erratic driving concluded Rose was not intoxicated by alcohol, but continued to detain him and, after securing consent, searched Rose’s car, where he found narcotics. The court of appeals holds the officer’s continued detention of Rose, and thus the consent to search the car, were lawful because the officer had reasonable suspicion to continue his investigation.

The officer heard dispatch report that two 911 callers had complained of “extremely erratic” driving by a car, the driver of which was “slapping himself in the face trying to stay awake.” One of the callers followed Rose to a gas station, where the officer found him putting gas in his car. Rose explained his erratic driving was due to his sending text messages, though he also referred to some prescription medication he’d taken. There was no odor of alcohol, but Rose was unsteady and had slurred speech. The officer put Rose through field sobriety tests (FSTs). To the officer’s surprise, Rose passed. But because Rose’s walking and talking seemed to be deteriorating, the officer decided to keep investigating. He asked for consent to search Rose’s car, which Rose gave, and the search revealed narcotics and paraphernalia. (¶¶3-11).

It’s clear the officer’s investigation into whether Rose’s possible alcohol intoxication was concluded after Rose passed the FSTs, and from this Rose argues that under Rodriguez v. United States, 135 S. Ct. 1609 (2015), the mission of the traffic stop was concluded and that prolonging his detention beyond that point was unlawful, making his consent to search and the search itself unlawful. (¶¶12, 16). The court disagrees:

¶20    Contrary to Rose’s position, reasonable suspicion that Rose had been unlawfully operating his vehicle did not dissipate as a result of his performance on the FSTs. Under the totality of the circumstances, a reasonable law enforcement officer still would have reasonably suspected that Rose was “under the influence of something”—as this officer testified that he believed—even though the officer was not yet certain what that “something” was. While Rose had “passed” the HGN, one-leg-stand, and walk-and-turn FSTs—though exhibiting two out of eight clues of impairment on the walk-and-turn test—he had not passed the most common sense of tests—the being-able-to-walk-in-a-straight-line-and-notstumble, the not-sway-while-standing, and the not-slur-speech “tests.” From the totality of the circumstances, a “reasonable inference of wrongful conduct”—that Rose had driven while under the influence of a drug or drugs—could “be objectively discerned,” and thus “the officer[] ha[d] the right” to continue the temporary detention of Rose for further investigation. ….

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¶23     Moreover, not only was the officer in fact not finished with his investigation when he asked Rose for consent to search his vehicle, he reasonably should not have been finished with it. See Rodriguez, 135 S. Ct. at 1614 (holding that “[a]uthority for the seizure … ends when tasks tied to the traffic infraction are—or reasonably should have been—completed”). In light of the totality of the circumstances facing this officer, a reasonable officer would not have believed his/her tasks were completed as to an investigation of Rose for driving under the influence of a controlled substance or “under the influence of any other drug to a degree which render[ed] him … incapable of safely driving,” see Wis. Stat. § 346.63(1)(a), simply because Rose passed the FSTs. Here, when the officer asked Rose for consent to search his vehicle, a reasonable officer would have been, and this officer was, still “addressing the infraction”—Rose’s extremely erratic and dangerous driving, likely due to impairment by a substance. Thus, Rose remained lawfully seized when the officer asked him for consent to search his vehicle. See Rodriguez, 135 S. Ct. at 1614.

Though the parties didn’t address the issue, the court also holds the continued detention of Rose was lawful because the officer had probable cause to believe Rose had violated § 346.63(1)(a) (operating while “under the influence of any other drug to a degree which render[ed] him … incapable of safely driving”) and § 346.89(3)(a) (prohibiting texting while driving). As to the first offense, in explaining his erratic driving Rose told the officer he was taking prescription medication and the witnesses’ reports of Rose’s driving and the officer’s own observations of Rose’s condition showed Rose was incapable of safely operating a motor vehicle. As to the second, Rose told the officer he’d been driving while texting. Therefore, the officer had an objectively lawful basis for continuing to detain Rose. (¶¶24-28).

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