The officer lacked reasonable suspicion to extend the duration of a traffic stop by asking a driver to perform field sobriety tests, so evidence of THC possession obtained during the stop must be suppressed.
A police officer stopped Gonzalez’s car for a defective headlight. The officer saw no “bad driving” during the few blocks he followed her, and other than an odor of alcohol he noticed no other indicia of intoxication during his initial contact with Gonzalez. Gonzalez denied drinking and said she’d been transporting friends who had been drinking. The officer then asked Gonzalez to step out of the car and perform field sobriety tests, which eventually led to Gonzalez’s arrest for OWI and discovery of the drug evidence. (¶¶3-6).
Comparing this case to two unpublished cases where the odor of intoxicants, even in conjunction with a more suspicious time of day, was insufficient to continue detaining a driver (¶¶18-21), the court of appeals holds that at the time the officer extended the stop by requesting Gonzalez to step out of the car, there was no reasonable suspicion to extend the detention to conduct FSTs:
¶14 …[T]he officer’s observation of Gonzalez, including following her vehicle for at least two blocks, did not reveal any behaviors that would contribute to a reasonable suspicion that she was driving under the influence of alcohol to a degree that rendered her incapable of safely driving. Apart from the odor of intoxicants, the officer observed no physical indicators of intoxication, such as slurred speech or bloodshot eyes. Gonzalez did not admit to consuming any alcoholic beverages.
¶17 …[T]he indicators of intoxication were 1) an odor of alcohol of an unspecified intensity “coming from [the] vehicle,” 2) Gonzalez’s explanation that the odor was the result of friends she was transporting, not her, and 3) the time of the stop, just after 10:00 p.m. In my view, this amounts to evidence just a bit more suspicious than merely detecting an odor of alcohol coming from the person of the driver of a vehicle. … I conclude that this is not enough.
The two unpublished cases the court relies on are State v. Meye, No. 2010AP336-CR (Wis. Ct. App. July 14, 2010), and Sauk County v. Leon, No. 2010AP1593 (Wis. Ct. App. Nov. 24, 2010). These cases were brought to the court’s attention by Gonzalez. (¶18).