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COA says open container, odor of intoxicants, possession of weed were reasonable suspicion for OWI investigation

State v. Nicholas A. Conger, 2022AP844, 12/14/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

A cop stopped Conger’s vehicle for a broken high-mounted stop lamp. On approaching the vehicle, the officer would testify, he smelled intoxicants. He asked Conger what he was smelling, to which Conger replied “Probably the pot.” Conger then turned over a small amount of cannabis and an open can of Mike’s Hard Lemonade to the officer. He also said he’d had some alcohol. The officer asked Conger to perform field sobriety tests; Conger agreed and was ultimately arrested for, charged with, and convicted of operating with a detectable amount of a restricted controlled substance in his blood.Postconviction and on appeal, Conger argues that his trial lawyer was ineffective for failing to challenge the extension of the stop for FSTs. The trial lawyer did move to suppress the blood test on the theory that the officer lacked probable cause to arrest, and also to suppress Conger’s statements under Miranda. The court of appeals says the additional claim would not have succeeded, so trial counsel’s performance was not deficient, and didn’t prejudice Conger:

Conger asserts that the mere presence of the open alcoholic beverage can in the vehicle, the raw marijuana, and even the admission that he drank one or two cans of Mike’s Hard Lemonade without some type of bad driving or physical manifestation of alcohol use is not enough to meet the low bar of reasonable suspicion. He cites to four unpublished cases11 in support of that assertion. Each case stands for the proposition that the odor of alcohol alone (either in the vehicle or on the driver’s breath) is not enough to conjure reasonable suspicion. However, the odor of alcohol is not the only factor supporting reasonable suspicion in Conger’s case; he admitted drinking, he admitted that the vehicle smelled like “pot,” and handed over both an open container of alcohol and marijuana. These facts accumulated and gave rise to a reasonable suspicion that something unlawful was afoot. Standing alone, the presence of marijuana was enough to allow Wendt to issue a citation. The alcohol and the marijuana together were enough for an officer trained in detecting drug and illegal substance impairments to continue and extend this traffic stop.

Wendt was not acting on a hunch that Conger had alcohol and marijuana. Conger admitted to both. The four cases Conger relies upon with only alcohol and no observed bad driving did not have the additional building block of an illegal substance. Both the open can and the container of marijuana could lead to Wendt’s reasonable suspicion that Conger was committing or about to commit a crime involving alcohol consumption while driving or using that restricted controlled substance (whether he was driving or not). A reasonable officer would also recognize that a noncriminal offense (open container) and a criminal offense (marijuana possession) had already taken place.

(¶¶30-31(citations omitted)).

The court also addresses the officer’s conflicting testimony at the suppression hearing and at trial: at the former he said Conger had bloodshot eyes, while at the latter, he admitted on cross that this probably wasn’t so. The court muses about the effect of this conflict on the IAC analysis, but ultimately decides there was reasonable suspicion with or without the disputed fact. (¶¶33-35).

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