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COA upholds extension of traffic stop based on half the totality of the circumstances

City of West Bend v. Peter F. Parsons, 2022AP98, 8/17/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

This is an appeal of convictions for violating local ordinances in conformity with the state laws outlawing OWI. The court of appeals affirms.

An officer stopped Parsons’s vehicle after midnight during a snowstorm, thinking his plates were expired. The officer quickly learned he was wrong about the plates, but engaged Parsons in conversation and checked his driver’s license. After some time, the officer asked Parsons to perform field sobriety tests, which ultimately led to his arrest. Parsons argues that during the time leading up to the FSTs, the officer was unlawfully extending the stop without reason to suspect he was under the influence.

The court of appeals says these factors supported reasonable suspicion: that it was after midnight; that Parsons was smoking a cigarette, whose odor might mask the odor of intoxicants; that ashes from this cigarette fell and burned a hole in Parsons’s pants, which he appeared not to notice; that Parsons said he’d had one drink that night at Applebee’s; and that he answered some of the officer’s questions by saying “mmm hmm.” (¶¶12-13).

Parsons argues that some of these factors didn’t really give rise to much of an inference of guilt. The court says Parsons’s urgings “misapprehend the nature of our inquiry” which requires consideration of not single factors, but the totality of the circumstances–“the whole picture viewed together.” (¶16 (citing State v. Nimmer, 2022 WI 47, ¶24, ___ Wis. 2d ___, 975 N.W.2d 598)).

Fair enough. But if that’s so, how to explain the court of appeals’ refusal–just two paragraphs earlier–to consider the facts Parsons points out that tend to undermine suspicion of intoxication: that his speech was clear, that his eyes were normal, that there was no odor of intoxicants, no bad driving, no problems with coordination, and no lack of cooperation with the officer? The court says these facts don’t “eliminate or diminish the significance of the factors” suggesting intoxication. (¶14). But that’s not the test; as the court insists, factors are to be taken as one part of a complete picture. Here, the court instead simply disregards those factors not supportive of reasonable suspicion.

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