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Detention in squad car wasn’t unreasonable and didn’t convert stop into arrest

State v. Richard S. Foley, 2014AP2601-CR, District 4, 4/30/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Detaining Foley in a squad car during a traffic stop was reasonable under the circumstances and didn’t transform the stop into an arrest.

Foley and Thompson were riding their motorcycles when they were stopped by an officer who, after the stop, began to suspect the pair were under the influence. The stop occurred in Foley’s driveway and Foley was uncooperative (walking toward his house, refusing to keep his hands out of his pockets). After backup arrived, the officer decided to have Thompson do field sobriety tests. Given Foley’s actions, the officers put Foley in the back of a squad car, telling him they would investigate him when they were done with Thompson. Foley was not handcuffed, though the squad doors were locked. The officers finished with Thompson 32 minutes later police, and then drove Foley to the police station a block away to do field sobriety tests. (¶¶2-6).

Relying on State v. Wilkens, 159 Wis. 2d 618, 625-26, 465 N.W.2d 206 (Ct. App. 1990) (“courts should not indulge in unrealistic second-guessing” and must consider “the whole picture, because the concept of reasonable suspicion is not readily, or even usefully, reduced to a neat set of legal rules”), the court of appeals finds no problem with detaining Foley in the car:

¶19      The means of investigation here were reasonable given Foley’s uncooperativeness and the fact that officers were investigating two individuals suspected of driving under the influence. While Officer Yahnke could have transported Foley to the police station while Officer Johnson conducted sobriety testing of Thompson, it is not our job to engage in unreasonable second guessing of the officers. Instead, we are satisfied that it was reasonable for the officers to first conduct sobriety testing of Thompson, the cooperative suspect, and then turn their attention to Foley who had been uncooperative. In addition, due to the close proximity of the stop to Foley’s home and the fact that he had starting walking toward his home during the stop, it was not unreasonable for the officers to secure Foley as they focused their attention on Thompson. In addition, there is no indication that the officers failed to diligently pursue the investigation or that they employed anything but the least intrusive investigative methods. Therefore, under the totality of the circumstances, we are satisfied that Foley’s detention for investigative purposes was reasonable.

Nor did putting Foley in the squad car ripen the stop into an arrest, given State v. Swanson, 164 Wis. 2d 437, 446-47, 475 N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277 (an arrest occurs when a reasonable person in the defendant’s position would believe he was in custody given the degree of restraint under the circumstances):

¶22      …. Foley was secured in the squad car, but officers did not place him in handcuffs. Most importantly, Officer Yahnke informed Foley that the officers would first investigate Thompson and that she would return to investigate him. After thirty-two minutes and at the conclusion of Thompson’s field sobriety testing, Officer Yahnke returned to her car and transported Foley approximately one block to the police station to conduct field sobriety testing. She estimated that the police station was thirty seconds from the location of the traffic stop. Considering these circumstances and, in particular, the fact that Officer Yahnke told Foley that she would return to investigate him and that a reasonable delay then occurred to investigate Thompson, we are satisfied that a reasonable person in Foley’s position would not conclude that he or she was under arrest.

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