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Terry Stop, Compared with Arrest

State v. Daniel R. Doyle, 2010AP2466-CR, District 4, 9/22/11

court of appeals decision (1-judge, not for publication); for Doyle: John C. Orth; case activity

Transport of drunk driving suspect 3-4 miles to local police station for purpose of administering field sobriety tests didn’t covert Terry stop into arrest, given that extreme, adverse weather conditions rendered impractical such testing at the scene.

¶11      Terry is codified in Wis. Stat. § 968.24, which provides that the police may temporarily detain and question an individual “in the vicinity where the person was stopped.”  The police may, where there are reasonable grounds for doing so, “move a suspect in the general vicinity of the stop without converting what would otherwise be a temporary seizure into an arrest.”  State v. Quartana, 213 Wis. 2d 440, 446, 570 N.W.2d 618 (Ct. App. 1997).  Thus, when a person who is temporarily detained pursuant to Terry is moved from one location to another, we conduct a two-part inquiry: (1) was the person moved within the “vicinity,” and (2) was the purpose in moving the person reasonable.  Quartana, 213 Wis. 2d at 446.

¶12      Doyle first contends that the Belleville police station was not in the vicinity of the stop.  We disagree.

¶13      The deputy testified that the police station was approximately three to four miles away from where Doyle was detained at the accident scene.  In Quartana, we concluded transporting the defendant one mile from his parent’s home to the accident scene fell within the definition of “vicinity.”  Id. at 446-47 (adopting the dictionary definition of “vicinity” as “surrounding area or district” or “locality.”).  We acknowledge that three to four miles is at the outer limits of the definition of “vicinity.”  However, we conclude that such a distance is in the vicinity where the stop occurred in a rural area, and the suspect was transported to the nearest municipality at which the investigation could reasonably take place under the circumstances. …

The court rejects the idea that “reasonable alternatives” existed, namely tests that could have been performed in the squad car. The officer’s routine involved those tests performed in the event, and “the choice of which tests to perform was the deputy’s alone acting within his professional discretion, and was not unreasonable under the circumstances,” ¶14. As for the second part of the Quartana inquiry: “We note that convenience and safety are both reasonable reasons to transport a suspect to a different location to continue an investigation.  See Quartana, 213 Wis. 2d at 448. Because of the hazardous weather, it was both safer and more convenient for the deputy to administer the field sobriety tests at the police station,” ¶15.

Separately: the court rejects a Miranda argument (that Doyle was in custody when placed in the squad car, therefore was entitled to warnings before being questioned). The court acknowledges that the conclusion Doyle was not under arrest at this point isn’t dispositive, ¶17: “Even during a Terry stop, a defendant may be considered in custody for Fifth Amendment purposes and thus be entitled to Miranda warnings.  See State v. Morgan, 2002 WI App 124, ¶16, 254 Wis. 2d 602, 648 N.W.2d 23.” Nonetheless, the statements subject to challenge were merely cumulative to statements lawfully obtained, therefore Doyle couldn’t have been “prejudiced by this information,” ¶18. Doyle pleaded no contest, ¶7. Most likely, then, the court’s conclusion is in the nature of harmless error analysis – even assuming error, the refusal to suppress didn’t affect Doyle’s plea decision – though the court isn’t explicit on the point. E.g.State v. Semrau, 2000 WI App 54, ¶¶22, 26, 233 Wis. 2d 508, 608 N.W.2d 376 (“In a guilty plea situation following the denial of a motion to suppress, the test for harmless error on appeal is whether there is a reasonable possibility that the erroneous admission of the disputed evidence contributed to the conviction. … We hold there is no reasonable probability that, but for the trial court’s failure to suppress the disputed evidence, Semrau would have refused to plead and would have insisted on going to trial.”).

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