State v. Mary Alice Gentry, 2012AP59-CR, District 4, 5/24/12
court of appeals decision (1-judge, not for publication); for Gentry: Chandra N. Harvey, SPD, Madison Appellate; case activity
¶6 A traffic stop is a seizure within the meaning of the Fourth Amendment to the United States Constitution, which provides protections against unreasonable search and seizure. State v. Malone, 2004 WI 108, ¶24, 274 Wis. 2d 540, 683 N.W.2d 1. To satisfy the Fourth Amendment, a traffic stop must be justified at its inception and must be reasonably related in scope to the circumstances that justified the stop. Id. However, if, during a valid traffic stop, an officer becomes aware of additional suspicious factors or additional information that would give rise to a reasonable suspicion that further criminal activity was afoot, the initial stop may be extended and a new investigation begun. Id. The validity of the extension is tested in the same manner, and under the same criteria, as the initial stop. State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659 N.W.2d 394. Thus, to extend a traffic stop to request that the driver perform a field sobriety test, an officer “‘must have a reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts,’” that the driver has consumed enough alcohol to impair his or her ability to drive. Id., ¶¶8, 19 (citation omitted).
¶9 The parties both devote substantial argument over the importance of Klein’s observation that Gentry was “extremely sweaty” and was making a telephone call regarding care arrangements for her child. I do not address whether those observations are factors which could lead an officer to believe that the driver was operating while impaired because I conclude that his other observations—the failure to stop at the stop sign, admission of drinking, the time of day the stop took place, and Gentry’s inquiry as to whether she would be asked to perform field sobriety tests—could reasonably have led Klein to suspect that she was impaired. See, e.g., State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551 (time of night is a factor when considering the existence of probable cause to arrest for OWI, a standard more stringent than reasonable suspicion to make a traffic stop). Accordingly, I reverse the order of suppression.