State v. Colstad

• Decision Date: 30 January 2003
• Docket Number: No. 01-2988-CR.,01-2988-CR.
• Citation: 2003 WI App 25,260 Wis.2d 406,659 N.W.2d 394
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Guy W. COLSTAD, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

260 Wis.2d 406

2003 WI App 25

659 N.W.2d 394

STATE of Wisconsin, Plaintiff-Respondent, v. Guy W. COLSTAD, Defendant-Appellant.¹

No. 01-2988-CR.

Court of Appeals of Wisconsin.

Oral argument June 13, 2002.

Decided January 30, 2003.

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by T. Christopher Kelly of Kelly & Habermehl, S.C., Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of William C. Wolford, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by William C. Wolford.

Before Vergeront, P.J., Roggensack and Lundsten, JJ.

¶ 1. LUNDSTEN, J.

Guy W. Colstad appeals a judgment of the circuit court convicting him of homicide by use of a vehicle while having a prohibited alcohol concentration, contrary to WIS. STAT. § 940.09(1)(b) (1997-98).² Colstad argues that the results of his blood test should have been suppressed because (1) neither probable cause of a civil traffic violation, nor reasonable suspicion of a crime, supported the initial investigative detention of Colstad; (2) the initial detention was not temporary, but was instead an illegal de facto arrest; (3) the facts known to the investigating officer did not provide reasonable suspicion of intoxication and, therefore, Colstad should not have been subjected to field sobriety tests; and (4) the results of the preliminary breath test should not have been considered by the trial court when assessing whether probable cause supported both Colstad's arrest and the subsequent blood draw. We disagree with each of Colstad's arguments and affirm.

Background

¶ 2. On April 21, 2000, the pickup truck Colstad was driving collided with a child, causing severe injuries to the child, who later died. The responding officer testified that the collision occurred at about sunset, that there were no cars or trees obscuring the view alongside the road, that the road was straight, and that the view was "[a]bsolutely clear." The speed limit where the collision occurred was twenty-five miles per hour. The seriously injured child lay "to the front" of Colstad's pickup truck. The child's injuries appeared so severe that the officer believed the child would die.

¶ 3. After briefly observing the scene, the officer made contact with Colstad at approximately 8:17 p.m. Colstad reported that the child darted out into the road and ran into the side of his truck. Colstad told the officer he had been driving approximately fifteen to twenty miles per hour because he noticed several children were present on one side of the street, and he was used to seeing lots of children in that area.

¶ 4. After speaking with Colstad for one or two minutes, the officer directed Colstad to wait at a location away from the accident scene. During this contact, the officer did not notice Colstad exhibiting signs of intoxication. The officer then proceeded to assist with providing CPR to the child. He also photographed and marked the scene. The officer described the scene as chaotic, with ambulances, fire trucks, and onlookers present.

¶ 5. Sometime later, the officer contacted Colstad a second time. During this second encounter, the officer detected a mild odor of intoxicants on Colstad, and Colstad admitted having had two beers that evening. At 9:02 p.m., the officer directed Colstad to perform field sobriety tests and then administered a preliminary breath test. It is undisputed that the results of these tests, combined with other information, supplied probable cause to arrest Colstad for operating a vehicle while intoxicated. A subsequent test revealed that Colstad's blood alcohol content was .117%.

¶ 6. Colstad was charged with homicide by operation of a vehicle while under the influence of an intoxicant, homicide by operation of a vehicle with a prohibited alcohol concentration, and homicide by negligent operation of a vehicle. Colstad moved to suppress the test results from breath and blood samples taken from him, as well as the results of the field sobriety tests. The trial court denied the motion, and Colstad pled guilty to homicide by operation of a vehicle while having a prohibited alcohol concentration.

Discussion

A. Whether Colstad's Initial Detention was Justified by Reasonable Suspicion of a Civil Traffic Violation

¶ 7. The State does not dispute that the officer seized Colstad when he directed Colstad to move to a location away from the accident scene and wait. We will assume a seizure occurred at this point in time. The State also appears to concede that evidence subsequently obtained, including the results of the field sobriety tests and the blood draw, should be suppressed if this initial temporary seizure was illegal. Thus, we must decide whether the initial investigative seizure violated Colstad's Fourth Amendment protection against unreasonable seizures.

¶ 8. In order to justify an investigatory seizure, "[t]he police must have a reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts, that an individual is [or was] violating the law." State v. Gammons, 2001 WI App 36, ¶ 6, 241 Wis. 2d 296, 625 N.W.2d 623. "The question of what constitutes reasonable suspicion is a common sense test: under all the facts and circumstances present, what would a reasonable police officer reasonably suspect in light of his or her training and experience." State v. Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997). Before initiating a brief stop, an officer is not required to rule out the possibility of innocent behavior. State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990). "A trial court's determination of whether undisputed facts establish reasonable suspicion justifying police to perform an investigative stop presents a question of constitutional fact, subject to de novo review." State v. Sisk, 2001 WI App 182, ¶ 7, 247 Wis. 2d 443, 634 N.W.2d 877.

[1-4]

¶ 9. The State argues there was reasonable suspicion to believe Colstad had committed a criminal violation, such as causing great bodily harm by negligent operation of a vehicle under WIS. STAT. § 346.62. We question whether the facts known to police amounted to probable cause to believe Colstad was criminally negligent,³ but we need not resolve the issue. Rather, we agree with the State's contention that a temporary investigative stop was justified by reasonable suspicion that Colstad violated a traffic ordinance.

¶ 10. The State argues that the facts known to police justified an investigative stop because the facts supplied reasonable suspicion to believe Colstad violated a traffic ordinance prohibiting inattentive driving. Colstad responds that an officer must possess probable cause before detaining a citizen based on suspicion of any civil infraction; that mere reasonable suspicion only justifies an investigatory stop if the suspected offense is a crime.

¶ 11. This court addressed the applicability of the reasonable suspicion standard to a non-criminal traffic violation in State v. Griffin, 183 Wis. 2d 327, 515 N.W.2d 535 (Ct. App. 1994). In Griffin, we held that an officer may perform an investigatory stop of a vehicle based on a reasonable suspicion of a non-criminal traffic violation. See id. at 331-34. This holding was followed and aptly described in Gammons, 2001 WI App 36 at ¶¶ 7-9.

In [Griffin], we held that "the absence of a registration plate, and reasonable inferences that can be drawn from that fact, constitute[] reasonable suspicion sufficient to justify an investigatory stop of a motor vehicle." In Griffin, the defendant's vehicle bore a "license applied for" sign. We reasoned that, without stopping the vehicle, the officers in Griffin had no way of knowing whether the defendant was in violation of vehicle registration laws.

Id. at ¶ 7 (citations omitted). The state supreme court also relied on Griffin when it explained: "[A]n officer may make an investigative stop if the officer `reasonably suspects' that a person has committed or is about to commit a crime, or reasonably suspects that a person is violating the non-criminal traffic laws...." County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999) (footnote and citations omitted).⁴

¶ 12. We acknowledge that some United States Supreme Court cases seemingly assume that probable cause is needed to support a stop for civil infractions. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 51 (2000)

("The reasonableness of an officer's discretionary decision to stop an automobile ... turns on whether there is probable cause to believe that a traffic violation has occurred."); Whren v. United States, 517 U.S. 806, 810 (1996) ("[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."). However, we have not found any United States Supreme Court decision squarely addressing this topic. Taking the Whren decision as an example, the Tenth Circuit explains:

In Whren, the [United States Supreme] Court stated that, "[a]s a general matter, the decision to stop an automobile is reasonable where police have probable cause to believe that a traffic violation has occurred." ...

While [Whren and similar cases] indicate that probable cause is a sufficient ground for a stop, none of them indicates that it is necessary for a stop. Other Supreme Court and Tenth Circuit cases have held that reasonable articulable suspicion is also sufficient grounds to justify a stop.

United States v. Callarman, 273 F.3d 1284, 1286 (10th Cir. 2001) (citations omitted).

¶ 13. Accordingly, we are bound to follow the rule set out in Griffin. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997)

. Because Colstad's temporary detention was proper if supported by reasonable suspicion that Colstad violated a civil traffic ordinance, we proceed to address whether the facts known to police constituted reasonable...