State v. Gruen

Decision Date16 March 1998
Docket NumberNo. 96-2588-CR,96-2588-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Dale GRUEN, Defendant-Appellant. d . Oral Argument
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the brief of Scott F. Anderson, of Milwaukee, with oral argument by Scott F. Anderson.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of E. Michael McCann, District Attorney, and Robert D. Donohoo, Assistant District Attorney, with oral argument by Robert D. Donohoo.

Before WEDEMEYER, P.J., and FINE and CURLEY, JJ.

CURLEY, Judge.

Dale Gruen appeals from a judgment of conviction entered after a jury convicted him of operating a motor vehicle under the influence of an intoxicant, contrary to §§ 346.63(1)(a) & 346.65(2), STATS. Gruen claims the trial court erred when it denied his motion to suppress statements made to a Wauwatosa police officer. He argues that the initial Terry stop conducted by a Milwaukee police officer had ended when he made the inculpatory statements because the questioning by the second officer was done in a custodial setting designed to elicit incriminating evidence.

Because the actions of the Wauwatosa officer, called to the scene by the Milwaukee police, were those of an officer still acting in an investigatory stage, his brief questioning of Gruen following the questioning by the Milwaukee officer did not convert the Terry stop into a custodial interrogation. Further, because the Wauwatosa officer's questions were typical of those asked during a routine traffic investigation, and the surrounding circumstances would not lead a reasonable person to believe he or she was in custody, the Miranda warnings were not warranted. Therefore, we affirm Gruen's conviction.

I. BACKGROUND.

On February 24, 1994, at approximately 1:30 a.m., a City of Milwaukee police officer, Officer Michael Barbian, came upon a car stuck in a snow bank on the median of Watertown Plank Road in Wauwatosa. Officer Barbian testified that the weather was cold, windy, and snowing, with a layer of fresh snow on the ground. Officer Barbian related that he saw a single individual, later identified as Gruen, walking away from the car and observed a single set of footprints exiting the passenger side of the car, moving around the front of the car and then traveling east on Watertown Plank Road. Officer Barbian also noted that the driver's door was wedged into a snowbank, making it difficult to open.

According to Officer Barbian, after witnessing the condition of the car and the tracks leading to Gruen, he then stopped Gruen to determine whether he owned the car or whether he knew who it belonged to. Gruen denied driving the car, stating that a friend of his was driving, but that he could not remember the friend's name. Officer Barbian then told Gruen that he needed to call the Wauwatosa Police Department because it was their jurisdiction. Officer Barbian testified that, because it was so cold out, he "asked [Gruen] if he wanted to have a seat in my [police] van, and he indicated yeah, he would." Before placing Gruen in the van, Officer Barbian did a pat-down search and felt a set of keys in Gruen's pockets. Officer Barbian asked Gruen what they were, and Gruen said, "They're keys to my car." Officer Barbian then pulled them out of Gruen's pockets and confirmed that they were the keys to the car. Officer Barbian recalled that Gruen was not handcuffed when he was placed in the van, and that Gruen was not under arrest at the time, but rather, that "I was just temporarily detaining him so Wauwatosa could investigate the accident." He noted that the back door to the van was closed, making it impossible for Gruen to open the door from the inside, but that the door was unlocked, and could be easily opened from the outside of the van.

Officer Barbian testified that Gruen was in the van for approximately ten to fifteen minutes before Wauwatosa police officer Brian Betchner arrived. Officer Barbian advised Officer Betchner of the information Gruen had already given before being placed in the van. Officer Barbian also told Officer Betchner that he believed Gruen was the driver of the car and that, in his opinion, Gruen was intoxicated.

Officer Betchner testified that after Officer Barbian opened the doors to the van, he saw Gruen sitting in the back of the van. Officer Betchner testified that, contrary to Officer Barbian's testimony, he believed that Gruen was in handcuffs, stating, "I can't be 100 percent sure, but for some reason, I think maybe he [Gruen] was [in handcuffs]."

Officer Betchner then asked Gruen what happened. Gruen told Officer Betchner that he "slid into a snow bank and that he would pay for the damages." After Gruen made that statement, Officer Betchner asked him, "So you were driving, then?" Gruen then replied that, "from what [I] remember[ ], [I] wasn't." Officer Betchner then asked him, "Well, then who was driving?" and Gruen replied something to the effect of: "Just let our attorneys settle this."

During his testimony, Officer Betchner stated that when he first observed Gruen he appeared to be in an intoxicated state and that Gruen appeared confused and kept falling asleep while he was talking to him. Officer Betchner testified that he placed Gruen under arrest based on Gruen's answers to questions, his appearance, and the earlier observations made by the Milwaukee police officer.

Gruen was charged in a two-count complaint with operating a motor vehicle while under the influence of an intoxicant, contrary to § 346.63(1)(a), STATS., and with operating a motor vehicle with a prohibited alcohol concentration of 0.08% or more, contrary to § 346.63(1)(b). Gruen moved to suppress the statements made while inside the van, arguing that they were custodial statements given without first being advised of his Miranda rights. The trial court denied the motion, finding that the questioning of Gruen was not a custodial interrogation but instead a temporary detention pursuant to § 968.24, STATS., and thus, the giving of Miranda rights was not required. The case went to trial and Gruen was convicted of both counts. However, pursuant to § 346.63(7)(b), a judgment of conviction and sentence was entered on the first count only. Gruen now appeals.

II. ANALYSIS.

Two issues concern us in this appeal. First, did the fact that a separate set of questions was directed at Gruen, by the Wauwatosa officer who arrived at the scene to take over the investigation, convert the Terry stop initiated by the Milwaukee police into a custodial interrogation? The trial court found that it did not. Second, if the Terry stop continued at the time of the second questioning, did the evolving circumstances of the Terry stop result in Gruen being "in custody" as contemplated by Miranda when he answered the Wauwatosa officer's questions? The trial court did not address this question.

We conclude that at the time he was questioned by Wauwatosa Officer Betchner: (1) Gruen was being validly temporarily detained pursuant to Terry v. Ohio and § 968.24, STATS.; and (2) Gruen was not "in custody" for Fifth Amendment purposes because a reasonable person in Gruen's position would not have considered himself to be in custody, given the degree of restraint under the circumstances.

A. Was Gruen being validly detained pursuant to § 968.24, STATS.?

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. CONST. amend. IV. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court determined that the Fourth Amendment is not violated when law enforcement officers, in appropriate circumstances, detain and temporarily question a suspect, without arrest, for investigative purposes. Section 968.24, STATS., has codified the rule promulgated in Terry. In reviewing a trial court's finding that a temporary detention under § 968.24 was valid, we will uphold the trial court's findings of fact unless they are against the great weight and clear preponderance of the evidence. See State v. Jackson, 147 Wis.2d 824, 829, 434 N.W.2d 386, 388 (1989). Whether those facts satisfy the constitutional requirement of reasonableness presents a question of law, and therefore we are not bound by the trial court's decision on that issue. See id.

For an investigatory stop and temporary detention under Terry v. Ohio, and § 968.24, STATS., to be valid, an officer must reasonably suspect "in light of his or her experience" that some criminal activity has taken place or is taking place before stopping an individual. See State v. King, 175 Wis.2d 146, 150, 499 N.W.2d 190, 191 (Ct.App.1993). A determination of whether a temporary detention is reasonable is based on the totality of the circumstances. See id. If an officer has a suspicion, grounded in specific, articulable facts and reasonable inferences drawn from those facts, the officer may conduct a temporary detention of the individual in order to investigate further. See id.

Additionally, for a Terry stop to pass constitutional muster:

[T]he detention must be temporary and last no longer than is necessary to effect the purpose of the stop. "Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." A hard and fast time limit rule has been rejected. In assessing a detention for purposes of determining whether it was too long in duration, a court must consider "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it is necessary to detain" the suspect. In making this assessment, courts "should not...

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