State v. Monson

• Decision Date: 18 January 2023
• Docket Number: 2022AP1438-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Kelly A. Monson, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent,
v.
Kelly A. Monson, Defendant-Appellant.

No. 2022AP1438-CR

Court of Appeals of Wisconsin, District II

January 18, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from a judgment of the circuit court for Winnebago County No. 2019CT730: JOHN A. JORGENSEN, Judge.

LAZAR, J. ^[1]

¶1 Kelly A. Monson appeals from a judgment of conviction on one count of operating a vehicle with a restricted controlled

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substance (RCS) in her blood (third offense) contrary to Wis.Stat. § 346.63(1)(am) and one count of operating a vehicle under the influence of an RCS contrary to § 346.63(1)(a). She contends that law enforcement lacked reasonable suspicion to extend a traffic stop to conduct standardized field sobriety tests. This court concludes that, given the totality of the circumstances, there were articulable facts giving rise to reasonable suspicion of impaired driving sufficient to extend the traffic stop into an OWI/RCS investigation. The judgment of conviction is affirmed.

BACKGROUND

¶2 In April 2019, Officer Jessica Kramer^[2] was on patrol when she observed a car stopped in traffic. Kramer noticed that the driver of this car, Monson, was apparently struggling with an interlock ignition device (IID). Kramer called out a traffic stop^[3] to her dispatcher and approached Monson, asking her questions about the vehicle and requesting insurance information. Monson said that she was having trouble with her IID, which was giving her error readings she had never seen before. Perhaps because she was searching for her insurance information, Monson did not make eye contact with Kramer during this initial interaction. Monson was unable to provide proof of insurance, and her vehicle registration was expired, so Kramer issued citations for these violations. When Kramer returned to Monson's vehicle to explain the citations, she noticed that Monson had bloodshot, glassy eyes and what appeared to be dry mouth. She also

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noted that Monson was nervous (by Monson's own admission she was having an anxiety attack), that her speech was "somewhat exaggerated and slurred," and that her eyes were "all over the place." Kramer further observed that Monson "kept clenching her teeth and smiling," and Kramer knew from her training and experience that "the clenched, exaggerated movement has been significant with those from testing for methamphetamines."

¶3 These observations prompted Kramer to ask Monson whether she had been using drugs and to ask Monson to do field sobriety tests. Based on Monson's inadequate performance, Kramer placed her under arrest. A subsequent blood test executed pursuant to a search warrant showed the presence of THC and methamphetamines in Monson's blood.

¶4 Monson's attorney filed a motion to suppress this physical evidence in the trial court, arguing that Kramer lacked reasonable suspicion to extend the stop and perform the field sobriety tests. After hearing testimony from Kramer and watching video footage of the stop that had been recorded on Kramer's body camera, the trial court denied the motion, citing "the eyes all over the place, the slurred speech, [and Monson] acting nervous" as articulable reasons that Kramer suspected impaired driving and finding that these were sufficient to justify extension of the stop. The court noted that it found Kramer to be a credible witness and that her testimony was supported by the video evidence. It also pointed out that Kramer had life experience through her nineteen years on the job that informed her of behaviors that could indicate a person being under the influence of drugs.

¶5 At trial on November 9, 2021, a jury convicted Monson on one count of operating a motor vehicle while under the influence of a controlled

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substance and one count of operating a motor vehicle with an RCS in her blood. Monson appeals her conviction.

DISCUSSION

¶6 Monson contends that her constitutional rights were violated when the officer unlawfully extended the traffic stop by having her exit the vehicle and perform standardized field sobriety tests. She relies upon State v. Hogan, 2015 WI 76, 364 Wis.2d 167, 868 N.W.2d 124, that she contends has similar facts, for support in showing that Officer Kramer did not have an articulable, reasonable basis for asking Monson to step out of her vehicle. The State argues that Hogan is clearly distinguishable and asserts that the judgment should be upheld. This court agrees.

I. Standard of Review

¶7 The issue on appeal centers upon constitutional rights, and, as such, it is subject to a two-step process of review. See State v. Dalton, 2018 WI 85, ¶33, 383 Wis.2d 147, 914 N.W.2d 120; State v. Tullberg, 2014 WI 134, ¶27, 359 Wis.2d 421, 857 N.W.2d 120. First, this court will uphold a trial court's findings of fact unless they are clearly erroneous. State v. Hughes, 2000 WI 24, ¶15, 233 Wis.2d 280, 607 N.W.2d 621 (citing State v. Secrist, 224 Wis.2d 201, 207, 589 N.W.2d 387 (1999)). Second, this court applies the law to those facts de novo. See Dalton, 383 Wis.2d 147, ¶33. This process requires courts to "analyze issues of constitutional fact" by "on one hand giving deference to the [trial] court's findings of evidentiary fact, and on the other reviewing independently the [trial] court's application of those facts to constitutional standards." State v. Malone, 2004 WI 108, ¶14, 274 Wis.2d 540, 683 N.W.2d 1.

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II. Reasonable suspicion to extend the stop existed.

¶8 People are protected against unreasonable searches and seizures under the auspices of both the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution. "The Fourth Amendment protects the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" Davis v. United States, 564 U.S. 229, 236 (2011) (quoting U.S. Const. amend. IV). The key phrase is that the people are protected against "unreasonable" searches and seizures. See State v. Parisi, 2016 WI 10, ¶28, 367 Wis.2d 1, 875 N.W.2d 619.

¶9 Both of these constitutional "provisions' purpose is to safeguard individuals' privacy and security against arbitrary governmental invasions, which requires striking a balance between the intrusion on an individual's privacy and the government's promotion of its legitimate interests." State v. Sykes, 2005 WI 48, ¶13, 279 Wis.2d 742, 695 N.W.2d 277. The Fourth Amendment is applicable to and binding upon the states. State v. Koch, 175 Wis.2d 684, 700, 499 N.W.2d 152 (1993). There is no dispute that "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of this provision." Whren v. United States, 517 U.S. 806, 809-10 (1996); State v. Popke, 2009 WI 37, ¶11, 317 Wis.2d 118, 765 N.W.2d 569.

¶10 In evaluating whether probable cause exists in a traffic-stop scenario, the court must "look to the totality of the circumstances to determine whether the 'arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe ... that the defendant was operating a motor vehicle while under the influence of an intoxicant [or an RCS].'" State v. Babbitt,

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188 Wis.2d 349, 356, 525 N.W.2d 102 (Ct. App. 1994) (first alteration in original) (quoting State v. Nordness, 128 Wis.2d 15, 35, 381 N.W.2d 300 (1986)). This "is a common sense test: under all the facts and circumstances present, what would a reasonable police officer reasonably...