State v. Nichols
| Decision Date | 31 January 2023 |
| Docket Number | 2021AP1199-CR |
| Parties | State of Wisconsin, Plaintiff-Appellant, v. Marty A. Nichols, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from an order of the circuit court for Barron County: No 2019CF407 ANGELINE E. WINTON, Judge. Reversed and cause remanded for further proceedings.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 The State of Wisconsin appeals from a circuit court order granting Marty A. Nichols' motion to suppress evidence. Because we conclude that the arresting officer had reasonable suspicion to extend Nichols' lawful traffic stop to investigate whether Nichols was operating a motor vehicle with a prohibited alcohol concentration (PAC) and also had probable cause to request a preliminary breath test (PBT), we reverse and remand for further proceedings consistent with this opinion.
¶2 The following undisputed facts are taken from the evidence presented at the suppression hearing. On December 14, 2019 at 1:45 a.m., Village of Cameron Police Sergeant Adam Steffen conducted a random registration check on a passing vehicle which revealed that the registered owner- Nichols-had a revoked operating privilege and an occupational license. Steffen also knew that 1:45 a.m. was outside the hours of operation permitted by the occupational license. Steffen attempted to catch up to the vehicle to conduct a traffic stop, but the vehicle was no longer visible to him.
¶3 Steffen then contacted City of Barron Police Sergeant Adam Schofield, provided him with the same information, and told him the vehicle was "traveling towards his jurisdiction" and that he could "watch out for it." Schofield subsequently located the vehicle confirmed the license plate, and executed a traffic stop on the vehicle in an alley. Schofield identified the driver as Nichols, who confirmed that his license was revoked and that he was driving outside the restrictions of his occupational license. At that time, Schofield did not observe any indicia of intoxication, and he did not ask Nichols if he had been drinking.
¶4 Schofield returned to his squad car and contacted dispatch confirmed the information pertaining to Nichols' revoked license, and learned that Nichols was also on probation and was subject to a blood alcohol concentration (BAC) limit of .02. Schofield testified that "while [he] was … typing up the citation for operating after revocation [(OAR)], [he] had requested dispatch contact probation to see if they wanted to place a hold" on Nichols. In response, dispatch reported that probation "asked about a PBT," but Schofield explained that they did not "specifically say they wanted a PBT." As a result of probation's question, Schofield "made [an] assumption" that Nichols "was on a condition not to consume [any] alcohol in relation to his probation status." Schofield then directed another officer on the scene, Andres Meza, to ask Nichols if he had been drinking and to administer a PBT, but he "advised [Meza] that if the PBT started to read, to turn it off immediately."
¶5 Meza did as he was instructed. Nichols admitted he had consumed "a drink or two before 9 PM" and agreed to take a PBT. When Meza saw the PBT start to rise, indicating a BAC above 0.00, he stopped the PBT before obtaining a result, as Schofield had directed. Meza did not observe any signs of intoxication. Meza reported his findings to Schofield, who returned to Nichols' vehicle and also asked Nichols whether he had been drinking. This time, Nichols responded that he had "two or three beers, and stopped drinking around 9 or 10 PM." Schofield testified that he knew "it doesn't take very much to reach a .02."[1] He then asked Nichols to perform field sobriety tests, and while Schofield "observed two clues on the [horizontal gaze nystagmus] test," he testified that Nichols "passed all three tests." Schofield did not detect an odor of alcohol on Nichols.
¶6 Due to Nichols' .02 BAC restriction and his admission to drinking, Schofield asked him to take another PBT, which registered a .059 BAC. Nichols was arrested, and the State charged him with operating a motor vehicle with a PAC, as a fifth offense, and OAR. A blood test taken after Nichols' arrest revealed a .055 BAC.
¶7 Nichols filed a motion to suppress the blood test results on the ground that law enforcement lacked the requisite probable cause to request a PBT. The circuit court held a suppression hearing during which Schofield, Steffen, and Meza testified. After the hearing, the court granted Nichols' motion, concluding that law enforcement did not have sufficient probable cause to request the second PBT.
¶8 In reaching this conclusion, the circuit court cited our supreme court's decision in State v. Goss, 2011 WI 104, 338 Wis.2d 72, 806 N.W.2d 918. There, the supreme court held that there was probable cause for an officer to request a PBT from a driver where: (1) the officer knew the driver was subject to a .02 PAC standard; (2) the officer knew that it would take little alcohol consumption for the driver to exceed that limit; and (3) the officer smelled alcohol on the driver. Id., ¶2. While acknowledging that the first two factors under Goss had been satisfied, the circuit court refused to "extend" the Goss court's reasoning to include an admission of drinking alcohol rather than an odor of alcohol.[2]According to the court, the odor of alcohol gives law enforcement "some indication of the immediacy of consumption," while an admission to drinking does not. The State appeals. See Wis. Stat. § 974.05(1)(d)2. (2019-20).[3]
¶9 The parties present three issues on appeal: (1) whether law enforcement impermissibly extended Nichols' OAR traffic stop and converted it into a PAC investigation; (2) whether there was probable cause to request the first PBT; and (3) whether there was probable cause to request the second PBT.
¶10 First, Nichols asks us to affirm the circuit court's grant of his suppression motion on a ground not considered by the court: law enforcement did not have reasonable suspicion to extend the traffic stop.[4] He argues that his blood test results were properly suppressed because law enforcement unlawfully extended the traffic stop when Schofield told Meza to obtain a PBT from Nichols. A routine traffic stop's "tolerable duration … is determined by the seizure's 'mission'-to address the traffic violation that warranted the stop … and attend to related safety concerns." Rodriguez v. United States, 575 U.S. 348, 354 (2015) (citations omitted). "A stop's length becomes unreasonable if extended past the point 'when tasks tied to the traffic infraction are-or reasonably should have been-completed.'" State v. Brown, 2020 WI 63, ¶10, 392 Wis.2d 454, 945 N.W.2d 584 (quoting State v. Floyd, 2017 WI 78, ¶21, 377 Wis.2d 394, 898 N.W.2d 560). A "stop's permissible duration includes drafting and explaining tickets to a driver." Id., ¶32 (citing Floyd, 377 Wis.2d 394, ¶23).
¶11 A traffic stop may be extended and a new investigation begun, however, if "the officer becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense or offenses separate and distinct from the acts that prompted the officer's intervention in the first place." State v. Betow, 226 Wis.2d 90, 94-95, 593 N.W.2d 499 (Ct. App. 1999); State v. Hogan, 2015 WI 76, ¶35, 364 Wis.2d 167, 868 N.W.2d 124 (). Whether reasonable suspicion exists depends on the totality of the circumstances. Hogan, 364 Wis.2d 167, ¶36.
¶12 Here, we conclude that the traffic stop was not impermissibly extended because the mission of the traffic stop was not completed at the time of the first PBT request.[5] Schofield testified that he asked Meza to speak with Nichols and request a PBT while he was writing Nichols' ticket for OAR. Thus, at the time Meza spoke with Nichols, Schofield had not completed the ticket for OAR, he had not returned to Nichols' vehicle, he had not given him the ticket, and he had not explained the ticket to him. There is also no evidence in the record that Schofield "unnecessarily delay[ed] the process." See Floyd, 377 Wis.2d 394, ¶23. The traffic stop was therefore ongoing. See Brown, 392 Wis.2d 454, ¶32; Floyd, 377 Wis.2d 394, ¶23. And, for the reasons we explain below, once Meza spoke with Nichols and Nichols admitted to drinking alcohol, there was probable cause to believe-and therefore reasonable suspicion-that Nichols had been driving with a BAC above .02. See County of Jefferson v. Renz, 231 Wis.2d 293, 316, 603 N.W.2d 541 (1999) (). Thereafter, law enforcement properly extended the stop to begin a new investigation.
¶13 Nichols, however, cites State v. Adell, 2021 WI.App 72, 399 Wis.2d 399, 966 N.W.2d 115, in support of his position that law enforcement lacked reasonable suspicion to convert the OAR investigation into a PAC investigation. In Adell, this court reversed the circuit court's order granting suppression and held that there was reasonable suspicion under the totality of the circumstances that Adell had committed a PAC offense. Id., ¶¶12, 26. Nichols claims that "Adell illustrates that only...
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