State v. Ofte, 2021AP1302-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtBLANCHARD, P.J.
PartiesState of Wisconsin, Plaintiff-Appellant, v. Rodney J. Ofte, Defendant-Respondent.
Decision Date21 April 2022
Docket Number2021AP1302-CR

State of Wisconsin, Plaintiff-Appellant,

Rodney J. Ofte, Defendant-Respondent.

No. 2021AP1302-CR

Court of Appeals of Wisconsin, District IV

April 21, 2022

This opinion will not be published.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

APPEAL from an order of the circuit court for Vernon County: No. 2019CM149 DARCY J. ROOD, Judge.


¶1 Rodney Ofte was charged with violations that included operating a motor vehicle while intoxicated as a second offense and he


moved to suppress evidence. He argued in pertinent part that, shortly before his arrest, sheriff's deputies violated the Fifth Amendment by "interrogating" him while he was "in custody" without first providing him with the warnings for in-custody interrogations required by Miranda v. Arizona, 384 U.S. 436, 444, 469 (1966) (establishing a bright-line rule, based on the right against compelled or coerced self-incrimination, that individuals held for interrogation must be clearly informed of fundamental constitutional rights, including the right to remain silent).[2] After taking evidence, the circuit court granted the suppression motion. The State appeals.

¶2 The State does not dispute that no Miranda warnings were given at the relevant time, nor does it develop an argument that Ofte was not subject to "interrogation." Instead, the State argues that Ofte was not "in custody" for Fifth Amendment purposes during the interrogation and therefore Miranda warnings were not required. I conclude that the State failed to prove, under the totality of the circumstances, either that (1) a reasonable person in Ofte's position would not have felt restraint on his freedom of movement to a degree associated with formal arrest or (2) the environment did not present the same inherently coercive pressures as the station house-type interrogation at issue in Miranda. Accordingly, I affirm the suppression ruling.



¶3 The following is background necessary to understand the arguments of the parties as pertinent to the dispositive issue.[3] All of this evidence was given by a sheriff's deputy, Ryan Paulson. Paulson was the only witness to testify during the evidentiary portion of the suppression proceedings.[4]

¶4 One cold, windy evening in April 2019, Paulson responded in his official capacity to a report of a passer-by that a truck was "parked on the wrong side of the road" of a highway. Inside the truck was a man "with his head down


and he was not responsive," according to the passer-by, as relayed to Paulson. However, Paulson was never aware of any report of erratic driving by anyone operating the truck.

¶5 A second deputy also responded to this report. Both deputies were in full police uniform, including carrying side arms. When the two deputies arrived on the scene the emergency lights were activated on their squad cars.

¶6 Firefighters and emergency medical services personnel informed the deputies that the man who had been found in the truck was in the back of an ambulance that was on the scene. The deputies made contact with Ofte at the back of the ambulance. Ofte's "speech was slurred," he had "an odor of intoxicants" on his breath, and he had "bloodshot and glassy eyes." Paulson asked Ofte "if he had been drinking that day." Ofte told the deputies that he

started drinking at a board meeting at around 11:00 a.m. and then changed his story and said that he started drinking at Gasser's Bar & Grill in Viroqua, and then later told me that he started drinking at Nordic Lanes in Westby and then ended up going to Liberty Bar and had a couple drinks there and then went to Viola and had a couple drinks there.

Paulson told Ofte that Paulson "was going to want to run him through field sobriety tests to make sure that he was safe to drive home." Ofte responded that he probably was not safe to drive home.

¶7 Medical personnel on the scene cleared Ofte to leave the ambulance. Paulson "asked [Ofte] to step out." Ofte stepped out of the ambulance, but he "was unsteady on his feet and lost his balance." Paulson

informed Mr. Ofte that my squad [car] was parked more up towards the hill and that we had to walk up towards my squad car, and he was unsteady on his feet walking towards my squad car. I eventually placed him in the back seat of
my squad car and started to question him more about where he was drinking at and how many drinks he had had.

¶8 After Paulson "placed" Ofte "in the back seat" of the marked police vehicle, Paulson resumed the questioning of Ofte that had begun at the ambulance. This was the start of the period in which Ofte contends he was improperly interrogated in custody without having received Miranda warnings.

¶9 During this interrogation, Ofte was seated in the squad car, with the rear car door next to his seat open and Paulson standing in the open doorway. Paulson asked Ofte "where he was coming from and the bars that he was at throughout the day." In response, Ofte's version of events "changed again." Paulson challenged Ofte several times regarding Ofte's version of events about where he had been that day, pointing out inconsistencies in what he had already told Paulson.

¶10 When Paulson finished the interrogation at the squad car, Paulson told Ofte that "we were going to a flat surface to perform field sobriety tests." Paulson then shut the open rear door of the car, with Ofte still seated in the back. With the rear door closed, Ofte could not open it from the inside to leave the squad car. Paulson did not tell Ofte that he was not under arrest.

¶11 After shutting the rear squad car door, Paulson got into the driver's seat and drove Ofte, who was still seated in the back, some unspecified distance "to a flat spot" on the side of a highway in order "to run him through field sobriety" tests. During the course of this roadside testing, Ofte complained several times about how cold it was. Paulson agreed with him that it was cold.

¶12 After subjecting Ofte to field sobriety tests, the second deputy asked Ofte to submit to a test on a portable breath testing device (Breathalyzer), and


Paulson administered the test. After getting a reading from the Breathalyzer, Paulson "informed Mr. Ofte that he was going to be placed under arrest for" operating while intoxicated.

¶13 Ofte was charged with violations that included operating while intoxicated as a second offense.

¶14 After Ofte pursued a motion to suppress evidence, the circuit court determined that Paulson had interrogated Ofte at the squad car in violation of his Fifth Amendment rights by failing to provide the Miranda warnings.

¶15 I interpret the circuit court as making the following factual findings, beginning with whether Ofte was given the Miranda warnings. Neither side asked Paulson at the hearing whether he provided the Miranda warnings to Ofte at any time. But Paulson did not testify to giving the warnings and it was an implied finding of the circuit court that Paulson did not provide the Miranda warnings to Ofte at any time before he was formally placed under arrest following the roadside testing. The State does not dispute as much on appeal.

¶16 The circuit court implicitly credited all of Paulson's testimony.[5] For example, the court credited his testimony that Paulson observed Ofte to "smell of


intoxicants," display "glassy eyes," and "struggl[e] with his walking." In addition, neither side suggested in argument to the circuit court, nor argues now on appeal, that Paulson testified inaccurately on any topic.

¶17 The circuit court made no clear finding regarding the length of time that Paulson interrogated Ofte after placing him in the squad car. Again, because the recording from Paulson's body camera that the circuit court observed is not in the record, I must assume all ambiguity in favor of the circuit court decision. See supra note 4. The circuit court ambiguously responded "[r]ight" after Ofte's counsel estimated that the interrogation at the squad car lasted "certainly a few minutes" (suggesting that "a few" was a minimum number and that the time period could have been longer) and the prosecutor estimated "a couple" of minutes. The court proceeded to observe that 30 minutes of interrogation has been treated in case law as a long period of time for Fifth Amendment purposes, and conveyed the idea that the length of the interrogation here was shorter than that. Based on this record, I will assume that the interrogation lasted some number of minutes between two and 30, probably closer to two than to 30.

¶18 The circuit court found that Ofte was in "a locked squad" during the interrogation, with Paulson "impeding [Ofte's] departure."[6] By using the term


"impeding," the court apparently meant that Paulson prevented Ofte from being able to get out of the squad car throughout the course of the interrogation at the squad car, not that Paulson at any time stopped Ofte from trying to get out. There was no evidence that Ofte actually attempted to get out between the time Paulson placed him there and when Paulson closed the door and began the drive to the new location for the field sobriety tests.

¶19 As remedies, the circuit court ordered that "all evidence gathered after [Ofte] was placed in [Deputy] Pauls[o]n's car, including statements made by the defendant, evidence obtained from the field sobriety tests, and the results from the blood test, are suppressed."

¶20 The State appeals the suppression decision.


¶21 The review of an order granting or denying a suppression motion presents an issue of constitutional fact. State v. Johnson, 2013 WI.App. 140, ¶6, 352 Wis.2d 98, 841 N.W.2d 302. Appellate courts uphold circuit court findings of fact unless they are clearly erroneous and independently review the application of constitutional principles to those facts. Id.

¶22 Before summarizing the law pertinent to this appeal, I pause...

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