State v. Quartana

• Decision Date: 24 September 1997
• Docket Number: No. 97-0695,97-0695
• Citation: 213 Wis.2d 440,570 N.W.2d 618
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Theodore A. QUARTANA, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 618

570 N.W.2d 618

213 Wis.2d 440

STATE of Wisconsin, Plaintiff-Respondent, v. Theodore A. QUARTANA, Defendant-Appellant. ^d

No. 97-0695.

Court of Appeals of Wisconsin.

Submitted on Briefs June 17, 1997.

Opinion Released Sept. 24, 1997.

Opinion Filed Sept. 24, 1997.

On behalf of the defendant-appellant, the cause was submitted on the brief of Donald L. Conner II of Kingstad Law Offices, S.C. of Franklin.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michele W. Hulgaard of Waukesha.

On behalf of the Wisconsin Department of Justice, there was a brief filed by James E. Doyle, Attorney General, and Daniel J. O'Brien, Assistant Attorney General.

Before BROWN, NETTESHEIM and ANDERSON, JJ.

BROWN, Judge.

Section 968.24, STATS., our codification of the Terry ¹ stop, allows the detention and temporary questioning of a suspect without arrest for investigative purposes. The last sentence of the statute says: "Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped." In this case involving an investigation of a one-car accident, Theodore A. Quartana was initially questioned at his home and was then transported by police to the accident scene. Quartana argues that this police action violates § 968.24. Therefore, his refusal to take a chemical test following an arrest for operating a motor vehicle while intoxicated cannot be held to be improper. By this opinion, we determine the analysis to be conducted when a person under a Terry investigation is removed from one place to another and ultimately affirm the trial court's determination that Quartana improperly refused to take the test.

Sometime after 2:00 a.m. on January 7, 1996, Quartana lost control of his car and drove into a ditch. Immediately afterwards, Quartana left the accident scene and walked home to his parents' house, approximately one mile away.

A Wisconsin State Patrol trooper arrived first on the scene of the accident and took control as the investigating officer. After determining that Quartana owned the car and lived nearby, a city of Brookfield Police officer was dispatched to Quartana's residence.

The officer found Quartana at home and asked to see his driver's license and asked him about the accident. Quartana admitted he had been driving at the time of the accident. At this point, the officer observed that Quartana's eyes were "sort of" bloodshot and glassy and that his breath smelled of intoxicants. When the officer informed Quartana that he would have to return to the accident scene to talk with the trooper investigating the accident, Quartana asked if he could ride with his parents. The officer testified that he told Quartana "he would have to come with [him], because [he] needed to keep an observation on him, and that he was temporarily being detained in reference to the accident investigation." The officer kept Quartana's driver's license and drove him in the rear of the squad car to the accident scene.

At the accident scene, the officer turned Quartana and his driver's license over to the trooper. The trooper immediately interviewed Quartana and then had him perform several field sobriety tests. Quartana failed all of the tests and afterwards refused to take a preliminary breathalyzer test. The trooper then placed him under arrest and took him to the police station for further testing. At the station, the trooper read Quartana the Informing the Accused form, but Quartana refused to submit to any chemical testing.

At the refusal hearing, Quartana challenged the refusal by arguing that he had been placed under arrest without probable cause when the officer kept his driver's license and transported him against his will from his residence to the accident scene. Therefore, the request to submit to chemical testing came after he had been arrested without probable cause in violation of his Fourth Amendment rights. The trial court found that although the officer did not have probable cause to arrest Quartana, he acted within the scope of a temporary investigative detention when he transported Quartana to the accident scene. Quartana appeals.

Because we assume without deciding that there was no probable cause to arrest, the officer's temporary investigative stop of Quartana was a "seizure" subject to Fourth Amendment protection. It is the State which bears the burden of proving that a warrantless search or seizure was reasonable and in conformity with the Fourth Amendment. See State v. Washington, 134 Wis.2d 108, 120, 396 N.W.2d 156, 161 (1986). Whether the facts as found by the trial court satisfy the constitutional requirement of reasonableness is a question of law we review independently of the trial court. See State v. Waldner, 206 Wis.2d 51, 54, 556 N.W.2d 681, 683 (1996).

Pursuant to Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), a police officer may, in the appropriate circumstances, detain a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. Our legislature codified the constitutional standard established in Terry in § 968.24, STATS., cited below. ² When interpreting the scope of § 968.24, we must resort to Terry and its progeny. See State v. Jackson, 147 Wis.2d 824, 830-31, 434 N.W.2d 386, 389 (1989).

During the course of a Terry stop, officers may try to obtain information confirming or dispelling their suspicions. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). By its express language, § 968.24, STATS., authorizes the police to move a suspect short distances during the course of a temporary investigation. The statute states that the police may temporarily detain and question an individual "in the vicinity where the person was stopped." See id. Therefore, it is clear that the law permits the police, if they have reasonable grounds for doing so, to move a suspect in the general vicinity of the stop without converting what would otherwise be a temporary seizure into an arrest. See State v. Isham, 70 Wis.2d 718, 728, 235 N.W.2d 506, 511-12 (1975); 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 9.2(g) at 75-76 (3d ed.1996). Thus, when a person under investigation pursuant to a Terry stop is moved from one location to another, there exists a two-part inquiry. First, was the person moved within the "vicinity?" Second, was the purpose in moving the person within the vicinity reasonable?

"Vicinity" is commonly understood to mean "a surrounding area or district" or "locality." See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY: UNABRIDGED 2550 (1976). We may use recognized dictionary definitions to ascertain the meaning of ordinary, nontechnical words in a statute. See State v. Lopez, 207 Wis.2d 415, 434, 559 N.W.2d 264, 271 (Ct.App.1996). We are satisfied that the legislature's use of the term "vicinity" comports with the dictionary definition. We are further convinced that the accident scene, only one mile from Quartana's house, was in the "surrounding area" or "locality." As evidenced by Quartana's own actions, it was within walking distance even in the winter. Therefore, Quartana was moved within the vicinity. The question remains whether the police had reasonable grounds for moving the suspect within the vicinity.

In United States v. Vanichromanee, 742 F.2d 340, 343 (7th Cir.1984), federal agents detained a suspect in her apartment after suspecting that drugs were being sold from the apartment. At the same time, other agents detained three defendants who they suspected were colleagues of the suspect in a parking garage below the apartment. See id. The agents did not arrest any of the defendants. See id. at 344. The agents then transported the three men from the parking garage to the apartment in order to ascertain their relationship to the apartment and the suspect and to continue the investigation. See id. The court held that moving the three defendants did not "vitiate the investigatory nature of the stop" and allowed the police to identify the defendants and clarify their connection with the suspect in the apartment. Id. at 345. This decision comports with other cases where courts have upheld a temporary detention and transportation of a suspect when the police had reasonable grounds for doing so. ³

However, detentions may be reasonable for investigative purposes, yet violative of the Fourth Amendment. See Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). As courts, we must guard against police misconduct through overbearing or harassing techniques that tread upon people's personal security without the objective evidentiary justification the Constitution requires. See Terry, 392 U.S. at 15, 88 S.Ct. at 1876. "The police [may not] seek to verify their suspicions by means that approach the conditions of arrest." Royer, 460 U.S. at 499, 103 S.Ct. at 1325. Moreover, the detention must at all times be temporary and last no longer than necessary to effectuate the purpose of the stop. See id. at 500, 103 S.Ct. at 1325. In assessing the permissible length of a stop, we must determine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the person. See United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985).

We conclude that it was reasonable for the police to detain and transport Quartana to the scene of the accident in order to continue their investigation. Quartana had bloodshot, glassy eyes, smelled of intoxicants and had admitted to driving at the time of the accident. Therefore, the officer had reasonable grounds to investigate further in order to determine if Quartana's intoxication contributed to the accident.

Further, the officer went to Quartana's residence only to assist ...