State v. Zinda

• Decision Date: 07 September 2016
• Docket Number: No. 2016AP455–CR.,2016AP455–CR.
• Citation: 372 Wis.2d 186,888 N.W.2d 23 (Table)
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Mary G. ZINDA, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

372 Wis.2d 186

888 N.W.2d 23 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Mary G. ZINDA, Defendant–Appellant.

No. 2016AP455–CR.

Court of Appeals of Wisconsin.

Sept. 7, 2016.

¶ 1GUNDRUM, J.¹

Mary Zinda appeals from the order denying her motion to suppress evidence and a judgment of conviction for operating a motor vehicle while intoxicated, third offense.Zinda argues the arresting officer unlawfully seized her prior to detecting intoxicants on her breath, which led to further investigation for OWI.We conclude that Zinda was not seized at the time the officer smelled the intoxicants, and thus there was no Fourth Amendment violation in his procurement of that or subsequent evidence.We additionally conclude that even if the officer had seized her prior to smelling the intoxicants, such seizure would have been lawful in that the officer had reasonable suspicion to do so.We affirm.²

Background

¶ 2The circuit court held an evidentiary hearing on Zinda's suppression motion at which the State and Zinda each called one witness to testify.The State called Town of Oconomowoc Police ChiefJames Wallis and Zinda called Oconomowoc Police Officer Adam Parkhurst.Their relevant undisputed testimony is as follows.

¶ 3 Wallis testified that around 2:50 p.m. on October 14, 2014, dispatch advised him a 911 caller, who identified herself,³ was reporting "a possible drunk driver and erratic driving."Dispatch informed Wallis the caller was following the suspect vehicle and reported that the vehicle "had either gone off the road or nearly gone off the road, and that basically the driving was erratic."Wallis was provided a license plate number and informed of the make and model of the vehicle and that the caller and the vehicle were "on Highway 16, in the area of Brown Street."Wallis ran the license plate number and learned of the address associated with the vehicle.After trying unsuccessfully to locate it, Wallis went to the residence.

¶ 4 Wallis pulled into the suspect driver's driveway and backed into a parking stall on the side of the driveway.The suspect vehicle subsequently pulled into the driveway.As Wallis exited his vehicle, the driver of the vehicle "looked somewhat confused."Wallis approached and, from prior contacts, recognized the driver as Zinda.

¶ 5 Zinda exited her vehicle.Wallis confirmed he did not order her to exit, instruct her to do anything before exiting, make any commands, point a weapon at her, or "do anything towards her at all" prior to her exiting her vehicle.The emergency lights on Wallis' vehicle were not activated.

¶ 6 Wallis walked up to Zinda and advised her he was there "in reference to an erratic driving."Zinda responded, "[N]o," and appeared "a little bit confused."Wallis detected the odor of intoxicants emitting from Zinda and then had her perform field sobriety tests, which ultimately led to her arrest.Adam Parkhurst, a City of Oconomowoc police officer, who had followed Zinda to her residence, also had exited his squad and walked up next to Zinda's vehicle.

¶ 7 On cross-examination, Wallis testified that his report on the case reflected information dispatch had relayed to him, and it indicated dispatch had informed him the suspect vehicle had exited Highway 16, made a U-turn, and got back onto Highway 16.Wallis testified that he stood on the driver's side of Zinda's vehicle "towards the rear tire area, side door area."Zinda's home was on the opposite side, the passenger's side, of the vehicle, and to get to it, Zinda would have had to pass by Wallis; however, Wallis "did not block her route."Parkhurst also was standing on the driver's side of the vehicle, more towards the front.Both officers were wearing their uniforms.

¶ 8 On redirect examination, Wallis explained that he was standing "out away from" Zinda's vehicle, confirming there was room for Zinda to walk past him, and further confirming there was also room for her to "have gone forward and around the vehicle."When Zinda began to walk past Wallis, Wallis could smell intoxicants coming from her breath; following that observance, he asked her to perform the field sobriety tests.

¶ 9 Zinda called Parkhurst to the stand.He testified that before Zinda had reached her home, he had followed her for approximately thirty to forty-five seconds and did not observe any concerns with her driving.He testified that although he was not certain, he believed he parked his vehicle in the driveway and did not believe Zinda would have been able to back her car out of the driveway.He did not have the emergency lights activated on his squad.

¶ 10The circuit court denied Zinda's suppression motion, and Zinda was eventually convicted and sentenced.She appeals.

Discussion

¶ 11 Zinda claims the circuit court erred in concluding she was not seized until Wallis requested that she perform field sobriety tests, which was after Wallis detected intoxicants on her breath.She asserts she was seized "after [she] exited her vehicle, when Chief Wallis told her that he wanted to talk to her," and that the seizure was unlawful because at that time Wallis did not have reasonable suspicion to believe she had violated the law.We conclude the court did not err in denying Zinda's suppression motion because Wallis had reasonable suspicion to temporarily detain/seize Zinda at the time he did so.We affirm.

Zinda was not seized until Wallis requested that she perform field sobriety tests

¶ 12We apply the same standard in reviewing the denial of a motion to suppress and a determination as to whether a seizure occurred.County of Grant v. Vogt,2014 WI 76, ¶ 17, 356 Wis.2d 343, 850 N.W.2d 253.We will uphold the factual findings of the circuit court unless they are clearly erroneous, but we independently review the application of those facts to constitutional principles.Id.

¶ 13 The Fourth Amendment to the United States Constitutionandarticle I, section 11 of the Wisconsin Constitution protect citizens against unreasonable seizures.⁴These constitutional provisions, however, "are not implicated until a government agent ‘seizes' a person."Vogt,356 Wis.2d 343, ¶ 19, 850 N.W.2d 253(citation omitted).The test for whether a seizure has occurred is an objective one, looking at the totality of the circumstances, id.,¶¶ 30, 38, and considering "whether an innocent reasonable person, rather than the specific defendant, would feel free to leave under the circumstances,"id.,¶ 30.There is no seizure "[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave."Immigration & Naturalization Serv. v. Delgado,466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247(1984).

¶ 14 Our supreme court's decision in Vogt is instructive.Around 1:00 a.m., a law enforcement officer observed Vogt's vehicle pull into a public parking lot next to a park and boat landing on the Mississippi River, both of which were closed.Vogt,356 Wis.2d 343, ¶ 4, 850 N.W.2d 253.Curious, the officer also pulled into the lot and parked his marked squad car behind Vogt's vehicle.Id.,¶ 6.The headlights of the squad car were on, but not the red and blue emergency lights.Id.The officer approached the vehicle, knocked on the driver's side window and motioned for the driver, Vogt, to roll down the window.Id.,¶¶ 7, 43.Vogt rolled it down, and the officer asked him what he was doing.Id.,¶ 8.When Vogt responded, the officer noticed the smell of intoxicants and that Vogt's speech was slurred, ultimately leading to Vogt's arrest and prosecution for OWI.Id.,¶¶ 8–9.As the Vogt court described the testimony of the officer, the officer stated if Vogt "had ignored him and driven away, [the officer] would have let him go because he‘had nothing to stop him for.’ "Id.,¶ 7.

¶ 15The circuit court denied Vogt's suppression motion related to his arrest, and subsequently held a court trial.Id.,¶¶ 10–11.At that trial, Vogt and his passenger testified the officer "rapped" hard on the driver's side window and verbally commanded Vogt to roll it down.Id.,¶¶ 11–12.Vogt renewed his suppression motion, which the court denied.Id.,¶ 13.The court ultimately found Vogt guilty, id.,¶¶ 13–14, we reversed, and the County of Grant petitioned the supreme court for review, which petition the court granted.Id.,¶¶ 15–16.

¶ 16 Before the supreme court, Vogt argued he had been unlawfully seized when the officer knocked on his window and "commanded" him to roll it down.Id.,¶ 40.Vogt highlighted the following: "(1)[the officer] parked right behind Vogt's vehicle; (2)‘the location of Mr. Vogt's vehicle in the parking lot was not conducive to simply driving away’; (3)[the officer] commanded Vogt to roll down the window; and (4)[the officer] rapped loudly on the window."Id.Reversing the decision of this court, the supreme court concluded that "[e]ven taken together, these facts do not demonstrate that Vogt was seized."Id.,¶ 41.

¶ 17The Vogt court stated that "[a]lthough [the officer] parked directly behind Vogt and allegedly there were obstacles on three sides of Vogt's vehicle, these facts do not demonstrate that Vogt was seized because" the evidence supported the conclusion that Vogt had enough room in front of his vehicle to be able to pull it forward and turn around.Id.,¶¶ 41–42."[T]here was an avenue by which Vogt could have actually left....Vogt was not seized simply because there was only one way out of the parking lot."Id.,¶ 42.The court found unpersuasive Vogt's assertion that he was seized as a result of a verbal "command" from the officer to roll down the window, noting the circuit court found that the officer had "tapp[ed]" on Vogt's window and motioned for Vogt to roll it down, but that the officer "wasn't commanding [Vogt] to do anything, ... he was simply trying to make contact."Id.,¶ 43.The Vogt court further noted the circuit court's determination that the officer's conduct was, as the Vogt court...