State v. Jamie Lee Duval ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 2, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP416-CR Cir. Ct. No. 2018CF610
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JAMIE LEE DUVAL,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Brown County: WILLIAM M. ATKINSON and TIMOTHY A. HINKFUSS,
Judges. Affirmed.
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).
No. 2021AP416-CR
¶1 PER CURIAM. Jamie Duval appeals a judgment, entered following
a no-contest plea, convicting him of operating a motor vehicle with a detectable
amount of a restricted controlled substance in his blood, as a fourth offense and as
a repeater. Duval also appeals an order denying his postconviction motion. Duval
contends that the circuit court erred by granting the State’s motion for
reconsideration of the court’s original decision granting Duval’s motion to
suppress. We conclude that the arresting officer had reasonable suspicion that
Duval was operating a motor vehicle either while unlawfully under the influence
of an intoxicant or with a detectable amount of a restricted controlled substance in
his blood so as to extend the traffic stop that led to Duval’s arrest. Accordingly,
the court correctly granted the State’s motion for reconsideration, denied Duval’s
motion to suppress, and denied Duval’s postconviction motion. We affirm.
BACKGROUND
¶2 After Duval’s arrest following a traffic stop in April 2018, the State
initially charged Duval with one count of fourth-offense operating a motor vehicle
while intoxicated (OWI) under WIS. STAT. § 346.63(1)(a) (2021-22),1 and one
count of operating a motor vehicle while revoked, both as a repeater. Duval was
bound over for trial following a preliminary hearing, during which the State
submitted evidence that at the time of the stop Duval’s license was revoked, that
he had a .02 blood alcohol concentration (BAC) restriction, and that he had been
convicted of three prior OWIs, the most recent being in January 2010. Thereafter,
Duval filed a motion to suppress “anything obtained as a result of the unlawful
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
No. 2021AP416-CR
request for [Duval] to submit to field sobriety tests and [the] unlawful arrest of
[Duval],” arguing that the arresting officer did not have reasonable suspicion that
Duval was driving while impaired.
¶3 The arresting officer, De Pere Police Officer Alicia Bagley, was the
sole witness called by the State at the suppression hearing. Bagley testified that
she was on routine patrol at around 4:00 a.m. on the day of the stop, when she
observed a vehicle pull out from a residential driveway and onto Main Avenue, a
city street. Using her squad car computer, Bagley ran the vehicle’s license plate
and determined that the vehicle’s registration was suspended for parking
violations. Due to the vehicle’s suspended registration, Bagley initiated a traffic
stop. After the vehicle stopped, Bagley pulled her squad car behind it, exited her
squad car, and approached the vehicle’s driver’s side window.
¶4 Upon approaching the driver’s side window, Bagley observed a male
driver, later determined to be Duval, and a female passenger, later determined to
be the owner of the vehicle. Bagley testified that she “could immediately smell an
odor of intoxicants coming from the vehicle,” but she could not determine the
source of the odor and did not smell alcohol on Duval’s breath while talking to
him. According to Bagley, “The female passenger [admitted] to drinking, and I
believe the driver admitted to having one beer” after he arrived at the residence on
Main Avenue.
¶5 Bagley also testified that during the traffic stop, she noted Duval’s
“pupils appeared to be small given the lighting conditions.” Bagley, a trained drug
recognition expert (DRE) since 2011, testified that small pupil size is “one of the
signs that we’re trained to observe.” According to Bagley, “When you are driving
in darkness, your pupils should be on the larger side of average. And when I was
3
No. 2021AP416-CR
speaking with [Duval], his pupils were very small and constricted which would
not be the norm of somebody that would be driving at night.” Bagley also testified
that she
did not see much reaction with my flashlight when I would
take my flashlight and move it from [Duval’s] face down to
the ground or in the car. There wasn’t much of a change,
which is something that I would also note as a sign or a
symptom of drug impairment.
According to Bagley, she would have expected Duval’s eyes to “clamp down.”
Based on her observations of Duval, Bagley determined that “there was possibly
some kind of drug use going on.” After making contact with Duval and the
passenger of the vehicle, Bagley testified that she “ran [Duval’s] information” and
was “able to see [Duval’s] drug history.” At the suppression hearing, Bagley
could not, however, remember any details she learned from that information
regarding Duval’s criminal drug history.
¶6 Bagley testified that she then asked Duval to step outside of the
vehicle to conduct standard field sobriety tests (SFSTs). In support of Bagley’s
decision to conduct SFSTs, she cited the odor of intoxicants, Duval’s admission of
drinking, Duval’s irregular pupil size, and Duval’s known drug history. After
conducting the SFSTs, Bagley believed that Duval was impaired. Bagley then
instructed Duval to take a preliminary breath test, with which Duval complied, and
he “blew zeros.”2 Bagley arrested Duval, and he consented to a blood draw. After
the blood draw, Bagley conducted a DRE “12-step process” test on Duval, which,
according to Bagley, indicated further impairment. Testing on the blood sample
2
It is unclear from the record whether Bagley had Duval take a preliminary breath test
before or after his arrest.
4
No. 2021AP416-CR
obtained from Duval showed the presence of delta-9-tetrahydrocannabinol (THC),
a restricted controlled substance pursuant to WIS. STAT. § 340.01(50m)(e).
¶7 The circuit court3 granted Duval’s motion to suppress and it
suppressed all evidence obtained as a result of the SFSTs, Duval’s arrest, and
Duval’s blood draw. In support of its decision, the court concluded that Duval’s
pupil size, by itself, was not enough to constitute reasonable suspicion. Regarding
Bagley’s reliance on Duval’s drug history, the court stated:
And I might be more likely [to deny the motion to
suppress] if there was [testimony] here [of] a significant
drug history like, for instance, this person was on probation
for drugs and had been convicted in 2002, another
conviction in 2008, put on drug conviction in 2013, you
know, she pulls up a rap sheet where this guy is pretty
much a known drug user. But we didn’t get that. We just
had the drug history. And then you’ve just got the pupil
size.
The court also reasoned that Duval showed no signs of impaired driving or signs
of impairment generally.
¶8 The State filed a motion for reconsideration, requesting that the
circuit court reopen testimony for “Bagley on this limited issue—was she aware,
prior to asking [Duval] to step from his vehicle, that [Duval] had three prior OWI
convictions and was subject to a .02 [BAC] standard.”4 Alternatively, the State
asked the court to vacate its earlier decision granting Duval’s motion to suppress
3
The Honorable William M. Atkinson presided over the trial phase of Duval’s case. The
Honorable Timothy A. Hinkfuss presided over Duval’s postconviction motion.
4
The day after it filed the motion for reconsideration, the State filed an amended
Information changing the fourth-offense OWI charge under WIS. STAT. § 346.63(1)(a) to a charge
of operating a motor vehicle with a detectable amount of a restricted controlled substance in the
blood, as a fourth offense, under § 346.63(1)(am).
5
No. 2021AP416-CR
and to enter an order denying the motion based on the court’s misunderstanding
that Bagley needed reasonable suspicion of impairment to extend the traffic stop.
Specifically, the State argued that under WIS. STAT. § 346.63(1)(am), Bagley only
needed reasonable suspicion that Duval had “a detectable amount of a restricted
controlled substance” in his blood.
¶9 The circuit court did not reopen testimony for the State’s motion for
reconsideration. Instead, the court granted the State’s motion for reconsideration
on its face, vacated its prior decision granting Duval’s motion to suppress, and
entered an order denying the motion to suppress. Without explaining its
reasoning, the court stated, “I’ve reviewed the transcript, and I’m satisfied it was
incorrectly decided that day of the hearing.”
¶10 Later, Duval entered into a global plea agreement encompassing this
case and a number of other cases. In this case, Duval entered a no-contest plea to
Count One, the charge of operating a motor vehicle with a detectable amount of a
restricted controlled substance in his blood, as a fourth offense and as a repeater.
Count Two was dismissed and read in. After sentencing, Duval filed a
postconviction motion requesting, as pertinent to this appeal, that the circuit court
reverse its decision granting the State’s motion for reconsideration and suppress
all evidence derived from the stop because Bagley did not have reasonable
suspicion to extend the traffic stop based upon Duval’s impairment due to drugs or
alcohol. The court held a hearing on the motion, but no new testimony was taken.
¶11 In a written decision, the circuit court denied Duval’s postconviction
motion. The court found that Bagley suspected both that Duval was under the
influence of a restricted controlled substance and that he was under the influence
of alcohol. The court also noted that Bagley was “not an untrained officer.” The
6
No. 2021AP416-CR
court further found that Duval was subject to a .02 BAC restriction and that
“[w]hat is important is that the Court get the decision ‘right,’ not whether an
officer testified to a .02 level. When [Duval] was pulled over, it became a matter
of record as to how many prior convictions he did have.” Duval now appeals.5
DISCUSSION
¶12 Whether a defendant’s rights under the Fourth Amendment have
been violated is a question of constitutional fact. State v. Hogan, 2015 WI 76,
¶32, 364 Wis. 2d 167, 868 N.W.2d 124. “Resolving questions of constitutional
fact is a two-step process. We first uphold the circuit court’s findings of historical
fact unless they are clearly erroneous. We then independently apply constitutional
principles to those facts.” Id. (citations omitted). The State bears the burden at a
suppression hearing to prove that a warrantless seizure complied with the Fourth
Amendment. State v. Blatterman, 2015 WI 46, ¶17, 362 Wis. 2d 138, 864
N.W.2d 26.
¶13 “The right to be secure against unreasonable searches and seizures is
protected by both” the United States Constitution and the Wisconsin Constitution.
State v. Dearborn, 2010 WI 84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97. A traffic
stop is a seizure within the meaning of both constitutions, and reasonable
suspicion that a driver is violating a traffic law is sufficient to initiate a stop. State
v. Floyd, 2017 WI 78, ¶20, 377 Wis. 2d 394, 898 N.W.2d 560.
5
Duval did not challenge the constitutionality of his arrest after the SFSTs, nor does he
make that challenge on appeal. We will therefore assume, without deciding, that probable cause
existed for Duval’s warrantless arrest after the SFSTs. The only question on appeal is whether
Bagley had reasonable suspicion to extend the traffic stop in order to perform SFSTs.
7
No. 2021AP416-CR
¶14 “Reasonable suspicion requires that ‘[an] officer must be able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion of the stop.’” Id.(citation omitted). “While [reasonable suspicion] is a low bar,” State v. Genous,
2021 WI 50, ¶8, 397 Wis. 2d 293, 961 N.W.2d 41, an officer’s “inchoate and
unparticularized suspicion or ‘hunch’” will not suffice, State v. Post, 2007 WI 60,
¶10, 301 Wis. 2d 1, 733 N.W.2d 634 (citation omitted). “Yet ‘officers are not
required to rule out the possibility of innocent behavior before initiating a brief
stop.’ The question is, ‘What would a reasonable police officer reasonably suspect
in light of his or her training and experience?’” Genous, 397 Wis. 2d 293, ¶8
(citations omitted).
¶15 Traffic stops “may last no longer than required to address the
circumstances that make them necessary.” Floyd, 377 Wis. 2d 394, ¶21.
“Authority for the seizure thus ends when tasks tied to the traffic infraction are—
or reasonably should have been—completed.” Id. (citation omitted). An officer
may, however, “expand the scope of the inquiry … to investigate ‘additional
suspicious factors [that] come to the officer’s attention.’” Hogan, 364 Wis. 2d
167, ¶35 (citation omitted; second alteration in original). The officer must be able
to point to additional reasonable suspicion of unlawful activity if the traffic stop is
extended by a period of time longer than would have been necessary to complete
the original traffic stop. Id. “In this regard, the legal extension of a traffic stop is
essentially a Terry[6] investigatory stop.” Hogan, 364 Wis. 2d 167, ¶35. “The
6
Terry v. Ohio, 392 U.S. 1 (1968).
8
No. 2021AP416-CR
reasonableness of a stop is determined based on the totality of the facts and
circumstances.” Post, 301 Wis. 2d 1, ¶13.
I. Factors present for reasonable suspicion to extend the traffic stop
¶16 As the circuit court found in its decision denying Duval’s
postconviction motion, Bagley suspected both that Duval was under the influence
of a restricted controlled substance and that he was under the influence of alcohol.7
This finding is not clearly erroneous. In support of her decision to conduct SFSTs,
Bagley testified that she noticed an odor of intoxicants emanating from the
vehicle; that Duval had admitted to drinking; that Duval’s pupils were behaving
irregularly, which Bagley knew from her training as a DRE could be a sign of drug
impairment; and that Duval had a known drug history. Therefore, the issue is
whether Bagley had reasonable suspicion to extend the traffic stop for SFSTs
based on the fact that Duval was either operating while under the influence of an
intoxicant or operating with a detectable amount of a restricted controlled
substance in his blood (or both).8
¶17 Often, as is the case here, the legality of an officer’s extension of a
traffic stop will turn on the presence of numerous factors. See Hogan, 364
7
The factual findings on which we rely are largely limited to the circuit court’s written
decision denying Duval’s postconviction motion because the court did not make a record of the
reasons that it originally granted the State’s motion for reconsideration.
8
The elements of an OWI charge, in violation of WIS. STAT. § 346.63(1)(a), are: (1) the
defendant operated a motor vehicle on a highway; and (2) the defendant was under the influence
of an intoxicant at the time. WIS JI—CRIMINAL 2663 (2020). The elements of operating a motor
vehicle with a detectable amount of a restricted controlled substance in the blood, contrary to
§ 346.63(1)(am) are: (1) the defendant operated a motor vehicle on a highway; and (2) the
defendant had a detectable amount of a restricted controlled substance in his or her blood at the
time. WIS JI—CRIMINAL 2664B (2021).
9
No. 2021AP416-CR
Wis. 2d 167, ¶37. Here, the State relies on a number of factors that it contends
were present when Bagley made the traffic stop: (1) the stop occurred at 4:00
a.m.9; (2) Bagley was a trained DRE who recognized that Duval’s pupils were
exhibiting behavior that could likely be attributed to drug use; (3) Bagley was
aware of some type of drug history attributable to Duval, even though she could
not recall exactly what that history entailed; (4) Duval admitted to consuming
alcohol; and (5) Bagley noted an odor of intoxicants coming from the vehicle.
According to the State, these factors, in the aggregate gave rise to reasonable
suspicion of Duval unlawfully operating a motor vehicle in violation of WIS.
STAT. § 346.63 in order to extend the traffic stop.
A. The fact that Bagley, a trained DRE, considered Duval’s pupils smaller
than normal due to suspected drug use weighs in favor of Bagley having
reasonable suspicion to extend the traffic stop.
¶18 Bagley testified that she had been a DRE since 2011 and a DRE
instructor since 2013. According to Bagley, a DRE is “trained to detect the signs
and symptoms of various use and abuse drugs, whether they are prescription
medications or illegal medications.” As a DRE, Bagley had conducted roughly
eighty drug recognition tests in the field. As outlined previously, Bagley testified
that after approaching the vehicle, she noticed that Duval’s “pupils appeared to be
9
Duval does not dispute the fact that the time of the traffic stop in this case lends “some
further credence” to Bagley’s suspicion that Duval was impaired. See State v. Post, 2007 WI 60,
¶36, 301 Wis. 2d 1, 733 N.W.2d 634 (the fact that traffic stop occurred at 9:30 p.m. “lend[ed]
some further credence” to officer’s suspicion that driver was intoxicated); see also State v.
Morgan, 197 Wis. 2d 200, 214, 539 N.W.2d 887 (1995) (“We hold that the time of night—four
a.m.—may be considered in determining the legality of the pat-down search of [the defendant].”).
We therefore consider this fact in the reasonableness analysis and conclude that it weighs in favor
of Bagley having reasonable suspicion to extend the traffic stop.
10
No. 2021AP416-CR
small given the lighting conditions” and did not react to her flashlight, which led
her to conclude that “there was possibly some kind of drug use going on.”
¶19 Citing the Drug Evaluation and Classification (DEC) Program
procedures, Duval argues that a DRE is not trained to detect pre-arrest impairment
and that we should not weigh Duval’s pupil’s behavior in our reasonableness
analysis.10 DEC procedures
are not a field test or a pre-arrest investigative tool. It is
highly unlikely that they could be conducted with adequate
care in an outdoors, scene-of-investigation setting. In any
event, they are not designed to provide probable cause for a
subject’s arrest. Rather, they are a post-arrest investigative
tool, intended for application to arrestees for whom there is
at least some articulable suspicion of drug use or drug
impairment.
NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANSP., DRUG
RECOGNITION EXPERT COURSE, INSTRUCTOR GUIDE, 2 (2018) (formatting
altered).11 According to Duval, a DRE “does not have special abilities to assess
pupil size” unless he or she is in a controlled environment as outlined in the DEC
procedures.
¶20 Duval’s citation to the DEC procedures is taken out of context. The
DEC procedures refer to a twelve-step process, which is intended to be used after
10
According to Duval, this case is a good illustration of the fact that DREs are not
trained at pre-arrest detection of drug use because THC, as found in Duval’s blood, does not
cause pupil shrinking but it can cause the opposite result—dilated pupils. We conclude that this
distinction does not matter for purposes of reasonable suspicion. Bagley’s reliance on Duval’s
pupil size was not an “inchoate and unparticularized suspicion or ‘hunch,’” even if Duval
ultimately had THC, as opposed to a drug that constricts pupil size, in his system. See Post, 301
Wis. 2d 1, ¶10 (citation omitted).
11
https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/dre_7-day_instructor_guide-
tag.pdf (last visited April 27, 2023).
11
No. 2021AP416-CR
an individual is arrested. See id.; State v. Chitwood, 2016 WI App 36, ¶¶31-50,
369 Wis. 2d 132, 879 N.W.2d 786. The fact that Bagley noticed that Duval’s
pupils were small and constricted prior to conducting the twelve-step process does
not alter our reasonable suspicion analysis. What is important for our purposes is
that, at the time of the traffic stop, Bagley was a trained DRE and had conducted
roughly eighty DRE field tests. See State v. Adell, 2021 WI App 72, ¶20, 399
Wis. 2d 399, 966 N.W.2d 115 (officer training and experience is a factor in
reasonable suspicion analysis). Part of that training was observing miosis, or
“abnormally small pupil[s], i.e., constricted.” NATIONAL HIGHWAY TRAFFIC
SAFETY ADMIN., U.S. DEPT. OF TRANSP., DRUG RECOGNITION EXPERT COURSE,
INSTRUCTOR GUIDE, Session 5, 30-31 (2018). We have repeatedly rejected the
assertion that an officer’s failure to strictly comply with training related to
detecting intoxication or impairment equates to the officer lacking reasonable
suspicion or probable cause. See, e.g., City of West Bend v. Wilkens, 2005 WI
App 36, ¶¶12-16, 22, 278 Wis. 2d 643, 693 N.W.2d 324. While adherence to
DEC procedures may be relevant for the admissibility of a DRE’s testimony, see
Chitwood, 369 Wis. 2d 132, ¶¶28-50 (admissibility of DRE testimony governed
by WIS. STAT. § 907.02), nonadherence does not automatically equate to Bagley
lacking reasonable suspicion that Duval was driving while either impaired or with
a restricted controlled substance in his blood.
¶21 Duval also attempts to discredit Bagley’s observations of his pupil
size because “the lighting conditions were bright, making the caveat ‘given the
lighting conditions’ meaningless.” Duval cites Bagley’s testimony at the
suppression hearing that the extra spotlight on her squad car was shining on the
vehicle Duval was driving. We again disagree with Duval. While the bright light
may have caused Duval’s pupils to shrink, “officers are not required to rule out the
12
No. 2021AP416-CR
possibility of innocent behavior.” See Genous, 397 Wis. 2d 293, ¶8 (citation
omitted). We also note that Bagley testified at the suppression hearing that
Duval’s pupils did not “clamp down,” as she would have expected, when her
flashlight was pointing into Duval’s eyes. Her testimony further refutes Duval’s
claim regarding the effect lighting had on his eyes during the traffic stop.
¶22 Furthermore, Duval faults Bagley for not inquiring about whether he
had taken any prescription medication, which could have affected his pupil size,
arguing that “Bagley admitted that some narcotics are prescribed and she did not
ask [Duval], prior to exiting the car, whether he had a prescription or whether he
took any drugs.” Again, while there could be innocent explanations for Duval’s
pupil size, including a prescribed restricted controlled substance, “officers are not
required to rule out the possibility of innocent behavior.” See id. (citation
omitted).
B. The fact that Bagley was aware of some type of drug history attributable
to Duval, even though she could not recall exactly what that history
entailed, weighs in favor of Bagley having reasonable suspicion to
extend the traffic stop.
¶23 At the suppression hearing, Bagley testified that she “ran [Duval’s]
information” during the traffic stop and was “able to see [Duval’s] drug history,”
although Bagley could not recall the exact details of what that history entailed.
Duval argues that his purported drug history “is a mystery and adds no value to the
totality of the circumstances analysis” because “Bagley was not clear on the
specifics of what she saw on her computer. She testified that she did not know
what that history was or whether it involved a dismissed case.” The circuit court
did not make any factual findings regarding Duval’s drug history in its decision
granting the State’s motion for reconsideration or in its decision denying Duval’s
postconviction motion.
13
No. 2021AP416-CR
¶24 Despite Bagley’s inability to recall the exact type or dates of Duval’s
drug history, she was able to recall that she noted that Duval had a drug history.
In addition, Bagley suspected Duval of being under the influence of a drug,
providing the necessary link for Duval’s criminal history to add to sufficient
reasonable suspicion. An individual’s criminal history can contribute to
reasonable suspicion where the criminal history has a link to an officer’s
observation-based suspicions. See State v. Buchanan, 2011 WI 49, ¶13, 334
Wis. 2d 379, 799 N.W.2d 775 (criminal history of violent crimes along with
officer’s suspicions that suspect was armed supported Terry pat down of driver).
C. The odor of intoxicants emanating from the vehicle and Duval’s
admission to consuming alcohol weigh in favor of Bagley having
reasonable suspicion to extend the traffic stop.
¶25 It is undisputed that Duval was subject to a .02 BAC restriction at
the time of the traffic stop. Both parties also agree that Bagley did not specifically
testify about the restriction. Duval argues that because Bagley did not have
knowledge of Duval’s .02 BAC restriction, and because “[r]easonable suspicion
must be based upon facts known to the officer,” we cannot consider the restriction
in our analysis. While the State “acknowledges that the prosecutor did not ask
[Bagley] about her knowledge of Duval’s [.02 BAC restriction] at the suppression
hearing,” it contends that the determination of whether an officer had reasonable
suspicion is based on what a reasonable officer would have known at the time of
the extension of the traffic stop, not what Bagley actually knew.
¶26 We agree with Duval that whether an officer has reasonable
suspicion depends on the “specific and articulable facts” the officer personally
knows at the time reasonable suspicion is required. See State v. Washington,
2005 WI App 123, ¶16, 284 Wis. 2d 456, 700 N.W.2d 305 (“When determining if
14
No. 2021AP416-CR
the standard of reasonable suspicion was met, those facts known to the officer at
the time of the stop must be taken together with any rational inferences, and
considered under the totality of the circumstances.”). It is not enough, as the
circuit court stated, that Duval’s .02 BAC restriction existed—Bagley needed
knowledge of the restriction for us to factor it into our reasonable suspicion
analysis.
¶27 Nonetheless, even concluding that Bagley did not have knowledge
of Duval’s .02 BAC restriction, Duval still admitted to consuming alcohol, see
State v. Waldner, 206 Wis. 2d 51, 60, 556 N.W.2d 681 (1996) (“Police officers
are not required to rule out the possibility of innocent behavior before initiating a
brief stop.”),12 and Bagley noted an odor of intoxicants emanating from the
vehicle, see State v. Colstad, 2003 WI App 25, ¶¶20-21, 260 Wis. 2d 406, 659
N.W.2d 394 (odor of alcohol coming from car added to reasonable suspicion).
¶28 Duval relies on County of Sauk v. Leon, No. 2010AP1593,
unpublished slip op. (WI App Nov. 24, 2010),13 for the proposition that “[t]he
mere odor of alcohol and an admission of consuming one beer is not sufficient for
reasonable suspicion.” But in Leon, the county relied only on the defendant’s
admission of limited drinking and the odor of intoxicants. See id., ¶28. As we
12
Duval points us to the fact that Bagley believed that he only had one drink.
Specifically, he relies on Bagley’s testimony at the suppression hearing that she believed Duval’s
statement that he had only had one beer that evening was the truth “[t]o the best of [her]
knowledge.” This fact is not dispositive. It is possible that Bagley believed Duval consumed
only one beer and still thought that he was intoxicated due to Bagley’s suspicions about Duval’s
drug use.
13
An unpublished opinion authored by a single judge under WIS. STAT. § 752.31(2) and
issued on or after July 1, 2009, may be cited for its persuasive value. WIS. STAT.
RULE 809.23(3)(b).
15
No. 2021AP416-CR
have explained, there are a number of other factors in this case that support a
finding of reasonable suspicion. In analyzing whether reasonable suspicion
existed, we may consider Duval’s admission to consuming alcohol and the odor of
intoxicants emanating from the vehicle, along with those other factors.
II. Bagley had reasonable suspicion to extend the traffic stop.
¶29 Duval attempts to compare the traffic stop in this case to the traffic
stop in Hogan, where our supreme court concluded that the State failed to meet its
burden to show that an officer had reasonable suspicion to extend a stop for
SFSTs. See Hogan, 364 Wis. 2d 167, ¶43. In Hogan, the officer stopped a
vehicle after observing that the driver not wearing a seat belt. Id., ¶11. “As soon
as [the officer] began speaking with [the driver], he noticed that [the driver] was
‘very nervous,’ ‘real nervous,’ and ‘shaking real bad’ with upper body tremors.
He also noticed that [the driver’s] ‘pupils were restricted,’ which he believed was
‘an indicator of drug use.’” Id., ¶13. Another officer arrived, who informed the
first officer that the driver had “961 issues” and that the second officer had
received tips that the driver made his own methamphetamine. Id., ¶16.
Afterward, the first officer asked the driver to step outside of the vehicle and had
the driver perform SFSTs. Id., ¶18. The first officer acknowledged that he was
not a DRE but he “said he based his observations on his 12-1/2 years[’] experience
as a deputy and his frequent review of a ‘pupilometer,’ which he described as ‘a
little card that has different size black marks’ which are ‘measured in
millimeters.’” Id., ¶13. Only the first officer testified at the suppression hearing.
See id., ¶40. On appeal, our supreme court concluded it “believe[d] the State
could have made a valid case that [the first officer] had reasonable suspicion to
pursue field sobriety tests with” the driver, but that it had failed to do so on the
record before the court. Id., ¶43.
16
No. 2021AP416-CR
¶30 The record before us demonstrates that the State met its burden to
show that Bagley had reasonable suspicion to extend the stop. As an initial matter,
unlike the first officer in Hogan, Bagley was a trained DRE at the time of the stop
and had knowledge of how pupil size can relate to current drug use. In Hogan,
the circuit court put no stock in the [first officer’s]
testimony about restricted pupils as a factor in establishing
reasonable suspicion. The [officer] did not have definitive
information at any point on how drug use might affect
pupil size. He referred to his familiarity with a pupilometer
card but he did not bring the card to substantiate or
supplement his testimony.
Id., ¶48 (footnote omitted). Furthermore, Bagley had knowledge of Duval’s drug
history, which she testified to receiving once she ran Duval’s name through her
squad car computer. Conversely, in Hogan, the second officer did not testify as to
where he obtained the tip that the driver made his own methamphetamine, nor did
the second officer testify as to how he knew that the driver had “961 issues.” The
supreme court reasoned that “[i]f either [of the officers] had been shown to know
of [the driver’s] criminal record, which included three felony convictions and a
drug conviction as well as his probationary status, the case for reasonable
suspicion would have been greatly strengthened.” Id., ¶52. Additionally, as the
circuit court found in this case, Bagley had concerns about whether Duval was
intoxicated, unlike in Hogan, where “[t]here was no evidence and no suspicion
that [the driver] was driving under the influence of alcohol.” See id., ¶45.
¶31 Applying Hogan here, “It follows that the legality of the extension
of the traffic stop … turns on the presence of factors which, in the aggregate,
amount to reasonable suspicion that [Duval] committed a crime the investigation
of which would be furthered by [his] performance of field sobriety tests.” See id.,
¶37. While each of the above factors, by themselves, may not amount to
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No. 2021AP416-CR
reasonable suspicion that Duval was either operating while under the influence of
an intoxicant or operating with a detectable amount of a restricted controlled
substance in his blood, when considered in total, Bagley had reasonable suspicion
to extend the traffic stop. “Although officers sometimes will be confronted with
behavior that has a possible innocent explanation, a combination of behaviors—all
of which may provide the possibility of innocent explanation—can give rise to
reasonable suspicion.” Id., ¶36.
¶32 For the reasons explained above, we conclude that the circuit court
properly denied Duval’s motion to suppress on reconsideration and, accordingly,
properly denied his postconviction motion. Considering the factors discussed,
Bagley had reasonable suspicion to extend the traffic stop for SFSTs. We
therefore affirm Duval’s judgment of conviction for operating a motor vehicle
with a detectable amount of a restricted controlled substance in his blood, as a
fourth offense and as a repeater.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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