State v. Yunus E. Turkmen ( 2019 )

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.
August 13, 2019
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. 2018AP1673-CR Cir. Ct. No. 2017CT263
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
YUNUS E. TURKMEN,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dunn County:
JAMES M. PETERSON, Judge. Affirmed.
¶1 STARK, P.J.1 Yunus Turkmen appeals a judgment of conviction,
entered upon his guilty plea, to second-offense operating a motor vehicle while
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP1673-CR
intoxicated (OWI). He claims the circuit court erred by denying his motion to
suppress evidence. We disagree and affirm.
BACKGROUND
¶2 City of Menomonie police officer Wade Schlichting stopped
Turkmen and arrested him for OWI. Turkmen filed a motion to suppress
evidence, alleging that Schlichting impermissibly extended the traffic stop to
administer field sobriety tests. Schlichting was the only witness at the suppression
hearing and testified to the following relevant facts.
¶3 At 2:38 a.m. on a Saturday morning in downtown Menomonie,
Schlichting was parked in a lot adjoining Broadway Street. He saw a vehicle
make a U-turn in the middle of an intersection and heard the vehicle’s wheels
squeal loudly. Schlichting followed the vehicle for a few blocks and then initiated
a traffic stop.
¶4 Schlichting approached the vehicle’s passenger side and spoke to the
driver, later identified as Turkmen. Turkmen already had his wallet in his hand
when Schlichting arrived. However, when Schlichting asked Turkmen for his
driver’s license, Turkmen “set his wallet onto the center console and proceed[ed]
to stick his hands in his pockets to look for his wallet” before he finally handed
over his entire wallet to Schlichting.
¶5 Schlichting never had met Turkmen previously, but Schlichting
recognized him because Turkmen had been “running back and forth” on
Broadway Street’s sidewalk approximately thirty minutes prior to the traffic stop.
“[S]everal establishments” sold alcoholic beverages in the area where Schlichting
had previously observed Turkmen.
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No. 2018AP1673-CR
¶6 Schlichting asked Turkmen if he knew why he was stopped. In
response, Turkmen “made a reference about his friend telling him to do something
cool,” apparently referencing the U-turn and tire squealing. Schlichting also asked
Turkmen how much he had to drink that evening. Turkmen “indicated he had
consumed one shot of alcohol[,] and he indicated something similar to the effect
that he had consumed alcohol but not too much that he could not drive.” At this
point, Schlichting decided to administer field sobriety tests to Turkmen. Turkmen
failed the field sobriety tests, and a preliminary breath test showed that he had a
blood alcohol concentration of 0.131.
¶7 The circuit court denied Turkmen’s suppression motion. It found the
facts as testified to by Schlichting were “relatively undisputed.” The court
recounted that Schlichting “observed an illegal U-turn in [the business district]—it
being illegal because you can’t do a U-turn in the business district—and it’s right
on … Broadway Street … in an area where there’s a number of bars.” The court
noted that “it wasn’t just a U-turn,” but also that the vehicle had “extra
acceleration and [a] squealing of the tires,” which, given the location and time of
day, it opined was “a fairly dangerous driving maneuver.” Based on those facts,
the court concluded Schlichting “had a reason to stop [Turkmen] based on an
observed violation.”
¶8 The circuit court also determined that Schlichting reasonably
extended the stop to administer field sobriety tests to Turkmen. In addition to
Turkmen’s driving behavior, the court observed that the stop took place “near bar
close” and that Schlichting saw Turkmen thirty minutes prior to the stop in an area
where a number of bars were located. The court also recounted that Turkmen
“had his wallet ready and then when asked for his license, he appeared to be
looking for the wallet that he already had out, and made some admission to having
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No. 2018AP1673-CR
consumed alcohol.” The court further noted that Schlichting was not “foreclosed”
by the amount of alcohol that Turkmen claimed he had consumed. Turkmen
ultimately pleaded guilty to second-offense OWI, and he now appeals the court’s
denial of his suppression motion. See WIS. STAT. § 971.31(10).
DISCUSSION
¶9 Turkmen concedes on appeal that Schlichting’s initial decision to
stop him was lawful because Schlichting had reasonable suspicion that Turkmen
was operating his vehicle at a greater than reasonable and prudent speed while
completing the U-turn, as evidenced by the squealing of his vehicle’s tires. See
WIS. STAT. § 346.57(2). Consequently, the sole issue before us is whether
Schlichting’s extension of the traffic stop to administer field sobriety tests was
unconstitutional under the Fourth Amendment.
¶10 Whether a defendant’s Fourth Amendment rights 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. A question of constitutional fact is a mixed question of law
and fact to which we apply a two-step standard of review. Id. We will uphold the
circuit court’s findings of historical fact unless they are clearly erroneous. Id. We
independently decide, however, whether the facts establish a violation of
constitutional standards. Id.¶11 The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. See U.S. CONST. amend. IV. Law
enforcement officers may stop a vehicle when they have reasonable suspicion to
believe a motorist is engaged in wrongful conduct. See State v. Iverson, 2015 WI
101, ¶52, 365 Wis. 2d 302, 871 N.W.2d 661. However, a traffic stop can become
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No. 2018AP1673-CR
unlawful if it is “prolonged beyond the time reasonably required” to complete the
traffic stop’s mission. Hogan, 364 Wis. 2d 167, ¶34 (citation omitted).
¶12 After a justifiable stop is made, police officers are permitted to
expand the scope of their inquiry “only to investigate ‘additional suspicious
factors’” that come to the officers’ attentions. Id., ¶35 (citation omitted). “An
expansion in the scope of the inquiry, when accompanied by an extension of time
longer than would have been needed for the original stop, must be supported by
reasonable suspicion.” Id. (citing State v. Colstad, 2003 WI App 25, ¶13, 260
Wis. 2d 406, 659 N.W.2d 394). We assess the reasonableness of a traffic stop’s
extension based upon the totality of the facts and circumstances. See Hogan, 364
Wis. 2d 167, ¶36. Here, we must determine whether Schlichting discovered
information subsequent to the initial stop which, when combined with information
he already acquired, would have provided a reasonable law enforcement officer in
his position with reasonable suspicion that Turkmen was driving while under the
influence of an intoxicant, thus providing a basis to extend the stop to administer
field sobriety tests. See Colstad, 260 Wis. 2d 406, ¶19.
¶13 We agree with the circuit court that, based upon the totality of the
facts and circumstances, Schlichting reasonably extended the stop to administer
field sobriety tests to Turkmen. The stop occurred at 2:38 a.m. on a Saturday
morning, which is relevant because it was at bar-closing time, and it “is a matter of
common knowledge that people tend to drink during the weekend when they do
not have to go to work the following morning.” See State v. Lange, 2009 WI 49,
¶32, 317 Wis. 2d 383, 766 N.W.2d 551. Further, Schlichting saw Turkmen
“running back and forth” in close proximity to bars just prior to the stop. Turkmen
also admitted to having consumed alcohol and displayed some confusion when
trying to locate his driver’s license.
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No. 2018AP1673-CR
¶14 Additionally, Turkmen’s driving prior to the stop evinced the type of
poor decision-making and increased impulsivity one would expect from a person
driving while under the influence of an intoxicant. Turkmen made a U-turn and
squealed his vehicle’s tires in a business district. Regardless of whether the U-turn
was legal, the circuit court characterized it as “fairly dangerous” because it
occurred at bar close in an area populated with bars and, importantly, patrons
leaving those bars.2 Moreover, Turkmen’s ill-considered decision to conduct a
U-turn at an unsafe speed was in response to his “friend telling him to do
something cool”—i.e., a dare. Considering the totality of the facts and
circumstances before and during the stop, Schlichting reasonably suspected
Turkmen of driving under the influence of an intoxicant and, therefore, lawfully
extended the stop to administer field sobriety tests to Turkmen.
¶15 Turkmen acknowledges that “this is a close case,” but he nonetheless
asserts that Schlichting’s extension of the stop was unlawful because the totality of
the facts and circumstances available to Schlichting was “equivocal at best.”
Turkmen first argues that “there is no reasonable basis to conclude [his] turn was
‘a fairly dangerous driving maneuver.’” He contends that “[t]he context in which
the circuit court made this remark shows its characterization was based on the
court’s belief the U-turn was an ‘illegal maneuver.’” We disagree. While the
2
Turkmen asserts that his U-turn was not illegal for a variety of reasons and that the
State conceded the U-turn’s legality by failing to respond to his argument. See Charolais
Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979)
(observing that unrefuted arguments may be deemed conceded). However, we need not address
whether or not the U-turn was legal. Turkmen concedes there was reasonable suspicion to stop
his vehicle. He further acknowledges that his squealing tires during the U-turn supported a
reasonable inference that he was operating at a greater than reasonable and prudent speed in
violation of WIS. STAT. § 346.57(2). In addition, we conclude that Schlichting had reasonable
suspicion to extend the traffic stop without relying on the legality of Turkmen’s U-turn.
Therefore, the U-turn’s legality is immaterial.
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No. 2018AP1673-CR
court did opine on the illegality of the U-turn, we do not infer from the court’s
comments that its finding that Turkmen’s U-turn was a potentially “fairly
dangerous driving maneuver” was directly connected to the court’s belief that the
U-turn was illegal. Rather, the court made that comment in the context of the
U-turn occurring “in that place at that time,” referring to “Broadway
Street[,] … an area where there’s a number of bars” and the time of day being
when bars close on a Saturday morning.
¶16 Additionally, and contrary to Turkmen’s contention, Schlichting’s
testimony supports the circuit court’s conclusion that the U-turn was dangerous
given the U-turn’s time and place. The court could reasonably infer that an area
with a number of bars, as was the case here, would be populated with patrons
outside those bars while leaving at bar close who would be in potential jeopardy
from a vehicle driven at an unreasonable and imprudent speed. See Lange, 317
Wis. 2d 383, ¶32.
¶17 Turkmen’s remaining arguments are without merit because they fail
to correctly analyze the situation under the totality of the facts and circumstances.
He focuses on facts or circumstances that were absent, such as Schlichting not
observing Turkmen slurring his speech, exhibiting “bloodshot or glassy eyes,” or
smelling of alcoholic beverages. As explained above, however, Schlichting had a
reasonable suspicion that Turkmen was under the influence of an intoxicant based
upon the totality of the facts and circumstances that actually occurred. We assess
whether reasonable suspicion exists based upon the accumulation of facts that
actually occurred. See State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d
634 (“[T]he 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.”) (citation omitted).
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No. 2018AP1673-CR
¶18 Turkmen’s isolating certain facts in an attempt to minimize their
probative value is similarly unpersuasive. Schlichting was not required to accept
an inference of Turkmen’s behavior that favored innocence when there also was a
reasonable inference that Turkmen was engaged in wrongful conduct. See State v.
Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125. Thus, in this
instance, whether there may have been an innocent explanation for Turkmen’s
confusion locating his wallet is immaterial in determining whether reasonable
suspicion existed.
¶19 Finally, while Turkmen correctly argues that “[n]ot every person
who has consumed alcoholic beverages is ‘under the influence,’” see WIS JI—
CRIMINAL 2663 (2006), that does not mean that Schlichting was required to take at
face value the amount of alcoholic beverages Turkmen claimed to have consumed.
See Colstad, 260 Wis. 2d 406, ¶¶14, 21. Here, and contrary to Turkmen’s
assertion otherwise, Schlichting reasonably suspected that Turkmen had consumed
enough alcoholic beverages to impair his ability to safely operate a motor vehicle
based upon the totality of the other facts and circumstances known to Schlichting
at the time. Turkmen’s running back and forth in the downtown bar area before
closing time and his dangerous driving shortly thereafter in the same area, his
admission to consuming alcohol, and his confusion in locating his driver’s license
would reasonably lead an officer in Schlichting’s position to believe that Turkmen
had consumed more alcoholic beverages than he admitted to and that Turkmen’s
consumption of alcoholic beverages impaired his ability to operate a motor
vehicle. Schlichting’s extension of the stop to conduct field sobriety tests was
reasonable under those circumstances.
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No. 2018AP1673-CR
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
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No. 2018AP1673-CR