Opinion
Appeal No. 04-1618-CR.
Opinion Filed: March 24, 2005.
APPEAL from a judgment of the circuit court for Crawford County: MICHAEL KIRCHMAN, Judge. Affirmed.
Donald McGuire appeals from a judgment of conviction for operating while intoxicated (OWI) — 2nd offense. McGuire pleaded guilty after the circuit court denied his motions to suppress evidence gathered during a traffic stop. McGuire contends that the arresting officer conducted an illegal search by opening his car door during the stop. He asserts that the evidence gathered supporting his conviction was the fruit of the allegedly unlawful search, and, consequently, his conviction should be overturned. We agree that the officer's opening of the door was an illegal search. However, because we find that the officer had probable cause to arrest McGuire independent of the fruits of this search, we affirm the trial court's ruling.
Background
¶ 2 On the night of November 5, 2003, while heading east on Highway 60 in Wauzeka, Wisconsin State Patrol Trooper Terry Armentrout saw a pickup truck approaching in the westbound lane. When the truck was about 200 feet from his squad car, its headlights switched from low to high beams. Armentrout turned his car around and activated its emergency lights. The truck turned down a side road, and pulled over after traveling a short distance. Armentrout activated an audio and video device to record the stop. The videotape of the stop is a part of the record before us and we have reviewed the tape.
¶ 3 Armentrout exited his squad car and approached the driver's side window of the truck, which was open approximately five inches, and began to speak with the driver, Donald McGuire. Throughout the conversation, McGuire did not look at Armentrout, but kept his eyes facing forward. Armentrout noticed that McGuire's eyes and nose were red. Armentrout asked for McGuire's driver's license, which McGuire handed to him through the open window.
¶ 4 Armentrout returned to his squad car and ran a computer check on McGuire's license, which showed that McGuire lived on a road that intersected the highway about two miles further west. Armentrout can be heard to say on the recording that it appeared to him that McGuire had been drinking, but that he could not smell any intoxicants because the truck's window was rolled up.
¶ 5 Armentrout walked back to the truck and returned McGuire's license. Armentrout then opened the truck's door, simultaneously asking McGuire to exit the vehicle. It was at this time that Armentrout first smelled intoxicants. Seeing that McGuire had a cane, Armentrout told him that he could remain in his seat as Armentrout performed a horizontal gaze nystagmus (HGN) test. Armentrout explained the test and began to perform it, before again requesting that McGuire exit the vehicle. McGuire did so, and the trooper performed the full test, detecting all six possible clues of intoxication.
¶ 6 Armentrout then asked McGuire to recite the alphabet and to count backward, which McGuire did successfully after some hesitation. Armentrout searched the truck, telling McGuire that he had the right to do so, finding an empty beer can that the officer did not believe had been consumed recently. Next, Armentrout administered a preliminary breath test (PBT), which registered a blood alcohol concentration (BAC) of .141. Armentrout then placed McGuire under arrest for OWI. McGuire later refused to submit samples of his blood or breath for additional BAC testing, resulting in the revocation of his license under WIS. STAT. § 343.305(10). The State subsequently obtained a blood sample by executing a search, which showed a BAC of .132.
We agree with the circuit court's determination that this search was unlawful and that the beer can was therefore inadmissible; we also agree that this fact does not change the result of the case.
¶ 7 McGuire filed motions to suppress all evidence Armentrout acquired after opening the door to McGuire's truck. McGuire also contended that when he refused to take the requested blood test, he was not properly informed of the consequences, as required by statute. The circuit court rejected both motions, and McGuire pleaded guilty. He now appeals.
Discussion
¶ 8 The Fourth Amendment protects "[t]he right of the people . . . against unreasonable searches and seizures." U.S. CONST. amend. IV. In Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868 (1968), the U.S. Supreme Court declared that detention need not rise to the level of a formal arrest to constitute a seizure for Fourth Amendment purposes. Thus, brief investigatory detentions must be justified by an officer's reasonable suspicion of criminal activity. Id. at 20. Reasonable suspicion must be present at the inception of an investigatory stop, and must continue to exist throughout. Id. Since Terry, courts have developed a range of standards specifying the amount and type of suspicion required for different forms of detention and investigation. Wisconsin's statutes and case law recognize multiple variations of reasonable suspicion and probable cause, several of which are relevant to this case. County of Jefferson v. Renz, 231 Wis. 2d 293, 308, 603 N.W.2d 541 (1999).
¶ 9 To lawfully conduct a traffic stop, an officer must have reasonable suspicion that the motorist has committed a violation. State v. Rutzinski, 2001 WI 22, ¶ 14, 241 Wis. 2d 729, 623 N.W.2d 516. If, during a traffic stop, the officer gains additional information creating a reasonable suspicion that the driver is intoxicated, the officer may administer field sobriety tests. State v. Colstad, 2003 WI App 25, ¶ 19, 260 Wis. 2d 406, 659 N.W.2d 394. To search a vehicle during a stop, the officer must meet the higher standard of probable cause to believe that the vehicle contains contraband or evidence of a crime. State v. Pallone, 2000 WI 77, ¶ 58, 236 Wis. 2d 162, 613 N.W.2d 568. To administer a preliminary breath test (PBT), the officer must also have "probable cause to believe" that the operator of a vehicle is intoxicated. WIS. STAT. § 343.303. This probable cause is not, however, the same level of suspicion required to make an arrest or search a vehicle; it is an intermediate level of suspicion, greater than "reasonable suspicion" but less than some other forms of "probable cause." Renz, 231 Wis. 2d at 316.
¶ 10 In criminal prosecutions, courts remedy an unreasonable search or seizure by suppressing evidence that the search or seizure recovers. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684 (1961). This exclusionary rule applies not only to evidence directly obtained by the search, but also to evidence discovered later as an indirect result of the search. Wong Sun v. US, 371 U.S. 471, 484, 83 S. Ct. 407 (1963). Evidence so obtained is known as the "fruit of the poisonous tree." Id. at 488. In determining whether Fourth Amendment violations have occurred, we give deference to the trial court's findings of fact, upholding them unless they are clearly erroneous. Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643-44, 340 N.W.2d 575 (Ct.App. 1983). However, whether these facts meet the constitutional and statutory standards of probable cause and reasonable suspicion are questions of law that we review de novo. Id. at 137-38.
¶ 11 McGuire does not contend that Armentrout lacked reasonable suspicion to pull him over. He instead argues that, after he explained to Armentrout that his headlights were malfunctioning, Armentrout's reasonable suspicion dissipated and he should have terminated the stop. McGuire argues that detention after this point was based only upon Armentrout's "hunch," and was therefore illegal. Terry, 392 U.S. at 22 (rejecting search or seizure "based on nothing more substantial than inarticulate hunches").
¶ 12 While it is true that Armentrout testified that he had a "hunch" McGuire had been drinking, he also articulated specific facts that gave rise to his suspicion: McGuire's redness of eye and nose, his hesitancy to look at the trooper, his keeping the window rolled most of the way up, and his turning down Gran Grae road. While each of these facts might have an innocent explanation, taken as a whole, they are sufficient to give rise to a reasonable suspicion that the defendant was intoxicated. State v. Waldner, 206 Wis. 2d 51, 59, 556 N.W.2d 681 (1996) ("[P]olice officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.") (citation omitted). Armentrout's continuation of the stop to investigate further was thus not unlawful.
Defendant's brief argues that redness is the normal condition of McGuire's nose. This fact is not relevant to a determination of reasonable suspicion, however, since the inquiry concerns only the information available to the officer at the time of the stop. Terry, 392 U.S. at 21-22.
¶ 13 McGuire next contends that by opening the door to his truck, Trooper Armentrout commenced an unlawful search. McGuire argues that all of the evidence Armentrout obtained after opening the door was the fruit of this search and must therefore be suppressed. We agree that the opening of the door was a search. We further agree that it was not justified by probable cause, and that its fruits should have been suppressed. However, we hold that the balance of the investigation and arrest was justified independently of the illegal search.
¶ 14 For the purposes of the Fourth Amendment, a search "occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." Soldal v. Cook County, Ill., 506 U.S. 56, 63, 113 S. Ct. 538 (1992) (citations omitted). An officer need not have a subjective intent to search in order for a search to occur. Soldal at 69. It is well settled that a driver has an expectation of privacy in the passenger compartment of his automobile. Pallone, 236 Wis. 2d 162, ¶ 60. When Armentrout opened the door to McGuire's truck, he breached the passenger compartment and infringed upon McGuire's privacy. Though Armentrout may have opened the door to allow McGuire to get out or for some other reason, under Soldal, this does not affect the result. We conclude that by opening the door to McGuire's truck, Armentrout commenced a search.
The State notes that an officer conducting a traffic stop does not violate the Fourth Amendment by ordering the occupants out of the stopped vehicle. Maryland v. Wilson, 519 U.S. 408, 415, 117 S. Ct. 882 (1997). The State apparently suggests that it makes no difference whether an officer opens a vehicle's door, or orders the driver out, requiring the driver to open the door in the process. We do not think it appropriate to extend Wilson this far, though we find support for the State's position from other jurisdictions. See State v. Ferrise, 269 N.W.2d 888, 890 (Minn. 1978), Smith v. State, 623 So.2d 382, 386 (Ala.Crim.App. 1993). We do not review the actions that Armentrout might have taken, but those that he in fact did take.
¶ 15 To lawfully search an automobile during a traffic stop, an officer must have probable cause to believe that it contains contraband or evidence of a crime. Pallone, 236 Wis. 2d 162, ¶¶ 75-77. Probable cause exists when "trustworthy facts and circumstances within the officer's personal knowledge would cause a reasonably prudent man to believe that the vehicle contains contraband." U.S. v. Cooper, 949 F.2d 737 (5th Cir. 1991).
¶ 16 We do not believe that the facts known to Armentrout before he opened the truck's door were sufficient to create probable cause. Armentrout knew that McGuire had flashed his brights, that his eyes and nose appeared red, that he had not rolled his window all of the way down, and that he had not looked directly at Armentrout while speaking. Though this information was enough to justify a reasonable suspicion that McGuire had been drinking, there is little in these facts to support the inference that his truck held contraband or evidence of a crime. Armentrout's search was thus unlawful under the Fourth Amendment.
¶ 17 The circuit court should have suppressed evidence resulting directly or indirectly from the search. We agree with the appellant that the odor of intoxicants, which Armentrout testified he smelled upon opening the door, should have been excluded. We cannot agree, however, that the evidence obtained during the subsequent investigation was derived from the search.
¶ 18 It is not sufficient to say that an officer obtained evidence after committing a Fourth Amendment violation for it to be excluded; rather, evidence must have been derived from the violation. Wong Sun, 371 U.S. at 488. "[G]ranting establishment of the . . . illegality" of the search, we must ask whether evidence "has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id. (citation omitted). If the disputed evidence was obtained independently of the violation, the Fourth Amendment is not served by its exclusion. Murray v. U.S., 487 U.S. 533, 537, 108 S. Ct. 2529 (1988).
¶ 19 The record here shows that in his squad car after his initial conversation with McGuire, Armentrout stated "it does look like he's been drinking." Then, as Armentrout opened the truck's door, the videotape shows that he simultaneously asked McGuire to exit the vehicle. Only upon seeing McGuire reach for his cane did Armentrout tell him that he could remain seated while Armentrout performed an HGN test.
¶ 20 Armentrout's decision to perform the HGN test could not have been a result of the odor he smelled when he opened the door, since the decision to test McGuire must have occurred before the door was open. Put another way, the results of the HGN test were not derived from the unlawful search; the test arose instead from Armentrout's prior observations of McGuire's appearance and behavior. As such, the fruit of the poisonous tree doctrine does not require the suppression of the HGN test results. Nor did Armentrout lack reasonable suspicion that McGuire was intoxicated. Thus the test results were properly admitted.
¶ 21 McGuire finally argues that Armentrout lacked probable cause to administer the PBT. By this point in the investigation, Armentrout had all of the reasons earlier stated to believe that McGuire was intoxicated, as well as the fact that McGuire had displayed all six indicators of intoxication during the HGN test. It is true that McGuire completed the alphabet and counting tests. However, his hesitations and evasive behavior before the tests limit the persuasive power of this fact. We conclude that the facts known to Armentrout, taken as a whole, are sufficient to meet the lower probable cause standard applicable to PBTs. Renz, 231 Wis. 2d at 316, 603 N.W.2d 541.
Defendant notes that the officer's emergency lights were flashing during the test, and that under some circumstances, flashing lights can cause nystagmus. While this may be the case, in determining whether probable cause exists, a court looks to facts available to the officer and to the inferences the officer could reasonably derive. Terry, 392 U.S. 1 at 21-22, 88 S. Ct. 1868 (1968). Here, the fact that Armentrout observed all six possible clues could reasonably have led Armentrout to infer that McGuire was intoxicated.
Of course, Armentrout had also detected the odor of intoxicants. If this fact influenced Armentrout's decision to administer the PBT test, it would be excludable as the fruit of the poisonous tree. Murray v. U.S., 487 U.S. 533, 542, 108 S. Ct. 2529 (1988). However, it is nearly impossible to imagine that an officer, having detected all six clues on an HGN test, would fail to arrest the defendant or investigate further. With or without the odor of intoxication, the PBT would have occurred; thus, the PBT was not derived from the search.
By the Court. — Judgment affirmed.