State v. Hogan

364 Wis.2d 167

868 N.W.2d 124

STATE of Wisconsin, Plaintiff–Respondent

v.Patrick I. HOGAN, Defendant–Appellant–Petitioner.

No. 2013AP430–CR.

Supreme Court of Wisconsin.

Argued March 4, 2015.

Decided July 10, 2015.

For the defendant-appellant-petitioner, there were briefs by Nicholas J. Passe and Moen Sheehan Meyer, Ltd., La Crosse, and oral argument by Nicholas J. Passe.

For the plaintiff-respondent, the cause was argued by Tiffany M. Winter, assistant attorney general, with whom on the brief was Brad D. Schimel, assistant general.

Opinion

DAVID T. PROSSER, J.

¶ 1 This is a review of an unpublished decision of the court of appeals,¹ which affirmed a judgment convicting Patrick I. Hogan (Hogan) of possession of methamphetamine and child neglect. Hogan pled no contest to these charges after the Grant County Circuit Court² denied Hogan's motion to suppress evidence obtained during a search of his truck.

¶ 2 This fact-intensive case focuses on the reasonableness of police conduct after a lawful traffic stop. After a sheriff's deputy stopped the defendant for a seat belt violation, the deputy observed what he believed to be indicia of the defendant's drug use. With this in mind, he called for backup. He then wrote out seat belt citations for the defendant and the defendant's wife, who was not wearing her seat belt properly. Before the deputy had finished the citations, a local officer who knew of the defendant arrived on the scene.

¶ 3 The officer reported that his department had received tips that the defendant had “961 issues” and was a “shake and bake” methamphetamine cooker.

¶ 4 With his suspicions about the defendant somewhat confirmed, the deputy asked the defendant to perform a series of field sobriety tests. When the defendant passed all tests, he was told he was free to leave. At this point about 24 minutes had elapsed from the time the deputy initiated the traffic stop.

¶ 5 Approximately 16 seconds later, the deputy re-approached the defendant and asked several questions, including whether the defendant would consent to a search of his truck. The defendant consented and the officers found methamphetamine, equipment and supplies commonly used to manufacture methamphetamine, and two loaded handguns. One gun was close to the defendant's two-year-old daughter, who was sitting in a child's car seat behind her mother in the back of the truck.

¶ 6 The defendant sought to suppress this evidence. Suppression hinges on the answer to three questions. First, did the deputy have reasonable suspicion to extend a lawful traffic stop about seat belts to investigate whether the defendant was under the influence of drugs in the operation of his vehicle by having the defendant perform field sobriety tests? Second, if the traffic stop was not lawfully extended to investigate drug use by the defendant, was the defendant's subsequent consent to search his truck tainted by prior illegality, so that the evidence seized was inadmissible? Third, was the defendant constructively seized without reasonable suspicion when the deputy re-approached the defendant's vehicle to request consent to search?

¶ 7 The defendant argues that the deputy lacked reasonable suspicion to ask that the defendant perform field sobriety tests. He contends that there were innocent explanations for the observations that the deputy made, and that the deputy was acting on nothing more than a hunch and unsubstantiated information from a fellow law enforcement officer. The defendant further argues that the taint of an illegal extension affected the deputy's request for consent to search, rendering the consent invalid and all evidence obtained in the search inadmissible. Finally, the defendant argues that he was constructively seized without reasonable suspicion when the deputy re-approached his vehicle to ask for consent to search.

¶ 8 The State counters that possible innocent explanations do not render the deputy's observations meaningless in analyzing the basis for reasonable suspicion. The State also argues that, even if the extension was illegal, the stop ended when the deputy told the defendant he was free to leave. The State argues the defendant was not seized within the meaning of the Fourth Amendment when the deputy asked him for consent to search his truck, and the defendant's consent was therefore valid. Alternatively, the State contends that any illegality was so attenuated from the defendant's consent that the taint of the illegality had dissipated by the time the defendant gave consent.

¶ 9 Although the question of whether the deputy had reasonable suspicion to extend the traffic stop to administer field sobriety tests is a close one, we conclude that the extension was unlawful based on the evidence presented. However, the defendant's subsequent consent to search his vehicle came after the traffic stop had ended and the defendant was told he was free to leave. Because the police did not exploit the unlawful extension of the stop in order to gain Hogan's consent to search his vehicle, attenuation analysis is unnecessary in this case. Furthermore, Hogan was not constructively seized when he gave consent to search his truck. We therefore conclude that the defendant's consent was valid and that it was not error for the circuit court to deny the defendant's motion to suppress the evidence recovered from his truck.

¶ 10 Accordingly, we affirm the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 11 On May 12, 2012, Deputy Andrew Smith of the Grant County Sheriff's Department was driving his squad car north on Wisconsin Avenue in the City of Boscobel. It was about 6:10 p.m. Deputy Smith stopped at the corner of Wisconsin Avenue and Oak Street. He saw a Chevrolet truck pass in front of him traveling east. The driver, Patrick Hogan, was not wearing a seat belt. Deputy Smith turned right and activated his emergency lights. The truck promptly pulled to a stop in front of the Blaine Theatre.

¶ 12 When Deputy Smith approached the truck, he saw Hogan's wife in the front passenger seat. She was wearing her seat belt improperly with the shoulder strap underneath her arm. He also saw the couple's two-year-old child seated directly behind Mrs. Hogan in a child safety seat.

¶ 13 As soon as Deputy Smith began speaking with Hogan, he noticed that Hogan was “very nervous,” “real nervous,” and “shaking real bad” with upper body tremors. He also noticed that Hogan's “pupils were restricted,” which he believed was “an indicator of drug use.” Deputy Smith acknowledged later that he was not a drug recognition “expert” but 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.” The card was provided to him in connection with his field sobriety training.

¶ 14 Deputy Smith collected the licenses of both Mr. and Mrs. Hogan and returned to his squad. He immediately requested backup from Boscobel police and stressed his observations about Hogan's extreme nervousness and constricted pupils.

¶ 15 Shortly thereafter, the audio portion of the squad car video reflects a repeated announcement, “Warning, potential hit.” The record does not explain whether this announcement pertained to Hogan, who was on probation for second-degree reckless injury and had a number of other criminal convictions.

¶ 16 Before Deputy Smith completed the citations, he was joined by Boscobel Police Officer Travis Dregne. Upon learning of Hogan's identity, Officer Dregne immediately remarked that Hogan had “961 issues,” referring to the Wisconsin statutory chapter on controlled substances. Officer Dregne also told Deputy Smith that “he received tips that Mr. Hogan's a shake and bake methamphetamine cooker.”³ Deputy Smith then requested a police K9 unit via radio.

¶ 17 Upon learning that the K9 unit was unavailable, Deputy Smith determined that he would ask Hogan to perform field sobriety tests. Approximately three minutes later, he completed the citations and printed them out. A total of approximately 13 minutes had passed since Deputy Smith initiated the stop.

¶ 18 Deputy Smith then approached Hogan and asked him to step out of the truck. He explained to Hogan that he had made observations that he thought were consistent with drug use. Hogan's quick response was “I don't use drugs.” He then suggested that Deputy Smith's observations might be due to Hogan's use of Adderall, for which he said he had a prescription. Deputy Smith replied that Adderall does not cause the symptoms he was observing, and he asked Hogan if he would perform a series of field sobriety tests. Hogan complied.

¶ 19 Deputy Smith had Hogan perform four tests: the horizontal gaze nystagmus test, the walk and turn, the one leg stand, and the alphabet test. These tests took approximately eight minutes. Deputy Smith determined that Hogan did not show any signs of impairment and informed Hogan he was free to leave.

¶ 20 Hogan got back into his vehicle and closed the door but did not start the truck and leave, even though his house was across the street. Deputy Smith returned to his squad car and spoke with Officer Dregne. They discussed asking for a consent search. Approximately 16 seconds after Deputy Smith told Hogan he could leave, he returned to Hogan's stationary vehicle and said, “Hey, sir, can I talk to you again?”

¶ 21 Hogan got out of his truck. Deputy Smith asked Hogan if there were any weapons or drugs in the truck. Hogan replied that there were not. Deputy Smith then asked Hogan if he could search the vehicle. Hogan assented to Deputy Smith's request, motioning for Deputy Smith to take a look. Deputy Smith asked for verbal confirmation of Hogan's consent and Hogan replied “Why not. Yeah. Go ahead.”

¶ 22 Deputy Smith and Officer Dregne searched Hogan's truck. Hogan's wife disclosed to Officer Dregne that she had a handgun in her purse, but did not have a concealed carry...