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State v. Wortman

Court of Appeals of Wisconsin, District II

August 23, 2017

State of Wisconsin, Plaintiff-Respondent,
Michel L. Wortman, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Fond du Lac County No. 2012CF90: DALE L. ENGLISH, Judge. Affirmed.

          Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          REILLY, P.J.

         ¶1 Michel L. Wormian appeals from a judgment of conviction for ninth offense operating while intoxicated (OWI). Wormian was stopped by police after he walked away from the scene of an accident. Wormian argues that all evidence obtained from him should have been suppressed and that the court erred in the imposition of his fine. We affirm.


         ¶2 On February 14, 2012, at 8:00 p.m., Fond du Lac County Sheriff's Deputy James Pfeiffer[1] responded to a call about a truck in a ditch. Upon arrival, Pfeiffer observed a truck that had crossed the center line, went through a driveway, and crashed into a ditch. Weather was not a factor. Pfeiffer observed Wormian walking away from the scene. Pfeiffer activated his patrol lights and pulled his squad car in front of Wormian, blocking Wormian's path. Pfeiffer asked Wormian if he was the driver of the truck, how the accident occurred, and if Wormian was injured. Wormian replied that he was the driver, that he had fallen asleep while driving, and that he was not injured. Wormian's eyes were glassy and Pfeiffer smelled alcohol. Wormian said he drank a "king" can of beer. Pfeiffer identified Wormian by his driver's license and told Wormian to get in the squad car so they could return to the scene of the accident. Wormian made no objection and rode in the backseat of the squad car.

         ¶3 Pfeiffer checked Wormian's driving record and learned that Wormian's license was revoked, he had eight prior OWI convictions, was on extended supervision, and had a blood alcohol content limit of .02. Pfeiffer administered field sobriety tests. Wormian failed the tests, and Pfeiffer placed Wormian under arrest. Wormian then told Pfeiffer that he had purchased and drank the "king" can of beer from Kwik Trip after the crash. Pfeiffer stated surveillance from the Kwik Trip would be pulled to verify Wortman's claim, to which Wormian responded that he had lied and apologized. At no time did Pfeiffer recite Miranda[2] warnings to Wormian.

         ¶4 Wormian moved to suppress the statements he made at the scene of his arrest.[3] Wormian claimed that he was in custody beginning when Pfeiffer pulled up in front of him to block his path and that any statements made after this point were statements made in custody without Miranda warnings and should be suppressed. The circuit court found that Wormian was not in custody and that Pfeiffer had both reasonable suspicion to stop and probable cause to arrest. Wormian thereafter pled no contest to OWI, ninth offense, and received a ten-year prison sentence and a fine of $1524.[4]


         Suppression of Evidence and Statements Made Prior to Arrest

         ¶5 Wormian argues that the activation of the squad lights, the blocking of his path by the squad car, the invitation that he get into the back of the squad car, and the taking of his driver's license all equate to Wormian being in custody and therefore unlawfully arrested. We disagree as all of the officer's actions were performed as part of an investigatory stop rather than a custodial arrest.

         ¶6 The Fourth Amendment protects against unreasonable searches and seizures. We recognize two types of seizures: an investigatory or Terry[5] stop and an arrest. State v. Young, 2006 WI 98, ¶¶20, 22, 294 Wis.2d 1, 717 N.W.2d 729; see also WIS. STAT. § 968.24 (2015-16).[6] An investigatory stop that involves temporary questioning is a minor infringement on personal liberty, and is constitutional if supported by reasonable suspicion that a crime has been committed. Young, 294 Wis.2d 1, ¶20. "Reasonable suspicion requires that a police officer possess specific and articulable facts that warrant a reasonable belief that criminal activity is afoot." Id., ¶21. Whether the reasonable suspicion standard is met is determined by considering the facts known to the officer at the time the stop occurred, together with rational inferences and inferences drawn by officers in light of policing experience and training. See State v. Washington, 2005 WI.App. 123, ¶16, 284 Wis.2d 456, 700 N.W.2d 305; see also State v. Seibel, 163 Wis.2d 164, 183, 471 N.W.2d226 (1991).

         ¶7 A formal arrest, in contrast, "is a more permanent detention that typically leads to 'a trip to the station house and prosecution for crime, '" and requires probable cause to suspect that a crime has been committed. Young, 294 Wis.2d 1, ¶22 (citation omitted). We determine whether a person has been arrested by questioning whether a "reasonable person in the defendant's position would have considered himself or herself to be 'in custody, ' given the degree of restraint under the circumstances." State v. Swanson, 164 Wis.2d 437, 447, 475 N.W.2d 148 (1991), overruled on other grounds by State v. Sykes, 2005 WI 48, ¶27, 279 Wis.2d 742, 695 N.W.2d 277.

         ¶8 In State v. Quartana,213 Wis.2d 440, 570 N.W.2d 618 (Ct. App. 1997), we addressed the propriety of an investigatory stop under a similar factual scenario. There, Quartana lost control of his vehicle, drove into a ditch, left the accident scene, and walked home. Id. at 443-44. After arriving on the scene of the accident and determining that Quartana was the owner of the vehicle, an officer went to Quartana's home to inquire about the accident. Id. at 444. Quartana admitted to the officer that he was driving at the time of the accident. Id. The officer collected Quartana's driver's license, noted bloodshot and glassy eyes and the odor of intoxicants, and drove ...

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