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State v. Rose

Court of Appeals of Wisconsin, District II

December 13, 2017

State of Wisconsin, Defendant-Respondent,
v.
Travis J. Rose, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Washington County No. 2016CF133, JAMES K. MUEHLBAUER, Judge. Affirmed.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Travis Rose appeals from his judgment of conviction entered upon his guilty plea after the circuit court denied his motion to suppress evidence of illegal drugs found in his vehicle. He claims the evidence should have been suppressed because he was "unconstitutionally seiz[ed]" at the time the officer asked him for, and he granted, consent to search his vehicle, which search led to the discovery of the drugs. We disagree and affirm.

         Background

         ¶2 The arresting officer was the only witness to testify at the hearing on Rose's suppression motion. His relevant testimony is as follows.

         ¶3 Around 3:36 p.m. on February 7, 2016, the officer learned from dispatch that it had received two separate 911 calls regarding a silver Honda Civic driving "extremely erratically" on northbound 1-41. The officer explained that the callers had described the Civic as

being all over the road. One of the callers actually was saying that the defendant was slapping himself in the face trying to stay awake.... [O]ne of the callers also stated that when he pulled into [a gas station] he went off into the ditch a little bit, and he was all over all three lanes. Just kind of a huge hazard.

         A caller followed the Civic to the gas station, and when the officer arrived there, "people [were] literally stopping out and yelling at [Rose] ... because of his driving."

         ¶4 Approaching Rose, who was filling his vehicle with gasoline, the officer explained he was making contact due to Rose's erratic driving. Rose responded by indicating he had been sending text messages. The officer inquired as to why Rose went into the ditch when pulling into the gas station, and Rose responded that he was attempting to send one final text message before getting gasoline. In response to the officer's inquiry as to what may have been the cause of Rose's erratic driving, Rose also "said something about some prescription medication that he was on."

         ¶5 While interacting with Rose, the officer did not "smell any type of intoxicants emitting from his person, " but Rose was "kind of swaying side to side" and slurring his speech, and it "appeared like he was under the influence of something, " though the officer "wasn't sure what." The officer confirmed in his testimony that, based on his training and experience, the swaying and slurred speech, if not caused by "consuming intoxicants, " could be caused by "narcotic usage."

         ¶6 Rose agreed to perform field sobriety tests (FSTs), and the officer and Rose walked into the gas station to do so. The officer observed that Rose's "walking ... wasn't normal. He wasn't falling over, but he wasn't walking in a straight line or anything like that. He was kind of all over the place." Talking with Rose on the way into the station, the officer again observed "the slurred speech." Rose then performed the FSTs.

         ¶7 The officer confirmed that he had been trained with regard to the horizontal gaze nystagmus (HGN) field sobriety test as well as "physical signs a person displays when they are impaired by drugs." He observed no signs of impairment during the HGN test, but confirmed that the test was "relative to alcohol consumption, " adding that HGN "is not present with narcotic usage." On the walk-and-turn test, the officer observed two out of eight possible "clues" of impairment, and on the one-leg-stand test, the officer observed no such clues.

         ¶8 After Rose completed the FSTs, he paid for his gasoline and then he and the officer began walking out of the station toward Rose's vehicle. The officer testified that at this point, the "operating while intoxicated portion of my investigation was done" and he believed he did not have probable cause to arrest Rose "for operating while intoxicated." The officer observed, however, that after the FSTs, Rose's condition "appeared to be deteriorating"-his walking was "a little bit more labored" or "cumbersome, " he was "stumbling more, " and his speech was "a little bit more slurred." The officer testified he was "surprised" Rose had passed the FSTs, and he confirmed that his observations of Rose's "physical condition and behaviors on non-field sobriety related moving" were "different than how he did on field sobriety tests." Based on his training and experience, the officer "believe[d] that there was something else going on, " but was not certain if it was "like some type of medical issue [or] a drug issue, " although the officer confirmed at the hearing that Rose's condition was "consistent with narcotic ingestion."

         ¶9 The officer testified that the "next thing that I thought was appropriate to do would be to ask for consent to search" Rose's vehicle. As they walked toward the vehicle, the officer asked Rose "if there was anything in the car that ... was illegal or [that he] wasn't supposed to have." Rose responded "no, " and the officer then asked him for permission to search his vehicle, to which Rose consented. The officer asked Rose to lean up against Rose's vehicle and then briefly spoke with two other officers on the scene. The officer then again asked Rose for consent to search his vehicle, to which Rose again consented.

         ¶10 The officer testified he "was not going to allow [Rose] to drive" because, based upon his observations of Rose and the calls to 911, he did not believe Rose could drive safely. The officer further testified that if nothing was found during the search of Rose's vehicle that provided a basis to arrest Rose, "we would have found an alternate way for him to get home."

         ¶11 Rose's vehicle was searched and evidence was discovered that led to charges of possession of drug paraphernalia and possession of narcotic drugs. Rose filed the suppression motion at issue in this case, and following the above-discussed evidentiary hearing, the circuit court denied the motion. Rose eventually pled ...


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