State v. Emily Anne Ertl, 2023AP234-CR, 2/18/25, District III (one-judge decision; ineligible for publication); case activity
Ertl appeals the denial of her motion to suppress on the ground that police impermissibly extended the scope of her initial detention when the officer asked her if she would consent to field sobriety tests. COA affirms, concluding that her detention was not unreasonably prolonged by law enforcement’s single request that she voluntarily submit to field sobriety tests.
Following the suppression motion, Ertl pleaded no-contest to PAC 2nd. Police stopped Ertl after receiving a report of a “reckless driver” and observing her cross the the center median, cross into the other lane of traffic, and begin to straddle the white line separating the two lanes. (¶2). The officer did not notice any signs of intoxication at first, and although Ertl denied having been drinking, he asked if she would be willing to do field sobriety tests and Ertl agreed. (¶3). This occurred within one minute of police speaking with her. (¶3). When Ertl exited the vehicle, the officer noticed several signs of intoxication, and Ertl’s performance on the tests revealed multiple clues of intoxication. (¶¶3-4). The circuit court denied Ertl’s motion to suppress, reasoning that this case is analogous to State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996).
On appeal Ertl argues that the officer impermissibly extended the scope of her traffic stop by requesting that she consent to perform field sobriety tests. Gaulrapp held that “when there is justification for a [brief detention], it is the extension of a detention past the point reasonably justified by the initial stop, not the nature of the questions asked, that violates the Fourth Amendment.” Id. at 609. Thus, police do not need reasonable suspicion to ask a question or ask to perform a search, as long as they do not convey that compliance with the request is required. Id.
The COA agrees with the circuit court that Gaulrapp is on point:
In this case, Officer Schmidt executed a traffic stop because he witnessed Ertl’s traffic violations. Schmidt spoke with Ertl and subsequently asked if she would perform field sobriety tests. Ertl consented to Schmidt’s request. When Ertl exited her vehicle, Schmidt then noticed the odor of intoxicants, glossy eyes, and slurred speech. Schmidt also observed signs of intoxication during the field sobriety tests, and a voluntary PBT showed a .19 BAC.
Like in Gaulrapp, we conclude that Ertl’s traffic stop was not unreasonably prolonged by Officer Schmidt’s request that Ertl submit to field sobriety tests. Based on our independent review of Schmidt’s body camera video, approximately one minute elapsed from the time Schmidt began speaking with Ertl to the point at which she exited her vehicle. There is also no evidence in the record that Schmidt conveyed that compliance with his request was required. Ertl consented to perform the tests; thus, “the detention was prolonged because [Ertl] consented.
(¶¶13-14).
For purposes of the Fourth Amendment analysis, is not the “the nature of the questions asked” but the question’s “effect on the duration of the seizure.” The COA also disagrees with Ertl that the officer’s request that she submit to field sobriety tests was unrelated to the scope of the stop for “inattentive driving” because “inattentive driving” is indicative of driving under the influence. (¶17). Regardless, under Gaulrapp, the officer did not unreasonably prolong Ertl’s detention by asking one question. (¶18).
In response to Ertl’s arguments, COA goes on to distinguish three cases in which the seizures were unconstitutional, State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625 N.W.2d 623, State v. VanBeek, 2021 WI 51, 397 Wis. 2d 311, 960 N.W.2d 32, and State v. Luebeck, 2006 WI App 87, 292 Wis. 2d 748, 715 N.W.2d 639. (¶¶19-27).
