State v. Jeffrey D. Kosmosky, 2022AP1754-CR, District 2, 3/29/23 (one-judge decision; ineligible for publication); case activity (including briefs)
The officer who stopped the car Kosmosky was driving for speeding had reasonable suspicion to extend the stop by having Kosmosky get out of the car and do FSTs.
Kosmosky was stopped for driving 43 m.p.h. in a 25 m.p.h. zone. After his initial contact with Kosmosky, the officer asked Kosmosky to get out of the car and perform field sobriety tests. The officer concluded Kosmosky’s performance on the FSTs showed he was impaired, leading to his being charged with and convicted of OWI 3rd. (¶¶2-4). He argues the officer lacked reasonable suspicion to extend the stop. (¶5). The court of appeals disagrees:
¶8 This court has explained that:
If, during a valid traffic stop, the officer becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense or offenses separate and distinct from the acts that prompted the officer’s intervention in the first place, the stop may be extended and a new investigation begun.
State v. Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d 499 (Ct. App. 1999). When there are multiple potentially suspicious facts, they can accumulate and build to a finding of reasonable suspicion; “[a]ny one of these facts, standing alone, might well be insufficient. But that is not the test we apply. We look to the totality of the facts taken together. The building blocks of fact accumulate. And as they accumulate, reasonable inferences about the cumulative effect can be drawn.” [State v.] Waldner, 206 Wis. 2d [51,] 58[, 556 N.W.2d 681 (1996)].
¶9 Here, the undisputed facts [Deputy] Fuller observed that suggested to him Kosmosky might be driving under the influence of an intoxicant included smoking during the traffic stop, slow speech, difficulty in locating insurance information, bloodshot, glassy eyes, and the admission of having consumed “two beers.” Also, “it is the circumstances that govern, not the officer’s subjective belief.” State v. Buchanan, 178 Wis. 2d 441, 447 n.2, 504 N.W.2d 400 (Ct. App. 1993). So, though it was not mentioned by Fuller as a reason for extending the stop, Kosmosky’s excessive speed was another valid “building block” of reasonable suspicion. See State v. Adell, 2021 WI App 72, ¶25, 399 Wis. 2d 399, 966 N.W.2d 115 (“[T]he deputy here could reasonably have considered the excessive speeding as a variety of risky driving that may reflect operating with a prohibited alcohol concentration.”).
Kosmosky’s claims each of these facts has an innocent explanation or doesn’t show impairment, but the court says that is a “divide-and-conquer” approach contrary to the rule that reasonable suspicion is determined based on the totality of the circumstances. (¶¶10-14).
