State v. Heather M. Kolman, 2011AP1917-CR, District 4, 1/12/12
court of appeals decision (1-judge, not for publication); for Kolman: John C. Orth; case activity
Scope of a concededly proper traffic stop (for defective brake light) wasn’t unlawfully expanded by testing Kolman for signs of intoxication (reciting alphabet; “mini” HGN test).
¶15 Most relevant here, and as discussed further below, a lawful seizure “becomes unreasonable when the incremental liberty intrusion resulting from the investigation supersedes the public interest served by the investigation.” Arias, 311 Wis. 2d 358, ¶38 (citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). Thus, when analyzing the reasonableness of police actions extending a lawful traffic stop, courts are to examine, under the totality of circumstances: (1) the public interest served by the action taken; (2) the degree to which the continued seizure advances the public interest; and (3) the severity of the resulting interference with the suspect’s liberty interest. Id., ¶39 (analyzing reasonableness of 78-second dog sniff during traffic stop).[4]
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¶25 This court therefore concludes, using the supreme court decision in Arias as its primary authority, that the trooper’s apparently diligent and speedy attempt to confirm or dispel the suspicion of impaired driving raised by Kolman’s bloodshot and glassy eyes and lighting of a cigarette, by asking Kolman to recite the alphabet, while still seated in her vehicle, represented an incremental intrusion on her liberty that is outweighed by the public interest served by the request.[6] The trooper’s request was only minimally more intrusive than asking Kolman if she had been drinking, a question that clearly was permissible, under the totality of the circumstances here, in light of the case law cited in this opinion.
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¶29 Finally, consistent with the above discussion, this court concludes that, once the trooper heard and observed Kolman as she gave a distinctly poor recitation of the alphabet, the totality of the circumstances was sufficient for the trooper to form a reasonable suspicion of intoxicated driving that justified the trooper conducting the “mini” HGN test. By the time he conducted the “mini” HGN test, the trooper had observed her bloodshot and glassy eyes, the seemingly freshly lit cigarette, and the feeble alphabet recitation, which together constituted reasonable suspicion. See State v. Colstad, 2003 WI App 25, ¶¶14, 19-21, 260 Wis. 2d 406, 659 N.W.2d 394. This resolves against Kolman her challenge to the “mini” HGN test, because whether or not the trooper would have been justified in expanding the detention for this HGN test without reasonable suspicion, he possessed reasonable suspicion by the time he decided to conduct the test. Thus, assuming without deciding that the “mini” HGN test constituted a field sobriety test requiring reasonable suspicion, it was objectively justified based on the totality of the information available to the trooper.
The question narrowly resolved by the court is whether, as Kolman argues, “the officer must … restrict his investigation to the grounds justifying the stop.” The answer is, No, as is apparent from the block quote above. ¶¶26-27. The battle will have to be fought on whether the stop was unnecessarily or unreasonably prolonged. (The court suggests that “persisting in an inquiry or assessment for more than a minute or two, or using tactics involving trickery, intimidation, or badgering” might be considered impermissible, ¶28.) Here, though, the “diligence, speed, and efficiency” of the inquiry dooms the challenge, id. See also ¶25 n. 6 (“Kolman argues that any actions by the trooper” beyond the basis for the stop required reasonable suspicion for OWI: “It is that argument that this court rejects.”). The court notes that reasonable suspicion is required to administer FSTs; Kolman doesn’t argue that reasonable suspicion is required for the ad hoc tests here, and the court doesn’t purport to reach that question, id.
