State v. Anthony John Hessling

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 11, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1957-CR Cir. Ct. No. 2022CF196

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY JOHN HESSLING,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Washington
County: JAMES K. MUEHLBAUER, Judge. Affirmed.

Before Gundrum, P.J., Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1957-CR

¶1 PER CURIAM. Anthony John Hessling appeals from the judgment
of conviction entered on his guilty plea to possession of narcotic drugs. He
contends the circuit court erred in denying his suppression motion, which motion
was based on Hessling’s assertion he was unlawfully seized at the time the
arresting officer discovered illegal drugs in his vehicle. For the following reasons,
we affirm.

Background

¶2 The following relevant testimony was presented at the evidentiary
hearing on Hessling’s suppression motion.

¶3 A Village of Slinger police officer testified that around 8:53 p.m. on
June 2, 2021, a caller contacted the police with concern about a dangerous driver.
At 8:56 p.m., the officer was dispatched to respond to the complaint, by that time
made by two citizen callers, that a vehicle on Interstate 41 (I-41) was “swerving
all over the roadway and travelling with its hazards on for the last ten miles.” The
callers provided a description of the vehicle, its location, and its direction of travel.
One of the callers further reported continuing to follow the vehicle. The callers
provided police with their names and phone numbers.

¶4 Minutes later, the officer located the vehicle, which still had its
hazards on, and began following it. The officer observed the vehicle swerving and
“almost str[iking] the metal guardrail on the shoulder side” of I-41. “Based on the
erratic driving,” the officer was “concerned that the driver may be impaired,” so
he performed a traffic stop at 9:02 p.m.

¶5 Engaging with Hessling, who was the driver and sole occupant of
the vehicle, the officer noted he had “constricted pupils,” “was sweating

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No. 2023AP1957-CR

profusely,” and exhibited confusion when the officer sought basic information—
for example, “if I asked for an address, he started giving me a different phone
number again.” The officer testified that “[c]onstricted pupils are usually
correlated with narcotic use,” and profuse sweating “also may be” an indicator of
such use. The officer was concerned Hessling was impaired based on “the driving
and those indicators of our face-to-face contact,” so he had Hessling perform field
sobriety tests (FSTs). At the completion of the tests, the officer concluded there
was not probable cause to arrest Hessling for impaired driving but that “[i]t was
extremely close,” adding “it was close enough where it was a safety hazard if he
continued to drive.” The officer called for a K-9 officer to respond to the scene
due to “reasonable suspicion to believe that there was potential drug activity
within the vehicle.”

¶6 The officer told Hessling, “I don’t necessarily want to arrest you for
OWI [operating while intoxicated] tonight, okay, but I really don’t feel
comfortable with you driving.” The officer added, “It was just a safety concern.”
The officer asked Hessling if Hessling “could make arrangements to find a ride or
call someone to help him out,” and Hessling “agreed to do so, and he immediately
began looking for someone to help him.” Hessling’s father eventually paid for a
hotel room for Hessling to stay in for the night, and after the conclusion of the
traffic stop, the officer drove Hessling to that hotel.

¶7 The K-9 officer arrived on the scene, and the K-9 had “a positive
alert” on Hessling’s vehicle. The vehicle was searched, and a suspicious
substance was found that the state crime lab later identified as fentanyl. The
officer testified that he did not arrest Hessling the night of the stop because a field
test of the substance came back with inconclusive results.

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No. 2023AP1957-CR

¶8 On cross-examination, the officer explained that he had drug
recognition training “within the academy” and the department’s drug recognition
expert provides “kind of a refresher training,” but the officer himself had no
specialized drug recognition training. He acknowledged he detected no odors
when he approached Hessling’s vehicle and did not see any drugs or drug
paraphernalia through the windows. When asked if Hessling exhibited any indicia
of impairment as he exited the car, the officer stated, “Not that I remember
immediately after, no.” The officer located no drugs or drug paraphernalia on
Hessling during a pat-down search for safety.

¶9 The officer testified that he did not recall how Hessling performed
on the horizontal gaze nystagmus or one-leg-stand tests. Related to the walk-and-
1turn test, the officer stated he did not recall any clues of impairment he
specifically observed, but stated Hessling “must have” exhibited some “[b]ecause
after the totality of the standardized field sobriety tests, I remember making the
judgment whether [or not] to arrest for the OWI, because there [were] enough
clues present where it was borderline. It was very close.” The officer
acknowledged that in his report of the traffic stop, he simply indicated he had
determined Hessling was not impaired and did not indicate that it was “close” or
that there were “some clues.” The officer stated that if he had determined
Hessling to have been impaired, his report of the traffic stop “would have [had]
more descriptive detail,” adding that because he determined Hessling was not
impaired, he did not record the details in his report of how Hessling did on each
FST. The officer testified that Hessling had told him that his swerving was
because “he was tired and looking for his phone.”

¶10 The officer testified again that at the conclusion of the FSTs, he
determined that Hessling was not impaired, but he told Hessling that based on the

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No. 2023AP1957-CR

results of those tests, the officer “didn’t feel comfortable with him driving. I
believed that he was going to be a safety concern on the road if he continued to
drive.” The officer indicated that despite concluding Hessling was not impaired,
“[i]mmediately” after the FSTs, he called for a K-9 unit to respond to the scene.

¶11 In addressing a question from the circuit court related to whether or
not Hessling was “free to go” after the FSTs, the officer stated, “I was more
concerned about him not getting back in his vehicle and driving again. So … for
that reason I wanted to wait with him, make sure he didn’t get back in his vehicle,
and he would actually find a safe ride or a way to get where he needs to go.”

¶12 On redirect examination, the officer indicated he would have
allowed Hessling to leave the scene, but not by driving his vehicle. When asked if
it was an accurate representation of his report that the report indicated the officer
“would not feel comfortable with [Hessling] driving,” the officer responded,
“Yes.”

¶13 The officer continued his testimony with recross-examination:

[Counsel:] You were concerned that he was going to get
back in the vehicle, and you didn’t want him
to do that?

[Officer:] Yes.

[Counsel:] Why? You just said he was not impaired.
Why did you not want him to get into the
vehicle and drive?

[Officer:] Because of how close or how poor everything
was, the whole situation. His constricted
pupils, his body language. How he did on the
field sobriety tests; whether he was
determined not to be impaired, it was still a
safety concern for him to get back behind the
vehicle.

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No. 2023AP1957-CR

I don’t know if he had adjusted anything or
if he was going up in his high or whatever it
may be, I didn’t want to take a risk of him
getting back in the vehicle.

¶14 Hessling also testified. He stated his swerving on the roadway was
because he was “a little tired” and had dropped his phone and was reaching down,
trying to retrieve it, for “[f]ive minutes, three minutes. A very short time. A
minute.” He stated he did not recall having his hazards on, but intimated his knee
“could [have] bump[ed] it.” Hessling testified that when he spoke with his father
during a phone call at the scene, he told his father that “the officer would not allow
me to drive.”

¶15 The circuit court found the officer’s testimony credible. It stated
that even though the officer did not arrest Hessling for driving under the influence,
“that doesn’t mean he didn’t observe some clues” but just “didn’t write down
those details because he didn’t actually arrest Mr. Hessling for operating under the
influence of drugs.” In responding to the State’s “not overly persuasive” argument
that prior to the K-9 alert “there was reasonable suspicion to believe that drugs
were in the vehicle,” the court stated, “[T]here is more reasonable suspicion to
believe that Mr. Hessling had drugs. Again, sweating profusely, all over the road,
constricted pupils consistent with drug use.”

¶16 Addressing whether Hessling was unlawfully seized at the time, the
circuit court noted that the officer did not arrest him but was “trying to persuade
him that it’s not safe for him to be driving,” based on the observed bad driving “by
three people, mind you,” as well as “the observed behavior of Mr. Hessling.” The
court reiterated,

constricted pupils, profuse sweating, and confusion, which
again, is an indication something ain’t right and somebody
probably shouldn’t be driving.

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No. 2023AP1957-CR

So it doesn’t surprise me, and it’s common sense, and
it’s a safety concern that [the officer] had that it would be
better for Mr. Hessling not to drive his vehicle.

¶17 The circuit court ultimately denied Hessling’s suppression motion
based upon its determination that Hessling was not actually seized following the
FSTs, but it additionally noted that the officer’s decision to not arrest Hessling
following the FSTs enhanced the officer’s credibility. The court stated that

a fair number of officers would have gone the other way
and just plain out arrested him. The officer didn’t, and he
gave Mr. Hessling the benefit of any doubt there, or gave
him a break, whatever you want to call it, but he did that.

I mean, that adds to his credibility. As a matter of fact,
I’m kind of scratching my head wondering, you know, why
he made that decision.

The court further determined that the

dog sniff was perfectly acceptable because the vehicle was
legally parked on the side of the road, and both the officer
and Mr. Hessling decided he should not drive and the
vehicle was left there.… [A]nd if it’s parked there, you
know, it’s like going out in the parking lot now, you can
sniff everybody’s vehicle.

¶18 Hessling appeals.

Discussion

¶19 “When we review a circuit court’s ruling on a motion to suppress
evidence, we apply the clearly erroneous standard to the circuit court’s findings of
fact. However, we review the circuit court’s application of constitutional
principles to the findings of fact de novo.” State v. Smiter, 2011 WI App 15, ¶9,
331 Wis. 2d 431, 793 N.W.2d 920 (citation omitted).

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No. 2023AP1957-CR

¶20 Hessling insists “the traffic stop should have concluded once
Mr. Hessling completed field sobriety testing” and he should have been permitted
to get back into his vehicle and go on his way at that time. Because he was not
permitted to do so—and was instead told by the officer to make other
arrangements for proceeding on his way—he asserts he was unlawfully seized.

¶21 We conclude that we need not determine whether Hessling was
actually seized following the FSTs because even if he was, such seizure was
lawful. This is so because the officer had probable cause to believe Hessling had
been operating his vehicle while impaired, in violation of WIS. STAT.
§ 346.63(1)(a) (2021-22).1 While the officer believed he did not have probable
cause, he in fact did, and he could have arrested Hessling and even taken him to a
local hospital for a blood draw to determine what substance(s) and how much of it
was impairing his driving.

¶22 Probable cause “must be assessed on a case-by-case basis,” State v.
Lange, 2009 WI 49, ¶20, 317 Wis. 2d 383, 766 N.W.2d 551, and considers “the
totality of the circumstances within the arresting officer’s knowledge” at the time
of the seizure,” State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986).
To constitute probable cause, the evidence of which law enforcement is aware

must amount to “more than a possibility or suspicion that
the defendant committed an offense,” the evidence required
to establish probable cause “need not reach the level of
proof beyond a reasonable doubt or even that guilt is more
likely than not.” It is sufficient that the evidence known to
[law enforcement] would lead a reasonable police officer to
believe that the defendant probably was under the influence
of an intoxicant while operating his vehicle.
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP1957-CR

Lange, 317 Wis. 2d 383, ¶38 (citation omitted). The question of probable cause
turns on an objective standard—“what a reasonable officer in the position of this
officer would have determined, not what this particular officer subjectively
determined.” State v. Rose, 2018 WI App 5, ¶25, 379 Wis. 2d 664, 907 N.W.2d
463. Whether an officer had probable cause for a seizure of a person is a question
of law we review de novo. Washburn County v. Smith, 2008 WI 23, ¶16, 308
Wis. 2d 65, 746 N.W.2d 243.

¶23 In the case now before us, this officer was either cutting Hessling a
break by not arresting him for OWI (telling Hessling, “I don’t necessarily want to
arrest you for OWI tonight” (emphasis added)), as the circuit court recognized
might have been the case, or the officer simply did not recognize that probable
cause existed to arrest Hessling for a violation of WIS. STAT. § 346.63(1)(a), as the
court also seemed to recognize. The officer here almost seemed to hold to a
personal, beyond-a-reasonable-doubt standard; as if he needed to be certain
Hessling was legally impaired in order to arrest him. As indicated above, probable
cause is a lower standard.

¶24 WISCONSIN STAT. § 346.63(1)(a) “makes it unlawful for a person to
operate a vehicle while under the influence of an ‘intoxicant’ or a ‘controlled
substance,’ or while under the influence of ‘any other drug to a degree which
renders him or her incapable of safely driving.’” Rose, 379 Wis. 2d 664, ¶16. The
evidence of which the officer here was aware “would lead a reasonable police
officer to believe that [Hessling] probably was under the influence of” a drug or
drugs “to a degree which render[ed] him … incapable of safely driving.” See
Lange, 317 Wis. 2d 383, ¶38; § 346.63(1)(a). The evidence “amount[ed] to ‘more
than a possibility or suspicion’” that Hessling had been operating his vehicle in
this condition. Lange, 317 Wis. 2d 383, ¶38 (citation omitted).

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No. 2023AP1957-CR

¶25 The officer was aware that two citizens, who had provided their
names and phone numbers, and one of whom was continuing to follow Hessling’s
vehicle, had called to report that Hessling was “swerving all over the roadway and
travelling with [his] hazards on for the last ten miles.” After locating Hessling,
who still had his hazards on, minutes later, the officer followed him and observed
Hessling swerving and “almost str[iking] the metal guardrail on the shoulder side”
of I-41. Hessling conceded at the hearing that the officer had reasonable suspicion
to pull him over, and he takes no contrary position on appeal.

¶26 While engaging with Hessling during the traffic stop, the officer
observed that his pupils were constricted, he was sweating profusely, and when the
officer tried to obtain basic information, Hessling had difficulties with that,
including providing the officer with a phone number when the officer asked him
for his address. The officer testified to his knowledge that “constricted pupils are
usually correlated with narcotic use” and agreed that profuse sweating “also may
be” an indicator of such use. Concerned Hessling was impaired, the officer had
him perform FSTs. While the officer did not record the details of Hessling’s
performance on these tests in his report, the circuit court found, consistent with the
officer’s testimony, that this was “because he didn’t actually arrest Mr. Hessling
for operating under the influence of drugs.” The officer did testify, however, that
after conducting those tests, he believed “[i]t was extremely close” as to whether
Hessling was impaired or not. The officer concluded that he “didn’t find probable
cause for arrest for impairment, but it was close enough where it was a safety
hazard if he continued to drive.” However Hessling actually performed on the
FSTs, it was not so impressive as to allay the officer’s concerns that Hessling
could not safely drive. Indeed, the officer’s testimony shows that following those
tests, the officer felt strongly that Hessling could not safely drive and that it was

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No. 2023AP1957-CR

due to drugs in his system. The officer repeatedly testified that he was not going
to permit Hessling to get back into his car and drive because Hessling could not
safely do so—a very obvious and common sense position in light of the dangerous
driving the two citizens reported and the officer himself observed, and the physical
observations the officer made of Hessling’s condition.

¶27 Testifying that he did not believe probable cause existed to arrest
Hessling, it appears the officer misunderstood the standard of probable cause.
There can be no mistaking that the officer was convinced Hessling’s faculties were
being affected by a drug or drugs of some kind. Based on Hessling’s physical
condition, which the officer observed on the scene and described in court, neither
the officer at the time of the stop nor the circuit court at the hearing believed that
Hessling’s dangerous driving was caused by one to five minutes of trying to
retrieve a cell phone, as Hessling testified.2 The facts of which the officer was
aware would have led a reasonable officer to believe there was probable cause to
arrest Hessling. For a reasonable officer, the evidence of which this officer was
aware following FSTs constituted more than a possibility that Hessling had a drug
or drugs in his system that “render[ed] him … incapable of safely driving.” See
Rose, 379 Wis. 2d 664, ¶16 (quoting WIS. STAT. § 346.63(1)(a)). A reasonable
officer would have believed Hessling “probably was under the influence of [a
drug]” and that it was “to a degree which render[ed] him … incapable of safely
driving.” See Lange, 317 Wis. 2d 383, ¶38; § 346.63(1)(a). This was all that was
needed for probable cause to lawfully seize Hessling.

2
Indeed, it was nine minutes alone from when the first concerned citizen called the
police to when the officer performed the traffic stop.

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No. 2023AP1957-CR

¶28 Because the officer had probable cause to arrest Hessling for a
drug-based OWI violation, Hessling continued to be lawfully seized during the
course of the stop, contrary to his contention on appeal.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

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