County of Dunn v. Cashe L. Newville

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.
August 6, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP1167 Cir. Ct. No. 2017TR1318

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

COUNTY OF DUNN,

PLAINTIFF-RESPONDENT,

V.

CASHE L. NEWVILLE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dunn County:
ROD W. SMELTZER, Judge. Affirmed.

¶1 SEIDL, J.1 Cashe Newville appeals an order that adjudged him
guilty of first-offense operating while under the influence of a controlled
substance (OWI), contrary to WIS. STAT. § 346.63(1)(a). He contends the circuit

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP1167

court erred by denying his motion to suppress the results of an evidentiary
chemical test of his blood. We reject Newville’s arguments and conclude the
court properly denied his suppression motion. We therefore affirm.

BACKGROUND

¶2 Dunn County sheriff’s deputy Brandon Scott stopped a vehicle
operated by Newville on February 17, 2017, and ultimately arrested Newville for
OWI. Newville consented to an evidentiary chemical test of his blood. However,
he subsequently moved to suppress the results of the blood test, arguing Scott
lacked: (1) reasonable suspicion to conduct a traffic stop of Newville’s vehicle;
(2) reasonable suspicion to administer field sobriety tests; (3) probable cause to
administer a preliminary breath test; and (4) probable cause to arrest Newville for
OWI.

¶3 Scott was the only witness to testify at the hearing on Newville’s
suppression motion. The following facts are taken from his testimony and from
our review of a dashboard camera video of the stop, which was played for the
circuit court during the suppression hearing.

¶4 At approximately 10:40 p.m. on February 17, 2017, Scott was on
patrol driving eastbound on Highway 12 in Dunn County. He observed a
vehicle—whose driver was later identified as Newville—traveling westbound on
Highway 12. Using his radar unit, Scott discerned that Newville’s vehicle was
traveling at a rate of forty-seven miles-per-hour in a fifty-five-miles-per-hour
zone. After the two vehicles passed each other, Scott looked behind him and
noticed that the license plate lamps on the back of Newville’s vehicle were
inoperable.

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¶5 Scott turned his vehicle around and began following Newville. He
noted that the speed of Newville’s vehicle fluctuated between forty and forty-
seven miles-per-hour, which he found suspicious given the speed limit of fifty-five
miles-per-hour. He continued to follow Newville’s vehicle as it turned onto 690th
Avenue. As the vehicle traveled down 690th Avenue, Scott saw it “operating over
the centerline or over the center of the roadway multiple times.”2 Scott then
activated his emergency lights and stopped Newville’s vehicle.

¶6 After approaching Newville’s vehicle and asking him for
identification, Scott questioned Newville about his slower-than-normal speed.
Newville responded that Scott’s headlights had been bothering him. Scott then
asked Newville where he was going, and Newville responded that he was
“heading home” to the Village of Knapp. When Scott pointed out that Newville’s
route was not the fastest way to get to the Village of Knapp, Newville again stated
that he had been trying to avoid Scott’s headlights. Newville then confirmed that
the license plates on his vehicle did not belong to that vehicle, stating he had just
purchased the vehicle and the seller was not the vehicle’s registered owner.

¶7 Newville then asked if Scott wanted him to get out of the car, and
Scott stated Newville could do so. When Newville opened his door, Scott noticed
a “torch lighter” in the vehicle’s driver’s side compartment. Scott testified that
item raised his suspicions because torch lighters “are commonly used with
methamphetamine use.” Scott then questioned Newville about his prior drug use.
Newville stated he would be reporting to jail that Sunday on a charge of

2
Scott later clarified—and the dashboard camera video confirms—that there is no
painted centerline on the relevant section of 690th Avenue.

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No. 2018AP1167

possession of a methamphetamine pipe. He told Scott he had last used
methamphetamine two months before the stop.

¶8 Scott then asked Newville, “Would you mind sticking out your
tongue for me?” Newville did so, and Scott noticed a yellow film on the back of
Newville’s tongue. Based on his training and experience, Scott believed that
yellow film was an indicator of methamphetamine use.

¶9 Thereafter, Scott had Newville perform a series of field sobriety
tests. Scott did not observe any clues of intoxication on the horizontal gaze
nystagmus (HGN) test or the one-leg stand test. However, Scott observed four
clues of intoxication when Newville attempted to complete the walk-and-turn test.
Scott also asked Newville to recite the alphabet, which Newville was unable to do
successfully. In addition, Newville was unable to count backwards from fifty-four
to thirty-six.

¶10 Scott also asked Newville to perform the Romberg test. He
instructed Newville to tilt his head back, close his eyes, and tell Scott when he
believed thirty seconds had passed. The first time Newville performed the
Romberg test, he estimated that thirty seconds had passed after only three seconds.
The second time Newville performed the test, he estimated thirty seconds had
passed after six seconds.

¶11 At the suppression hearing, Scott testified he had observed
individuals who were under the influence of alcohol or other drugs on numerous
occasions, and he believed at the time of the stop that Newville was “under the
influence of something.” He therefore requested a preliminary breath test, which
did not detect the presence of any alcohol in Newville’s system.

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¶12 Following the preliminary breath test, Scott again asked Newville
when he had last used methamphetamine. Newville responded that he had used
methamphetamine one week before the stop, and methamphetamine would
therefore “show up” on a test of his blood. After being informed that a blood test
would not show methamphetamine use from one week prior, Newville stated he
had used methamphetamine five days before the stop. He reiterated that he
believed his blood would test positive for methamphetamine. Scott then placed
Newville under arrest for OWI.

¶13 On cross-examination during the suppression hearing, Scott
conceded that Newville was cooperative during the traffic stop; that he was honest
about his license plate lamps being out and his vehicle’s lack of registration; that
he did not fall or lose his balance when exiting his vehicle; and that he
appropriately followed Scott’s commands. Scott also conceded that he did not
smell any alcohol on Newville. In addition, Scott conceded that he had not been
trained as a drug recognition expert. Scott further admitted that the alphabet test
and the counting backwards test are not standardized field sobriety tests, unlike the
HGN, the one-leg stand, and the walk-and-turn tests.

¶14 The circuit court denied Newville’s suppression motion. Although
the court agreed that Newville’s slower-than-normal speed and driving over the
center of 690th Avenue were “suspicious” behaviors, it concluded the inoperable
license plate lamps alone gave Scott reasonable suspicion to stop Newville’s
vehicle. The court further concluded that Scott’s observations during the stop
gave him probable cause to arrest Newville for OWI. After the court denied his
suppression motion, Newville entered a no contest plea to the first-offense OWI
charge. Newville now appeals, challenging only the denial of his suppression
motion.

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DISCUSSION

¶15 When reviewing a circuit court’s decision on a motion to suppress,
we apply a two-step standard of review. State v. Eason, 2001 WI 98, ¶9, 245
Wis. 2d 206, 629 N.W.2d 625. We will uphold the circuit court’s factual findings
unless they are clearly erroneous. Id. However, we independently review whether
those facts violate constitutional principles. Id.

I. Reasonable suspicion to conduct an impaired driving investigation

¶16 “[A]n officer’s reasonable suspicion that a motorist is violating or
has violated a traffic law is sufficient for the officer to initiate a stop of the
offending vehicle.” State v. Houghton, 2015 WI 79, ¶5, 364 Wis. 2d 234, 868
N.W.2d 143. In determining whether reasonable suspicion existed, the “crucial
question is whether the facts of the case would warrant a reasonable police officer,
in light of his or her training and experience, to suspect that the individual has
committed, was committing, or is about to commit a crime” or traffic violation.
See State v. Post, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634. The officer
must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant the intrusion of the stop.
Id., ¶10. “The reasonableness of a stop is determined based on the totality of the
facts and circumstances.” Id., ¶13.

¶17 Newville concedes on appeal that Scott had reasonable suspicion to
stop his vehicle based on its inoperable license plate lamps. See Houghton, 364
Wis. 2d 234, ¶30 (“[R]easonable suspicion that a traffic law has been or is being
violated is sufficient to justify all traffic stops.”). He argues, however, that Scott
lacked reasonable suspicion to expand the scope of the stop in order to conduct an
impaired driving investigation. His argument in this regard misses the mark.

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No. 2018AP1167

Based on the three factors discussed below, we conclude Scott already possessed
reasonable suspicion that Newville was operating while intoxicated at the time he
stopped Newville’s vehicle.

¶18 First, while Newville was driving on Highway 12, Scott observed
that his vehicle’s speed was fluctuating between forty and forty-seven miles-per-
hour—i.e., eight to fifteen miles-per-hour below the speed limit. A driver’s
“noticeably-slower-than-the-speed-limit driving is a specific and articulable factor
supporting reasonable suspicion” that the driver may be impaired. State v.
Wheaton, Nos. 2011AP1928 and 2012AP73-CR, unpublished slip op. ¶26 (WI
App Oct. 25, 2012).3

¶19 Second, after Newville’s vehicle turned onto 690th Avenue, Scott
saw it “operating over the centerline or over the center of the roadway multiple
times.” Our review of the dashboard camera video confirms that Scott’s vehicle
repeatedly crossed over the center of 690th Avenue. This case is therefore similar
to State v. Popke, 2009 WI 37, ¶36, 317 Wis. 2d 118, 765 N.W.2d 569, in which
our supreme court concluded an officer had reasonable suspicion that a defendant
was operating while intoxicated when the defendant “was driving with three-
quarters of the vehicle left of the center of the road; the vehicle then moved back
into the proper lane but almost hit the curb; [and] the defendant’s vehicle then
faded back towards the middle of the road and nearly struck the median.”
Elsewhere, this court has similarly concluded that deviations outside of a driver’s
lane can give rise to reasonable suspicion of intoxicated driving. See, e.g., State v.

3
An authored, unpublished opinion issued on or after July 1, 2009, may be cited for its
persuasive value. WIS. STAT. RULE 809.23(3)(b).

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No. 2018AP1167

Wegener, No. 2010AP452-CR, unpublished slip op. ¶¶6-7 (WI App Aug. 18,
2010); County of Milwaukee v. Manske, No. 2009AP1779, unpublished slip op.
¶16 (WI App June 8, 2010).

¶20 Third, the stop in this case occurred at approximately 10:40 p.m. In
Post, our supreme court deemed it relevant to the reasonable suspicion inquiry that
the defendant’s poor driving took place at 9:30 p.m. Post, 301 Wis. 2d 1, ¶36.
The court explained, “While this is not as significant as when poor driving takes
place at or around ‘bar time,’ it does lend some further credence to [the officer’s]
suspicion that [the defendant] was driving while intoxicated.” Id. Similarly, in
this case, the fact that Newville’s suspicious driving behaviors occurred at around
10:40 p.m. gave further support to Scott’s suspicion that Newville was driving
while impaired.

¶21 Based on factors discussed above, we conclude Scott already had
reasonable suspicion to believe that Newville was operating while intoxicated at
the time he stopped Newville’s vehicle. Accordingly, Scott did not impermissibly
expand the scope of the stop by conducting an impaired driving investigation.

II. Reasonable suspicion to administer field sobriety tests

¶22 Newville next argues that Scott lacked reasonable suspicion to
administer field sobriety tests. See Village of Little Chute v. Rosin,
No. 2013AP2536, unpublished slip op. ¶17 (WI App Feb. 25, 2014) (“[A]n officer
must have reasonable suspicion that the driver is impaired before requesting field
sobriety tests.”). We disagree.

¶23 As discussed above, Scott had reasonable suspicion that Newville
was operating while intoxicated even before the stop based on: (1) Newville’s

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No. 2018AP1167

slower-than-normal speed; (2) Newville’s repeated deviations over the center of
690th Avenue; and (3) the time of night. During the stop, two additional facts
came to light that further supported Scott’s reasonable suspicion. First, Scott
observed a torch lighter in the driver’s side compartment of Newville’s vehicle,
which raised Scott’s suspicion based on his prior knowledge that torch lighters
“are commonly used with methamphetamine use.” Second, when questioned by
Scott about prior drug use, Newville admitted that he had used methamphetamine
two months before the stop. We conclude these facts—combined with the facts
that were known to Scott at the time of the stop—gave rise to a reasonable
suspicion that Newville was operating under the influence and therefore justified
the administration of field sobriety tests.

¶24 In his appellate briefs, Newville makes much of the fact that Scott
asked Newville to stick out his tongue before administering field sobriety tests.
Scott noticed a yellow film on the back of Newville’s tongue, and based on his
training and experience, he believed that film was an indicator of
methamphetamine use. Newville contends that by asking to look at his tongue,
Scott conducted an unconstitutional warrantless search of Newville’s person. He
therefore argues the yellow film that Scott observed “must be ignored” and
“cannot be used to justify the administration of field sobriety tests, the arrest, or
the preliminary breath test.”

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No. 2018AP1167

¶25 We need not resolve whether Scott performed an unconstitutional
warrantless search by asking Newville to stick out his tongue.4 Even ignoring
Scott’s testimony regarding the yellow film on Newville’s tongue, we conclude
Scott had reasonable suspicion to administer field sobriety tests, for the reasons
explained above. In addition, as discussed below, we conclude Scott had probable
cause to administer a preliminary breath test and to arrest Newville for OWI, even
absent his observation of the yellow film on Newville’s tongue. As a result, we
need not further address Newville’s argument that Scott’s request to see his tongue
was an unconstitutional warrantless search.5

4
Scott’s search of Newville’s tongue may have been constitutionally permissible under
the consent exception to the warrant requirement. See State v. Artic, 2010 WI 83, ¶29, 327
Wis. 2d 392, 786 N.W.2d 430. However, Dunn County does not develop any argument that the
consent exception is applicable here, and we will not abandon our neutrality to develop that
argument for Dunn County. See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009
WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82.
5
As noted above, Newville initially argues that because of the allegedly unconstitutional
search, the yellow film that Scott observed on his tongue “must be ignored” and “cannot be used
to justify the administration of field sobriety tests, the arrest, or the preliminary breath test.”
However, Newville later makes a single-sentence argument that because the search of his tongue
was unconstitutional, “all evidence gathered as a result of the search must be suppressed.” In
support of that assertion, Newville cites Wong Sun v. United States, 371 U.S. 471 (1963), and
State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, without any explanation or
elaboration.

Both Wong Sun and Knapp deal with the fruit of the poisonous tree doctrine. See Wong
Sun, 371 U.S. at 485-88; Knapp, 285 Wis. 2d 86, ¶24. Aside from citing these cases, however,
Newville does not develop any argument that the fruit of the poisonous tree doctrine applies in
this case and requires the exclusion of all evidence gathered following the allegedly
unconstitutional search of his tongue. Again, we will not abandon our neutrality to develop
arguments for a party. See Industrial Risk Insurers, 318 Wis. 2d 148, ¶25. As such, we decline
to further address Newville’s contention that all evidence gathered following the search of his
tongue must be suppressed. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App.
1992) (court of appeals need not address undeveloped arguments).

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No. 2018AP1167

III. Probable cause to administer a preliminary breath test

¶26 Newville next argues that Scott lacked probable cause to administer
a preliminary breath test. WISCONSIN STAT. § 343.303 permits an officer to
request a preliminary breath test if he or she has “probable cause to believe” that a
person was operating while intoxicated. The statutory term “probable cause to
believe” “refers to a quantum of proof greater than the reasonable suspicion
necessary to justify an investigative stop … but less than the level of proof
required to establish probable cause for arrest.” County of Jefferson v. Renz, 231
Wis. 2d 293, 316, 603 N.W.2d 541 (1999).

¶27 In this case, we agree with Dunn County that Scott had probable
cause to believe Newville was operating while intoxicated and could therefore
administer a preliminary breath test. At the time Scott requested the preliminary
breath test, he was aware that Newville had been driving at a lower-than-normal
speed at approximately 10:40 p.m. and had crossed the center of 690th Avenue
multiple times. Scott was also aware that Newville had a torch lighter in the front
passenger compartment of his car, which Scott testified was commonly associated
with methamphetamine use, and that Newville had admitted using
methamphetamine two months before the stop.

¶28 In addition to these facts, Scott was also aware that Newville had
failed several field sobriety tests. Scott observed four clues of intoxication when
Newville attempted to complete the walk-and-turn test. Newville was also unable
to recite the alphabet and could not count backwards from fifty-four to thirty-six.
Further, when Newville performed the Romberg test, he initially estimated that
thirty seconds had passed after only three seconds, and then after only six seconds.
Newville’s performance on these field sobriety tests, when combined with the

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other facts discussed above, was sufficient to create probable cause to believe that
Newville was operating while intoxicated, as required for the administration of a
preliminary breath test.

¶29 Newville argues the results of the field sobriety tests cannot be used
to support probable cause to administer a preliminary breath test because all of the
field sobriety tests except the Romberg test “measured for alcohol impairment,
which [Scott] did not suspect Newville of.” We reject this argument for two
reasons.

¶30 First, Scott never testified that he did not suspect Newville of
alcohol impairment. Rather, he testified he suspected that Newville was “under
the influence of something.”

¶31 Second, while Scott testified that a drug recognition expert performs
“a different battery of field sobriety tests than you would do in the case where you
suspect someone of alcohol consumption,” and that those tests “are designed to
measure narcotics and other drugs” rather than alcohol, he never testified that the
field sobriety tests he administered in this case cannot be used to detect drug
impairment. Notably, Newville does not cite any legal authority supporting the
proposition that the field sobriety tests Scott administered can only be used to
detect alcohol impairment. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992) (court of appeals need not address arguments unsupported by
references to legal authority). Moreover, at least one of our prior opinions has
rejected Newville’s argument that field sobriety tests traditionally associated with
alcohol impairment cannot also be used to support probable cause that the
defendant was operating under the influence of drugs. See State v. Mueller,
No. 2018AP44-CR, unpublished slip op. ¶¶5, 20 (WI App Feb. 12, 2019)

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No. 2018AP1167

(rejecting the defendant’s argument that the field sobriety tests in that case—the
walk-and-turn and one-leg stand tests—were “of limited probative value” for drug
impairment because they were “designed to detect impairment from alcohol”).

¶32 Newville next argues that the results of the field sobriety tests did
not give rise to probable cause for a preliminary breath test because two of the
tests that indicated impairment—the alphabet test and the counting backwards
test—are not standardized field sobriety tests. Again, however, Newville fails to
cite any legal authority in support of his claim that a defendant’s performance on
nonstandardized field sobriety tests may not be considered when determining
whether an officer had probable cause to believe the defendant was operating
while impaired. We therefore reject his argument in that regard. See Pettit, 171
Wis. 2d at 646.

¶33 Newville also argues that his performance on the Romberg test could
not be used to support probable cause for a preliminary breath test because
evidence concerning the result of that test “requires qualified expert testimony.”
Newville contends Scott could not provide such testimony because he was not
trained or certified as a drug recognition expert. Once again, however, Newville
fails to cite any legal authority supporting his claim that only a certified drug
recognition expert may testify regarding a defendant’s performance on the
Romberg test. See id.

¶34 To the contrary, in City of West Bend v. Wilkens, 2005 WI App 36,
¶1, 278 Wis. 2d 643, 693 N.W.2d 324, we held that field sobriety tests “are not
scientific tests. They are merely observational tools that law enforcement officers
commonly use to assist them in discerning various indicia of intoxication, the
perception of which is necessarily subjective.” We further stated, “[I]t is not

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No. 2018AP1167

beyond the ken of the average person to understand such indicia and to form an
opinion about whether an individual is intoxicated.” Id. We agree with Dunn
County that our reasoning in Wilkens is applicable to Scott’s use of the Romberg
test in this case, as “[a]sking a person to close their eyes [and] estimate the passing
of thirty seconds is not a complicated test to administer,” and Newville’s
performance on the Romberg test was “so woeful that [its] evidentiary value as to
impairment [was] readily apparent.” We therefore reject Newville’s argument that
his performance on the Romberg test cannot be considered in determining whether
Scott had probable cause to administer a preliminary breath test.

IV. Probable cause to arrest Newville for OWI

¶35 Finally, Newville argues Scott lacked probable cause to arrest him
for OWI. Warrantless arrests are not lawful except when supported by probable
cause. State v. Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551.
“Probable cause to arrest is the quantum of evidence within the arresting officer’s
knowledge at the time of the arrest which would lead a reasonable police officer to
believe that the defendant probably committed or was committing a crime.” State
v. Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999).

¶36 Here, the facts discussed above that gave rise to probable cause for a
preliminary breath test also support a determination that Scott had probable cause
to arrest Newville for OWI. In addition to those facts, Newville admitted after the
preliminary breath test that he had last used methamphetamine only one week
before the stop, which was contrary to his prior admission that he had last used
methamphetamine two months before the stop. Newville subsequently admitted
that he had actually used methamphetamine only five days before the stop. In
addition, Newville twice conceded following the preliminary breath test that

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No. 2018AP1167

methamphetamine would “show up” on a test of his blood. These statements, in
conjunction with the other facts discussed above, would have led a reasonable
officer to believe that Newville had probably committed OWI. See Secrist, 224
Wis. 2d at 212. As such, we reject Newville’s argument that Scott lacked
probable cause to arrest him.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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