State v. Tunis Jay LaFever

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.
October 30. 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. 2019AP702-CR Cir. Ct. No. 2018CT98

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TUNIS JAY LAFEVER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: ROBERT J. WIRTZ, Judge. Affirmed.

¶1 REILLY, P.J.1 Tunis Jay LaFever appeals from a judgment of
conviction for operating a motor vehicle with a detectable amount of a restricted

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP702-CR

controlled substance in his blood, third offense, contrary to WIS. STAT.
§ 346.63(1)(am). LaFever challenges the circuit court’s denial of his motion to
suppress evidence, arguing that the officer unlawfully extended the traffic stop
without reasonable suspicion. We disagree and affirm.

¶2 The facts are largely undisputed. On November 21, 2017, shortly
after midnight, Fond du Lac County Sheriff’s Deputy Michael Vis stopped
LaFever for speeding in the township of Fond du Lac. LaFever had a passenger.
LaFever stated that he was speeding because he wanted to get home after
attending a concert in Milwaukee.

¶3 When Vis approached LaFever’s vehicle, Vis observed that LaFever
had bloodshot eyes and detected a slight odor of intoxicants but was unable to
discern where the odor was coming from. LaFever denied drinking. Vis
instructed LaFever to step out of the vehicle, and he issued LaFever a citation for
speeding. After explaining the citation, Vis testified that he still smelled the odor
of intoxicants, and he asked LaFever if he would be willing to complete field
sobriety tests. Vis reported an indicator of impairment during the walk-and-turn
test, two indicators of impairment during the one-leg-stand test, and heavy eye
fluttering during the Romberg balance test. Vis also observed that LaFever’s
tongue was “bright green,” which Vis attributed to marijuana use based on his
training and experience. LaFever denied smoking marijuana. LaFever did agree
to submit to a preliminary breath test (PBT), which did not detect the presence of
alcohol in his system.

¶4 Vis testified that following the field sobriety tests, he did not believe
that LaFever had been drinking, but based on his training and experience, there
were multiple indicators that LaFever had smoked marijuana. Vis then spoke with

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No. 2019AP702-CR

the passenger of the car, informing him—incorrectly—that LaFever admitted to
smoking. The passenger confirmed that they had smoked marijuana earlier that
night. Vis then placed LaFever under arrest and obtained a search warrant for
LaFever’s blood, which revealed the presence of Tetrahydricannabinols (THC), a
restricted controlled substance.

¶5 LaFever filed a motion to suppress, arguing that Vis lacked the
requisite reasonable suspicion to extend the traffic stop. The circuit court denied
the motion, determining that Vis had reasonable suspicion to extend the traffic
stop to “search for the truth.”2 LaFever pled no contest and was convicted under
WIS. STAT. § 346.63(1)(am) for operating a motor vehicle with a detectable
amount of a restricted controlled substance, third offense. LaFever appeals.

¶6 LaFever’s argument on appeal is that Vis unlawfully extended the
traffic stop without reasonable suspicion of an offense separate from the traffic
stop for speeding. LaFever argues that Vis lacked additional suspicious factors
that would allow Vis to continue his investigation—which he did through the field
sobriety tests, the PBT, observing the condition of LaFever’s tongue, and
questioning the passenger—beyond the time necessary for the otherwise
completed traffic stop. LaFever contends that he was only cited for speeding, and
there were no other impairment indicators based on his driving. LaFever does not
dispute that Vis had probable cause to stop him for speeding and does not argue
that, after Vis completed his investigation (that LaFever claims was unlawful), Vis
lacked probable cause to arrest him for violating WIS. STAT. § 346.63(1)(am).

2
We acknowledge that the circuit court’s reasoning that the stop could be extended to
“search for the truth” is not a proper basis for extending a stop.

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No. 2019AP702-CR

LaFever challenges only the legality of the extension of the stop that lead to his
arrest.

¶7 We review a circuit court’s decision on a motion to suppress based
on 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 a circuit court’s factual findings unless
they are clearly erroneous. Id. Whether an investigatory stop withstands
constitutional muster, however, is a question of law we review independently.
State v. Krier, 165 Wis. 2d 673, 676, 478 N.W.2d 63 (Ct. App. 1991).

¶8 Once a justifiable stop has been made, the stop may be extended if
“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 separate and distinct from the acts that prompted the
officer’s intervention in the first place.” State v. Betow, 226 Wis. 2d 90, 94, 593
N.W.2d 499 (Ct. App. 1999). We must determine whether Vis “discovered
information subsequent to the initial stop which, when combined with information
already acquired, provided reasonable suspicion” that LaFever was driving under
the influence or had a detectable amount of a restricted controlled substance in his
blood. See State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659 N.W.2d
394.

¶9 The test for reasonable suspicion uses a common sense approach
when considering the totality of the facts and circumstances to determine “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.” State v. Post, 2007 WI 60, ¶13, 301
Wis. 2d 1, 733 N.W.2d 634; see also WIS. STAT. § 968.24. An “officer ‘must be

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No. 2019AP702-CR

able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant’” the extension of the stop. Post,
301 Wis. 2d 1, ¶10 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Additionally,
the extension “must be based on more than an officer’s ‘inchoate and
unparticularized suspicion or hunch.’” Post, 301 Wis. 2d 1, ¶10 (quoting Terry,
392 U.S. at 27).

¶10 Under the totality of the circumstances, we conclude that Vis had
reasonable suspicion to extend the traffic stop. LaFever’s argument is limited to
impairment indicators based on his driving, but we note that our supreme court
previously concluded that “a driver’s actions need not be erratic, unsafe, or illegal
to give rise to reasonable suspicion.” Post, 301 Wis. 2d 1, ¶24. Furthermore, WIS.
STAT. § 346.63(1)(am) does not require proof of impairment. See State v. Smet,
2005 WI App 263, ¶¶13, 16, 288 Wis. 2d 525, 709 N.W.2d 474 (noting that a
“driver with a detectable amount of a restricted controlled substance in his or her
blood” need not be impaired to be in violation of the statute).

¶11 When looking at the totality of the circumstances, we conclude that
the odor of intoxicants and bloodshot eyes, in addition to the speeding and the
time of night, created reasonable suspicion that LaFever could be driving under
the influence and was more than sufficient to extend the stop for speeding to
investigate whether LaFever was operating while under the influence of
intoxicants.3 See State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d

3
LaFever suggests that the odor of intoxicants “certainly didn’t come from LaFever’s
breath” as he “blew zeros on the PBT and there was no ethanol detected in his blood.” We note
that the main goal of an investigative stop is to quickly resolve ambiguity associated with
suspicious conduct, which is exactly what took place in this case. See State v. Anderson, 155
Wis. 2d 77, 83-84, 454 N.W.2d 763 (1990).

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No. 2019AP702-CR

551 (time of night relevant when combined with additional factors); Post, 301
Wis. 2d 1, ¶36 (time of night “significant” especially at “bar time”); City of West
Bend v. Wilkens, 2005 WI App 36, ¶19, 278 Wis. 2d 643, 693 N.W.2d 324
(speeding is a factor we consider). After properly extending the stop, Vis
observed additional suspicious factors that, while ruling out intoxication, did point
to use of a controlled substance, to wit: the Romberg balance test, the green
tongue, and the statement from the passenger that they had smoked marijuana.
These factors were sufficient to provide the probable cause necessary to arrest
LaFever for operating with a detectable amount of a restricted controlled
substance in his blood. We see no error.

By the Court.—Judgment affirmed.

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

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