County of Buffalo v. Kevin J. Rich

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.
June 7, 2022
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. 2020AP1526 Cir. Ct. Nos. 2018TR248
2018TR277

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

COUNTY OF BUFFALO,

PLAINTIFF-RESPONDENT,

V.

KEVIN J. RICH,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Buffalo County:
RIAN RADTKE, Judge. Affirmed.

¶1 STARK, P.J.1 Kevin Rich appeals from an order entered following
a bench trial, finding him guilty of operating a motor vehicle while intoxicated

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP1526

(“OWI”), as a first offense, and operating a motor vehicle with a prohibited
alcohol concentration (“PAC”), also as a first offense.2 Rich argues that the circuit
court erred in denying his motions to suppress evidence because the arresting
deputy: (1) lacked reasonable suspicion to believe that Rich had committed, or
was committing an offense sufficient to justify the traffic stop; (2) lacked
reasonable suspicion to believe that Rich was impaired due to the consumption of
alcohol, and therefore improperly expanded the scope of the traffic stop by
requiring Rich to perform field sobriety tests; and (3) exceeded the scope of Rich’s
consent to an evidentiary breath test by taking more than one breath sample. We
reject each of Rich’s arguments and affirm.

BACKGROUND

¶2 Early in the morning on February 11, 2018, Deputy
Mitchell Zastrow of the Buffalo County Sheriff’s Office stopped the Jeep that
Rich was operating after observing its erratic driving. Rich performed field
sobriety tests and Zastrow subsequently placed Rich under arrest for OWI. After
being read the Informing the Accused form, Rich consented to a breath test. It
took Rich several attempts to provide sufficient samples and successfully complete
the test. Rich was subsequently cited in Buffalo County case No. 2018TR277
with OWI, first offense, and he received a citation for PAC, also as a first offense,
in Buffalo County case No. 2018TR248.

¶3 Rich brought two motions to suppress evidence related to his arrest.
In the first motion he argued that (1) Zastrow lacked reasonable suspicion that

2
Following trial, the PAC charge was merged and dismissed.

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Rich had committed a traffic violation, and (2) Zastrow did not have an
objectively reasonable suspicion—beyond the odor of alcohol—that Rich was
under the influence of an intoxicant, and Zastrow therefore improperly expanded
the scope of the stop to have Rich perform standardized field sobriety tests
(“SFSTs”). In a separate suppression motion, Rich argued that he consented to a
single evidentiary test of his breath but that two tests occurred, resulting in an
improper search that exceeded the scope of his consent.

¶4 The circuit court held a hearing on Rich’s motions, and Zastrow
testified. Zastrow explained that on February 11, 2018, while positioned in a
parking lot near the intersection of State Highways 54 and 35, he made a number
of observations of a Jeep that he later learned was operated by Rich. Highway 35
has two lanes traveling in both directions for some distance north of the
intersection at issue. The two northbound lanes then merge into a single lane
some distance north of the intersection. The Jeep stopped at a red light behind a
sedan. When the light turned green, the sedan made a left-hand turn northbound
on Highway 35, while the Jeep remained at the light for a brief period of time.
The sedan made its turn into the rightmost of the two northbound lanes. The Jeep
eventually followed the sedan, making a left-hand turn into the same lane and
accelerating such that Zastrow recounted he “could hear the engine revving
through the closed windows of my squad car.” The engine continued to rev until
the Jeep was “approximately a quarter of a car length behind the sedan.”

¶5 Zastrow testified that the Jeep then “bolted over into the second
lane,” but because the left lane was ending almost immediately thereafter, the Jeep
“jolted back over into the right lane back behind the sedan and proceeded to
continue following the sedan at approximately a quarter of length behind it.”
Zastrow followed the vehicles and then turned on his emergency lights and

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stopped the Jeep. After pulling over, Rich admitted that his attempt to pass the
sedan had been a bad idea and that he “recalled being close to the sedan.” Zastrow
recounted that when Rich spoke, he “could smell a strong odor of intoxicants
emitting from his breath.” Zastrow asked Rich about the odor, and Rich stated
that he had consumed two beers. Zastrow then conducted SFSTs and ultimately
placed Rich under arrest.

¶6 Zastrow explained that prior to transporting Rich to the Buffalo
County Jail, he read him the Informing the Accused form and Rich consented to a
test of his breath. After arriving at the jail, Zastrow explained the breath-test
procedure to Rich. Zastrow testified that he “typically explain[s] to the
individuals that we would need two sufficient samples” as a part of the breath test,
but he could not recall whether he had explained this fact to Rich.

¶7 Zastrow recounted that in attempting to obtain the first breath test
sample, Rich provided three insufficient samples—due either to a machine error or
Rich failing to blow for a long enough period of time. On his fourth attempt, Rich
was able to provide a sufficient sample. After one more insufficient sample, Rich
provided a second sufficient sample. Zastrow testified that Rich did not revoke his
consent to the breath test at any point during the testing process. Zastrow was
asked “From your training, from how you were trained in this particular
circumstance, was there more than one test that was conducted on Mr. Rich?”
Zastrow responded, “There was not.”

¶8 The circuit court denied Rich’s suppression motions. The court
found that Zastrow’s testimony was credible and that he had reasonable suspicion
to believe that Rich had committed or was committing an offense justifying the
traffic stop, as Rich had been following the preceding vehicle too closely and

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No. 2020AP1526

changed lanes “in a jolting manner.” The court rejected Rich’s argument that his
close following was “normal when passing,” reasoning that on the portion of the
road where the events occurred, there were two lanes available to Rich.
Accordingly, Rich could have moved into the passing lane much earlier than he
did and he therefore did not need to follow the sedan so closely.

¶9 Next, the circuit court rejected Rich’s argument that Zastrow did not
have a reasonable suspicion that Rich was impaired due to alcohol, as opposed to
merely having consumed alcohol. The court recounted that Zastrow smelled a
strong odor of intoxicants, and Rich admitted that he had consumed two beers. In
addition, the court emphasized Rich’s “problematic driving behavior,” including
Rich delaying before leaving the stoplight, revving his engine when leaving the
stoplight, following the sedan too closely, and changing lanes in a jolting manner.
The court concluded that “all of these facts combined satisfy reasonable suspicion
to justify requesting the [SFSTs] in this matter.”

¶10 Finally, the circuit court rejected Rich’s argument that his providing
multiple breath samples constituted an illegal search in that law enforcement
exceeded the scope of Rich’s consent. The court found no facts supporting Rich’s
argument that he only consented to one breath sample or a sequence of samples.
The court cited the Informing the Accused form—which Zastrow read to Rich
prior to Rich consenting to the breath test—as stating “Law enforcement will be
requesting one or more samples of breath.” In addition, the court found that Rich
consented to the breath test, that he did not revoke his consent, and that “[t]here
are no facts to suggest that [Rich] intended to limit his consent to breath tests in
any way.” The court found that six samples were provided, resulting in a
completed breath test, and that the “search of [Rich’s] breath did not go beyond
the scope of consent.”

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No. 2020AP1526

¶11 At a bench trial, rather than calling live witnesses, the parties
provided the circuit court with written stipulated facts. Based upon the stipulated
facts, the court found Rich guilty on both counts. The court merged the PAC
citation with the OWI citation and dismissed the PAC case. As to the OWI matter,
the court ordered a civil forfeiture in the amount of $811.50, revoked Rich’s
license for a period of six months, and required him to complete an alcohol and
other drug abuse assessment in addition to a driver safety plan. Rich now appeals.

DISCUSSION

¶12 On appeal, Rich argues that the circuit court erred in denying his
suppression motions. When evaluating a court’s decision on a motion to suppress,
we uphold the court’s findings of fact unless they are clearly erroneous. State v.
Dobbs, 2020 WI 64, ¶28, 392 Wis. 2d 505, 945 N.W.2d 609. We then
independently apply relevant constitutional principles to those facts. Id.

I. Initial traffic stop

¶13 Rich first argues that the circuit court erred in denying his motion to
suppress because Zastrow lacked the requisite reasonable suspicion to perform a
traffic stop. Reasonable suspicion that a traffic law has been or is being violated is
sufficient to justify a traffic stop. State v. Houghton, 2015 WI 79, ¶30, 364
Wis. 2d 234, 868 N.W.2d 143. “The question of what constitutes reasonable
suspicion is a common-sense test: under all the facts and circumstances present,
what would a reasonable police officer reasonably suspect in light of his or her
training and experience[?]” State v. Colstad, 2003 WI App 25, ¶8, 260 Wis. 2d
406, 659 N.W.2d 394.

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No. 2020AP1526

¶14 We conclude that Zastrow had reasonable suspicion to believe that
Rich had committed a traffic violation. WISCONSIN STAT. § 346.14(1m) prohibits
following another vehicle more closely than is “reasonable and prudent,” and the
circuit court clearly found that Rich drove too closely to the preceding vehicle. It
also rejected his justification that his driving and passing attempt was “normal”
given the circumstances. Based on the court’s findings, it is evident Rich violated
§ 346.14(1m). In addition, the court found credible Zastrow’s testimony that he
directly observed Rich driving erratically, revving his engine loudly, and making
an unnecessarily abrupt passing attempt despite the earlier availability of a passing
lane.

¶15 Rich cites Hibner v. Lindauer, 18 Wis. 2d 451, 456, 118 N.W.2d
873 (1963), for the proposition that there is no precise definition of driving “too
close,” and he asserts that the determination is a question of fact involving a
number of considerations. He argues that Zastrow only observed the distance
between the cars decrease to a quarter of a car length because he had been
attempting to pass the sedan in front of him and he therefore asserts that he had not
been following the sedan too closely.

¶16 We agree that whether a car is driving “too close” to another vehicle
is a question of fact. Here, the circuit court made an explicit factual finding that
Rich had been “following a car in front of him too close.” That finding was
supported by Zastrow’s testimony, which the court found to be credible. Again,
Zastrow testified that Rich “sped up to the first car and got to a quarter vehicle
length behind the first vehicle,” at “approximately five to six feet distance,” before
jolting between lanes and attempting to pass the sedan. The court’s finding that
Rich was driving too close to the car in front of him is not clearly erroneous.

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No. 2020AP1526

Thus, Zastrow had reasonable suspicion to believe that Rich had violated WIS.
STAT. § 346.14(1m).

¶17 Even if we were to give credence to Rich’s argument that he was
following the sedan closely in order to pass it—a version of events the circuit
court rejected as making “no sense”—Zastrow testified that after failing to pass
the vehicle, Rich “proceeded to continue following the sedan at approximately a
quarter of length behind it.” Therefore, Rich cannot rely upon his attempt to pass
to excuse his traffic violation.

II. Reasonable suspicion of impairment

¶18 Rich next argues that the odor of alcohol on his breath evidenced
only that he had consumed alcohol and it did not provide Zastrow with reasonable
suspicion that he was impaired. Rich therefore asserts that Zastrow improperly
expanded the scope of the traffic stop to conduct SFSTs.

¶19 A deputy may extend a lawful stop after the original basis for the
stop has been resolved only if the deputy learns of new facts during the stop that
give rise to a reasonable articulable suspicion that the person under investigation
has committed or is committing an offense or offenses separate from that which
prompted the stop. Colstad, 260 Wis. 2d 406, ¶19. In analyzing the
constitutionality of the new investigation, “[t]he validity of the extension is tested
in the same manner, and under the same criteria, as the initial stop.” State v.
Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d 499 (Ct. App. 1999). The government
carries the burden of proving the constitutionality of a Fourth Amendment seizure.
State v. Post, 2007 WI 60, ¶12, 301 Wis. 2d 1, 733 N.W.2d 634. We must
therefore determine whether Buffalo County (the “County”) proved that Zastrow
discovered information subsequent to the initial stop which, when combined with

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No. 2020AP1526

information already acquired, provided Zastrow with reasonable suspicion that
Rich was driving while under the influence of an intoxicant. See Colstad, 260
Wis. 2d 406, ¶19.

¶20 We conclude the County met its burden. The record supports the
circuit court’s finding that the odor of alcohol on Rich’s breath and Rich’s
admission of having consumed two beers, when taken together with the
“problematic driving behavior” observed by Zastrow, provided Zastrow with
reasonable suspicion of Rich’s impairment due to alcohol sufficient to justify
performing SFSTs.

¶21 Rich argues that his driving behavior did not indicate he was
impaired, claiming that he exercised “perfect control of his Jeep” while changing
lanes. He therefore contends that the other indicators of impairment must be more
substantial to justify conducting SFSTs. See County of Sauk v. Leon,
No. 2010AP1593, unpublished slip op. ¶20 (WI App Nov. 24, 2010).3 He cites the
unpublished case of State v. Gonzalez, No. 2013AP2585-CR, unpublished slip op.
¶13 (WI App May 8, 2014), for the proposition that “[n]ot every person who has
consumed alcoholic beverages is ‘under the influence.’” Id. (citation omitted).
Rich argues that Zastrow did not observe that he had bloodshot eyes, slowed or
slurred speech, or other traditional indicators that he was impaired due to alcohol.
Therefore, Rich argues, there were insufficient facts to support Zastrow’s
suspicion that Rich was impaired and Zastrow’s resultant expansion of the traffic
stop to perform SFSTs.

3
Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).

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No. 2020AP1526

¶22 As we have already concluded, however, Rich’s driving was not
“perfect.” Rich violated at least one traffic law. In addition, Rich revved his
engine, aggressively accelerated, and changed lanes in a jolting manner, all of
which contributed to a reasonable suspicion that he was driving while impaired.
This driving behavior, when combined with the odor of alcohol that Zastrow
observed and Rich’s admission to consuming two beers, provided Zastrow with
reasonable suspicion of impaired driving. Accordingly, Zastrow did not
improperly expand the scope of the traffic stop by conducting SFSTs.

III. Consent to breath test

¶23 Finally, Rich argues that he consented to only a single breath test,
and when Zastrow ordered a second testing sequence and sample, he went beyond
the scope of that consent. Rich correctly asserts that “[a] warrantless search is
presumptively unreasonable.” See State v. Tullberg, 2014 WI 134, ¶30, 359
Wis. 2d 421, 857 N.W.2d 120. Nevertheless, an established exception to the
warrant requirement is a search made pursuant to voluntary consent. Schneckloth
v. Bustamonte, 412 U.S. 218, 248 (1973). A search conducted with consent is
constitutionally reasonable to the extent that the search remains within the scope
of the actual consent. State v. Wheeler, 2013 WI App 53, ¶25, 347 Wis. 2d 426,
830 N.W.2d 278. “The standard for measuring the scope of a suspect’s consent
under the Fourth Amendment is that of ‘objective’ reasonableness—what would
the typical reasonable person have understood by the exchange between the officer
and the suspect?” State v. Kelley, 2005 WI App 199, ¶13, 285 Wis. 2d 756, 704
N.W.2d 377 (citation omitted).

¶24 We first note that Zastrow testified, and the circuit court found, that
only one breath test actually occurred, not two. The court found that “six samples

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No. 2020AP1526

were provided, which resulted in a completed breath test.” Rich does not argue
that this finding was clearly erroneous, and this alone defeats Rich’s argument.

¶25 Even if Rich had challenged the circuit court’s finding, Zastrow’s
testimony makes it evident that the two samples were a necessary part of one
overarching breath test. Rich knew that may be the case as the Informing the
Accused form, which was read to Rich, and to which he agreed when consenting
to the test of his breath, explicitly reads that “[t]his law enforcement agency now
wants to test one or more samples of your breath.” The record therefore supports
the court’s finding that Rich’s separate consent was not required for a second
sample in the test to which he consented.4 Any expectation on Rich’s part that the
scope of his consent extended to only one breath sample was eliminated when he
consented to the testing of his breath after being read the Informing the Accused
form, which explicitly explained that “one or more samples of breath” would be
requested.

¶26 Rich argues that he may revoke his consent at any time during the
test. See State v. Matejka, 2001 WI 5, ¶37, 241 Wis. 2d 52, 621 N.W.2d 891. Be
that as it may, at no time did he actually do so. Zastrow testified that Rich
remained silent throughout the testing process, and the record supports the circuit
court’s finding that there were no facts to suggest that Rich intended to limit his
consent in any way. The court did not err in concluding that Rich consented to

4
In his reply brief, Rich contends that the County’s argument that Zastrow did not
exceed Rich’s consent in performing the breath test was undeveloped. Rich is correct that the
County does not cite to case law in support of its position that multiple breath samples may
constitute a single breath test. The issue here, however, is one of fact. The County argues that
the facts support the circuit court’s finding that Rich consented to provide multiple breath
samples. This argument is well developed. As a result, we decline Rich’s invitation to label the
County’s arguments as wholly undeveloped.

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No. 2020AP1526

provide two sufficient breath samples as part of a single breath test. Furthermore,
Rich’s acquiescence supports the conclusion that a reasonable person would
understand that the multiple breath samples were within the scope of the consent
he provided.

By the Court.—Order affirmed.

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

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