State v. Michelle L. Jensen

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.
July 6, 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. 2021AP683-CR Cir. Ct. No. 2018CF162

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHELLE L. JENSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Barron County:
JAMES C. BABLER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Michelle Jensen appeals from a judgment
convicting her of possession of methamphetamine. Jensen contends that evidence
No. 2021AP683-CR

seized during a traffic stop should have been suppressed because police unlawfully
prolonged the stop. We disagree and affirm.

BACKGROUND

¶2 Former Turtle Lake Police Officer Adam Steffen stopped Jensen’s
vehicle because its exhaust system was loud, and Jensen appeared to be texting on
her phone while driving. Steffen approached the vehicle, informed Jensen of the
reason for the stop, and asked to see her proof of insurance. Jensen said that she
would need to find her insurance information on her phone. Steffen decided to
issue Jensen a written warning to have her exhaust system fixed within ten days.
Issuing a written warning required Steffen to return to his squad car, open his
TRAKS computer system, enter basic information about Jensen, her vehicle, and
the relevant statute into the program, and then print a warning. Steffen estimated
the process to generate a written warning would take about two minutes on
average, depending upon whether the form autopopulated or Steffen was required
to manually enter all of the necessary information.

¶3 About four minutes after Steffen returned to his squad car to process
the written warning, Polk County Sheriff’s Deputy Del Stone arrived at the scene
with his police K9. Steffen did not call Stone to the scene and had no
communication with him prior to his arrival. Rather, Stone had been traveling on
the highway when he observed emergency lights from Steffen’s squad car and
decided on his own to pull over and assist in the traffic stop. Steffen and Stone
had a brief conversation about the nature of the stop and routine safety issues
before Steffen returned to processing the written warning. Steffen stated that the
conversation was short because he did not like Stone and did not want to “deal
with” him any more than necessary.

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¶4 While Steffen was still in his squad car, Stone approached Jensen’s
vehicle and made contact with her. Stone believed that Jensen exhibited “beyond
normal nervousness” during the interaction. Stone then asked Jensen to exit her
vehicle, escorted her to the front of Steffen’s squad car, patted her down for
weapons, and told her to remain by Steffen’s squad car while he conducted a “K9
sniff” of her vehicle. Stone retrieved his canine partner from his vehicle and
walked the dog around Jensen’s vehicle. The dog “alerted” on Jensen’s vehicle,
indicating the presence of drugs. The entire time between when Stone arrived on
the scene and when the dog alerted on Jensen’s vehicle was approximately five
minutes.

¶5 As Stone was returning his dog to his squad car, Steffen exited his
squad car and again made contact with Jensen. Steffen spent about two minutes
issuing Jensen the exhaust warning and verifying Jensen’s insurance information.
The law enforcement officers then conducted the search of Jensen’s vehicle that is
the subject of the suppression motion.

¶6 At the suppression hearing, the circuit court made specific factual
findings that Steffen did not ask Stone to perform a K9 sniff on Jensen’s vehicle;
that Steffen and Stone’s initial conversation related to the original purpose of the
traffic stop; that, because Steffen did not like Stone, Steffen did not give Stone “a
wink and a nod” to perform the K9 sniff or otherwise purposely act to extend the
stop so that Stone would have time for the K9 sniff; that Steffen’s estimate that it
would take him only two minutes to prepare the citation was “unreasonable” and
“grossly inadequate”; that Steffen was working on creating the written warning on
his laptop the entire time Stone was interacting with Jensen and conducting the K9
sniff; and that Stone completed the K9 sniff before Steffen completed the tasks
related to the original reason for the traffic stop.

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¶7 The circuit court concluded there was no constitutional violation
because the K9 sniff did not add any time at all to the permissible length of the
traffic stop. The court denied Jensen’s suppression motion, and Jensen appeals.

DISCUSSION

¶8 When reviewing a motion to suppress evidence, we will uphold the
circuit court’s findings of fact unless they are clearly erroneous. WIS. STAT.
§ 805.17(2) (2019-20)1; State v. Hindsley, 2000 WI App 130, ¶22, 237 Wis. 2d
358, 614 N.W.2d 48. We will independently determine, however, whether the
facts found by the circuit court satisfy applicable constitutional provisions.
Hindsley, 237 Wis. 2d 358, ¶22.

¶9 An investigatory stop “must be temporary and last no longer than is
necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491,
500 (1983). Thus, when an initially justified detention of an individual extends
beyond the purpose of the stop, it becomes illegal. State v. Griffith, 2000 WI 72,
¶38, 236 Wis. 2d 48, 613 N.W.2d 72. However, routine measures such as
checking the driver’s license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registration and proof of
insurance do not unreasonably extend a traffic stop because they are related to the
same objective as enforcement of the traffic code: ensuring that vehicles on the
road are operated safely and responsibly. See Rodriguez v. United States, 575
U.S. 348, 355 (2015) (holding that a dog sniff is not part of the traffic mission and
does not justify prolonged detention once a ticket has been issued). Moreover, if

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP683-CR

during an investigatory stop, an officer becomes aware of facts sufficient to give
rise to a reasonable suspicion that the person has committed or is committing a
distinct offense, the purpose of the stop may expand and the length of the stop may
be properly extended to investigate the new suspicion. State v. Colstad, 2003 WI
App 25, ¶¶11-13, 260 Wis. 2d 406, 659 N.W.2d 394.

¶10 Jensen first challenges as clearly erroneous the circuit court’s finding
regarding the inaccuracy of Steffen’s estimate that generating a written warning
would only take two minutes. Next, from the alternative premise that the
two-minute estimate was in fact accurate, Jensen argues that Steffen
impermissibly extended the stop by about six minutes, that Jensen deems to be
unaccounted for while Steffen waited in his squad car for Stone to finish the K9
sniff.

¶11 We do not agree that the circuit court’s finding was clearly
erroneous. A factual finding is not clearly erroneous unless—after accepting all
credibility determinations made and reasonable inferences drawn by the fact
finder—the great weight and preponderance of the evidence support a contrary
finding. Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643-44, 340 N.W.2d 575
(Ct. App. 1993).

¶12 Here, Steffen had already been working on the written warning in
his squad car for four minutes before Stone arrived at the scene. That fact alone
would support the circuit court’s finding that Steffen’s estimate as to how long it
would take to generate the written warning was “grossly inadequate.” The amount
of time Steffen had been working on the written warning before Stone arrived
would also support a reasonable inference that the citation form did not
autopopulate and that Steffen was required to manually enter all of the necessary

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information. Having to manually enter all of the information would, in turn, lead
to a further reasonable inference that generating the written warning in this case
would have taken longer than the “average” time to do so.

¶13 In addition, Steffen expressly testified that he was “doing stuff on
the computer” while Stone was speaking to Jensen and conducting the K9 sniff.
The circuit court implicitly determined that testimony was credible when the court
made reference to it and commented that there was no indication that Steffen just
sat in the squad car and did nothing but watch the dog sniff rather than work on
the written warning.

¶14 Jensen does not point to any evidence—much less the great weight
of the evidence—that directly contradicts Steffen’s testimony that he was working
on his computer while Stone conducted the K9 sniff. Rather, Jensen urges this
court to draw an inference contrary to the reasonable inferences and credibility
determinations supporting the circuit court’s determination. We will not do so.

¶15 Having accepted the circuit court’s factual findings, we conclude
that they support the conclusion that the police did not unlawfully extend the
duration of Jensen’s traffic stop to conduct a drug investigation. The K9 sniff was
conducted contemporaneously with the investigation into, and written warning for,
Jensen’s defective exhaust system. We therefore affirm the suppression ruling and
judgment of conviction.

By the Court.—Judgment affirmed.

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

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