State v. Michael Justin Schwersinske, Jr.

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 10, 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. 2022AP162-CR Cir. Ct. No. 2018CT495

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL JUSTIN SCHWERSINSKE, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: PAUL G. CZISNY, Judge. Affirmed.

¶1 NEUBAUER, J.1 Michael Justin Schwersinske, Jr. appeals from a
judgment of conviction for operating a motor vehicle with a prohibited alcohol

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP162-CR

concentration, contrary to WIS. STAT. § 346.63(1)(b), second offense. On appeal,
Schwersinske challenges the circuit court’s denial of his motion to suppress,
arguing that the officer who stopped him lacked reasonable suspicion to prolong
his detention for the purpose of conducting field sobriety tests. For the reasons
that follow, we reject Schwersinske’s argument and affirm the conviction.

BACKROUND

¶2 On November 10, 2018, at approximately 2:30 a.m., Schwersinske
was stopped by Deputy Zachary Bohlman of the Fond du Lac County Sheriff’s
Office after the officer witnessed the vehicle cross from the southbound lane
completely over the center line into the northbound lane on U.S. 151. Bohlman
approached the vehicle and observed that there were two passengers in the vehicle
along with Schwersinske. When the passenger window was rolled down,
Bohlman noted that there was an odor of intoxicants emanating from the vehicle.
When Bohlman asked Schwersinske where he was coming from, he responded
that he was coming from a tavern called Three Sheets. Upon questioning,
Schwersinske admitted to the officer that he had “2 to 3 beers.”

¶3 Bohlman directed Schwersinske to exit his vehicle. Bohlman
testified that at that point, he observed that Schwersinske “had glassy eyes and,
separated from the passengers, [he] could still smell [an] odor of intoxicants
coming from [Schwersinske].” Bohlman then asked to administer field sobriety
tests to Schwersinske, to which Schwersinske agreed. Bohlman administered
three tests; Schwersinske showed multiple signs of impairment on each of them.
After the tests, Bohlman arrested Schwersinske for operating a motor vehicle
while intoxicated.

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No. 2022AP162-CR

¶4 Schwersinske was charged with operating a motor while under the
influence of an intoxicant, contrary to WIS. STAT. § 346.63(1)(a), second offense,
and operating a motor vehicle with a prohibited alcohol concentration, contrary to
WIS. STAT. § 346.63(1)(b), second offense. Schwersinske filed a motion to
suppress evidence obtained during the stop arguing that it was obtained in
violation of the Fourth Amendment and article I, section 11 of the Wisconsin
Constitution, which the circuit court denied after an evidentiary hearing, additional
briefing, and oral argument.2 The court noted Schwersinske was not challenging
the basis for the initial stop, but instead challenged whether Bohlman had
reasonable suspicion to extend the stop to perform field sobriety tests. The court
concluded that Bohlman’s observations were sufficient to allow him to conduct
field sobriety tests. Schwersinske subsequently pled no contest operating a motor
vehicle with a prohibited alcohol concentration, contrary to § 346.63(1)(b), second
offense.3
¶5 Schwersinske appeals.4

DISCUSSION

¶6 Whether evidence must be suppressed because it was obtained in
violation of the Fourth Amendment is a question of constitutional fact. State v.
Smith, 2018 WI 2, ¶9, 379 Wis. 2d 86, 905 N.W.2d 353. The circuit court’s
findings of fact are upheld unless clearly erroneous, but we review de novo the

2
The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. See U.S. CONST. amend. IV. The same protection is provided by article I,
section 11 of the Wisconsin Constitution. WIS. CONST. art. I, § 11.
3
The operating while intoxicated charge was dismissed.
4
In the circuit court, Schwersinske also challenged the manner in which Bohlman
performed the field sobriety testing, but he does not raise that argument on appeal.

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No. 2022AP162-CR

application of constitutional principles to those facts. State v. Dumstrey, 2015 WI
App 5, ¶7, 359 Wis. 2d 624, 859 N.W.2d 138, aff’d, 2016 WI 3, 366 Wis. 2d 64,
873 N.W.2d 502. “A finding of fact is clearly erroneous if it is against the great
weight and clear preponderance of the evidence.” State v. Anderson, 2019 WI 97,
¶20, 389 Wis. 2d 106, 935 N.W.2d 285.

¶7 As in the circuit court, Schwersinske does not challenge the basis for
the initial stop. Instead, he argues that the officer lacked sufficient cause to extend
the stop under the Fourth Amendment and Wisconsin Constitution. Temporary
detention during a traffic stop is a seizure and, therefore, must conform to the
constitutional requirement of reasonableness. State v. Popke, 2009 WI 37, ¶11,
317 Wis. 2d 118, 765 N.W.2d 569. A law enforcement “officer may stop a
vehicle when he or she reasonably believes the driver is violating[, or has
violated,] a traffic law.” State v. Hogan, 2015 WI 76, ¶34, 364 Wis. 2d 167, 868
N.W.2d 124 (citation omitted). The officer may extend the stop if he or she
“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
or offenses separate” from the violation that prompted the officer’s initial
investigation. State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659
N.W.2d 394 (quoting State v. Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d 499 (Ct.
App. 1999)). An extended inquiry must be supported by reasonable suspicion.
Hogan, 364 Wis. 2d 167, ¶35.

¶8 Reasonable suspicion is “a suspicion grounded in specific,
articulable facts and reasonable inferences from those facts, that the individual has
committed [or was committing or is about to commit] a crime.” State v. Waldner,
206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996) (alteration in original; citation
omitted). Reasonable suspicion is a “common sense test” that asks: Under the

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No. 2022AP162-CR

totality of the circumstances presented, “what would a reasonable police officer
reasonably suspect in light of his or her training and experience[?]” Colstad, 260
Wis. 2d 406, ¶8 (citation omitted); see also Hogan, 364 Wis. 2d 167, ¶¶36-37.
“[S]uspicious conduct by its very nature is ambiguous, and the [principal] function
of the investigative stop is to quickly resolve that ambiguity.” State v. Anderson,
155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990). Reasonable suspicion is “a low bar.”
State v. Nimmer, 2022 WI 47, ¶25, ___ Wis. 2d ___, 975 N.W.2d 598 (citation
omitted). “[T]he level of suspicion the standard requires is considerably less than
proof of wrongdoing by a preponderance of the evidence, and obviously less than
is necessary for probable cause[.]” Id. (alteration in original; citation omitted).

¶9 Schwersinske argues that Bohlman’s decision to extend the traffic
stop was not supported by reasonable suspicion; as a result, he argues, the
prolonged stop became an unlawful seizure. However, when the totality of the
facts present at the scene are considered, we conclude that those facts amount to
reasonable suspicion that Schwersinske was operating under the influence. See
State v. Lange, 2009 WI 49, ¶23, 317 Wis. 2d 383, 766 N.W.2d 551 (a court
considers whether “the totality of circumstances within [the officer’s] knowledge
at the time of the arrest would lead a reasonable police officer to believe ... that the
defendant was [driving] under the influence of an intoxicant”).

¶10 In its decision, the circuit court identified several articulable facts
which, in its view, established reasonable suspicion: (1) Schwersinske operated
his vehicle on the “wrong side of the road”; (2) Schwersinske admitted to the
officer that “he had about 2 to 3 beers” and had been at a bar; and (3) “there was
an odor of intoxicants coming from the vehicle.” Schwersinske does not argue
that any of these findings was clearly erroneous.

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No. 2022AP162-CR

¶11 Moreover, Bohlman also testified that he stopped Schwersinske at
approximately 2:30 a.m., which supports “a stronger inference that a higher
percentage of people driving are intoxicated.” See State v. Gonzalez,
No. 2013AP2585-CR, unpublished slip op. ¶16 (WI App May 8, 2014)5; see also
Lange, 317 Wis. 2d 383, ¶32. The officer also noted additional facts after he
asked Schwersinske to exit the vehicle, namely, glassy eyes and the odor of
intoxicants coming from Schwersinske. Taken together, these facts provided
reasonable suspicion to extend the stop to perform the field sobriety tests.

¶12 Schwersinske’s arguments to the contrary are not persuasive. First,
he highlights signs of impairment that Bohlman did not observe, such as slurred
speech, problems with coordination or mentation, an uncooperative attitude, a
delayed response to the officer’s signal, or parking improperly. Schwersinske is
correct that the record is devoid of evidence suggesting these factors were present.
But the absence of these factors does not eliminate or diminish the significance of
the factors Bohlman did observe and the reasonable inferences therefrom. Those
factors and inferences provided reasonable suspicion to suggest that Schwersinske
was driving while under the influence “to a degree which render[ed] him …
incapable of safely driving.” WIS. STAT. § 346.63(1)(a).

¶13 Next, Schwersinske suggests that only the officer’s additional
observations after the stop for the observed traffic violation and before the officer
asked Schwersinske to exit the vehicle, namely, the odor of intoxicants and
admission to drinking, can be considered in the analysis. He then challenges

5
One-judge opinions are not precedent, but may be cited for persuasive value. WIS.
STAT. RULE 809.23(3)(b).

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No. 2022AP162-CR

reliance on these two additional facts and the reasonableness of inferences
Bohlman drew from them. He argues that his admission to having consumed two
to three beers and the odor of intoxicants coming from the vehicle are not
sufficient to support reasonable suspicion because not every person who has
consumed alcohol is under the influence.

¶14 These arguments misapprehend the nature of our inquiry. First, the
analysis of reasonable suspicion to extend the stop does not require exclusion of
the facts supporting the initial stop—here, driving on the wrong side of the road.
Clearly, the highly unusual and extremely dangerous driving violation combined
with the evidence of drinking supported the reasonable inference that
Schwersinske was under the influence.

¶15 Second, the officer’s request that Schwersinske exit the vehicle did
not unreasonably delay the stop, as police officers may order a driver out of the
vehicle incident to a valid stop for a traffic violation. See State v. Floyd, 2017 WI
78, ¶24, 377 Wis. 2d 394, 898 N.W.2d 560; State v. Wright, 2019 WI 45, ¶25, 386
Wis. 2d 495, 926 N.W.2d 157 (in every traffic stop, the police may ask the driver
and any other vehicle occupants to exit the vehicle). Thus, the facts observed by
the officer after he asked Schwersinske to exit the vehicle—glassy eyes and an
odor of intoxicants—are part and parcel of the reasonable suspicion analysis
supporting the officer’s request to perform field sobriety tests.

¶16 Third, our role is not to pick apart the factors an officer relies on
one-by-one and examine whether they individually support a finding of reasonable
suspicion, but rather to focus on “the whole picture viewed together.” Nimmer,
___ Wis. 2d ___, ¶24, 975 N.W.2d 598 (citation omitted). Nor are officers
obliged to disregard a reasonable inference drawn from one factor merely because

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No. 2022AP162-CR

another, innocent inference is available. See Anderson, 155 Wis. 2d at 84 (“if any
reasonable inference of wrongful conduct can be objectively discerned,
notwithstanding the existence of other innocent inferences that could be drawn, the
officers have the right to temporarily detain the individual for the purpose of
inquiry.”). We are to consider the totality of the circumstances known to the
officer and determine what he or she would “reasonably suspect in light of his or
her training and experience.” Colstad, 260 Wis. 2d 406, ¶8 (citation omitted).

¶17 Here, the officer stopped Schwersinske at a time of night in which
impaired driving is known to be more likely to occur, observed him driving on the
wrong side of the road, heard him admit that he had consumed two to three beers
at a bar he was driving from, observed glassy eyes, and smelled the odor of
intoxicants coming from him. These circumstances, viewed in their totality,
provided grounds for the officer to reasonably suspect that Schwersinske was
driving while impaired and materially distinguish the present case from the cases
upon which Schwersinske principally relies. See Gonzalez, No. 2013AP2585-CR,
¶¶14, 16-17 (holding that officer lacked reasonable suspicion to extend traffic stop
where only factor suggesting driver was impaired was odor of intoxicants,
defendant “did not admit to consuming any alcoholic beverages,” stop took place
before midnight, and officer observed “no physical indicators of intoxication” or
evidence of impairment from defendant’s driving before stop); County of Sauk v.
Leon, No. 2010AP1593, unpublished slip op. ¶¶18, 21, 25-26 (WI App Nov. 24,
2010) (holding that officer lacked reasonable suspicion to detain defendant to
perform field sobriety tests where officer “was not aware of any driving behavior
… indicative of impaired driving,” defendant consistently acknowledged having
consumed one beer on evening of stop, stop occurred before midnight, and
defendant did not display physical signs of impairment).

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No. 2022AP162-CR

CONCLUSION

¶18 Based on the totality of the circumstances, we conclude that the
officer had the requisite reasonable suspicion to extend the stop of Schwersinske
to administer field sobriety tests. We therefore uphold the circuit court’s denial of
Schwersinske’s motion to suppress and affirm the judgment.

By the Court.—Judgment affirmed.

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

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