State v. Kelly A. Monson

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.
January 18, 2023
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. 2022AP1438-CR Cir. Ct. No. 2019CT730

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KELLY A. MONSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Winnebago
County: JOHN A. JORGENSEN, Judge. Affirmed.

¶1 LAZAR, J.1 Kelly A. Monson appeals from a judgment of
conviction on one count of operating a vehicle with a restricted controlled

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. 2022AP1438-CR

substance (RCS) in her blood (third offense) contrary to WIS. STAT.
§ 346.63(1)(am) and one count of operating a vehicle under the influence of an
RCS contrary to § 346.63(1)(a). She contends that law enforcement lacked
reasonable suspicion to extend a traffic stop to conduct standardized field sobriety
tests. This court concludes that, given the totality of the circumstances, there were
articulable facts giving rise to reasonable suspicion of impaired driving sufficient
to extend the traffic stop into an OWI/RCS investigation. The judgment of
conviction is affirmed.

BACKGROUND

¶2 In April 2019, Officer Jessica Kramer2 was on patrol when she
observed a car stopped in traffic. Kramer noticed that the driver of this car,
Monson, was apparently struggling with an interlock ignition device (IID).
Kramer called out a traffic stop3 to her dispatcher and approached Monson, asking
her questions about the vehicle and requesting insurance information. Monson
said that she was having trouble with her IID, which was giving her error readings
she had never seen before. Perhaps because she was searching for her insurance
information, Monson did not make eye contact with Kramer during this initial
interaction. Monson was unable to provide proof of insurance, and her vehicle
registration was expired, so Kramer issued citations for these violations. When
Kramer returned to Monson’s vehicle to explain the citations, she noticed that
Monson had bloodshot, glassy eyes and what appeared to be dry mouth. She also

2
At the time of the stop, the officer’s name was Jessica Trochinski. When the officer
testified at trial, her name was Jessica Kramer, the name used in this opinion.
3
This court notes the irony in calling this a traffic “stop” when it was Monson herself
who stopped her vehicle.

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No. 2022AP1438-CR

noted that Monson was nervous (by Monson’s own admission she was having an
anxiety attack), that her speech was “somewhat exaggerated and slurred,” and that
her eyes were “all over the place.” Kramer further observed that Monson “kept
clenching her teeth and smiling,” and Kramer knew from her training and
experience that “the clenched, exaggerated movement has been significant with
those from testing for methamphetamines.”

¶3 These observations prompted Kramer to ask Monson whether she
had been using drugs and to ask Monson to do field sobriety tests. Based on
Monson’s inadequate performance, Kramer placed her under arrest. A subsequent
blood test executed pursuant to a search warrant showed the presence of THC and
methamphetamines in Monson’s blood.

¶4 Monson’s attorney filed a motion to suppress this physical evidence
in the trial court, arguing that Kramer lacked reasonable suspicion to extend the
stop and perform the field sobriety tests. After hearing testimony from Kramer
and watching video footage of the stop that had been recorded on Kramer’s body
camera, the trial court denied the motion, citing “the eyes all over the place, the
slurred speech, [and Monson] acting nervous” as articulable reasons that Kramer
suspected impaired driving and finding that these were sufficient to justify
extension of the stop. The court noted that it found Kramer to be a credible
witness and that her testimony was supported by the video evidence. It also
pointed out that Kramer had life experience through her nineteen years on the job
that informed her of behaviors that could indicate a person being under the
influence of drugs.

¶5 At trial on November 9, 2021, a jury convicted Monson on one
count of operating a motor vehicle while under the influence of a controlled

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No. 2022AP1438-CR

substance and one count of operating a motor vehicle with an RCS in her blood.
Monson appeals her conviction.

DISCUSSION

¶6 Monson contends that her constitutional rights were violated when
the officer unlawfully extended the traffic stop by having her exit the vehicle and
perform standardized field sobriety tests. She relies upon State v. Hogan, 2015
WI 76, 364 Wis. 2d 167, 868 N.W.2d 124, that she contends has similar facts, for
support in showing that Officer Kramer did not have an articulable, reasonable
basis for asking Monson to step out of her vehicle. The State argues that Hogan is
clearly distinguishable and asserts that the judgment should be upheld. This court
agrees.

I. Standard of Review

¶7 The issue on appeal centers upon constitutional rights, and, as such,
it is subject to a two-step process of review. See State v. Dalton, 2018 WI 85, ¶33,
383 Wis. 2d 147, 914 N.W.2d 120; State v. Tullberg, 2014 WI 134, ¶27, 359
Wis. 2d 421, 857 N.W.2d 120. First, this court will uphold a trial court’s findings
of fact unless they are clearly erroneous. State v. Hughes, 2000 WI 24, ¶15, 233
Wis. 2d 280, 607 N.W.2d 621 (citing State v. Secrist, 224 Wis. 2d 201, 207, 589
N.W.2d 387 (1999)). Second, this court applies the law to those facts de novo.
See Dalton, 383 Wis. 2d 147, ¶33. This process requires courts to “analyze issues
of constitutional fact” by “on one hand giving deference to the [trial] court’s
findings of evidentiary fact, and on the other reviewing independently the [trial]
court’s application of those facts to constitutional standards.” State v. Malone,
2004 WI 108, ¶14, 274 Wis. 2d 540, 683 N.W.2d 1.

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No. 2022AP1438-CR

II. Reasonable suspicion to extend the stop existed.

¶8 People are protected against unreasonable searches and seizures
under the auspices of both the Fourth Amendment of the United States
Constitution and article I, section 11 of the Wisconsin Constitution. “The Fourth
Amendment protects the ‘right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.’” Davis v. United
States, 564 U.S. 229, 236 (2011) (quoting U.S. CONST. amend. IV). The key
phrase is that the people are protected against “unreasonable” searches and
seizures. See State v. Parisi, 2016 WI 10, ¶28, 367 Wis. 2d 1, 875 N.W.2d 619.

¶9 Both of these constitutional “provisions’ purpose is to safeguard
individuals’ privacy and security against arbitrary governmental invasions, which
requires striking a balance between the intrusion on an individual’s privacy and
the government’s promotion of its legitimate interests.” State v. Sykes, 2005 WI
48, ¶13, 279 Wis. 2d 742, 695 N.W.2d 277. The Fourth Amendment is applicable
to and binding upon the states. State v. Koch, 175 Wis. 2d 684, 700, 499 N.W.2d
152 (1993). There is no dispute that “[t]emporary detention of individuals during
the stop of an automobile by the police, even if only for a brief period and for a
limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this
provision.” Whren v. United States, 517 U.S. 806, 809-10 (1996); State v. Popke,
2009 WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d 569.

¶10 In evaluating whether probable cause exists in a traffic-stop
scenario, the court must “look to the totality of the circumstances to determine
whether the ‘arresting officer’s knowledge at the time of the arrest would lead a
reasonable police officer to believe ... that the defendant was operating a motor
vehicle while under the influence of an intoxicant [or an RCS].’” State v. Babbitt,

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No. 2022AP1438-CR

188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct. App. 1994) (first alteration in
original) (quoting State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300
(1986)). This “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; State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d
681 (1996).

¶11 “Reasonable suspicion is ‘a low bar[.]’” State v. Nimmer, 2022 WI
47, ¶25, 402 Wis. 2d 416, 975 N.W.2d 598 (alteration in original; citation
omitted). It requires less certainty than probable cause. State v. Eason, 2001 WI
98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625. But, it “must be based on more than
an officer’s ‘inchoate and unparticularized suspicion or hunch.’” State v. Post,
2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634 (quoting Terry v. Ohio, 392
U.S. 1, 27 (1968)). To be reasonable, not only must a traffic offense stop (like
other Fourth Amendment seizures) be justified at its inception, but subsequent
police conduct must also be reasonable under the circumstances. See State v.
Arias, 2008 WI 84, ¶32, 311 Wis. 2d 358, 752 N.W.2d 748.

¶12 Reasonable suspicion is defined as “specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant
that intrusion.” Terry, 392 U.S. at 21. This court has explained that:

If, during a valid traffic stop, 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 or offenses separate
and distinct from the acts that prompted the officer’s
intervention in the first place, the stop may be extended and
a new investigation begun. The validity of the extension is
tested in the same manner, and under the same criteria, as
the initial stop.

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No. 2022AP1438-CR

State v. Adell, 2021 WI App 72, ¶16, 399 Wis. 2d 399, 966 N.W.2d 115 (quoting
State v. Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d 499 (Ct. App. 1999)); see also
State v. Smith, 2018 WI 2, ¶28, 379 Wis. 2d 86, 905 N.W.2d 353 (“Discovering
additional reasonable suspicion during the ordinary inquiries can lead to a legal
basis upon which to extend the stop beyond the ordinary inquiries.”).

¶13 The court in Waldner, 206 Wis. 2d at 58, concisely set out how
courts are to consider multiple facts and how the accumulation of those facts can
build to a finding of reasonable suspicion:

Any one of these facts, standing alone, might well be
insufficient. But that is not the test we apply. We look to
the totality of the facts taken together. The building blocks
of fact accumulate. And as they accumulate, reasonable
inferences about the cumulative effect can be drawn. In
essence, a point is reached where the sum of the whole is
greater than the sum of its individual parts. That is what
we have here. These facts gave rise to a reasonable
suspicion that something unlawful might well be afoot.

¶14 As the State succinctly states, the only contested issue on appeal “is
whether Officer Kramer had reasonable articulable suspicion to ask Ms. Monson
to perform field sobriety tests.” In this case, Kramer noted the following on her
first interaction at Monson’s vehicle: Monson refused to make eye contact with
her when Monson was looking for her insurance and vehicle information, and
Monson appeared rather nervous (claiming she was having an anxiety attack). On
the second trip to Monson’s vehicle, when Monson actually turned to face the
officer, Kramer noticed that Monson’s eyes were bloodshot, glassy, and “all over
the place,” that her speech was slurred and exaggerated, and that her teeth were
clenched, all of which Kramer recognized as signs of methamphetamine use.
Taken together, these form significant building blocks of facts leading Kramer to
have reasonable suspicion that Monson was driving while impaired.

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No. 2022AP1438-CR

¶15 Also, even though the trial court did not allow the question about
precisely why Kramer first stopped her police car to be presented to the jury
pursuant to a motion in limine, the answer to that question is relevant in this
appeal: Monson had stopped her vehicle in traffic about one full vehicle length
back from a stop sign. This is out of the ordinary and would indicate to a
reasonable police officer that something was amiss. Kramer then noticed that the
driver of the vehicle (Monson) was “messing around with something in the car and
from the distance where [Kramer] was at, eventually it looked like it was an IID.”
Kramer had first thought the item was a syringe. Kramer initially stopped her own
vehicle because of Monson’s stopped vehicle, but after some observation, Kramer
had more concerns: Monson could have been in trouble physically, could have
been attempting to inject something, or could have had mechanical issues with her
vehicle. Once Kramer heard that Monson was having trouble starting the vehicle
with her IID—a device she knew was only placed in vehicles where the owner had
already been convicted of an OWI—it was logical that Kramer’s interest was
piqued. Monson claimed that she was having trouble with the IID and was getting
an error reading; that was something she claimed had never happened before.
Kramer did not have to accept that explanation, even if the vehicle eventually did
start up, because police officers do not have to just accept what they are told and
stop investigations based solely on statements by possible law violators. See id. at
61 (“Although many innocent explanations could be hypothesized as the reason
for [a defendant’s] actions, a reasonable police officer charged with enforcing the
law cannot ignore the reasonable inference that they might also stem from
unlawful behavior.”).

¶16 While there are a myriad of Wisconsin (and nation-wide) opinions
that allow for police officers to stop vehicles for equipment, burnt-out lights, or

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No. 2022AP1438-CR

other technical vehicle malfunctions even without any other observations of
suspicious conduct, courts have declined to formulate a bright-line rule by which
to judge the reasonableness of a traffic stop. Malone, 274 Wis. 2d 540, ¶34. But,
“[a] law enforcement officer is justified in detaining an individual if he has
suspicion ‘grounded in specific, articulable facts and reasonable inferences from
those facts, that the individual has committed a crime.’” Id., ¶35 (citation
omitted). The same applies if the officer reasonably believes that a crime was
about to be committed. Adell, 399 Wis. 2d 399, ¶16.

¶17 “Even if no probable cause existed, a police officer may still conduct
a traffic stop when, under the totality of the circumstances, he or she has grounds
to reasonably suspect that a crime or traffic violation has been or will be
committed.” Popke, 317 Wis. 2d 118, ¶23. Here, once Kramer noticed that
Monson was blowing into an IID in a vehicle that had stopped in traffic, she had
notice that Monson was under an order after an OWI conviction and that
Monson’s breath was not being accepted by the IID to start the ignition. Kramer
could reasonably believe that Monson may have imbibed something that prevented
her from starting up the vehicle and that Monson would drive while impaired if
she were finally able to start the ignition. Or Kramer could have reasonably
believed that Monson had ingested an illegal substance—a crime in and of itself—
that caused her exaggerated conduct, clenched teeth, and glassy and bloodshot
eyes and that would have impaired Monson’s driving once she got the vehicle
restarted. Either way, there were enough facts to support reasonable suspicion that
Monson had committed or was about to commit the offense of driving while
impaired.

¶18 Monson places her reliance upon Hogan, which she claims has facts
that are “strikingly similar” to her case, in which our supreme court concluded that

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No. 2022AP1438-CR

a police officer did not have reasonable suspicion to extend a traffic stop. There
are, however, stark differences between Hogan and Monson’s case. First is the
presence of an IID. Next are the building blocks creating reasonable suspicion
(the glassy and bloodshot eyes, the anxiety, the slurred speech, and the clenched
teeth and exaggerated conduct that indicate drug use) that Kramer observed in
Monson. But even more important is the fact that, while supportive building-
block facts may have been factually present in Hogan, they were not before that
trial court. Our state supreme court in Hogan identified several facts, but then
explained that the State had not presented them sufficiently for its consideration:

Upon careful examination of the record, we believe the
State could have made a valid case that Deputy Smith had
reasonable suspicion to pursue field sobriety tests with
Patrick Hogan. However, the case the State could have
made in circuit court was not made, and, consequently,
Judge Day’s ruling on this point was not error.

Hogan, 364 Wis. 2d 167, ¶43.

¶19 That being the case, Monson’s reliance on Hogan is patently
inappropriate. This court looks to what case was made in the trial court with
respect to Monson. There was more than just the anxiety attack and Monson’s
nervousness: several additional building blocks constructed reasonable suspicion.
A reasonable police officer could have added these facts all together in the same
fashion as Kramer. The foundation for suspicion was the unusual location of the
stopped vehicle in traffic and the presence of an IID device that was not letting
Monson start her ignition. If, as Monson asserts, there was just the anxiety of
being questioned by a police officer, that might not have led to a reasonable
suspicion that something criminal was afoot. But Kramer observed much more
than that, and the trial court, looking to the totality of the circumstances, was not

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No. 2022AP1438-CR

in error to find that the facts all lead to reasonable suspicion to extend the traffic
stop and have Monson step out of her vehicle to perform field sobriety tests.

¶20 “In a long line of cases, [the United States Supreme Court has] said
that when an officer has probable cause to believe a person committed even a
minor crime in his presence, the balancing of private and public interests is not in
doubt. The arrest is constitutionally reasonable.” Virginia v. Moore, 553 U.S.
164, 171 (2008). The trial court’s findings of fact were not only not clearly
erroneous, they were not erroneous at all. Therefore, in Monson’s case, articulable
facts warranted reasonable suspicion to extend the traffic stop, which led to
Monson’s subsequent lawful arrest. See State v. Anagnos, 2012 WI 64, ¶56, 341
Wis. 2d 576, 815 N.W.2d 675; Post, 301 Wis. 2d 1, ¶13.

CONCLUSION

¶21 In summary, this court concludes that the trial court’s findings of
fact were not clearly erroneous and that, given the totality of the circumstances,
there was reasonable suspicion to extend the traffic stop into an OWI/RCS
investigation. Accordingly, the judgment is affirmed.

By the Court.—Judgment affirmed.

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

11