State v. Linsey Nichole Howard

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.
March 8, 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. 2022AP1608-CR Cir. Ct. No. 2019CT352

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LINSEY NICHOLE HOWARD,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Ozaukee County:
STEVEN MICHAEL CAIN, Judge. Affirmed.

¶1 GROGAN, J.1 Linsey Nichole Howard appeals from a judgment
entered after she pled guilty to operating with a restricted, controlled substance

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. 2022AP1608-CR

(second offense) contrary to WIS. STAT. § 346.63(1)(am). Howard contends the
circuit court erred in denying her suppression motion because she believes the
arresting officer lacked probable cause to believe she was operating a vehicle
under the influence. This court affirms.

I. BACKGROUND

¶2 While on patrol in August 2019, Officer Peter Morton of the Grafton
Police Department conducted a traffic stop of Howard’s car on an “on-ramp” to
Interstate 43 (I-43) because she was driving without headlights on at 12:53 a.m.2
Morton observed that Howard seemed nervous, would not make eye contact, and
had lethargic speech. Howard denied drinking or using drugs, but she did admit to
taking prescription medications for depression.

¶3 Howard appeared to be lost and confused, and when Morton asked
where she was coming from, she indicated Summerfest; however, her passenger
corrected her and indicated they had been at the Wisconsin State Fair. Howard
also indicated she was trying to drop her passenger off at Kohl’s. Suspecting that
Howard was possibly impaired, Morton asked Howard to perform field sobriety
tests. Morton observed six clues on the horizontal gaze nystagmus (HGN) test,
which he explained was “indicative of impairment for that test.” Because Howard
has a prosthetic leg, Morton did not conduct either the walk-and-turn or one-leg
stand field sobriety tests. Instead, Morton had Howard perform the alphabet test,
which she passed, and the number test (counting and stopping at a certain number

2
Morton was promoted to sergeant shortly before the suppression hearing; however, this
opinion refers to him as “Officer,” which was his title at the time of the traffic stop. The facts
presented herein are taken primarily from Morton’s testimony at the February 2022 suppression
hearing.

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No. 2022AP1608-CR

as directed), which she did not pass. Morton thereafter conducted a preliminary
breath test (PBT) of Howard, which returned a result of zero.3

¶4 Based on his interactions with Howard and her overall performance
on the field sobriety tests, Morton arrested Howard because he believed she was
under the influence.4 The State charged Howard with operating while under the
influence (OWI) (second offense), possession of drug paraphernalia, and operating
with a restricted, controlled substance (second offense). Howard filed a motion to
suppress, alleging Morton lacked probable cause to arrest her for OWI. The
circuit court held an evidentiary hearing in February 2022, and Morton was the
only witness to testify. The court concluded that based on the totality of the
circumstances, Morton had probable cause to arrest and denied the motion. It
reasoned that the time of day, the lack of headlights, the HGN test, the evasive
behavior (lack of eye contact), lethargic speech, and Howard’s confusion over
where she was coming from and going to was sufficient to satisfy probable cause.
Specifically, the court stated:

And when we look at the totality of the circumstances I
think it absolutely adds up to be probable cause. This is not
beyond a reasonable doubt. This is a probable cause
standard. And I think there was probable cause to arrest
based on the totality of the circumstances. Deny the
motion.

3
A “zero” result on a PBT does not necessarily indicate that the individual is not under
the influence of a controlled substance.
4
Morton’s assisting officer reported to Morton that there was “an overwhelming odor of
marijuana coming from the vehicle.” However, by the time he informed Morton of the odor,
Morton “had already … placed [Howard] under arrest for operating while under the influence.”
A search of Howard’s vehicle after Howard had been placed under arrest also resulted in the
discovery of drug paraphernalia consistent with marijuana use. Because Morton learned this
information after he had already placed Howard under arrest, it is not relevant as to whether there
was probable cause to arrest in this case.

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No. 2022AP1608-CR

¶5 Howard entered into a plea bargain where she pled guilty to
operating with a restricted, controlled substance (second offense), and the other
two charges were dismissed but read in. She now appeals.

II. DISCUSSION

¶6 When reviewing a suppression motion, this court “will uphold the
trial court’s findings of fact unless they are clearly erroneous.” State v. Roberts,
196 Wis. 2d 445, 452, 538 N.W.2d 825 (Ct. App. 1995). However, whether a set
of facts constitutes probable cause is a question of law this court reviews de novo.
State v. Babbitt, 188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct. App. 1994).

¶7 This court examines the issue of probable cause anew and without
deference to the circuit court. See id. In deciding whether probable cause exists,
this court looks at whether the totality of the circumstances within the officer’s
knowledge at the time would lead a reasonable police officer to believe the
defendant was operating a motor vehicle while under the influence of an
intoxicant. State v. Nordness, 128 Wis. 2d 15, 36-37, 381 N.W.2d 300 (1986).
The objective facts before a police officer need not prove guilt beyond a
reasonable doubt; rather, they are sufficient if they lead to the conclusion that a
violation of the law is more than a mere possibility. State v. Richardson, 156
Wis. 2d 128, 148, 456 N.W.2d 830 (1990).

¶8 Whether probable cause exists is an objective test. See id. Probable
cause exists if the totality of the circumstances “‘would lead a reasonable police
officer to believe that the defendant probably’” was driving under the influence.
Nordness, 128 Wis. 2d at 35 (citations omitted). In reviewing whether probable
cause exists, courts may consider the officer’s training and investigative
experience. State v. Wille, 185 Wis. 2d 673, 683, 518 N.W.2d 325 (Ct. App.

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No. 2022AP1608-CR

1994). “When a police officer is confronted with two reasonable competing
inferences, one justifying arrest and the other not, the officer is entitled to rely on
the reasonable inference justifying arrest.” State v. Kutz, 2003 WI App 205, ¶12,
267 Wis. 2d 531, 671 N.W.2d 660.

¶9 Officer Morton was the only witness to testify at the suppression
hearing, and as previously noted, he provided the following testimony as it relates
to the question of probable cause. Morton was trained in investigating drivers
suspected to be under the influence, including administering field sobriety tests.
He stopped Howard at approximately 12:53 a.m. because she was driving without
her headlights on, and the stop occurred on the northbound “on-ramp” to I-43
because Howard was attempting to get on the freeway. Howard “seemed very
nervous[,]” “[d]id not want to make eye contact,” and “had lethargic speech[,]” all
of which caused Morton to suspect Howard was possibly operating while
impaired. Morton asked Howard multiple questions, including where she was
coming from and going to, and although Howard indicated that “they were coming
from Summerfest[,]” her passenger said they were actually coming from the state
fair. When Morton performed field sobriety tests, he observed six clues on the
HGN test, “which is indicative of impairment,” and although Howard passed the
alphabet test, she did not successfully complete the number test. It was at that
point that Morton believed Howard was possibly under the influence and asked
her to do the PBT test.

¶10 Although the PBT returned a “zero” result, Morton testified that the
totality of the circumstances, which included Howard’s “driving behavior[] and
the dialogue” he “had with her[,]” led him to believe Howard was operating while
impaired. He confirmed that his conclusion was based on Howard driving without
her headlights on, the field sobriety test results, Howard’s failure to follow

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No. 2022AP1608-CR

instructions on the field sobriety tests, and Howard’s nervousness,5 and the circuit
court ultimately concluded there was probable cause based on the totality of these
circumstances.

¶11 Considering the foregoing, this court cannot conclude the circuit
court erred in denying Howard’s motion to suppress. Under the “totality of the
circumstances” test, it was reasonable for the officer to conclude that Howard was
probably operating while impaired. She was driving in the dark without her
headlights on, was confused about where she was coming from and where she was
going to, failed the HGN test, appeared nervous, and avoided eye contact. The
time of day—12:53 a.m.—was also a proper consideration. See State v. Post,
2007 WI 60, ¶36, 301 Wis. 2d 1, 733 N.W.2d 634 (driving at 9:30 p.m. gave
“credence” to suspicion driver was intoxicated). Although it was not precisely
“bar time,” almost 1:00 a.m. is a common time for people to drive home from a
social activity. See, e.g., State v. Anagnos, 2012 WI 64, ¶58, 341 Wis. 2d 576,
815 N.W.2d 675 (referencing “officer’s experience that he is more likely to
encounter impaired drivers at 1:15 in the morning”).

¶12 Confusion and disorientation are also factors that can contribute to
the belief that a driver may be impaired. See State v. Begicevic, 2004 WI App 57,
¶9, 270 Wis. 2d 675, 678 N.W.2d 293. Here, Howard was confused about where
she was coming from and disoriented as to where she was going. Howard’s

5
On cross-examination, Howard’s attorney suggested, based on the video of Morton’s
body camera, that Morton did not conduct the HGN test properly. Although the parties played
the video at the suppression hearing, the video is not part of the appellate Record, and therefore
this court does not consider it. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct.
App. 1992) (“An appellate court’s review is confined to those parts of the record made available
to it.”).

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No. 2022AP1608-CR

failure on the HGN field sobriety test, inability to follow directions, and inability
to successfully complete the number test also support a probable cause
determination. See City of West Bend v. Wilkens, 2005 WI App 36, ¶¶1, 20, 278
Wis. 2d 643, 693 N.W.2d 324. The circuit court did not err in denying Howard’s
suppression motion.

By the Court.—Judgment affirmed.

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

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