State v. John Lee Griffin

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.
December 21, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP1667-CR Cir. Ct. No. 2019CF604

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN LEE GRIFFIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Rock County:
KARL HANSON, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Graham, 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).
No. 2022AP1667-CR

¶1 PER CURIAM. John Griffin appeals a judgment of conviction for
possession of cocaine as a second or subsequent offense. Police found the cocaine
in a search of Griffin’s car after arresting him for operating a motor vehicle while
intoxicated (OWI). Griffin contends that the search was unconstitutional. We
conclude that the search was lawful because there was reasonable suspicion that
Griffin’s car contained evidence of OWI. Accordingly, we affirm the judgment of
conviction.

¶2 The relevant facts are taken from police officer testimony at the
suppression hearing. At approximately 11:30 p.m., an officer noticed a car enter an
intersection on a red light. The officer followed the car for a few blocks and
observed it cross a white dotted line two or three times, travel over areas of the street
marked as parking stalls, and cross a double yellow line.

¶3 The officer initiated a traffic stop. As she approached the driver’s side
of the car, she heard the click of doors locking and saw that the driver’s side window
was up. She knocked on the driver’s window and asked him to lower it. The driver
and only occupant of the car, Griffin, lowered the window approximately two to
three inches.

¶4 As the officer was speaking with Griffin, she smelled a strong odor of
intoxicants coming from the car. She also observed that Griffin’s eyes were glassy
and slightly bloodshot and that he was “fumbling” when she asked for his
identification and insurance card. The officer requested that another unit come to
the scene.

¶5 While Griffin remained in his car, a second officer made contact with
him and also noticed the smell of alcohol coming from the car. The officer asked

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No. 2022AP1667-CR

Griffin to perform field sobriety tests. Griffin complied and showed multiple
“clues” of intoxication. The officer placed him under arrest for OWI.

¶6 After Griffin’s arrest, officers searched his car. They found a spilled
liquid smelling of alcohol on the passenger-side floorboard and an empty alcoholic
beverage can in the center console. Underneath the can in the console, they found
a clear plastic baggie containing a substance that tested positive for cocaine.

¶7 Griffin moved to suppress evidence from the search of his car. The
circuit court denied the motion.

¶8 “This court analyzes the grant or denial of a suppression motion under
a two-part standard of review.” State v. Adell, 2021 WI App 72, ¶14, 399 Wis. 2d
399, 966 N.W.2d 115. “[W]e uphold the circuit court’s findings of fact unless they
are clearly erroneous.” Id. However, we “review de novo the ultimate question of
‘whether the facts as found by the [circuit] court meet the constitutional standard.’”
Id. (quoted source omitted).

¶9 Here, the issue we are asked to address is whether the search of
Griffin’s car was constitutional. The parties agree that the applicable legal test is
set forth in State v. Coffee, 2020 WI 53, 391 Wis. 2d 831, 943 N.W.2d 845, and that
according to this test, the police may search a car incident to an OWI arrest when
there is reasonable suspicion that the car contains evidence of OWI. See id., ¶¶2,
50-51.

¶10 “Reasonable suspicion is, in a nutshell, less than probable cause, but
more than a hunch.” State v. Batt, 2010 WI App 155, ¶18, 330 Wis. 2d 159, 793
N.W.2d 104. “‘The question of what constitutes reasonable suspicion is a common
sense test: under all the facts and circumstances present, what would a reasonable

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No. 2022AP1667-CR

police officer reasonably suspect in light of [the officer’s] training and experience.’”
State v. Colstad, 2003 WI App 25, ¶8, 260 Wis. 2d 406, 659 N.W.2d 394 (quoted
source omitted).

¶11 Griffin argues that the totality of the circumstances known to the
officers when they searched his car was insufficient to provide reasonable suspicion
that the car contained alcohol. The State argues that the totality of the circumstances
was sufficient. We agree with the State and conclude that there are three factors
here that, when combined with the other circumstances, provided reasonable
suspicion that the car contained evidence of OWI.

¶12 First, when the officer who initially stopped Griffin approached the
driver’s side of his car, Griffin did not immediately lower his window, and instead,
apparently, locked his doors. A reasonable inference from this initial conduct by
Griffin is that he wanted to prevent the officer from discovering something
incriminating in his car.

¶13 Second, when the officer knocked on Griffin’s window and asked him
to lower it, he lowered it only two or three inches. This additional conduct by Griffin
further supports a reasonable inference that he wanted to conceal something in his
car.

¶14 Although there may have been alternative, innocent reasons why
Griffin engaged in this conduct, the conduct is nonetheless reasonably viewed as
suspicious. “[C]onduct which has innocent explanations may also give rise to a
reasonable suspicion of criminal activity.” State v. Young, 212 Wis. 2d 417, 430,
569 N.W.2d 84 (Ct. App. 1997).

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No. 2022AP1667-CR

¶15 Third, two police officers smelled an odor of alcohol coming from
Griffin’s car. The officer who initially stopped Griffin testified that she smelled a
strong odor of intoxicants “coming from the vehicle” as she was speaking with
Griffin. The second officer similarly testified that he smelled alcohol “emanating
from the vehicle” when he first made contact with Griffin while Griffin was still in
his car.

¶16 Griffin argues, as we understand it, that the officers’ testimony left
unclear whether the odor was coming from a source other than his person because
their testimony showed that he was still in the car when they detected the odor. He
argues that this testimony therefore does not establish that the odor was coming
from somewhere other than his person. We agree that the officers’ testimony left
the source (or sources) of the odor unclear. However, their testimony did not rule
out a reasonable possibility that the odor was coming at least partly from a source
in the car other than Griffin’s person.1

¶17 Griffin also argues that the circuit court erred by concluding that the
same facts that showed probable cause for his arrest also showed reasonable
suspicion for the search of his car. According to Griffin, the court’s approach was
tantamount to the application of a categorical rule allowing police to conduct vehicle
searches incident to OWI arrests. Griffin argues that our supreme court in Coffee
rejected a categorical rule.

¶18 We disagree with Griffin’s characterization of the circuit court’s
decision. But it does not matter in any case, because we do not apply a categorical

1
As the State notes, one of the officers later testified that after Griffin got out of the car,
the officer smelled the odor of intoxicants “emanating from his person.” This testimony, like the
officers’ other testimony, did not rule out a reasonable possibility that the odor the officers initially
detected was coming at least partly from a source other than Griffin’s person.

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No. 2022AP1667-CR

rule in our de novo review of whether the search of Griffin’s car was lawful. Rather,
we conclude that there was reasonable suspicion to search the car for evidence of
OWI based on the totality of the circumstances.

¶19 Facts showing probable cause for an OWI arrest may often overlap
with facts showing reasonable suspicion to search a car for OWI evidence. As the
State aptly puts it, “the totality of the circumstances test does not require officers to
have separate facts for the arrest and search.” However, this overlap does not mean
that there will be reasonable suspicion for a vehicle search every time there is
probable cause for an OWI arrest.

¶20 Griffin also argues that the police officers likewise applied a
categorical rule. He points to an officer’s testimony that the police had authority to
search Griffin’s car. Specifically, he notes that the officer testified that “[b]ecause
he was placed under arrest for OWI, we were looking for any evidence related to
the OWI.” But this argument does not help Griffin because the officers’ subjective
reasons for conducting the search do not determine its lawfulness. See State v.
Kelsey C.R., 2001 WI 54, ¶49 n.11, 243 Wis. 2d 422, 626 N.W.2d 777 (stating that
the test for reasonable suspicion “is an objective test, not a subjective one, and,
therefore, [the officer’s] reason is not controlling”).

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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