State v. Alex Mark Hagen

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 6, 2025
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. 2024AP1180-CR Cir. Ct. No. 2023CT285

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

ALEX MARK HAGEN,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge. Reversed and cause remanded.

¶1 KLOPPENBURG, P.J.1 The State of Wisconsin appeals the circuit
court’s order granting Alex Mark Hagen’s motion to suppress evidence arising
from the extension of a traffic stop. The court determined that the arresting officer
lacked reasonable suspicion to extend the traffic stop to administer field sobriety

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
No. 2024AP1180-CR

tests and, therefore, granted Hagen’s motion to suppress the field sobriety test
results and subsequent evidence of operating a motor vehicle while under the
influence of an intoxicant and operating with a prohibited alcohol concentration.
The State argues that the court erroneously granted the motion to suppress.

¶2 I conclude that the officer properly extended the stop to investigate
whether Hagen was operating a motor vehicle while under the influence of an
intoxicant because the totality of the facts and circumstances gave rise to
reasonable suspicion of that offense. Accordingly, I reverse the circuit court’s
order and remand for further proceedings.

BACKGROUND

¶3 The State filed a criminal complaint charging Hagen with operating
a motor vehicle while under the influence of an intoxicant and operating with a
prohibited alcohol concentration, both as a second offense, based on evidence
obtained following the extension of a traffic stop for a stop sign violation. Hagen
filed a suppression motion arguing that the arresting officer unlawfully extended
the traffic stop when the officer asked Hagen to step out of his truck to perform
field sobriety tests. Hagen sought suppression of all evidence obtained during and
after the field sobriety tests.

¶4 The circuit court held a hearing on Hagen’s motion to suppress, at
which the State offered the testimony of officers Charles Fah and Walker Stoner
of the Holmen Police Department, as well as squad car and body camera video
recordings of the interaction.

¶5 Fah testified as follows. On a rainy evening shortly after 8:00 p.m.
on October 12, 2023, Fah observed a pickup truck fail to make a stop at a stop sign

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No. 2024AP1180-CR

at the end of an off-ramp onto a county road. Fah followed the truck and initiated
a traffic stop for the violation. While the truck was pulling over to the shoulder of
the road, Fah observed the driver “reaching around in the center console area” of
the truck, and he called for backup. The truck’s front and rear passenger-side tires
went over the curb and onto the grass, and the rear passenger-side tire remained on
the curb after the truck stopped.

¶6 When Fah made contact with the driver, identified as Hagen, he
observed a sweatshirt laid over the truck’s center console area, where Fah had seen
Hagen “reaching around,” and a cooler in the back seat. He also smelled an “odor
of intoxicants emitting from inside the [truck].”

¶7 Fah’s body camera video of the stop records Hagen denying having
had any drinks and denying “digging” around when he was being pulled over. Fah
then returned to his squad car.

¶8 Stoner, who had been a police officer for approximately two months
at the time of the incident, testified as follows. When Stoner and his field training
officer responded to Fah’s request for backup, Fah shared additional details from
the initial interaction he had with Hagen. Fah’s body camera video records Fah
saying, “I feel like I was getting odor, but the truck was also running, and I had
him shut it off,” and, “he was digging super hard in the center when he was
stopping, and there was like a sweatshirt covering something, so just watch out.”
Stoner testified that Fah also told the officers that he “had seen or had observed
intoxicants.”

¶9 Stoner further testified as follows. He approached the truck, where
he saw “an open box of Busch Lights” in the back seat of the truck’s cab. He
noted a “slight odor of intoxicants coming from the [truck]” when he spoke with

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No. 2024AP1180-CR

Hagen, and he observed a sweatshirt covering something on the passenger seat.
Hagen had “watered-over, glossy eyes” and “a slight slur to his speech.” Hagen
“made complete sense” during conversation with Stoner. Based on his and Fah’s
observations, Stoner asked Hagen to step out of his truck to perform field sobriety
tests.

¶10 After hearing the officers’ testimony and watching the body camera
and squad car video recordings, the circuit court made findings and discussed their
significance as follows.

¶11 Bad driving: The circuit court acknowledged the facts indicating
that Hagen engaged in bad driving but gave those facts little weight. As for
Hagen’s failure to stop at the stop sign, the court initially stated, “I just want to
make sure that the record is clear that I … was not able to notice from the video
that there was or was not a stop. There was another car going in front of [Hagen’s
truck] at the time.” But, the court also stated that the officer “should have …
give[n] [Hagen] the ticket for … running the stop sign and [let him] be on his
way.” As for Hagen going up over the curb while pulling over for the traffic stop,
the court “did not see a problem” with the manner in which Hagen pulled over,
because it is safer for the approaching officer for the vehicle to be farther out of
the road and “under the law you’re supposed to remove your vehicle from the
roadway so that it is not a hindrance.”

¶12 Odor of intoxicants: The circuit court similarly acknowledged the
facts indicating that the officers detected an odor of intoxicants but gave those
facts little weight. The court found that the officers detected an odor of
intoxicants in the truck and thought there was an odor of intoxicants coming from
Hagen. But, the court also found that the odor of intoxicants could not

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No. 2024AP1180-CR

“specifically be attributed to” Hagen, because it was “some random smell of
alcohol” and it was “kind [of] a filthy pickup truck.” The court stated that “neither
one of th[e] officers was definitive on” the smell, “[s]o this isn’t even a[n] odor of
intoxicant. This is we think we have an odor of intoxicant.”

¶13 Furtive movements in console area: The circuit court implicitly
credited Fah’s testimony that Hagen was “digging” around in the center console
area as he pulled over and that the console area where Hagen was “digging” was
covered by a sweatshirt when Fah approached the truck. But, the court suggested
that the officer could have “asked for permission to see what’s underneath that
center console which he was supposedly so concerned about.”

¶14 In addition, the circuit court made an explicit finding that Hagen
“communicate[d] clearly” and was “able to not only conduct a reasonable
conversation, but … was able to be very coherent in his conversation.” The court
did not hear “any slow or slurring [speech].” The court also made an explicit
finding that “there [was] no beer in the cab compartment of the pickup truck.”
The court did not address Stoner’s testimony that he observed Hagen’s
“watered-over, glossy eyes.”

¶15 The circuit court concluded that the officers did not have reasonable
suspicion to support the extension of the investigatory stop to administer field
sobriety tests at the time that Stoner directed Hagen to step out of his truck.
Accordingly, the court granted Hagen’s motion to suppress.

¶16 The State appeals.

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No. 2024AP1180-CR

DISCUSSION

¶17 Hagen concedes that Fah had reasonable suspicion to support the
initial traffic stop.2 The parties’ dispute centers on the extension of the stop, and
both parties agree that this analysis focuses on whether Stoner had reasonable
suspicion that Hagen was operating a vehicle while under the influence of an
intoxicant at the time that Stoner directed Hagen to step out of his truck to perform
field sobriety tests. As I explain below, I conclude that the extension of the stop to
administer field sobriety tests was supported by reasonable suspicion, and,
therefore, I reverse the circuit court’s order granting Hagen’s suppression motion.

I. Standard of Review

¶18 This court analyzes the grant or denial of a suppression motion under
a two-part standard of review. State v. Scull, 2015 WI 22, ¶16, 361 Wis. 2d 288,
862 N.W.2d 562. First, we uphold the circuit court’s findings of fact unless they
are clearly erroneous. Id. A finding of fact “is clearly erroneous when ‘it is
against the great weight and clear preponderance of the evidence.’” Phelps v.
Physicians Ins. Co. of Wis., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615
(quoted source omitted). Second, we independently review whether those facts
warrant suppression. Scull, 361 Wis. 2d 288, ¶16. Put differently, we review de
novo the ultimate question of “whether the facts as found by the [circuit] court

2
Hagen’s brief does not comply with WIS. STAT. RULE 809.19(8)(bm), which addresses
the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, when paginating
briefs, parties should use “Arabic numerals with sequential numbering starting at ‘1’ on the
cover”). This rule was amended in 2021, see S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii
(eff. July 1, 2021), and the reason for the amendment is that briefs are now electronically filed in
PDF format and are electronically stamped with page numbers when they are accepted for
eFiling. As our supreme court explained when it amended the rule, the new pagination
requirements ensure that the numbers on each page of a brief “will match ... the page header
applied by the eFiling system, avoiding the confusion of having two different page numbers” on
every page of a brief. S. CT. ORDER 20-07 cmt. at x1.

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No. 2024AP1180-CR

meet the constitutional standard.” State v. Hindsley, 2000 WI App 130, ¶22, 237
Wis. 2d 358, 614 N.W.2d 48.

II. Applicable Legal Principles

¶19 The Fourth Amendment to the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution protect individuals against
unreasonable searches and seizures.3 Under the Fourth Amendment, police may
conduct an investigative traffic stop if they reasonably believe that a traffic
violation has been committed. State v. Betow, 226 Wis. 2d 90, 93, 593 N.W.2d
499 (Ct. App. 1999). A traffic stop becomes “‘unlawful if it is prolonged beyond
the time reasonably required to complete th[e] mission’ of issuing a ticket.”
Rodriguez v. United States, 575 U.S. 348, 350-51 (2015) (quoted source omitted;
alteration in Rodriguez).

¶20 “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.” Betow, 226
Wis. 2d at 94-95. Such “[a]n expansion in the scope of the inquiry, when
accompanied by an extension of time longer than would have been needed for the
original stop, must be supported by reasonable suspicion.” State v. Hogan, 2015
WI 76, ¶35, 364 Wis. 2d 167, 868 N.W.2d 124.

3
The Fourth Amendment to the United States Constitution states, “The right of the
people to be secure in their persons … against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause ….” Article I, Section 11 of the
Wisconsin Constitution provides, “The right of the people to be secure in their persons ... against
unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon
probable cause ….”

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No. 2024AP1180-CR

¶21 To be constitutionally permissible, an extension of a stop to perform
field sobriety testing must be supported by reasonable suspicion; that is, 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)); State v. Colstad, 2003 WI App 25, ¶19, 260
Wis. 2d 406, 659 N.W.2d 394. The officer “‘must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant’” the extension of the stop. Post, 301 Wis. 2d 1, ¶10 (quoting
Terry, 392 U.S. at 21). “Reasonable suspicion depends on the totality of the
circumstances[,] … [with] the whole picture viewed together.” State v. Nimmer,
2022 WI 47, ¶24, 402 Wis. 2d 416, 975 N.W.2d 598 (citations and internal
quotation marks omitted).

¶22 “The question of what constitutes reasonableness is a common sense
test.” State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996). “The
crucial question is whether the facts of the case would warrant a reasonable police
officer, in light of [the officer’s] training and experience, to suspect that the
individual has committed, was committing, or is about to commit a crime.” Post,
301 Wis. 2d 1, ¶13. Behavior that may have an innocent explanation can still give
rise to reasonable suspicion. Hogan, 364 Wis. 2d 167, ¶36.

III. Analysis

¶23 From the legal principles summarized above, it follows that the
extension of the stop here was constitutionally permissible if, at the moment
Stoner directed Hagen to step out of his truck to perform field sobriety tests, there
existed “‘factors which, in the aggregate, amount to reasonable suspicion that
[Hagen] committed a crime the investigation of which would be furthered by [his]

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No. 2024AP1180-CR

performance of field sobriety tests.’” See State v. Adell, 2021 WI App 72, ¶18,
399 Wis. 2d 399, 966 N.W.2d 115 (quoting Hogan, 364 Wis. 2d 167, ¶37). Here,
Stoner had a sufficient basis to extend the stop because the totality of the factors
present at the time Stoner directed Hagen to step out of his truck to perform field
sobriety tests would warrant a reasonable officer to suspect that Hagen “ha[d]
committed, was committing, or [was] about to commit” the offense of operating
while under the influence of an intoxicant. See Post, 301 Wis. 2d 1, ¶13.

¶24 As summarized above, the following facts supporting reasonable
suspicion were present at the time Stoner directed Hagen to step out of his truck to
perform field sobriety tests, based on the circuit court’s implicit and explicit
factual findings and Fah’s squad car video recording.

¶25 Hagen engaged in bad driving. First, Hagen failed to stop at a stop
sign. As noted above, the circuit court was equivocal on this fact. However, to
the extent the court found that it was unclear whether Hagen stopped at the stop
sign, I conclude, based on my review of Fah’s squad car video recording, that this
finding is clearly erroneous. The video recording makes it clear that Hagen failed
to stop at the stop sign because his truck moved at a rate of speed around the turn
that is incongruent with the truck having come to a complete stop. See Phelps,
319 Wis. 2d 1, ¶39 (a finding of fact “is clearly erroneous when ‘it is against the
great weight and clear preponderance of the evidence’” (quoted source omitted)).
Second, Hagen drove over the curb while pulling over for the traffic stop.

¶26 Hagen’s “bad driving,” namely rolling through a stop sign and then
driving over the curb when he moved to the shoulder of the road, is a factor that
supports reasonable suspicion. See State v. Gaudesi, 112 Wis. 2d 213, 221, 332
N.W.2d 302 (1983) (noting that “erratic driving may be evidence that the

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No. 2024AP1180-CR

defendant is under the influence of an intoxicant”); see also State v. Socha,
Nos. 2021AP1083-CR and 2021AP2116-CR, unpublished slip op. ¶2 (WI App
Apr. 25, 2023) (defendant’s “swerving and running a stop sign,” along with other
indicators, supported an investigation of operating while intoxicated).4 While the
circuit court observed that there were innocent explanations for Hagen’s pulling
over the curb, an officer need not rule out innocent explanations in evaluating
reasonable suspicion of impairment. See Hogan, 364 Wis. 2d 167, ¶¶36, 50. A
reasonable officer could believe that the manner in which Hagen pulled over
suggests that Hagen did not intend to pull up and over the curb for the sake of the
officer’s safety, as the court surmised: while the truck’s rear passenger-side tire
remained on the curb when Hagen finally stopped, the front passenger-side tire
came back off the curb. Both driving incidents reasonably suggest impairment
and, accordingly, weigh in favor of reasonable suspicion.

¶27 The officers smelled an odor of intoxicants coming from Hagen’s
truck. An odor of intoxicants coming from Hagen’s truck is also a factor that
supports reasonable suspicion. See County of Jefferson v. Renz, 231 Wis. 2d 293,
316, 603 N.W.2d 541 (1999) (noting that an odor of intoxicants in a car supports
probable cause to administer a preliminary breath test). An odor of intoxicants,
even a slight one, may add to a finding of reasonable suspicion. State v.
Kothbauer, No. 2020AP1406-CR, unpublished slip op. ¶33 (WI App May 3,
2022); State v. Glover, No. 2010AP1844-CR, unpublished slip op. ¶¶18-19 (WI
App Mar. 24, 2011). When viewed in isolation, the individual fact that there was
an odor of intoxicants may not be sufficient to warrant a reasonable police officer
to suspect that Hagen was driving while impaired. See State v. Meye,

4
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored unpublished
opinions issued after July 1, 2009, for their persuasive value).

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No. 2024AP1180-CR

No. 2010AP336-CR, unpublished slip op. ¶6 (WI App July 14, 2010) (noting that
an “odor of intoxicants alone is insufficient to raise reasonable suspicion to make
an investigatory stop”). However, “such facts accumulate,” and reasonable
inferences about the cumulative effect may be drawn as they accumulate. Post,
301 Wis. 2d 1, ¶37. Here, an odor of intoxicants coming from inside Hagen’s
truck weighs in favor of reasonable suspicion.

¶28 Fah observed Hagen “digging” in the center console area while
Hagen was pulling over and, when Fah approached the truck, he saw a sweatshirt
covering the truck’s center console area where he had seen Hagen “digging
around.” Hagen’s digging around in the center console area of his truck when
pulling over is another factor supporting reasonable suspicion. Cf. State v. Coffee,
2020 WI 53, ¶35, 391 Wis. 2d 831, 943 N.W.2d 845 (furtive movements may
indicate the occupant of an automobile is attempting to conceal evidence, for
purposes of determining whether there is reasonable suspicion that the vehicle
contains evidence of the offense of arrest). It would be reasonable for an officer to
infer from Fah’s observations that Hagen may be attempting to conceal evidence
of drinking. Therefore, this factor weighs in favor of reasonable suspicion.

¶29 Taken together, these facts support reasonable suspicion that Hagen
was operating while under the influence of an intoxicant. In other words, Hagen’s
bad driving, an odor of intoxicants coming from Hagen’s truck, and Hagen’s
digging consistent with concealing something in the center console area are
sufficient “‘articulable facts which, taken together with rational inferences from
those facts, reasonably warrant[ed]’” the extension of the stop to investigate
operating while under the influence of an intoxicant. See Post, 301 Wis. 2d 1, ¶10
(quoting Terry, 392 U.S. at 21).

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No. 2024AP1180-CR

¶30 Hagen argues that his digging in the center console area does not
support reasonable suspicion because the officer testified that his concern about
this digging was related to officer safety. However, the test for reasonable
suspicion is an objective test, based on what a reasonable officer could believe,
Waldner, 206 Wis. 2d at 56, and, as explained, furtive movements may indicate
that the occupant of an automobile is attempting to conceal evidence, Coffee, 391
Wis. 2d 831, ¶35. Moreover, when behavior may give rise to multiple reasonable
inferences, officers, and this court, may choose the inference that would support
reasonable suspicion. See Hogan, 364 Wis. 2d 167, ¶50 (explaining that “[t]he
possibility that [alternative] explanations may exist for observed behavior does not
preclude a finding of reasonable suspicion”).

¶31 Hagen asserts that the circuit court “made specific factual findings
that virtually none of the[] factors were proven by the state during the hearing.”
However, as to the factors discussed above, the record shows otherwise.

¶32 Hagen also argues that this court is bound by the weight that the
circuit court gave to these factors: that the truck driving over the curb “was not an
issue”; that the odor could not “specifically be attributed to [Hagen]” and “was not
sufficient for reasonable suspicion”; and that the officers could have asked more
questions about looking under the sweatshirt covering the console area. However,
this court reviews independently whether the facts suffice to establish reasonable
suspicion. See State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d
463 (this court independently applies constitutional principles to the facts found by
the circuit court). As explained above, on my independent review, I conclude that
these facts taken together “meet the constitutional standard” for reasonable
suspicion that Hagen was operating while under the influence of an intoxicant.
See Hindsley, 237 Wis. 2d 358, ¶22.

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No. 2024AP1180-CR

CONCLUSION

¶33 For the reasons set forth above, I reverse the circuit court’s order
granting Hagen’s motion to suppress evidence of the field sobriety tests and
subsequent evidence of intoxication and remand for further proceedings.

By the Court.—Order reversed and cause remanded.

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

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