City of West Bend v. Peter F. Parsons

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 17, 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. 2022AP98 Cir. Ct. No. 2020CV611

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

CITY OF WEST BEND,

PLAINTIFF-RESPONDENT,

V.

PETER F. PARSONS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Washington
County: TODD K. MARTENS, Judge. Affirmed.

¶1 NEUBAUER, J.1 Peter F. Parsons was convicted after a bench trial
of one count of operating a motor vehicle with a restricted controlled substance in

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(b) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP98

violation of WIS. STAT. § 346.63(1)(am), as adopted by a City of West Bend
municipal ordinance. Parsons appeals the conviction, 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 Parsons’
arguments and affirm the conviction.

BACKROUND

¶2 On February 27, 2019, at approximately 12:20 a.m., Parsons was
stopped by Officer Brock Bateman of the West Bend Police Department for
suspicion of having an expired license plate on his vehicle. As part of the stop,
Bateman engaged his “takedown” lights and, as he approached the vehicle,
observed what appeared to be a temporary license tag in the car’s rear window that
was partially obscured by snow.

¶3 Bateman approached the vehicle and saw that Parsons was the only
occupant. After confirming Parsons’ identity from his driver’s license, Bateman
testified that he “began a conversation with [Parsons], and observed that most of
his responses were a response of a hum. Meaning, he was shaking his head yes
and no, and keeping his mouth closed while responding.” 2 Parsons was also
smoking a cigarette, which Bateman knew at that time of night to be “a common
tactic to use to mask the odor of illicit substances and/or intoxicants.” Bateman
also observed ashes from the cigarette falling into Parsons’ lap and “burning a

2
Video of Bateman’s initial approach to Parsons’ vehicle and conversation with him was
played at the motion to suppress hearing. As the video was played, Bateman acknowledged that
Parsons responded with one or two-word answers to most of his questions and “mmm hmm” to
only some of them.

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No. 2022AP98

hole through his pants,” a fact of which Parsons seemed unaware. Parsons told
Bateman that he had come from Applebee’s restaurant where he had “one drink.”

¶4 Bateman returned to his squad car and requested a second officer
because he intended to ask Parsons to perform field sobriety tests. He returned to
Parsons’ vehicle and asked him to get out, in part to remove him from the cigarette
smell. Bateman told Parsons that he was concerned that Parsons may be impaired
and asked whether Parsons was taking any prescriptions medications because,
according to Bateman, “that could play a factor with someone who has been
drinking alcohol.” Parsons indicated that he was taking the drug Sertraline for
depression. Bateman indicated that he would like to conduct a field sobriety test,
but would like to do so indoors because the ground was snow covered, snow was
falling, and the temperature was cold. Parsons agreed to go to a nearby fire station
for the tests.

¶5 Parsons was subsequently arrested, and a blood test revealed the
presence of Delta9-THC, a restricted controlled substance. Parsons was issued
citations for (1) violating two drug-related municipal ordinances; (2) operating a
motor vehicle while under the influence (OWI) in violation of WIS. STAT.
§ 346.63(1)(a); and (3) operating a motor vehicle with a restricted controlled
substance in violation of § 346.63(1)(am). Both of these statutes are adopted by
WEST BEND, WIS., TRAFFIC CODE § 7.01 (2022). The Mid-Moraine Municipal
Court found Parsons guilty of all four offenses. Parsons timely filed a notice of de
novo appeal to the Washington County Circuit Court.

¶6 In the circuit court, Parsons filed a motion to suppress evidence
obtained during and after the stop, arguing that it had been obtained in violation of
the Fourth Amendment and the Wisconsin Constitution. On March 19, 2021, the

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No. 2022AP98

court held an evidentiary hearing at which Bateman testified and video of the stop
was played. At the conclusion of the hearing, the court denied Parsons’ motion.
The court noted Parsons was not challenging the basis for the initial stop, but
instead challenged whether Bateman had reasonable suspicion to extend the stop
to perform field sobriety tests. The court then reviewed the circumstances of the
stop, noting that officers are “not required to rule out innocent explanations for
suspicious conduct.” It concluded that Bateman’s observations “were sufficient to
authorize him legally to request … [Parsons] do field sobriety tests.” Parsons was
subsequently found not guilty on the OWI charge but guilty of operating with a
restricted controlled substance.3

¶7 Parsons appeals.

DISCUSSION

¶8 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
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.

3
The two drug-related citations were dismissed on the City’s motion.

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No. 2022AP98

¶9 As in the circuit court, Parsons does not challenge the basis for the
initial stop. Instead, he argues that Bateman lacked sufficient cause to extend the
stop under the Fourth Amendment. Temporary detention during a traffic stop is a
seizure, and therefore, it 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.

¶10 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 the original; citation
omitted). Reasonable suspicion is a “common sense test” that asks: “[U]nder all
the facts and circumstances present, what would a reasonable [law enforcement]
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

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No. 2022AP98

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).

¶11 Parsons argues that Bateman’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 Parsons 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”).

¶12 In its decision, the circuit court identified several articulable facts
which, in its view, established reasonable suspicion. First, the court noted the time
of day—“after midnight”—which supports “a stronger inference that a higher
percentage of people driving are intoxicated.” State v. Gonzalez,
No. 2013AP2585-CR, unpublished slip op. ¶16 (WI App May 8, 2014) 4; see also
Lange, 317 Wis. 2d 383, ¶32. Second, the court found that Bateman observed
Parsons smoking, which in the officer’s experience, is something intoxicated
drivers do to “try to mask the odor of intoxicants.” We have previously

4
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. 2022AP98

acknowledged that smoking can “be reasonably viewed as at least a possible
attempt to cover up the smell of ingested alcohol.” State v. Kolman,
No. 2011AP1917-CR, unpublished slip op. ¶22 (WI App Jan. 12, 2012). Third,
the court found that Bateman observed fallen ashes from the cigarette burning a
hole in Parsons’ pants and that Parsons seemed to be unaware this was happening,
which the court stated “certainly can be interpreted as a sign of intoxication.”
Parsons does not argue that any of these findings was clearly erroneous.

¶13 In addition, the evidence showed that Parsons admitted to having
consumed one drink at a restaurant that night. Parsons also told Bateman that he
was taking a prescription medication, something which Bateman testified could, in
general, be “a factor with someone who has been drinking alcohol.” Finally,
Parsons answered some of Bateman’s questions with “mmm hmm” rather than a
fully verbalized response. Taken together, these facts provided reasonable
suspicion to extend the stop to perform the field sobriety tests.

¶14 Parsons’ arguments to the contrary are not persuasive. First, he
highlights signs of impairment that Bateman did not observe, such as slurred
speech, bloodshot or glassy eyes, an odor of intoxicants, problems with
coordination or mentation, or an uncooperative attitude. Parsons also emphasizes
that Bateman did not testify that he observed Parsons violate any traffic laws,
swerve within his lane of traffic, or park his vehicle improperly. Parsons 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 Bateman did observe and the reasonable inferences therefrom. Those
factors and inferences provided reasonable suspicion to suggest that Parsons was
driving while under the influence “to a degree which render[ed] him … incapable
of safely driving.” See WIS. STAT. § 346.63(1)(a).

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No. 2022AP98

¶15 Next, Parsons challenges several factors Bateman relied on and the
reasonableness of inferences he drew from them. He argues that cigarette
smoking is legal and common and thus Bateman’s inference that Parsons was
attempting to mask the odor of intoxicants was unreasonable. He also argues that
his admission to having consumed one drink at a restaurant that night is not
sufficient to support reasonable suspicion because not every person who has
consumed alcohol is under the influence.

¶16 These arguments misapprehend the nature of our inquiry. 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 another, innocent inference is
available. See Anderson, 155 Wis. 2d at 84 (“[I]f 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). Here, the officer stopped Parsons at a time
of night in which impaired driving is known to be more likely to occur, observed
him smoking a cigarette and seemingly unaware that its ashes were burning
through his clothing, heard him admit that he had consumed one alcoholic drink at
the restaurant he was driving from, and heard that he was also taking a medication
that could impact impairment. These circumstances, viewed in their totality,
provided grounds for the officer to reasonably suspect that Parsons was driving

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No. 2022AP98

while impaired and materially distinguish the present case from the cases upon
which Parsons principally relies. See Gonzalez, No. 2013AP2585, ¶¶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” and no 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).

CONCLUSION

¶17 Based on the totality of the circumstances, we conclude that the
officer had the requisite reasonable suspicion to extend the stop of Parsons’
vehicle to administer field sobriety tests. We therefore uphold the circuit court’s
denial of Parsons’ 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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