State v. Brenda Marie Kornmeyer

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.
May 2, 2024
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. 2022AP1229-CR Cir. Ct. No. 2019CF114

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRENDA MARIE KORNMEYER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Crawford County:
LYNN M. RIDER, Judge. Affirmed.

Before Graham, Nashold, and Taylor, 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. 2022AP1229-CR

¶1 PER CURIAM. Brenda Kornmeyer appeals a judgment of
conviction for operating a motor vehicle with a detectable amount of a restricted
controlled substance in her blood. She argues that the circuit court erred in
denying her motion to suppress evidence from a traffic stop and a search of her
car. Specifically, she argues that the officer who stopped her lacked reasonable
suspicion for the stop and probable cause for the search. We affirm.

Standard of Review

¶2 This court reviews 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. We uphold the circuit court’s factual findings unless the
court’s findings are clearly erroneous, but we review de novo the legal question of
whether the facts satisfy a constitutional standard such as reasonable suspicion or
probable cause. Id.

Reasonable Suspicion for the Traffic Stop

¶3 We first address whether there was reasonable suspicion for the
traffic stop. See State v. Floyd, 2017 WI 78, ¶20, 377 Wis. 2d 394, 898 N.W.2d
560 (“Reasonable suspicion that a driver is violating a traffic law is sufficient to
initiate a traffic stop.”).

¶4 “Reasonable suspicion requires that ‘[t]he officer must be able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion of the stop.’” Id.
(quoted source omitted). Courts assess reasonable suspicion based on the totality
of the circumstances. State v. Allen, 226 Wis. 2d 66, 74, 593 N.W.2d 504 (Ct.
App. 1999). Here, Kornmeyer argues that the circuit court erred by failing to

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No. 2022AP1229-CR

consider the totality of the circumstances and by making credibility determinations
that were clearly erroneous. We reject these arguments.

¶5 The relevant facts come from the suppression hearing.1 The
witnesses at the hearing included the officer who stopped Kornmeyer and searched
her car, Kornmeyer, and one of Kornmeyer’s passengers.

¶6 The officer testified as follows. On the night of the stop he was
driving southbound on a highway when he noticed another car driving toward him
northbound. He activated his moving radar unit and clocked the car speeding at
sixty-one miles per hour. As the car passed the officer, he observed that the car’s
rear license plate was “not illuminated [at] the proper distance.” The officer
turned his squad car around to catch up to the car he had observed as it went
around a bend. By the time he came around the bend, the officer could no longer
see the car’s taillights. The officer then observed that the car had pulled into a
driveway off the highway. He identified the car as the same car that he had
clocked speeding because it was the same model and because he had “verified
th[e] plate as well.” The officer pulled in behind the car and activated his
emergency lights. Kornmeyer was identified as the driver of the car.

¶7 Kornmeyer testified that she did not believe that she was speeding.
She also testified that she had checked that night to make sure that the car’s
blinkers “and all those lights were working,” although she could not recall if she
had looked at the license plate lamp. Kornmeyer’s passenger also testified that

1
In this part of our opinion, we summarize only those facts relevant to whether there was
reasonable suspicion for the traffic stop. We summarize additional facts later when we address
whether there was probable cause for the search of Kornmeyer’s car.

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No. 2022AP1229-CR

Kornmeyer was not speeding. The passenger testified that Kornmeyer was driving
under fifty-five miles per hour and that she had to remind Kornmeyer to drive
faster so they would not be stopped for driving too slowly. The passenger also
testified that they had checked the blinkers and “all that stuff” before driving the
car and that the rear license plate lamp had been working.

¶8 The circuit court concluded that the officer lawfully stopped
Kornmeyer based on a speeding violation. It found that the testimony from
Kornmeyer and the passenger that Kornmeyer was not speeding was incredible
and that the officer’s testimony was “considerably more trustworthy.” The court
also found that the testimony from Kornmeyer and the passenger relating to
checking the car lights before driving was incredible, but the court also stated that
“I don’t put a lot of weight onto the dim light.”

¶9 Kornmeyer argues that the circuit court failed to consider the totality
of the circumstances by limiting its analysis to the speeding violation and
disregarding the officer’s claim that he had observed a license plate lamp
violation. This argument lacks merit because the court’s decision does not reflect
that it disregarded the alleged license plate violation. Rather, as noted, the court
found that Kornmeyer’s testimony and the passenger’s testimony relating to the
alleged license plate lamp violation were incredible, but decided not to “put a lot
of weight onto the dim light.” The court’s statement could be interpreted in
different ways, but it does not show that the court failed to consider the totality of
circumstances.

¶10 Kornmeyer next argues that the circuit court made credibility
determinations that were clearly erroneous. Specifically, she argues that the court
should not have credited the officer’s testimony relating to the alleged traffic

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No. 2022AP1229-CR

violations because the officer could not realistically have done everything that he
claimed to have done in the brief amount of time that he was passing her on the
highway. In support of this argument, she points to the following portion of the
officer’s testimony:

I was patrolling southbound on Highway 35 near
the Lansing bridge. Ms. Kornmeyer’s vehicle was
operating northbound on Highway 35.

I activated my moving radar and clocked the vehicle
moving at 61 miles an hour. And I had that for
approximately four or more seconds before the vehicle
passed my location.

As the vehicle passed my location, I could observe
that the rear license plate lamp was not illuminated the
proper distance.

Kornmeyer argues that this portion of the officer’s testimony is incredible because,
if the officer’s claims were all true, “[t]hey would have required the officer to have
simultaneously had eyes on the radar, the license plate, and the road, all in the
brief amount of time it took the two cars to pass each other on the highway.”

¶11 We conclude that this credibility argument lacks merit. As
Kornmeyer acknowledges in her briefing, witness credibility is “within the circuit
court’s wheelhouse as the trier of fact.” In other words, “we must accept the
[circuit] court’s credibility determination[s].” Noble v. Noble, 2005 WI App 227,
¶27, 287 Wis. 2d 699, 706 N.W.2d 166. Although there is an exception for
testimony that is “inherently or patently” incredible, the officer’s testimony clears
that low bar. See State v. Jacobs, 2012 WI App 104, ¶17, 344 Wis. 2d 142, 822
N.W.2d 885 (“[O]nly when testimony is inherently or patently incredible will this
court substitute its judgment for that of the fact finder.”).

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No. 2022AP1229-CR

¶12 Kornmeyer next appears to contend that the circuit court should not
have credited the officer’s testimony that she was speeding because the officer
could not remember whether he tested his radar with tuning forks on the night of
the stop.2 Kornmeyer points to a portion of the officer’s testimony in which he
stated that although he normally tested his radar unit with tuning forks every shift,
he “didn’t note” if he conducted the test on the night of the stop, and he could
therefore only “assume” that he conducted the test that night. For the following
reasons, we are not persuaded by Kornmeyer’s apparent argument on this issue.

¶13 First, although one reasonable inference from the officer’s testimony
is that he did not test his radar with tuning forks on the night of the stop, another
reasonable inference, which is equally if not more plausible, is that he did because
that was his normal practice. Second, the officer testified that he verified the radar
unit’s accuracy that night by comparing his car’s clocked speed on the radar with
his speedometer speed.3 Finally, the officer testified that the radar unit was
certified annually for proper operation and was up to date on its certification.
Kornmeyer points to no objective basis to doubt the radar’s accuracy on the night
of the stop. See State v. Gibson, No. 2016AP1933-CR, unpublished slip. op. ¶15
(WI App Feb. 22, 2017) (“Without a reason to doubt the radar unit at the time of

2
Use of an external tuning fork is one of the accepted methods for determining the
accuracy of a radar unit. State v. Kramer, 99 Wis. 2d 700, 705, 299 N.W.2d 882 (1981).
3
Verification by use of the patrol car speedometer is “prima facie” evidence to support a
presumption that the radar unit is accurate. Washington Cnty. v. Luedtke, 135 Wis. 2d 131, 137,
399 N.W.2d 906 (1987).

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No. 2022AP1229-CR

the stop, [an officer]’s reliance on the reading on the unit provided him with
reasonable suspicion to temporarily detain [the suspect].”).4

Probable Cause to Search Kornmeyer’s Car

¶14 We turn to Kornmeyer’s argument that the officer lacked probable
cause for the search of her car. As a general rule, “the warrantless search of an
automobile is justified when a police officer has probable cause to believe that an
automobile, found in a public place, contains evidence of a crime.” State v.
Secrist, 224 Wis. 2d 201, 210, 589 N.W.2d 387 (1999).

¶15 “Probable cause is an objective test that ‘requires an examination of
the totality of the circumstances.’” State v. Moore, 2023 WI 50, ¶8, 408 Wis. 2d
16, 991 N.W.2d 412 (quoted sourced omitted). It requires more than a reasonable
suspicion that a car contains evidence of a crime, but it “does not require proof
beyond a reasonable doubt or even that guilt is more likely than not.” Id. (internal
quotation marks and quoted sources omitted). The test “eschews technicality and
legalisms in favor of a flexible, common-sense measure of the plausibility of
particular conclusions about human behavior.” State v. Kiper, 193 Wis. 2d 69, 83,
532 N.W.2d 698 (1995) (internal quotation marks and quoted sources omitted).

¶16 Here, the officer who stopped Kornmeyer had a police dog with him,
and the dog “alerted” to the existence of controlled substances on the exterior
passenger side of Kornmeyer’s car. Kornmeyer argues that the dog sniff was
unreliable and that, without a reliable dog sniff, the totality of the circumstances

4
We cite this authored, unpublished opinion for its persuasive value pursuant to WIS.
STAT. RULE 809.23(3)(b).

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No. 2022AP1229-CR

do not show probable cause to search her car. Based on the totality of the
circumstances, we conclude that there was probable cause to search Kornmeyer’s
car.

¶17 Kornmeyer’s argument is based on State v. Miller, 2002 WI App
150, ¶12, 256 Wis. 2d 80, 647 N.W.2d 348. She cites Miller to argue that the
reliability of a dog sniff hinges on a three-part test that requires the State to show:
(1) that the dog is trained in narcotics detection; (2) that the dog has demonstrated
a sufficient level of reliability in detecting drugs in the past; and (3) that the officer
handling the dog is familiar with how it reacts when it smells contraband.
Kornmeyer argues that the dog sniff here was not reliable because the officer’s
testimony did not demonstrate that the dog had reliably detected drugs in the past.5

¶18 Although Kornmeyer has accurately described the test that the court
applied in Miller, we conclude that this test is not dispositive here. The court in
Miller was addressing whether a dog sniff is, by itself, sufficient to establish
probable cause. See id., ¶¶1, 12-14. Here, in contrast, the dog sniff was one factor
among many relevant factors in the totality of the circumstances considered to
establish probable cause. As we now discuss, the officer’s testimony established
that there were a number of additional relevant factors, and Kornmeyer does not
challenge the officer’s testimony on these points. We now summarize these
additional relevant factors based on the officer’s testimony.

¶19 Just before the officer pulled in behind Kornmeyer’s car, he noticed
that all of the car’s lights had been turned off except for an interior “dome” light.

5
Kornmeyer does not seriously dispute that the officer’s testimony at the suppression
hearing satisfied the other two parts of this three-part test.

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No. 2022AP1229-CR

He then observed Kornmeyer “duck[] back down into the vehicle and start[]
making a lot of furtive motion[s],” including “reaching around,” and “lean[ing]
into the vehicle a little bit further and then sit[ting] back into the vehicle.” The
officer associated these type of movements with “trying to … hide something or to
reach for something.”

¶20 In speaking with Kornmeyer, the officer noticed that she was very
talkative and speaking rapidly, “essentially rambl[ing] on.” Based on his training
and experience, he associated her rapid speech with the use of stimulant controlled
substances. The officer also noticed that Kornmeyer was “very animated” when
she spoke, had “exaggerated reflexes,” and that she was “very fidgety” and would
“not stop moving.”

¶21 In addition, the officer observed that Kornmeyer’s pupils appeared
dilated, even under a direct source of light when a person’s pupils would normally
“restrict.” He also observed that she appeared to have “a very dry mouth,” which
he associated with the use of stimulants. Additionally, the officer noticed that
Kornmeyer had redness in one or both of her nostrils, which he associated with
snorting controlled substances. The officer also noticed that “she had what
appeared to be a burn mark on her lower lip.” He asked Kornmeyer whether she
had used any methamphetamine, and she stated: “Would I piss clean? No, I
wouldn’t.”

¶22 Thus, to summarize, the totality of the circumstances here included
not only the dog alert but also the following additional relevant factors:
(1) Kornmeyer’s apparent attempt to evade the officer by pulling off the highway

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No. 2022AP1229-CR

and turning off her car’s exterior lights;6 (2) Kornmeyer’s furtive movements in
the car suggesting that she was trying to hide or reach for something; (3) the
officer’s observation of multiple physical signs that Kornmeyer was under the
influence of a controlled substance; and (4) Kornmeyer’s statement to the officer
that she would not “piss clean” in response to his inquiry into whether she was
using methamphetamine. We conclude that these factors considered together
show probable cause that Kornmeyer’s car contained evidence of criminal activity,
namely, use or possession of a controlled substance.

By the Court.—Judgment affirmed.

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

6
Regarding this apparent attempt to evade the officer, the officer testified that
Kornmeyer provided him with innocent explanations for pulling off the highway, but that “later,
she ultimately admitted that she knew I was a squad car and didn’t want to get pulled over, so she
pulled in here to essentially hide and not get pulled over.” The officer’s testimony does not make
clear whether Kornmeyer made this admission before or after he searched her car. Regardless,
Kornmeyer’s conduct in pulling off the highway and turning off her lights supports a reasonable
inference that she was attempting to evade the officer.

10