State v. James D. Konz

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 26, 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. 2023AP1674-CR Cir. Ct. No. 2021CF22

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES D. KONZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Ozaukee County:
PAUL V. MALLOY, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2023AP1674-CR

¶1 PER CURIAM. James Konz appeals from a judgment of conviction
entered on his no contest plea to operating with a restricted controlled substance,
seventh offense. Specifically, he contends the circuit court erred in denying his
motion to suppress evidence, which motion asserted the arresting deputy lacked
probable cause to arrest him following a traffic stop and thus, the results of the
subsequently obtained blood draw must be suppressed. Because we conclude the
deputy did have probable cause, we affirm.

Background

¶2 According to the testimony of the arresting deputy at the hearing on
Konz’s suppression motion, the deputy was dispatched based upon a complaint of
a blue truck nearly striking the vehicle of an anonymous complainant. Locating
the described vehicle, the deputy followed and observed it for some time.
Although the deputy noticed no erratic driving, he nonetheless effected a traffic
stop because the truck’s registration was expired.

¶3 The deputy learned that the operating privilege of the driver and lone
occupant of the truck, Konz, had been revoked; Konz had five prior OWI
convictions; he was legally required to have an ignition interlock device (IID)
installed in the truck; despite that requirement, he had no IID in the truck; and
there were two warrants for him. In communicating with Konz, the deputy
observed him to be “speaking a little fast,” although the deputy acknowledged he
did not “know what [Konz’s] normal tempo of speech is.” Referring to notations
he made on the “Alcohol Drug Influence Report” he had filled out at the hospital
while Konz was having his blood drawn, the deputy agreed he had written on the
report “[f]ast, twitchy body movements” in a section asking about physical
observations of the arrestee/Konz. The deputy testified that Konz’s body

2
No. 2023AP1674-CR

movements in this regard appeared to be “abnormal.” In another section of the
report, the deputy had written that “[d]rug paraphernalia, fast speech” had first led
him to suspect Konz was under the influence of some substance.

¶4 The deputy did not smell any drugs emitting from the vehicle, but
after making initial contact with Konz, the deputy requested a drug dog to do a
sniff around the vehicle. Because the dog “indicated on the vehicle for the scent
of narcotics,” the truck was searched, which “yielded some drug paraphernalia.”
Specifically, the search yielded a find of “three metal tubes with burnt ends, and
then a scouring pad material, which is commonly used along with metal tubes to
smoke certain narcotics.” A second deputy, who assisted the dog in its
performance of the sniff around the vehicle and subsequently searched the inside
of the vehicle, testified that he did not recall any particular odors catching his
attention but described the find from the truck as being “three pipes with burnt
residue and some Chore Boy or wire mesh that I commonly see with cocaine or
crack use” in a bag on the front bench seat of the truck.

¶5 The arresting deputy had Konz perform field sobriety tests (FSTs).
The deputy observed no indicators of impairment on the horizontal gaze
nystagmus (HGN) test,1 but on both the walk-and-turn and one-leg-stand tests, the
deputy observed “several clues … which would more than likely lead me to
believe that [Konz] was impaired by some substance that’s not alcohol.” On the
walk-and-turn test, Konz was unable to stand “as instructed,” standing “with his
feet broken apart instead of heel-to-toe.” Additionally, “[u]pon doing the walking

1
The deputy testified that the HGN test is used to observe the potential impact of alcohol
and one additional “class” of drug. He additionally testified that a person “can still be impaired
without showing clues on [the HGN] test.”

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No. 2023AP1674-CR

part of the test … he stepped off line,” “missed heel to toe,” and “also performed
an improper turn.” Inconsistent with the instructions he had been given, on the
one-leg-stand test, Konz “hopped, he put his foot down, he used his arms for
balance, and also swayed while balancing.” The deputy also had Konz perform “a
modified Romberg test.”2 The deputy could not recall how Konz performed on
that test, but he testified he was “not sure it affected” his suspicions of impairment
one way or another. A preliminary breath test administered to Konz showed a
result of 0.00. Based on the totality of the information of which the deputy was
aware, he concluded Konz was “impaired by some substance” and thus “unsafe to
operate a vehicle,” and the deputy placed him under arrest for operating while
impaired. Konz was taken to a hospital for a blood draw, the results of which he
sought to suppress with his suppression motion.

¶6 The circuit court had no concerns with the credibility of the two
deputies’ testimony and determined they had probable cause to arrest Konz and
ultimately procure the blood draw.

Discussion

¶7 “When we review a circuit court’s ruling on a motion to suppress
evidence, we apply the clearly erroneous standard to the circuit court’s findings of
fact. However, we review the circuit court’s application of constitutional
principles to the findings of fact de novo.” State v. Smiter, 2011 WI App 15, ¶9,
331 Wis. 2d 431, 793 N.W.2d 920 (2010) (citation omitted).

2
On cross-examination, the deputy testified that he did not believe he was certified at the
time of Konz’s arrest in this “different type of standard field sobriety testing”—the modified
Romberg test—which required “[e]xtra training.”

4
No. 2023AP1674-CR

¶8 Probable cause “must be assessed on a case-by-case basis,” State v.
Lange, 2009 WI 49, ¶20, 317 Wis. 2d 383, 766 N.W.2d 551, and considers “the
totality of the circumstances within the arresting officer’s knowledge at the time of
the arrest,” State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986). To
constitute probable cause, the evidence of which law enforcement is aware

must amount to “more than a possibility or suspicion that
the defendant committed an offense,” the evidence required
to establish probable cause “need not reach the level of
proof beyond a reasonable doubt or even that guilt is more
likely than not.” It is sufficient that the evidence known to
[law enforcement] would lead a reasonable police officer to
believe that the defendant probably was under the influence
of an intoxicant while operating his vehicle.

Lange, 317 Wis. 2d 383, ¶38 (footnote omitted). Whether an officer had probable
cause to arrest a person is a question of law we review de novo. Washburn
County v. Smith, 2008 WI 23, ¶16, 308 Wis. 2d 65, 746 N.W.2d 243.

¶9 Here, we agree with the circuit court that the arresting deputy had
probable cause to arrest Konz and pursue the blood draw. The deputy had
received a report that Konz had almost struck another vehicle.3 The deputy
quickly learned of Konz’s penchant for breaking the law from the expired
registration on the truck, the revocation of Konz’s driving privileges, two warrants
for Konz’s arrest, his failure to install a legally required IID, and, most
importantly, his five prior OWI convictions, which convictions additionally

3
In his brief-in-chief, Konz states, “[W]hile the anonymous complainant alleged that
their vehicle had nearly been struck, nothing corroborated this conclusory allegation.” What
matters for our review is the information of which the deputy was aware. Here, the deputy was
aware that a motorist had called to complain that Konz had almost struck the caller’s vehicle.
Konz did not develop, either before the circuit court or us, any legal argument challenging the
deputy’s or the circuit court’s reliance on the information the deputy received (via dispatch) from
this caller.

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No. 2023AP1674-CR

informed the deputy that Konz had a serious substance abuse problem and was not
adverse to unlawfully driving a vehicle after consuming impairing substances.
The deputy observed Konz to have “fast speech” and “[f]ast, twitchy body
movements,” which movements the deputy found “abnormal.” A drug dog then
detected “the scent of narcotics” emitting from the vehicle. Drug paraphernalia
used “to smoke certain narcotics” and “commonly [associated] with cocaine or
crack use,” as the arresting deputy and second deputy respectively testified, had
“burnt residue” and was located on the front bench seat of the truck.

¶10 Konz emphasizes that while the police found drug paraphernalia in
the truck, they “did not find any drugs.” Because the drug paraphernalia contained
“burnt residue,” however, this point actually supports a probable cause
determination. Where there is “burnt” drug residue on drug paraphernalia but no
consumable drugs located, a most reasonable inference is that drugs have been
consumed with the use of the paraphernalia. Konz, again, was the lone occupant
in the truck, and the K-9 deputy testified that the particular paraphernalia found in
the truck was paraphernalia he “commonly see[s] with cocaine or crack use.”
While, by itself, the paraphernalia found inside the truck would not indicate when
consumption of the related drugs may have taken place, in light of the report from
the caller about almost being struck by Konz, the deputy’s observations of Konz’s
performance on the walk-and-turn and one-leg-stand tests, and Konz’ “fast
speech” and “[f]ast, twitchy body movements,” a reasonable officer would

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No. 2023AP1674-CR

conclude that the consumption had occurred recently enough that the drugs were
impairing him at the time of driving and during the FSTs.4

By the Court.—Judgment affirmed.

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

4
Konz also points out that the deputies “did not notice any odors indicative of recent
drug use.” This point is unhelpful, because while an odor of a particular, known illegal substance
would have established probable cause by itself, State v. Secrist, 224 Wis. 2d 201, 210, 589
N.W.2d 387 (1999), there was no evidence presented that any particular type of drug that would
be used in conjunction with the particular paraphernalia found in the truck would emit an odor
detectable by humans. That said, the evidence was that the trained drug dog detected “the scent
of narcotics.”

7