State v. Bartosz Mika

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.
February 19, 2020
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. 2019AP1488 Cir. Ct. No. 2019TR490

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BARTOSZ MIKA,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Walworth County:
KRISTINE E. DRETTWAN, Judge. Affirmed.

¶1 GUNDRUM, J.1 Bartosz Mika appeals from an order revoking his
driver’s license pursuant to WIS. STAT. § 343.305(10) for refusing to provide a

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1488

requested breath sample following his arrest for operating a motor vehicle while
intoxicated (OWI). Mika argues that the court entered the order in error because
the traffic stop lacked the requisite reasonable suspicion and, thus, there was no
lawful basis for it. Mika complains that, following the close of the State’s case,
the court agreed with him that the State failed to establish reasonable suspicion for
the stop but then erred in sua sponte reopening the evidence portion of the hearing,
adjourning the matter and, at the continued hearing, allowing the State to put in
additional evidence on reasonable suspicion. Mika also insists that even with that
additional evidence, the State still failed to establish reasonable suspicion for the
stop. For the following reasons, we affirm the circuit court.

Background

¶2 After Mika was arrested for OWI, he refused to submit to a breath
test requested under Wisconsin’s implied consent law, WIS. STAT.
§ 343.305(3)(a); the arresting officer gave him a notice of intent to revoke his
operating privileges as required by § 343.305(9); Mika requested a refusal hearing;
and said hearing was held. The relevant proceedings and evidence presented were
as follows.

¶3 On June 10, 2019, Deputy Wayne Blanchard of the Walworth
County Sheriff’s Department testified that around 10:05 p.m. on
February 18, 2019, he heard a dispatch “callout” of “an intoxicated male who was
being disorderly with security staff at Alpine Valley” and had left in a dark vehicle
with Illinois license plates. A security guard from Alpine Valley, “Deputy
Ruszkiewicz,” who was an off-duty deputy “of probably twenty-four plus years,”
had made the report to dispatch. Blanchard learned that Deputy Brody Fiedler was
“in the area” and had located the vehicle and conducted a traffic stop.

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¶4 Blanchard arrived on the scene and made contact with the driver of
the vehicle, Mika, and observed slurred speech and an odor of intoxicants coming
from his breath. Ultimately, Blanchard had Mika perform field sobriety tests,
leading to his arrest for OWI. Blanchard provided extensive testimony
demonstrating he had probable cause to believe Mika was intoxicated and had
been operating his vehicle in that condition, as well as the necessary testimony to
establish that Blanchard had read Mika the Informing the Accused form as
required by WIS. STAT. § 343.305(4) and that Mika refused an alcohol breath test
requested by Blanchard.2 The State rested after Blanchard’s testimony.

¶5 Mika moved to dismiss the charge on the basis that the State “failed
to produce any evidence of reasonable suspicion for the stop,” adding that the
State “failed to even produce the officer who made the stop.” The circuit court,
sua sponte, continued the refusal hearing to a later date, stating that it needed to
hear from the deputy who conducted the traffic stop, Deputy Fiedler. The court
stated to the prosecutor, “I don’t know if you didn’t know that he was the one who
made the stop or not,” and then continued more generally:

It’s an OWI and it’s a refusal so in the interest of public
safety I need to hold a full hearing in this regard.

… I don’t need anymore testimony about whether or not
there was probable cause for him to arrest him at that point.
From the field sobriety, from his observations of the
defendant, that’s not the question. The question for me is
the stop and … if there’s enough to link up the reason for
the stop to this defendant. [The testimony from Blanchard
was] not enough for this Court to link it, quite frankly. It’s
nothing on Deputy Blanchard. You needed to have Deputy

2
On appeal, Mika does not challenge the evidence or circuit court’s finding on any of
these points, but only argues that the court erred in continuing the hearing for more testimony and
that there was no lawful basis for the traffic stop.

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No. 2019AP1488

Fiedler here. But because of the public interest and the
Court determining whether or not this was a legitimate stop
or not I need to hear from Deputy Fiedler.

So I am going to set this over for another date so that he
can be brought in to testify. Again, I’m not hearing any
more testimony with regard to anything after the stop.
Clearly, there was probable cause to arrest and clearly the
defendant refused and had no reason not to. It was
unreasonable. But I need to be able to hear through
credible testimony.

¶6 Mika objected to “adjourning this and providing [the] State more
time to come prepared when they were ill prepared for today.” The court
reiterated that it was adjourning the hearing to afford an opportunity for Fiedler to
testify because “it’s a public safety concern. There’s no doubt in my mind that he
was driving drunk that night according to the testimony I already have. The
question is whether or not they had the right to pull him over and that’s what I
need to determine ….”

¶7 The refusal hearing continued on July 30, 2019. Before testimony
began that day, Mika objected again to the court reopening the matter to allow for
more testimony. The court responded:

Well you’ve made your argument again, and I disagree
with it. It’s the reason that I made the decision that I did
back on June 10th. You’re right, evidence had closed,
parties had made their argument. But as you also stated the
Court does have the discretion to reopen evidence if it
believes that it’s necessary in order to promote the interest
of justice. I absolutely agree with you that one of the
aspects of justice is protecting a defendant’s rights. I also
recognize that this is a civil matter, it’s not a criminal
matter. And I firmly believe that the interest of justice, it is
a scale, especially in a civil case. It doesn’t just include the
defendant’s rights. It also includes the rights of the public.
The state here, quite frankly, made a mistake. They did not
bring in the witnesses that they needed to have here for that
hearing, but that’s not the same as the fact that those
witnesses did not exist and that the Court is somehow
manipulating the evidence or the circumstances to make

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No. 2019AP1488

something when there is nothing there. And, quite frankly,
I do not agree with your argument to the Court that the
Court is somehow assisting the state in this manner. I
recognize that I reopened evidence to allow the second
deputy to testify, but again, that’s coming from the Court’s
perspective of being in the interest of the public and of
public safety. It would have been very easy for the Court at
the end of that other hearing to just say there’s not enough
here, I’m dismissing it. But the Court knew from the
testimony of the deputy that did testify that there was other
evidence out there that was necessary in order for this
Court to engage in a full examination of the facts
surrounding this incident involving this defendant and this
civil matter of the refusal.

So for those reasons the Court made that determination I
need to hear everything before I can make a decision on
that; so that’s what I did. That being said, you’ve made
your record. You have preserved it. And I’m going to
allow the other deputy who was on the scene and who
actually made the traffic stop testify.

¶8 The State then presented Deputy Fiedler as a witness. Fiedler
testified that he was dispatched to Alpine Valley “for a reported male that was
intoxicated and disorderly” and “involved in an incident.” Fiedler was advised
that “there was an off-duty deputy who was on scene” who reported the incident
and that “the male had left in a black Audi with Illinois plates.” Responding to the
Alpine Valley area, which was less than a mile from his location, Fiedler observed
within “a couple minutes, not even,” “a black Audi coming … from the Alpine
area,” in “the direct vicinity,” “turning southbound onto Highway 120” “heading
towards Illinois.”

¶9 Fiedler observed the driver of the black Audi, Mika, to be driving in
an “abnormal” way. Specifically, he observed that as Mika approached the stop
sign at Highway 120, he stopped, then rolled forward, and then stopped again,
even though there was “no other traffic around.” As Mika started south on
Highway 120, Fiedler observed that Mika’s vehicle had Illinois license plates, and

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No. 2019AP1488

he followed Mika. When he got behind Mika, Mika “was going extremely slow
… It was slow enough that it would have impeded other traffic had there been
other vehicles around while under the speed limit.” While he could not estimate
how fast Mika had been traveling, Fiedler stated: “I could tell you it was slower,
slow enough that I felt it was impeding traffic. When I was behind him I
recognized it to be odd and unusual for the circumstances.” Fiedler added that
even if he had not received the report of the driver of the black Audi being
intoxicated, it was possible he would have pulled the vehicle over due to how
Mika was driving.

¶10 Following Fiedler’s testimony, the circuit court inquired if either the
State or Mika had any further testimony to present. Each responded in the
negative. The court ruled that Fiedler had reasonable suspicion to conduct the
traffic stop on Mika and with that rejected Mika’s challenge to the refusal. Mika
appeals.

Discussion

Continuation of Refusal Hearing

¶11 Mika acknowledges that a circuit court “may on its own motion
reopen for further testimony in order to make a more complete record in the
interests of equity and justice.” See State v. Hanson, 85 Wis. 2d 233, 237, 270
N.W.2d 212 (1978). We will affirm such a decision unless the court erroneously
exercised its discretion in making it. Stivarius v. DiVall, 121 Wis. 2d 145, 157,
358 N.W.2d 530 (1984).

¶12 Despite recognizing that it is within the circuit court’s discretion to
reopen testimony on the court’s own motion, Mika complains that the State did not

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No. 2019AP1488

request that testimony be reopened, but that the court sua sponte reopened it after
it determined the State failed to meet its burden to show reasonable suspicion for
the traffic stop. Of course, as just noted, Hanson holds that it is appropriate for a
court to do this “in order to make a more complete record in the interests of equity
and justice.” Hanson, 85 Wis. 2d at 237. Nonetheless, Mika asserts “the
reopening of evidence in this matter was not done in the interests of equity and
justice, but rather, because the Circuit Court made a determination that only a
finding of guilt would result in ‘justice.’” Mika bases his assertion on the court’s
statement that “[t]here’s no doubt in my mind that he was driving drunk that
night.” He insists that the court’s comment about Mika driving “drunk” and sua
sponte reopening of evidence significantly undermines the appearance of a fair
trial. Noting the court’s statement that it was reopening the evidence in “the
interest of the public,” Mika writes: “Presumably, the Circuit Court feels that if
this Defendant, who the Circuit Court has already made a determination was
driving drunk, is not found guilty, that the interests of the public would be
harmed.” Mika has not convinced us that the court erroneously exercised its
discretion.

¶13 At a refusal hearing, a defendant may contest whether there was
probable cause to believe the defendant was OWI, whether the officer properly
read the Informing the Accused form to him, and whether the defendant
improperly refused to submit to the breath test. See WIS. STAT. § 343.305(9)(a)5.;
State v. Anagnos, 2012 WI 64, ¶27, 341 Wis. 2d 576, 815 N.W.2d 675.
Blanchard provided sufficient testimony with regard to those required findings, as
the court so found and as Mika does not dispute. Under § 343.305(9)(a)5.a. and
our supreme court’s decision in Anagnos, however, “a defendant may also contest
whether he was lawfully placed under arrest” prior to his refusal. See

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No. 2019AP1488

§ 343.305(9)(a)5.a.; Anagnos, 341 Wis. 2d 576, ¶¶4, 27. “As part of this inquiry,
the circuit court may entertain an argument that the arrest was unlawful because
the traffic stop that preceded it was not justified by either probable cause or
reasonable suspicion.” Anagnos, 341 Wis. 2d 576, ¶4. Because Blanchard did not
make the traffic stop himself or observe Mika’s driving, the circuit court
determined there was insufficient evidence to counter Mika’s challenge to the stop
on this basis—a challenge Mika first raised following the close of the State’s
testimony at the refusal hearing.

¶14 While it is often the case that the State need only call one officer to
provide all the testimony required for a refusal hearing, in this case, the officer
who observed Mika’s questionable driving and executed the traffic stop, Fiedler,
was different from the officer who conducted most of the OWI investigation with
Mika and with whom Mika refused to cooperate with the breath test, Blanchard.
Following Mika’s challenge to the stop on reasonable suspicion grounds, the
circuit court expressed that it wanted to hear from the deputy who actually made
the stop, Fiedler, so it could make its decision on the legality of the stop based
upon “a full examination of the facts surrounding this incident.” It is consistent
with the interests of justice for a court, as part of its “inquiry” into whether there
was a lawful basis for the stop, Anagnos, 341 Wis. 2d 576, ¶4, to make its
decision on whether there was a constitutional violation, such as the lack of
reasonable suspicion for a temporary investigatory seizure, based upon all the facts
available in a case.

¶15 After Blanchard’s testimony on the first day of the refusal hearing,
the only issue remaining was whether there was reasonable suspicion for the stop.
The circuit court recognized the State had erred in failing to have Fiedler, the
deputy who made the traffic stop, at the hearing in the event Mika raised a specific

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No. 2019AP1488

challenge to the stop, as he did. Despite Mika’s accusations that the court
appeared to have an agenda and was out to “get” him, we have no reason to doubt
that if, after all the relevant evidence was presented, the record showed that
Fiedler lacked reasonable suspicion to stop Mika, the court would have so held
and dismissed the charge. Mika no doubt had hoped he had found a “gotcha”
when the State failed to produce Fiedler for the first day of the refusal hearing. He
has failed, however, to meet his appellate burden to demonstrate that the court
erroneously exercised its discretion in adjourning the hearing so that the sole
remaining issue in the case—the lawfulness of the traffic stop—could be decided
based upon the additional evidence the stopping officer would have to offer, even
if that meant foiling Mika’s “gotcha.”

Lawfulness of the Traffic Stop

¶16 Mika next asserts that even with the additional testimony provided
by Fiedler, the State still failed to establish a lawful basis for the stop. We
disagree.

¶17 Reviewing a circuit court’s ruling on whether there was reasonable
suspicion or probable cause for a traffic stop, we apply the clearly erroneous
standard to the court’s factual findings; however, our review of whether the facts
satisfy the required constitutional standard is de novo. Anagnos, 341 Wis. 2d 576,
¶21. In deciding whether an unlawful seizure has taken place under the Fourth
Amendment, the ultimate question is whether the officer acted reasonably. See
State v. Weber, 2016 WI 96, ¶18, 372 Wis. 2d 202, 887 N.W.2d 554. Here, the
question for us is whether the evidence showed that Fiedler acted reasonably in
seizing Mika by stopping him for a temporary investigative detention.

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No. 2019AP1488

¶18 To begin, through his own observations alone, Fiedler had probable
cause to justify the traffic stop on the basis that Mika appeared to be impeding
traffic. WISCONSIN STAT. § 346.59(1) provides: “No person shall drive a motor
vehicle at a speed so slow as to impede the normal and reasonable movement of
traffic except when reduced speed is necessary for safe operation or is necessary to
comply with the law.” After Fielder pulled out behind Mika, Mika was “going
extremely slow in the lane of traffic … slow enough that it would have impeded
other traffic had there been other vehicles around.” While Fielder could not
provide an estimate of just what speed Mika was traveling, he did testify that “it
was slower, slow enough that I felt it was impeding traffic. When I was behind
him I recognized it to be odd and unusual for the circumstances.” He again
emphasized that it was “odd or abnormal for a driver to be going that slow.”

¶19 While there was no other traffic in the immediate area at the time
Fiedler observed Mika traveling abnormally slow, Fielder himself, positioned
behind Mika, constituted “traffic” whose “normal and reasonable movement”
appeared to be impeded. The evidence demonstrates that a reasonable officer
aware of the facts of which Fiedler was aware would have had probable cause to
pull Mika over and cite him for impeding traffic. Whether the State would have
prevailed at a trial on that charge cannot be said—maybe, maybe not. But there
was sufficient evidence here to constitute probable cause to cite him for that
offense.

¶20 Fiedler’s temporary investigative seizure of Mika was also justified
on the basis that a reasonable officer armed with the information Fiedler possessed
would have suspected Mika was driving while drunk. Mika insists Fiedler’s
reasonable suspicion determination could not be based upon the “vague” report of
the security guard/off-duty deputy to dispatch that the driver of the dark Audi was

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No. 2019AP1488

“intoxicated.” He is mistaken. In determining that there was reasonable suspicion
for an OWI investigatory stop in State v. Powers, 2004 WI App 143, ¶13, 275
Wis. 2d 456, 685 N.W.2d 869, we stated the officer “c[ould] rely upon the [drug
store] clerk’s assessment that Powers was drunk; in Wisconsin, a layperson can
give an opinion that he or she believes another person is intoxicated.” See also
State v. Mays, No. 2018AP571-CR, unpublished slip op. ¶16 (WI App Nov. 7,
2018).

¶21 In this case, Fiedler had an even stronger basis to rely upon the
report provided to dispatch that the driver of the dark Audi was intoxicated in that
Fiedler knew that it was an off-duty sheriff’s deputy who provided the report.
Fiedler could at least reasonably infer that this deputy had experience in observing
individuals in various states of intoxication. Further adding to the reliability of the
tip is the fact that the deputy was not anonymous, but a known individual. Indeed,
Fiedler could reasonably assume that the deputy would know he could be held
accountable if he provided a false tip. Fiedler had no reason to question the
reliability of the tip that the driver of the dark Audi was intoxicated. Additionally,
the off-duty deputy’s tip appeared to be corroborated, at least to some extent, as
Fiedler himself observed Mika’s “abnormal” driving behavior of stopping at the
stop sign, then rolling forward, then stopping again, and then proceeding forward
at an unusually slow speed. The tip, coupled with the time of night (around 10:05
p.m.), see State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551
(concluding that the time of day is relevant for an OWI reasonable suspicion
determination), and Fiedler’s own observations of Mika’s abnormal driving just
minutes after the tip, provided Fiedler with reasonable suspicion to temporarily
pull Mika over to investigate further.

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No. 2019AP1488

¶22 Furthermore, as we observed in State v. Coker, No. 2017AP1555,
unpublished slip op. ¶13 (WI App Feb. 14, 2018) (second and fifth alteration in
original):

In [State v. ]Rutzinski, our supreme court stated that “where the
allegations in the tip suggest an imminent threat to the public safety or
other exigency that warrants immediate police investigation,” the Fourth
Amendment

do[es] not require the police to idly stand by in hopes that
their observations reveal suspicious behavior before the
imminent threat comes to its fruition. Rather, it may be
reasonable for an officer in such a situation to conclude that
the potential for danger caused by a delay in immediate
action justifies stopping the suspect without any further
observation. Thus, exigency can in some circumstances
supplement the reliability of an informant’s tip in order to
form the basis for an investigative stop.

Rutzinski, [2001 WI 22, ¶26,] 241 Wis. 2d 729, [623 N.W.2d 516]. The
court held that because “of the potential for imminent danger that drunk
drivers present,” an informant’s allegations suggesting another motorist
may be operating while intoxicated “supplement[ ] the reliability of the
tip.” Id., ¶35.

Here, the tip, time of night, and observed questionable driving sufficiently justify
the stop so that we need not rely upon the supplementation our supreme court
discussed in Rutzinski. That said, such supplementation only further strengthens
Fiedler’s basis for stopping Mika. See Coker, No. 2017AP1555, ¶13.

¶23 Because the circuit court did not err in concluding there was a lawful
basis for Fiedler to perform a traffic stop on Mika, we affirm.

By the Court.—Order affirmed.

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

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