State v. Kelly C. Richardson

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 11, 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. 2019AP1650-CR Cir. Ct. No. 2017CT1665

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KELLY C. RICHARDSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: MARIA S. LAZAR, Judge. Affirmed.
No. 2019AP1650-CR

¶1 GUNDRUM, J.1 Kelly C. Richardson appeals from a judgment of
conviction for operating a motor vehicle while intoxicated, third offense.2
Richardson asserts the circuit court erred in denying her motion to suppress
evidence, which it denied based upon its determination that the arresting law
enforcement officer had reasonable suspicion to temporarily detain her for
investigative purposes. Because we conclude the court did not err, we affirm.

Background

¶2 A hearing was held on Richardson’s suppression motion, at which the
following relevant evidence was presented.

¶3 Sergeant Jeffry Monreal of the Muskego Police Department testified
that at approximately 11:30 a.m. on December 15, 2017, he was dispatched to PNC
Bank because bank employees called the police to report that a customer “was
possibly intoxicated,” having observed the customer to smell of intoxicants and
have slurred speech. The employees were still at the bank and available to provide
statements to law enforcement; the customer, however, had left in a black Jeep
Wrangler. Monreal was provided with the license plate number for the Jeep and
was informed that the allegedly intoxicated driver, the customer, wore blue jeans
and a grey coat and had short blond hair. Approximately ten to fifteen minutes later,
Monreal located the Jeep on a city road, followed it, and even though it was “pretty
far away,” observed it turn into a Walmart parking lot. Monreal located the Jeep in

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
Richardson also appeals the denial of her postconviction motion, which sought
resentencing. Because she has developed no argument on appeal related to this issue, we deem her
to have abandoned it. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588
N.W.2d 285 (Ct. App. 1998).

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No. 2019AP1650-CR

the parking lot and waited to see if he could make contact with anyone coming back
to it.

¶4 After approximately five to ten minutes, Monreal observed a person
walking out to the Jeep who matched the description provided by the bank
employees. When this person, Richardson, was approximately ten feet from the
Jeep, Monreal informed her he was a law enforcement officer and asked her if the
Jeep was hers. Richardson responded that it was. He asked if she had driven to
Walmart, and she indicated she had. Monreal further asked Richardson if there had
been anyone else in the vehicle with her, and she responded in the negative.
Monreal observed that Richardson had “a strong odor of intoxicants emanating from
her breath,” slurred speech, and eyes that were bloodshot and glassy. Monreal
confirmed that following these observations, additional investigation ensued that
eventually led to Richardson being arrested and charged with OWI, third offense.
Richardson entered a no-contest plea to that charge, and following her sentencing,
brought this appeal.

Discussion

¶5 We apply a two-step analysis in reviewing a circuit court’s
determination that an officer had reasonable suspicion to initiate an investigative
stop. State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733 N.W.2d 634. We will
uphold the circuit court’s factual findings unless they are clearly erroneous;
however, we review de novo the application of those facts to constitutional
standards. Id.

¶6 In this case, however, we need not even consider whether Monreal
had reasonable suspicion, because the record from the suppression hearing does not
indicate that Richardson was seized by Monreal until he eventually arrested her for

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No. 2019AP1650-CR

OWI, and Richardson raises no challenge to the lawfulness of the arrest itself. As
our state supreme court has stated, the Fourth Amendment—the legal authority
under which Richardson brings her appeal—is “not implicated until a government
agent ‘seizes’ a person.” County of Grant v. Vogt, 2014 WI 76, ¶19, 356 Wis. 2d
343, 850 N.W.2d 253. And “not all personal interactions between law enforcement
officers and people constitute a seizure.” Id.

A seizure occurs “[o]nly when the officer, by means of
physical force or show of authority, has in some way
restrained the liberty of a citizen.” As Justice Stewart stated
in [United States v.] Mendenhall, [446 U.S. 544 (1980),] “a
person has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.”

Id., ¶20 (citations omitted).

¶7 The test for whether a seizure has occurred is an objective one,
looking at the totality of the circumstances and considering “whether an innocent
reasonable person, rather than the specific defendant, would feel free to leave under
the circumstances.” Id., ¶¶30, 38. There is no seizure “[u]nless the circumstances
of the encounter are so intimidating as to demonstrate that a reasonable person
would have believed he [or she] was not free to leave.” Immigration &
Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984).

¶8 Here, there is no indication in the record that the circumstances of
Monreal’s encounter with Richardson as she approached her Jeep were “so
intimidating as to demonstrate that a reasonable person would have believed he [or
she] was not free to leave.” See id. While Monreal and another officer on the scene
were in their police uniforms, this is no different than any other consensual
encounter with law enforcement in the community. As the United States Supreme

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No. 2019AP1650-CR

Court has stated, “[P]olice questioning, by itself, is unlikely to result in a Fourth
Amendment violation. While most citizens will respond to a police request, the fact
that people do so, and do so without being told they are free not to respond, hardly
eliminates the consensual nature of the response.” Id. Here, the encounter occurred
in a very public location—a Walmart parking lot—in the middle of the day; neither
officer had parked his vehicle in a manner that would have prevented Richardson
from leaving in her Jeep; there is no indication either officer made any physical
contact with Richardson or restrained her in any way; and there is no indication
either officer suggested she was not free to leave. Because Richardson was not
seized prior to providing her responses to Monreal, Monreal did not violate the
Fourth Amendment in securing those responses as the Fourth Amendment was not
even implicated. Thus the circuit court did not err in declining to suppress the
evidence Monreal gathered during his encounter with Richardson or in ultimately
denying her motion to suppress.

¶9 All that said, even if Monreal needed reasonable suspicion before
speaking with Richardson in the parking lot, he nonetheless had it. Monreal was
responding to a reliable report from citizen informants that they had observed
Richardson as being “possibly intoxicated,” based upon their specific observations
that she smelled of intoxicants and had slurred speech, and driving away in her
vehicle. The information was reliable because it came from “employees” of a bank
within the community—so from multiple known persons, as opposed to a single
anonymous source, who work at a known local place of business. Additionally, the
employees were willing to provide a statement and thus could be held accountable
if they provided a false statement, and they provided a description of the person and
the vehicle, including the license plate number, which vehicle and person matching
the description were soon thereafter located in the area. Furthermore, the employees

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No. 2019AP1650-CR

did not limit their report to stating that Richardson was “possibly intoxicated” but
gave the specific, detailed observation that she smelled of intoxicants and her speech
was slurred. This constituted reasonable suspicion that the reported driver of the
Jeep, who matched the description of the person Monreal observed walking toward
the Jeep in the parking lot, had been operating the vehicle while intoxicated.
Monreal’s own additional observations of Richardson once he engaged her in
conversation in the parking lot—“a strong odor of intoxicants emanating from her
breath,” slurred speech, bloodshot and glassy eyes—and her admission that she had
driven the Jeep to the parking lot only added to the reasonable suspicion Monreal
already possessed.

By the Court.—Judgment and order affirmed.

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

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