State v. Christopher J. Vaaler

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 6, 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. 2019AP2174-CR Cir. Ct. No. 2017CF36

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER J. VAALER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge. Affirmed and cause remanded for further
proceedings.

¶1 FITZPATRICK, P.J.1 Christopher Vaaler appeals a La Crosse
County Circuit Court judgment convicting him of operating a motor vehicle while

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. 2019AP2174-CR

under the influence of an intoxicant (OWI), third offense, and misdemeanor bail
jumping. See WIS. STAT. §§ 346.63(1)(a) and 946.49(1)(a).2 Vaaler contends that
evidence obtained during, and subsequent to, field sobriety tests should have been
suppressed by the circuit court because the arresting officer lacked reasonable
suspicion to extend the traffic stop to conduct the field sobriety tests. I reject
Vaaler’s arguments and affirm.

BACKGROUND

¶2 The following material facts are not in dispute.

¶3 At approximately 2:40 a.m. on January 7, 2017, La Crosse County
Sheriff’s Deputy Joseph Anderson observed a vehicle traveling on County
Road HD without headlights on, but with the vehicle’s fog lamps on. Anderson
stopped the vehicle and, upon approach, found two occupants inside: Vaaler, who
was driving, and a passenger.

¶4 Anderson informed Vaaler of the reason for the stop, and Vaaler
then turned on his headlights. Vaaler told Anderson that he had been driving for
approximately five minutes through a largely rural area before Anderson stopped
the vehicle.

¶5 Anderson smelled an odor of intoxicants coming from inside the
vehicle and observed an open can of beer in the vehicle’s center console well
within Vaaler’s reach. The deputy determined that the beer can was
approximately one-half full. Anderson twice asked Vaaler and his passenger to

2
Vaaler raises no issues on appeal relating directly to the misdemeanor bail jumping
conviction.

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No. 2019AP2174-CR

whom the beer belonged. After Anderson asked the question the second time, the
passenger, who was clearly impaired, stated that the beer belonged to her.

¶6 Vaaler did not have slurred speech or bloodshot eyes at the time of
the stop and denied that he had been drinking alcohol. However, Anderson
observed that some of Vaaler’s responses to Anderson’s questions were delayed,
which indicated to Anderson that Vaaler might be lying. Based upon his
observations, Anderson asked Vaaler to perform field sobriety tests.

¶7 After Vaaler performed the field sobriety tests, Anderson placed
Vaaler under arrest. At that point, Vaaler was transported to a hospital for a blood
draw, the result of which indicated that Vaaler had a blood-alcohol concentration
of 0.19.

¶8 Vaaler was charged with OWI, contrary to WIS. STAT.
§ 346.63(1)(a), operating a motor vehicle with a prohibited alcohol concentration
(PAC), contrary to § 346.63(1)(b), and misdemeanor bail jumping, contrary to
WIS. STAT. § 946.49(1)(a). Vaaler filed a suppression motion requesting that the
circuit court suppress evidence obtained during, and subsequent to, the field
sobriety tests. Vaaler argued that the lawful stop of his vehicle was unlawfully
extended when Anderson asked Vaaler to exit the vehicle and perform field
sobriety tests. Following an evidentiary hearing at which Anderson testified, the
circuit court denied Vaaler’s motion. The court determined that there was
reasonable suspicion to expand the nature of the stop and request that Vaaler
perform field sobriety tests.

¶9 After Vaaler’s motion to suppress was denied, the matter proceeded
to a jury trial. The jury found Vaaler guilty of all charges. Vaaler was sentenced

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No. 2019AP2174-CR

on the OWI and bail jumping offenses.3 The circuit court stayed imposition of
Vaaler’s sentence pending this appeal.

¶10 Vaaler appeals.

DISCUSSION

¶11 I begin by discussing the standards governing the temporary
detention of a person during a traffic stop and this court’s standard of review. I
then analyze Vaaler’s arguments and explain why those arguments are rejected.

I. Governing Legal Principles and Standard of Review.

¶12 The Fourth Amendment of the United States Constitution and art. I,
§ 11 of the Wisconsin Constitution protect individuals from unreasonable searches
and seizures. Whether evidence should be suppressed is a question of
constitutional fact. State v. Griffith, 2000 WI 72, ¶23, 236 Wis. 2d 48, 613
N.W.2d 72. This court reviews the circuit court’s findings of historical or
evidentiary fact under a clearly erroneous standard, but the circuit court’s
determination of constitutional fact is reviewed de novo. State v. Richter, 2000
WI 58, ¶26, 235 Wis. 2d 524, 612 N.W.2d 29.

¶13 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

3
Pursuant to WIS. STAT. § 346.63(1)(c), if a defendant is found guilty of both OWI and
PAC for acts arising out of the same incident or occurrence, the defendant may be sentenced on
only one of those charges.

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No. 2019AP2174-CR

violating, or has violated, a traffic law. State v. Hogan, 2015 WI 76, ¶34, 364
Wis. 2d 167, 868 N.W.2d 124. A law enforcement 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, 593 N.W.2d
499 (Ct. App. 1999)). An extended inquiry must be supported by reasonable
suspicion. Hogan, 364 Wis. 2d 167, ¶35.

¶14 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 and quoted
source omitted). Reasonable suspicion is a “common sense test” that asks: Under
the totality of the circumstances presented, what would a reasonable police officer
reasonably suspect in light of his or her training and experience? Colstad, 260
Wis. 2d 406, ¶8; see Hogan, 364 Wis. 2d 167, ¶¶35-37. “Although officers
sometimes will be confronted with behavior that has a possible innocent
explanation, a combination of behaviors—all of which may provide the possibility
of innocent explanation—can give rise to reasonable suspicion.” Hogan, 364 Wis.
2d 167, ¶36.

II. The Traffic Stop Was Not Impermissibly Extended.

¶15 Vaaler argues that Anderson’s decision to extend the traffic stop was
not supported by reasonable suspicion and, as a result, the prolonged stop became
an unlawful seizure. However, when the totality of the facts present at the scene

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No. 2019AP2174-CR

are considered in their aggregate, I conclude that those facts amount to reasonable
suspicion that Vaaler was driving while intoxicated.

¶16 One indicia that Vaaler was driving while intoxicated was the odor
of intoxicants emanating from Vaaler’s vehicle. See, e.g., State v. Krause, 168
Wis. 2d 578, 587-88, 484 N.W.2d 347 (Ct. App. 1992) (stating that the odor of an
intoxicant was a basis for reasonable suspicion of OWI). Additional factors
include that: (1) Vaaler was driving without the vehicle’s headlights on at
2:40 a.m., which is commonly known as “bar time”; (2) there was an open can of
beer in the vehicle within Vaaler’s reach; and (3) Vaaler hesitated when answering
the deputy’s questions, which Anderson’s training and experience caused
Anderson to believe that Vaaler was lying. See State v. Greene, No. 99AP2640-
CR, unpublished slip op. ¶13 (WI App March 15, 2000) (stating that while “many
nonintoxicated persons [fail to follow the rules of the road] … an intoxicated
person is less likely to be aware of the rules of the road and more likely to violate
those rules”) and WIS. STAT. § 347.06(1) (stating “no person may operate a
vehicle upon a highway during hours of darkness … unless all headlamps … with
which the vehicle is required to be equipped are lighted”); Dane Cty. v. Weber,
No. 2017AP1024, unpublished slip op. ¶¶12, 14-15 (WI App Jan. 11, 2018)
(holding that speeding at bar time and an odor of intoxicants provided reasonable
suspicion that the defendant was driving while intoxicated); State v. Allen, 226
Wis. 2d 66, 74, 593 N.W.2d 504 (Ct. App. 1999) (stating that the training and
experience of an officer is a factor to be considered in the totality of the
circumstances analysis).

¶17 Vaaler relies on a number of cases for the proposition that the facts
present here do not amount to reasonable suspicion that Vaaler was operating a

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No. 2019AP2174-CR

vehicle while intoxicated. However, the facts in the present case distinguish these
circumstances from the facts in the cases relied upon by Vaaler.

¶18 Finally, Vaaler asserts that Anderson had no reason to doubt the
passenger’s statement that the open beer belonged to her and, further, that
Anderson testified that he believed the passenger’s statement that the open beer
was hers and, therefore, “could not have reasonably relied upon [the beer’s]
presence … to support a reasonable suspicion” that Vaaler was driving while
intoxicated. However, I reject those arguments for the following reasons. First,
the test for whether there is a reasonable suspicion is an objective test, not a
subjective one, and, therefore, Anderson’s subjective beliefs are not controlling.
See State v. Kelsey C.R., 2001 WI 54, ¶49 n.11, 243 Wis. 2d 422, 626 N.W.2d
777. Second, reasonable suspicion exists even if there could be an alternative
explanation for a factor, and a reasonable officer is required to consider
independent factors in the aggregate. See Hogan, 364 Wis. 2d 167, ¶¶36-37; see
also Colstad, 260 Wis. 2d 406, ¶21 (stating that a reasonable officer is not
obligated to accept the passenger’s explanation).

¶19 In sum, there was reasonable suspicion to extend the stop which, in
turn, led to Vaaler’s arrest. The deputy observed several specific, articulable facts
which, based upon a reasonable law enforcement officer’s training and experience,
gave rise to a reasonable suspicion that Vaaler was operating a motor vehicle
while under the influence of an intoxicant.

¶20 Because there was reasonable suspicion to extend the stop, the
circuit court properly denied Vaaler’s motion to suppress.

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No. 2019AP2174-CR

CONCLUSION

¶21 For the foregoing reasons, the judgment of the circuit court is
affirmed.

By the Court.—Judgment affirmed and cause remanded for further

proceedings.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.

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