State v. Jeffrey R. Palmer

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.
September 17, 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. 2019AP993-CR Cir. Ct. No. 2017CF1407

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY R. PALMER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Rock County:
JOHN M. WOOD, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Graham, 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. 2019AP993-CR

¶1 PER CURIAM. Jeffrey R. Palmer appeals a judgment of conviction
entered on his guilty plea to one count of operating a motor vehicle while intoxicated
(OWI) as a fourth offense. Palmer argues that the circuit court erred in denying his
motion to suppress because police (1) lacked reasonable suspicion to justify a traffic
stop and (2) unlawfully extended the traffic stop to investigate whether he was
driving while intoxicated. We reject Palmer’s arguments and affirm.

BACKGROUND

¶2 Palmer’s ex-wife, S.P., called police to report that Palmer had just
shown up at her apartment building, unwelcome and intoxicated. She described his
vehicle, and officers performed a traffic stop. Palmer was unsteady on his feet and
smelled of alcohol. Based on the results of the field sobriety tests and a preliminary
breath test, Palmer was arrested. He was charged with OWI and operating with a
prohibited alcohol concentration, both as a fourth offense. He moved to suppress
evidence of his intoxication, including the results of his blood-alcohol test.

¶3 The following facts are taken from the evidentiary hearing on
Palmer’s suppression motion. Officer Nathan Sharp testified that he was on patrol
when he was dispatched to S.P.’s address. Upon arrival, S.P. told Sharp that she
was sitting on her couch in her apartment when she heard someone knocking at her
door. S.P. could hear her ex-husband, Palmer, asking her to come to the door. S.P.
refused to answer the door because their relationship ended on bad terms, but Palmer
continued to knock.

¶4 When Palmer finally left S.P.’s door, S.P. looked outside and could
see Palmer’s truck. S.P. also saw Palmer outside. He “appeared to be intoxicated”
and was “stumbling around.” S.P. stated that she was familiar with Palmer’s body
posture when he was intoxicated, and that on this occasion he was stumbling as he

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did when he was intoxicated. S.P. called police and asked them to warn Palmer
against trespassing at her residence. S.P. also provided police with a description of
Palmer’s vehicle.

¶5 Officer Sharp testified that Sergeant Holford stopped Palmer’s
vehicle. When asked why Palmer was stopped, Sharp answered “[t]o make contact
with [Palmer] to be warned for trespassing at the residence,” and because “ [S.P.]
had informed us prior to arriving that [Palmer] was intoxicated.”

¶6 Officer Natalie McDonald testified that she watched Sergeant Holford
stop Palmer’s vehicle. McDonald confirmed that the reason for the traffic stop was
twofold; police were investigating the incident between Palmer and his ex-wife and
they were aware that S.P. indicated that Palmer was intoxicated.

¶7 Officer McDonald approached Palmer’s vehicle from the passenger
side while Sergeant Holford approached the driver’s side. Holford asked Palmer to
step out of his vehicle to address S.P.’s report that Palmer was intoxicated.

¶8 Officer McDonald described Palmer’s balance as “unsteady” when he
exited his vehicle, and she observed that and she saw Palmer had difficulty walking
the short distance around his truck and stepping up on a curb. While speaking with
Palmer, McDonald could smell intoxicants on his breath. Palmer also admitted to
drinking, saying that he had consumed one beer. Officers decided to administer
field sobriety tests based on the information S.P. provided and their observations of
Palmer during the traffic stop.

¶9 The circuit court denied Palmer’s suppression motion. The court
explicitly found both testifying officers to be credible. Emphasizing S.P.’s
familiarity with Palmer, the court gave weight to S.P.’s opinion that he was

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intoxicated. The court concluded that the initial traffic stop was lawful, stating that
the information provided by S.P. “certainly would give rise to the officer’s concern
that someone who is driving a motor vehicle may be intoxicated.”

¶10 Concerning the traffic stop extension, the circuit court found that
police’s immediate awareness of Palmer’s unsteady balance and his odor of
intoxicants tended to “confirm[] the representations from [S.P.] to Officer Sharp.”
The court concluded that “the officers had reasonable suspicion to take each of the
next steps that they took before they undertook the proper steps to conduct field
sobriety tests.” Palmer appeals the denial of his suppression motion.1

DISCUSSION

¶11 Palmer first challenges the constitutionality of the initial traffic stop.
An officer may lawfully perform a traffic stop when, based on specific and
articulable facts, he or she reasonably suspects that criminal activity is afoot. Terry
v. Ohio, 392 U.S. 1, 22, 30 (1968). Reasonable suspicion is a common sense test
and presents a lower burden than the probable cause necessary to justify an arrest or
search warrant. State v. Waldner, 206 Wis. 2d 51, 56, 59, 556 N.W.2d 681 (1996).
This approach strikes a balance between individual privacy and the public’s interest
in effective crime detection and prevention. Id.

¶12 “In reviewing a motion to suppress, we apply a two-step standard of
review.” State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. We

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Palmer filed a motion to reconsider, which the circuit court denied at a subsequent
hearing. The grounds for Palmer’s reconsideration motion and the circuit court’s reasons for
denying reconsideration are not relevant to our discussion of the issues on appeal.

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No. 2019AP993-CR

will uphold a circuit court’s factual findings “unless they are clearly erroneous.” Id.
We decide independently whether those facts violate constitutional principles. Id.

¶13 Palmer argues that police did not have reasonable suspicion justifying
the traffic stop because officers did not observe any erratic driving or other indicia
of intoxication before the traffic stop and information provided to police regarding
Palmer’s possible drunk driving was from S.P., who did not have direct personal
contact with Palmer. The State argues that the information provided by S.P. was
sufficient to justify the traffic stop under controlling case law, including State v.
Blatterman, 2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26. We agree with the
State.

¶14 In Blatterman, police conducted an investigative stop of Blatterman’s
vehicle based on a call made by Blatterman’s wife to dispatch. Blatterman, 362
Wis. 2d 138, ¶1. Dispatch told officers that, according to his wife, “Blatterman had
attempted to blow up their home by drawing gas into the house and that he may be
intoxicated.” Id., ¶19. Blatterman’s wife also explained that her husband “was
leaving the house in a white minivan, with a specific license plate number.” Id., ¶3.
The Wisconsin Supreme Court concluded that the stop was justified because “[t]he
officers reasonably suspected that Blatterman had committed a crime.” Id. at ¶19.

¶15 In the instant case, the information reported by S.P. provided Sergeant
Holford with the reasonable suspicion required to stop Palmer for the purpose of
investigating the suspected offense of drunk driving. S.P. identified herself and her
relationship to Palmer. As his ex-wife, she explained that she was familiar with his
posture and his stumbling when intoxicated and that she saw Palmer stumbling as
he did when he was intoxicated. S.P. provided law enforcement with the
approximate time Palmer left her apartment and a description of his vehicle,

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No. 2019AP993-CR

including the license plate number. That Holford located Palmer in the vicinity and
vehicle described by S.P. corroborated her observations.

¶16 Palmer attempts to distinguish Blatterman by pointing out that the
wife in that case reported potential criminal behavior beyond drunk driving, namely,
that her husband had tried to set fire to or blow up their house. That the officers in
Blatterman might have had reasonable suspicion related to the commission of an
additional crime is immaterial; nothing in the court’s discussion suggests that
reasonable suspicion was not created by the wife’s allegation that her husband “may
be intoxicated.” See id., ¶19. Further, here S.P. provided officers a more detailed
account of Palmer’s intoxication than the report of “possible intoxication” held to
pass constitutional muster in Blatterman. Id., ¶1. What S.P. told police provided
greater reason for the officers to believe that Palmer was driving while intoxicated.
As in Blatterman, officers were not required to personally observe Palmer’s
intoxication or erratic driving before initiating an investigative traffic stop.

¶17 Next, Palmer argues that officers unlawfully extended the traffic stop
to investigate whether he was intoxicated. If, during a valid traffic stop, an officer
becomes aware of facts supporting a reasonable suspicion that a separate offense
has been committed, the stop may be extended to allow for additional investigation.
State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659 N.W.2d 394. The
validity of the extension is evaluated under the same criteria as the initial stop. Id.
To lawfully administer field sobriety tests, officers must have a reasonable suspicion
of impairment. Id.

¶18 We conclude that officers had ample reason to suspect that Palmer
was driving while intoxicated and to continue their investigative detention. At the
time Palmer was pulled over, officers were aware of the information provided by

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No. 2019AP993-CR

S.P. concerning Palmer’s suspected intoxication. Having lawfully conducted a
traffic stop, police acted within their authority by directing Palmer to exit his
vehicle. See State v. Floyd, 2017 WI 78, ¶24, 377 Wis. 2d 394, 898 N.W.2d 560
(citing State v. Johnson, 2007 WI 32, ¶23, 299 Wis 2d 675, 729 N.W.2d 182).
Officers observed that Palmer’s balance was “[u]nsteady,” and that he had difficulty
simply taking a short walk around his truck and stepping up on a curb. Officer
McDonald could smell intoxicants on Palmer’s breath, and Palmer admitted that he
had been drinking alcohol. There was ample reasonable suspicion for officers to
administer standardized field sobriety testing to either confirm or dispel their
suspicion that Palmer was intoxicated.

CONCLUSION

¶19 For the reasons stated, we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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