State v. Paul R. Rupple

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 3, 2021
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. 2019AP2171-CR Cir. Ct. No. 2018CF651

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PAUL R. RUPPLE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
MARIA S. LAZAR, Judge. Affirmed.

Before Neubauer, C.J., Gundrum and Davis, 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. 2019AP2171-CR

¶1 PER CURIAM. Paul R. Rupple appeals from a judgment of
conviction, entered on his no-contest plea, for one count of operating a motor
vehicle while intoxicated (seventh offense), contrary to WIS. STAT. § 346.63(1)(a)
(2017-18).1 At issue on appeal is whether the circuit court should have granted his
suppression motion on two bases. We affirm.

BACKGROUND

¶2 According to the criminal complaint, police officers were dispatched
to an apartment building to investigate a report that a man driving a vehicle hit
another vehicle and was later seen crawling in the driveway. Officers spoke with
a witness who showed them a cell phone video of Rupple operating a vehicle and
then stumbling and falling in the driveway. The witness, who knew Rupple was a
resident in the apartment building, said Rupple was bleeding from his face.

¶3 Officers went to Rupple’s apartment and were eventually let in by a
woman named Joan Bosserman, who later identified herself as Rupple’s girlfriend.
They found Rupple sitting on his couch, bleeding from his nose and ear. The
officers spoke with Rupple while his injuries were evaluated by paramedics who
had also been dispatched to the residence. The officers observed that Rupple
appeared to be intoxicated and, after Rupple declined additional medical attention,
the officers asked Rupple to go with them to the nearby hospital to perform field
sobriety tests.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP2171-CR

¶4 At the hospital, Rupple kept losing his balance and sat on the police
squad car’s front push bar. Rupple refused to perform field sobriety tests or
submit to a preliminary breath test and was placed under arrest for operating while
intoxicated. Rupple agreed to a chemical test of his blood, which later revealed
his blood alcohol content to be .331 percent.

¶5 Rupple was charged with operating while intoxicated (seventh
offense) and one count of driving with a prohibited alcohol concentration. He
moved to suppress “[a]ll evidence derived from the illegal entry” of his apartment,
asserting that “Bosserman did not voluntarily give consent” for the officers to
enter the apartment and that Bosserman lacked both apparent and actual authority
to give the officers permission to enter. Rupple also asserted that he was illegally
arrested at the time he was transported to the hospital, pointing to the fact that he
was handcuffed and searched before he was transported. He argued that at the
time, the officers lacked probable cause to arrest him. Finally, Rupple argued that
even if he was not under arrest, he still should have been given Miranda2
warnings before being questioned.

¶6 At an evidentiary hearing on the motion, the circuit court heard
testimony from the two officers who arrested Rupple. The State was not able to
locate Bosserman, so she was not called as a witness. The State also introduced
several recordings made by the citizen witness and the officers.

¶7 The circuit court denied Rupple’s suppression motion. It found that
Bosserman—who answered the door wearing pajamas and a robe and said she had

2
See Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2019AP2171-CR

been sleeping—gave the officers permission to enter. The circuit court found that
Bosserman had both actual and apparent authority to give the officers permission
to enter the apartment. The circuit court further found that the “community
caretaker” exception to the warrant requirement provided another legal basis for
the officers to enter the apartment. See State v. Pinkard, 2010 WI 81, ¶14, 327
Wis. 2d 346, 785 N.W.2d 592 (“[A] police officer serving as a community
caretaker to protect persons and property may be constitutionally permitted to
perform warrantless searches and seizures.”).

¶8 The circuit court found that the officers had a valid basis to transport
Rupple two blocks to conduct field sobriety tests at the hospital and that Rupple
was not under arrest at the time he was transported. The circuit court also found
that Rupple’s Miranda rights had not been violated.

¶9 Rupple subsequently entered a plea agreement with the State to
which he pled no contest to operating while intoxicated, and the State dismissed
the prohibited alcohol concentration charge. The circuit court found Rupple guilty
and sentenced him to four years of initial confinement and four years of extended
supervision, and it found him eligible for the substance abuse early release
program. This appeal follows.

STANDARD OF REVIEW

¶10 The State “bears the burden of proving that a warrantless search or
seizure was reasonable and in conformity with the Fourth Amendment.” State v.
Quartana, 213 Wis. 2d 440, 445, 570 N.W.2d 618 (Ct. App. 1997). When a
defendant appeals the denial of a motion to suppress, we defer to the circuit
court’s findings of evidentiary and historical fact unless they are clearly erroneous,

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No. 2019AP2171-CR

but we independently apply those facts to the law. See State v. Sobczak, 2013 WI
52, ¶9, 347 Wis. 2d 724, 833 N.W.2d 59.

DISCUSSION

¶11 On appeal, Rupple has pursued two primary arguments advanced in
his suppression motion.3 First, he argues that Bosserman lacked actual or apparent
authority to consent to officers entering the apartment. Second, Bosserman argues
that he was under arrest when he was transported to the hospital and that officers
lacked probable cause to arrest him at the time he was being transported. We
consider each issue in turn.

I. Entry to the apartment.

¶12 We begin with the officers’ warrantless entry into Rupple’s
apartment. Warrantless searches are impermissible under the Fourth Amendment
“subject to only a few limited exceptions,” including “valid third-party consent.”
State v. Kieffer, 217 Wis. 2d 531, 541, 577 N.W.2d 352 (1998). “For such
consent to be valid, the third party must ‘possess[ ] common authority over or
other sufficient relationship to the premises or effects sought to be inspected.’”
State v. Torres, 2018 WI App 23, ¶17, 381 Wis. 2d 268, 911 N.W.2d 388 (citation
omitted; alteration in original). Stated differently, police may legally enter if “the
officer was invited to cross the threshold by someone authorized by the defendant
to extend such invitations.” See Sobczak, 347 Wis. 2d 724, ¶1. The third party
can be someone who lives in the home or even a weekend guest. See id., ¶¶13-18.

3
Arguments that Rupple has chosen not to pursue are deemed abandoned and will not be
discussed. See Reiman Assocs., Inc. v. R/A Advert., Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d
292 (Ct. App. 1981) (holding that issues not briefed are deemed abandoned).

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No. 2019AP2171-CR

The third party’s authority to consent “may be either actual or apparent, as long as,
in the case of apparent authority, reliance on the authority is reasonable.” Torres,
381 Wis. 2d 268, ¶19. “Whether a person has authority to consent is dependent on
the totality of the circumstances, and the State has the burden of proving valid
third-party consent by clear and convincing evidence.” Id.

¶13 Here, the circuit court found that Bosserman had both actual and
apparent authority to give the officers permission to enter the apartment. Because
we agree that there was apparent authority, we decline to address whether there
was also actual authority. See State v. Tomlinson, 2002 WI 91, ¶26, 254 Wis. 2d
502, 648 N.W.2d 367 (declining to address arguments concerning actual authority
where court concluded that person who answered the door had apparent authority
to allow the officers to enter the home).

¶14 When the State seeks to justify a warrantless search based on
apparent authority, “[t]he question for the courts is whether the information
available to the police officers at the time of the search would justify a reasonable
belief that the party consenting to the search had the authority to do so.” Kieffer,
217 Wis. 2d at 548. Courts evaluate the reasonableness of the officers’ belief
using the objective standard. See id.

¶15 Here, the circuit court found that officers knocked on the door
repeatedly and that the door was eventually opened by Bosserman, who was

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No. 2019AP2171-CR

wearing “pajamas and a robe” and said she had been sleeping. 4 These facts
suggested that Bosserman had “common authority over or other sufficient
relationship to the premises” to allow the officers into the apartment. See Torres,
381 Wis. 2d 268, ¶17 (citation omitted). The circuit court further found that after
the officers entered and found Rupple on the couch in the living room, Rupple did
not ask them to leave or “say that Ms. Bosserman doesn’t live there.” Our
supreme court has recognized that a defendant’s lack of objection when a third
party allows officers to enter the home is a factor when considering whether the
third party had apparent authority to allow the officers to enter. See Tomlinson,
254 Wis. 2d 502, ¶34.

¶16 We conclude that under these circumstances, the officers could have
reasonably believed that Bosserman had authority to admit them to the apartment.
Rupple disagrees. He argues that the fact Bosserman was wearing pajamas does
not demonstrate that Bosserman lived in the apartment, noting that “[p]eople often
do errands in pajama pants because they are comfortable.” We are not persuaded
by Rupple’s argument. The totality of the circumstances supported the officers’
reasonable belief that Bosserman was not someone who just stopped by while
running errands and instead was someone who lived in the apartment or was at
least a guest who had authority to let the officers into the apartment. For the
foregoing reasons, we agree with the circuit court that the officers legally entered

4
In his reply brief, Rupple asserts that “[i]t is unclear from the testimony whether
[Bosserman] told [the officers] that she had just woken up before or after she let them in the
apartment.” The trial court found that Bosserman told the officers she had been sleeping and then
let them into the apartment. Rupple’s opening brief did not ask this court to conclude that the
circuit court’s finding was clearly erroneous, and we decline to address an issue raised for the
first time in a reply brief. See Richman v. Security Sav. & Loan Ass’n, 57 Wis. 2d 358, 361, 204
N.W.2d 511 (1973) (holding that the court will not consider arguments raised for the first time in
a reply brief).

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No. 2019AP2171-CR

the apartment because they obtained permission to enter from someone with
apparent authority to give consent. See Torres, 381 Wis. 2d 268, ¶17.

¶17 We also agree with the State that there is another independent basis
to affirm the circuit court’s denial of the suppression motion: Rupple did not
challenge the circuit court’s conclusion that the community caretaker exception to
the warrant requirement provided another basis for the officers to enter the
apartment. See State v. Schulpius, 2006 WI 1, ¶26, 287 Wis. 2d 44, 707 N.W.2d
495 (holding that failing to challenge an issue in the court of appeals amounts to a
waiver of that issue).

¶18 In his reply brief, Rupple does not deny that he failed to raise this
issue in his opening appellate brief. Instead, he belatedly argues that the officers
did not rely on the community caretaker exception to enter the apartment and that
“[t]here is no testimony that supports it.” We conclude that by failing to challenge
the circuit court’s conclusion that the community caretaker exception applies in
his opening brief, Rupple forfeited his challenge to the application of the
community caretaker exception. See id.; see also Richman v. Security Sav. &
Loan Ass’n, 57 Wis. 2d 358, 361, 204 N.W.2d 511 (1973) (holding that the court
will not consider arguments raised for the first time in a reply brief). Moreover,
even if this court were inclined to consider Rupple’s late argument, we would not
overturn the circuit court’s ruling in light of our conclusion concerning
Bosserman’s apparent authority. In any case, Rupple’s one-paragraph reply does
not adequately explain why the circuit court’s conclusion on the community
caretaker issue was wrong.

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No. 2019AP2171-CR

II. Whether Rupple was under arrest when he was transported.

¶19 Rupple asserts that when the officers transported him two blocks to
a nearby hospital so they could conduct field sobriety tests, his detention became
an arrest without probable cause. He argues: “There was no reasonable reason to
move Rupple to the hospital to conduct the field sobriety tests.”

¶20 The circuit court concluded that Rupple was not under arrest when
he was handcuffed and transported two blocks to the hospital. The circuit court
applied the two-part test outlined in Quartana, a case that recognized a suspect
can be moved within the vicinity without converting an investigatory detention
into an arrest. See Quartana, 213 Wis. 2d at 446. That two-part test asks whether
the person was “moved within the ‘vicinity’” and whether “the purpose in moving
the person within the vicinity [was] reasonable.” See id. Quartana concluded that
an area within one mile was in the vicinity. See id. at 447.

¶21 Rupple does not appear to dispute the circuit court’s conclusion that
the hospital was within the vicinity of his apartment. Instead, he asserts that it was
unreasonable for officers to transport Rupple to the hospital to perform field
sobriety tests instead of conducting them in Rupple’s apartment or in the driveway
of his apartment building. The circuit court relied on several facts to conclude that
the decision to transport Rupple was reasonable, including: “Rupple was swaying
on his feet; had already fallen twice in the parking lot; the lot was on a slight
angle; there was still a group of people around, including Ms. Bosserman; and the
hallway was a legitimate security concern.”

¶22 Rupple does not specifically challenge the circuit court’s findings,
but he points out that it was only slightly raining outside and that the officer gave
conflicting testimony on whether it would have been unsafe to conduct the field

9
No. 2019AP2171-CR

sobriety tests in the apartment hallway. Like the circuit court, we conclude that
the officers’ purpose in moving Rupple within the vicinity to conduct the field
sobriety tests was reasonable. See id. at 446. Rupple was injured, had difficulty
standing, and had already fallen in the angled parking lot. Further, there was
limited space to conduct field sobriety tests indoors.

¶23 In addition to arguing that the decision to transport him to the
hospital was unreasonable, Rupple asserts: “A reasonable person in Rupple’s
situation would have believed that he was under arrest.” However, Rupple does
not develop this argument. For instance, he does not address the circuit court’s
findings that the officers told Rupple he was not under arrest before he was
transported and removed the handcuffs when they arrived at the hospital. We
decline to develop an argument for him, and we reject his assertion without further
discussion. See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009
WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (holding that the court will not
abandon its neutrality to develop an argument for a litigant); Vesely v. Security
First Nat’l Bank of Sheboygan Trust Dep’t, 128 Wis. 2d 246, 255 n.5, 381
N.W.2d 593 (Ct. App. 1985) (holding that the court will not decide inadequately
briefed arguments).

¶24 Finally, because we have concluded that Rupple was not under arrest
when he was transported to the hospital, we need not address Rupple’s argument
that there was no probable cause to arrest him at that time. See State v. Blalock,
150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (holding that “cases
should be decided on the narrowest possible ground”).

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No. 2019AP2171-CR

By the Court.—Judgment affirmed.

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

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