State v. Rosalee M. Tremaine

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 27, 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. 2018AP1963-CR Cir. Ct. No. 2012CM660

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROSALEE M. TREMAINE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Columbia County: W. ANDREW VOIGT, Judge. Reversed and cause remanded
with directions.

¶1 NASHOLD, J.1 Rosalee Tremaine appeals a judgment of
conviction and an order denying her postconviction motion. Tremaine argues that
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.
No. 2018AP1963-CR

her trial counsel was ineffective for failing to raise a meritorious ground for
suppressing the evidence against her. I agree and reverse.

BACKGROUND

¶2 The background facts are not disputed. On October 9, 2012, Lonnie
Barron was driving a vehicle with the defendant Rosalee Tremaine riding as the
passenger. As the vehicle drove past him, Officer David Clark initiated a traffic
stop because he observed a visual obstruction hanging from the vehicle’s rear-
view mirror.

¶3 After speaking with the driver and Tremaine, Clark decided to issue
the driver written warnings for the windshield obstruction and for a defective
center brake light that he observed while making the stop. However, Clark’s
patrol car’s printer was not working, so Clark called for another officer to bring
the appropriate warning forms. Approximately ten minutes later, the other officer
arrived on the scene with the forms.2

¶4 While Clark was filling out the warnings, several more officers
arrived on the scene, including Officer Brandon Stroik and his police dog. Clark
finished filling out the warnings and handed them to the driver, but did not tell the
driver that he was free to leave. Instead, the officer informed the driver that a
police dog was going to conduct a sniff around the outside of the vehicle.

2
Officer Clark also testified that he was familiar with the vehicle based on past tips from
the Sheriff’s Department related to drug trafficking. However, the record contains no information
about the nature or reliability of these tips, nor does the State assert that the tips were sufficient to
establish reasonable suspicion.

2
No. 2018AP1963-CR

¶5 Sometime after the driver received the written warnings, Stroik
released the police dog to conduct the dog sniff. Following completion of the dog
sniff, one or more of the officers asked the driver and Tremaine to exit the vehicle.
Officers then questioned Tremaine and searched her purse, where they found
marijuana and a marijuana pipe.

¶6 The State filed a complaint charging Tremaine with two
misdemeanors: possession of THC and possession of drug paraphernalia.
Tremaine filed a motion to suppress. Importantly, trial counsel limited the scope
of Tremaine’s suppression motion to whether the wait for the warning forms made
the search unreasonably long in violation of the Fourth Amendment.

¶7 The circuit court held a suppression hearing, and, after briefing from
both sides, issued an oral ruling denying Tremaine’s suppression motion.
Tremaine subsequently pled no contest to possession of THC, and the drug
paraphernalia charge was dismissed. The circuit court imposed a fine and costs
totaling $694.

¶8 Following Tremaine’s plea and sentencing, Tremaine’s appellate
counsel filed a no-merit report pursuant to WIS. STAT. RULE 809.32 and Anders v.
California, 386 U.S. 738 (1967). This court rejected the no-merit report,
concluding that the record “raises a question about whether the stop ended once
the deputy delivered the warning to the driver, and if the dog sniff occurred during
a subsequent unconstitutional seizure.” See State v. Tremaine, No.
2016AP164-CRNM, unpublished op. and order (WI App Dec. 1, 2016), and order
dated October 26, 2016, at 2.

¶9 Tremaine subsequently filed a postconviction motion contending
that her trial counsel was ineffective for failing to address the issue raised by this

3
No. 2018AP1963-CR

court in rejecting the no-merit report. The circuit court held a Machner hearing.3
The court focused on the length of time between when the driver received the
written warnings to completion of the dog sniff. It found that, at the time of the
suppression hearing, no evidence existed with respect to that length of time. The
court then concluded that trial counsel could not be deficient “for not asking a
question” to which “nobody knew” the answer and that trial counsel’s failure to
ask the question was therefore “at worst, harmless error.” In addition, the court
determined that, pursuant to State v. Arias, 2008 WI 84, ¶39, 311 Wis. 2d 358,
752 N.W.2d 748, there was no error by trial counsel because whatever period of
time elapsed between the driver’s receipt of the written warnings to completion of
the dog sniff was reasonable. As a result, the court denied Tremaine’s
postconviction motion alleging ineffective assistance of counsel.

¶10 This appeal followed.

DISCUSSION

I. Standard of Review

¶11 A defendant who seeks to withdraw a plea after sentencing must
prove by clear and convincing evidence that refusing to allow withdrawal of the
plea would result in a “manifest injustice.” State v. Fugere, 2019 WI 33, ¶16,
386 Wis. 2d 76, 924 N.W.2d 469 (quoting State v. Brown, 2006 WI 100, ¶18,
293 Wis. 2d 594, 716 N.W.2d 906 (internal quotation marks omitted)). One way
to demonstrate a “manifest injustice” is to show that the defendant received

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

4
No. 2018AP1963-CR

ineffective assistance of counsel. State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d
543, 859 N.W.2d 44.

¶12 “An ineffective assistance of counsel claim presents a mixed
question of fact and law. We will not reverse the circuit court’s findings of fact
unless they are clearly erroneous.... We independently review, as a matter of law,
whether those facts demonstrate ineffective assistance of counsel.” State v. Pico,
2018 WI 66, ¶13, 382 Wis. 2d 273, 914 N.W.2d 95 (citations omitted).

II. Ineffective Assistance of Counsel

¶13 The Sixth Amendment to the United States Constitution and Article
I, Section 7 of the Wisconsin Constitution guarantee criminal defendants the right
to effective assistance of counsel. Dillard, 358 Wis. 2d 543, ¶84. To succeed on
an ineffective assistance of counsel claim, the defendant must demonstrate (1) that
counsel performed deficiently; and (2) that counsel’s deficiency prejudiced the
defendant. State v. Tourville, 2016 WI 17, ¶19, 367 Wis. 2d 285, 876 N.W.2d
735. A defendant who claims that his or her counsel was deficient for failing to
bring a suppression motion must show that the motion would have succeeded. See
State v. Jackson, 229 Wis. 2d 328, 344, 600 N.W.2d 39 (Ct. App. 1999) (citing
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)). In order to demonstrate
prejudice when, as here, the defendant pleads guilty, the defendant must show “‘a
reasonable probability that, but for counsel’s errors, [the defendant] would not
have pleaded guilty and would have insisted on going to trial.’” State v. Cooper,
2019 WI 73, ¶29, 387 Wis. 2d 439, 929 N.W.2d 192 (quoting Hill v. Lockhart,
474 U.S. 52, 59 (1985)).

¶14 In this case, nothing in the parties’ briefing or in the record indicates
that the State had evidence supporting the charges against Tremaine except that

5
No. 2018AP1963-CR

which was seized as a result of the traffic stop and subsequent dog sniff. Thus, if
the unraised suppression ground is meritorious, Tremaine can meet both prongs of
the ineffective assistance of counsel standard because there is at least a
“reasonable probability” that she would have insisted on going to trial. See Hill,
474 U.S. at 59.

III. Legality of the Seizure4

¶15 The Fourth Amendment to the United States Constitution prohibits
unreasonable seizures. State v. Rutzinski, 2001 WI 22, ¶¶12-14, 241 Wis. 2d 729,
623 N.W.2d 516. A traffic stop, “even if only for a brief period and for a limited
purpose, constitutes a seizure of persons within the meaning of the Fourth
Amendment.” State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d
569 (quoted source and internal quotation marks omitted). Whether a seizure is
reasonable is governed by a two-part inquiry. Arias, 311 Wis. 2d 358, ¶29. First,
the seizure must be justified at its inception, and, second, the officer’s action must
be “‘reasonably related in scope to the circumstances which justified the
interference in the first place.’” Id., ¶30 (quoting Terry v. Ohio, 392 U.S. 1, 20
(1968)). Under the latter part of this inquiry, when “the reasons justifying the
initial stop have ceased to exist because the purpose of the stop has concluded,

4
Tremaine argues that, in analyzing whether trial counsel was ineffective, this court
should retroactively apply Rodriguez v. United States, 575 U.S. 348 (2015), decided after the
2014 suppression proceedings here. Rodriguez explicitly rejects a “de minimis rule,” under
which a dog sniff is constitutionally permissible if it occurs within a short time following the
completion of a traffic stop and constitutes only a de minimis intrusion. See id. at 353-57.
Instead, the Court held that “a police stop exceeding the time needed to handle the matter for
which the stop was made violates the Constitution’s shield against unreasonable seizures.” Id. at
350. Because I conclude that Rodriguez is not in conflict with precedent that was in force in
2014, I need not address Tremaine’s retroactivity argument. Nevertheless, this opinion’s Fourth
Amendment analysis relies on precedent in effect at the time of the 2014 suppression
proceedings.

6
No. 2018AP1963-CR

further seizure is beyond the scope of the initial stop.” State v. House, 2013 WI
App 111, ¶6, 350 Wis. 2d 478, 837 N.W.2d 645 (citing Arias, 311 Wis. 2d 358,
¶32). Tremaine does not challenge the initial stop. Therefore, the only issue on
appeal is whether her continued detention after issuance of the written warnings to
conduct the dog sniff was “reasonably related in scope to the purpose of the stop.”
See id., ¶5.

¶16 I conclude that, once the driver received the written warnings, the
“reasons justifying the initial stop ceased to exist” and Tremaine’s continued
detention to conduct the dog sniff was not “reasonably related in scope to the
purpose of the stop.” See id., ¶¶5, 10; see also State v. Jones, 2005 WI App 26,
¶¶2-4, 7 & n.4, 278 Wis. 2d 774, 693 N.W.2d 104 (traffic stop for speeding ended
once an officer gave the driver a citation and returned the identifying documents to
all occupants of the stopped vehicle).5

¶17 In reaching the opposite conclusion, the circuit court first relied on
Arias, in which our supreme court held that a 78-second dog sniff conducted
during an ongoing traffic stop did not unreasonably prolong the stop. See Arias,
311 Wis. 2d 358, ¶39. Applying Arias, the circuit court reasoned that the
extension of the stop after the driver received the written warnings but before the
dog sniff was completed was reasonable.

¶18 The circuit court’s reading and analysis of Arias is misplaced
because the conclusion in Arias regarding the 78-second extension applied to an
ongoing stop, not the extension of an already completed stop. See id. (“The dog

5
There is no indication in the record, and the State has never asserted, that the officers in
this case maintained possession of either passenger’s identifying documents during the dog sniff.

7
No. 2018AP1963-CR

sniff was part of the on-going traffic stop of Schillinger that occurred because she
was a minor and was transporting alcohol that Arias had placed in her vehicle.”);
see also House, 350 Wis. 2d 478, ¶9 (emphasizing that Arias dealt with an
ongoing traffic stop). After the purpose of the initial stop has concluded, the
continued seizure of a person, regardless of duration, is unlawful, unless it is
justified by reasonable suspicion or some other independent legal ground. See
House, 350 Wis. 2d 478, ¶¶6-10.6 Thus, to the extent that the circuit court read
Arias as permitting brief seizures after completed stops, it did so in error.7

¶19 The circuit court also concluded that Tremaine’s counsel could not
have been ineffective for failing to ask a question to which no one knew the
answer, namely, how long Tremaine was detained between issuance of the written
warnings and completion of the dog sniff. However, establishing this length of
time was unnecessary because, as previously stated, any continued detention
beyond what was reasonably related in scope to the purpose of the initial stop was
unlawful. Tremaine’s counsel therefore performed deficiently by failing to move
to suppress on this ground. See House, 350 Wis. 2d 478, ¶¶6-10.

¶20 In short, because Tremaine’s continued detention to conduct the dog
sniff was unlawful, the evidence obtained as a result of the dog sniff would have

6
The State did not argue in the postconviction proceeding below, nor does it contend on
appeal, that reasonable suspicion supported a continued detention to conduct the dog sniff.
Notably, on appeal, the State fails to respond to Tremaine’s argument in her initial brief that law
enforcement had no reasonable suspicion for this continued detention. As a result, this issue is
conceded. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994). I also
observe that the record does not contain facts sufficient to constitute reasonable suspicion or any
other legal basis to detain Tremaine or the driver for purposes of conducting the dog sniff.
7
I also note that, even if State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748,
could be read as allowing a brief seizure beyond a completed stop, there was insufficient evidence
here to conclude that this time period was brief.

8
No. 2018AP1963-CR

been suppressed had a motion been properly raised. See State v. Gammons, 2001
WI App 36, ¶24, 241 Wis. 2d 296, 625 N.W.2d 623. As a result, Tremaine’s trial
counsel was ineffective for not raising this issue. Had Tremaine’s counsel made
the proper argument, the only evidence against her would have been suppressed
and there is at least “‘a reasonable probability that ... [she] would not have pleaded
guilty and would have insisted on going to trial.’” See Cooper, 387 Wis. 2d 439,
¶29 (quoting Hill, 474 U.S. at 59).

IV. Reimbursement for Fine and Costs

¶21 Tremaine also asks this court to order that “she be reimbursed for the
fine and costs she paid as a result of her conviction.” However, Tremaine does not
cite any authority authorizing this court to consider her request in the first
instance, nor does she specify the actual dollar amount to which she is allegedly
entitled. Accordingly, on remand, Tremaine may file a motion for appropriate
relief.

CONCLUSION

¶22 For the reasons stated, I reverse the circuit court’s order denying
Tremaine’s postconviction motion and remand with directions to vacate the
judgment of conviction, allow Tremaine to withdraw her plea, and conduct any
necessary further proceedings consistent with this opinion.

By the Court.—Judgment and order reversed and cause remanded
with directions.

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

9