State v. Steven Lee Gauger

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 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. 2019AP700-CR Cir. Ct. No. 2017CF4

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STEVEN LEE GAUGER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Crawford County:
LYNN M. RIDER, Judge. Reversed and cause remanded for further proceedings.

Before Blanchard, Graham and Nashold, 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. 2019AP700-CR

¶1 PER CURIAM. Steven Gauger appeals a judgment of conviction
for possession with intent to deliver methamphetamine. Gauger argues that the
circuit court erroneously denied his motion to suppress evidence obtained as the
result of an encounter that police had with Gauger outside of a convenience store.
We agree and reverse.

BACKGROUND

¶2 The background facts are undisputed. In response to tips that
Gauger was selling marijuana in the area and methamphetamine in local taverns,
on January 7, 2017, members of a joint police task force responded to a
convenience store in Prairie du Chien where Gauger was reported to be. Deputy
Joe Breeser and his police dog were the first to arrive on the scene. Breeser pulled
up to the store in his fully marked police vehicle, but did not have his emergency
lights or siren on at the time he arrived.

¶3 Breeser knew what vehicle Gauger drove and saw it parked in the
convenience store parking lot. Breeser parked next to Gauger, with one empty
stall between the two vehicles. Breeser then exited his vehicle, wearing his full
uniform and duty belt. As Breeser got out of his vehicle, he made immediate
contact with Gauger, who had exited the store carrying a large case of water
bottles and some food. At the time of the encounter, Gauger was standing
approximately two feet from the driver’s side of his vehicle facing his vehicle as
though he was about to enter it. Breeser asked Gauger a series of brief questions,
to which Gauger offered brief answers: how Gauger was doing, what he was up
to, and where he was living. As recorded on Breeser’s body cam, Breeser and
Gauger then had the following exchange:

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No. 2019AP700-CR

[BREESER:] Is there anything in the vehicle tonight you
shouldn’t have?

[GAUGER:] No. Why?

[BREESER:] Knives, guns, drugs?

[GAUGER:] No. Why? What’s up?

[BREESER:] Would you have any objection if I ran my
dog around your car?

[GAUGER:] What did I do? Whoa, this is heavy
[referring to the items he was holding].

[BREESER:] Okay. You can set that down if you want.

¶4 Immediately after this exchange, Gauger turned around and placed
the water and food that he was carrying on the ground. Breeser then walked back
toward his vehicle. At the same time, Lieutenants Ryan Fradette and Jaden
McCullick pulled into the parking lot in an unmarked police car, with no siren or
emergency lights activated, and parked on the other end of the convenience store.
Breeser retrieved his police dog from his vehicle, put the dog on a leash, and then
walked the dog towards the rear of Gauger’s vehicle to conduct a dog sniff.

¶5 Breeser testified that, immediately after the dog exited the vehicle,
he observed the following “behavioral changes” in the dog: tail wagging, harder
breathing, and becoming excited. The body cam recording shows that,
approximately 15 seconds after emerging from the police vehicle, the dog placed
its front paws on the tailgate of Gauger’s vehicle and scratched on the tailgate,
which Deputy Breeser described as a “final response” and a “final indication for
the presence of one or more odors of narcotics in the vehicle.” The recording and
Breeser’s testimony also show that, approximately 15 seconds after scratching on
the tailgate, the dog put its front paws on and scratched on the rear passenger door
of Gauger’s vehicle, which Breeser also described as a “final response.” Breeser

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No. 2019AP700-CR

also testified that the dog “began alerting through numerous behavioral changes,”
but that the “final response” for the presence of narcotics was the dog’s scratching
on the vehicle. We construe Breeser’s testimony to mean that a determinative
alert did not occur until the dog scratched on the vehicle and not beforehand. The
recording supports this interpretation.1

¶6 While Breeser supervised the dog sniff, Gauger turned around and
started pacing, walking slightly away from his vehicle, in front of Breeser’s squad
car. Gauger then took his keys out of his pocket and used the remote function to
unlock his vehicle without being directed or asked to do so by police, and then
stood and watched what was occurring with his vehicle.

¶7 State Patrol Trooper Casey Updike also responded to the
convenience store. Updike parked his unmarked police vehicle approximately
four car stalls from where Gauger was parked. Updike, who was in full police
uniform, exited his vehicle and walked toward the front of the store, while the dog
sniff was in progress. Updike observed the dog scratch on a door of Gauger’s
vehicle, which Updike construed as a positive alert. Updike then approached
Gauger, who was standing approximately 10 feet away from his own vehicle,
looking at the vehicle.

¶8 Updike asked Gauger if he had any weapons on his person or in his
vehicle. Gauger stated that he had a CCW permit but denied having any weapons.
Gauger then consented to a pat-down. During the pat-down, Updike felt hard

1
The circuit court did not make an explicit or implicit finding as to when the dog
initially alerted, but only generally observed that the dog “hit on the vehicle,” which the court
stated established probable cause.

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No. 2019AP700-CR

objects in both of Gauger’s front pockets. Updike asked Gauger about the objects.
Gauger responded that he had a marijuana pipe and marijuana, and then, without
prompting from Updike, Gauger handed a pipe and marijuana to Updike. Updike
asked Gauger if he had recently used marijuana, and Gauger admitted that he had
smoked marijuana approximately two hours earlier. Updike then placed Gauger
under arrest.

¶9 After completing supervision of the dog sniff, Breeser informed one
of the other officers that the dog had alerted on Gauger’s vehicle for the presence
of narcotics. Breeser and the other officer then searched Gauger’s vehicle, in
which they found marijuana and methamphetamine.

¶10 The State charged Gauger with possession with intent to deliver
methamphetamine and possession with intent to deliver tetrahydrocannabinols.
Gauger filed a motion to suppress, arguing that he was illegally seized by Breeser
and that any evidence obtained as a result should be excluded.

¶11 The circuit court held a hearing and denied Gauger’s motion. The
court stated that there was no delay in bringing the dog to the convenience store
and that it took less than a minute to conduct the dog sniff, which was “not a big
seizure of Mr. Gauger’s time and freedom.”2 The court then stated: “And once

2
This determination that Gauger’s seizure without reasonable suspicion was
constitutionally permissible because it lasted only a short period of time is not consistent with the
Fourth Amendment. See State v. Young, 2006 WI 98, ¶¶20-22, 294 Wis. 2d 1, 717 N.W.2d 729
(recognizing only two types of permissible seizures of a person: an investigatory stop under
Terry v. Ohio, 392 U.S. 1 (1968), supported by reasonable suspicion and an arrest supported by
probable cause); see also Rodriguez v. United States, 575 U.S. 348, 353, 356-57 (2015) (rejecting
concept of “an acceptable ‘de minimis intrusion’” in context of a continued seizure of driver to
conduct a dog sniff following completion of a traffic stop). And, as discussed in the text at ¶¶17-
20, the State does not argue to the contrary.

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No. 2019AP700-CR

that dog hit on the vehicle, as we all know, that is enough probable cause for the
search.”

¶12 Following the denial of his motion to suppress, Gauger pled no
contest to the methamphetamine count; the other count was dismissed but read in.3
Gauger appeals.

DISCUSSION

¶13 The sole issue presented on appeal is whether the circuit court
properly denied Gauger’s motion to suppress. We review a circuit court’s
decision on a suppression motion under a mixed standard of review. State v.
Kelley, 2005 WI App 199, ¶8, 285 Wis. 2d 756, 704 N.W.2d 377. “‘We will
uphold the court’s factual findings unless they are clearly erroneous, but we
independently apply constitutional principles to those facts.’” State v. Ionescu,
2019 WI App 68, ¶8, 389 Wis. 2d 586, 937 N.W.2d 90 (quoted source omitted).
Here, the parties do not dispute the underlying facts; thus, we apply the relevant
constitutional principles to the facts. See id.

¶14 The Fourth Amendment to the United States Constitution and article
I, section 11 of the Wisconsin Constitution protect citizens against unreasonable
seizures. County of Grant v. Vogt, 2014 WI 76, ¶18, 356 Wis. 2d 343,
850 N.W.2d 253. Our courts have recognized two types of permissible seizures of
a person: an investigatory Terry stop4 supported by reasonable suspicion and an

3
Gauger also pled guilty to the civil offense of operating with a restricted controlled
substance as a first offense.
4
See Terry, 392 U.S. 1.

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No. 2019AP700-CR

arrest supported by probable cause. See generally State v. Young, 2006 WI 98,
¶¶20-22, 294 Wis. 2d 1, 717 N.W.2d 729. However, not all citizen-police
encounters are seizures. Vogt, 356 Wis. 2d 343, ¶26. Accordingly, the applicable
constitutional protections “are not implicated until a government agent ‘seizes’ a
person.” Id., ¶19.

¶15 Determination of whether police have seized a person is governed by
the Mendenhall test.5 Id., ¶30. “The [Mendenhall] test is objective and considers
whether an innocent reasonable person, rather than the specific defendant, would
feel free to leave under the circumstances.” Id. This inquiry “‘is necessarily
imprecise because it is designed to assess the coercive effect of police conduct,
taken as a whole, rather than to focus on particular details of that conduct in
isolation.’” State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834
(quoting Michigan v. Chesternut, 486 U.S. 567, 573 (1988)). When examining
the totality of the circumstances to determine whether a seizure has occurred,
relevant considerations may include: “the threatening presence of several officers,
the display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with the
officer’s request might be compelled.” See United States v. Mendenhall,
446 U.S. 544, 554 (1980).

¶16 The resolution of this case turns on when the seizure of Gauger
occurred—that is, whether Gauger was seized at the moment when police initiated
the dog sniff, or whether the seizure did not occur until later, after the dog alerted
on the vehicle. Gauger argues that police unlawfully seized him without the

5
See United States v. Mendenhall, 446 U.S. 544 (1980).

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No. 2019AP700-CR

requisite reasonable suspicion when police initiated the dog sniff after Gauger
failed to give his consent.6 We emphasize at the outset that the circuit court did
not find, nor does the State argue, that law enforcement had either reasonable
suspicion or consent to detain Gauger to conduct the dog sniff. Indeed, the State,
by failing to make any argument in opposition to Gauger’s assertion in his
appellate brief that police had no reasonable suspicion or consent, concedes these
points.7 See Propp v. Sauk Cty. Bd. of Adjustment, 2010 WI App 25, ¶8,
323 Wis. 2d 495, 779 N.W.2d 705 (“[A] proposition asserted on appeal and not
disputed is taken as admitted.” (citation omitted)).

¶17 Instead, the State argues that Gauger was not seized until after
probable cause was established by the dog alerting on Gauger’s vehicle. Relying
on Mendenhall, the State points out that, prior to the dog alert: (1) Gauger was
confronted by only one officer; (2) police did not activate their emergency lights
or sirens; (3) Gauger’s vehicle was not blocked in by police vehicles; (4) Breeser
did not use language suggesting that compliance with his requests was required;
(5) Gauger walked a short distance from his vehicle without being stopped, which,
according to the State, “demonstrat[ed] that he did not feel unable to leave”; and
(6) police did not subject Gauger to any nonconsensual physical contact. Thus,

6
Gauger argues in the alternative that the police dog’s alert on his vehicle did not give
rise to probable cause supporting the search of the vehicle. Because our resolution of the seizure
issue is dispositive, we need not resolve the issue of whether probable cause was established or, if
so, at what moment. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis.
2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the
parties when one issue is dispositive.”). All that matters on this point under our analysis is that
police lacked probable cause or reasonable suspicion at any time before they initiated the dog
sniff that resulted in the detention.
7
In response to Gauger’s argument on appeal that the informant tips did not provide
reasonable suspicion, the State asserts only that Gauger’s argument is “inapposite” because
Gauger was not seized until after probable cause was established by the dog alert.

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No. 2019AP700-CR

according to the State, the totality of the circumstances “would not lead a
reasonable person to feel compelled to stay” before the dog alerted on Gauger’s
vehicle and probable cause was established.

¶18 However, the State does not explicitly take a position as to when the
dog alert establishing probable cause occurred. The State asserts: “[A]s Deputy
Breeser explained, his canine’s behavior immediately changed when it approached
Gauger’s vehicle, including harder breathing, excited acts, wagging its tail, and a
‘final response’ of scratching at the tailgate, indicating the detection of drugs in
the vehicle.” The State may mean to argue that an alert establishing probable
cause occurred immediately upon the dog’s release from the police vehicle and
prior to the dog’s scratching the tailgate. Notably, the prosecutor made no such
argument in the circuit court, and for good reason because there is insufficient
evidence in the record to support this conclusion.

¶19 As a result, to the extent that the State’s argument relies on the
premise that the dog’s conduct prior to scratching on the tailgate constituted
probable cause, that argument fails because its premise is not supported by the
record. “Where a violation of the fourth amendment right against an unreasonable
search and seizure is asserted, the burden of proof upon the motion to suppress is
upon the state.” State v. Taylor, 60 Wis. 2d 506, 519, 210 N.W.2d 873 (1973).
Thus, if the State’s response to Gauger’s Fourth Amendment challenge is that
Gauger was not unlawfully seized at any point during the dog sniff because
probable cause was established immediately upon the dog emerging from the
police vehicle, then the State had the burden of establishing the facts to support
that premise at the suppression hearing. The State failed to do so.

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No. 2019AP700-CR

¶20 In the alternative, the State may mean to argue that, under
Mendenhall, Gauger was not seized before the scratch on the tailgate. We reject
this argument. We conclude, based on the clear evidence in the recording and not
undermined by any testimony, that Gauger was unlawfully seized, at a minimum,
for the approximately 15-second time period between Breeser’s retrieval of the
dog from the police vehicle for the obvious purpose of a sniff of the vehicle and
the first conduct of the dog that could be construed as an alert—scratching on the
tailgate. During this time period a reasonable person in Gauger’s position would
not have “believed he or she was free to leave or otherwise terminate the
encounter.” See State v. Luebeck, 2006 WI App 87, ¶7, 292 Wis. 2d 748,
715 N.W.2d 639.

¶21 As set forth above, as Gauger was just about to enter his car, Breeser
parked his fully marked squad car two parking spaces from Gauger’s vehicle and
approached Gauger in full police uniform and duty belt. Breeser began the
encounter by asking Gauger a series of questions that culminated in asking for
Gauger’s consent to allow Breeser to run his “dog around [Gauger’s] vehicle.”
Gauger did not consent. Nonetheless, Breeser immediately retrieved his police
dog and initiated the dog sniff, while Gauger, naturally enough, stood by, unable
to reasonably drive away.

¶22 Under these circumstances, a reasonable person would have
understood Breeser’s initiation of a dog sniff without consent as conveying that
the person’s continued presence was required while the dog sniff was completed.
See State v. House, 2013 WI App 111, ¶10, 350 Wis. 2d 478, 837 N.W.2d 645
(“Because [the officer] gave [the defendant] no choice in the matter when he
conducted the dog sniff, a reasonable person in [the defendant’s] place would not
have felt free to leave.”); see also 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A

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No. 2019AP700-CR

TREATISE ON THE FOURTH AMENDMENT § 9.4(a), at 599 (5th ed. 2012) (a police
officer may effect a seizure by revealing to a “suspect that he has set in motion
certain investigative procedures that contemplate the suspect’s continued
presence”). Knowing that a police officer and police dog had begun a search of
the outside of his vehicle, a reasonable person in Gauger’s position would not have
felt “free to disregard the police and go about his business” by simply driving
away. See State v. Griffith, 2000 WI 72, ¶39, 236 Wis. 2d 48, 613 N.W.2d 72
(quoting Florida v. Bostick, 501 U.S. 429, 434 (1991) (internal quotation marks
omitted)); see also Vogt, 356 Wis. 2d 343, ¶32 n.15 (blocking car’s path
constitutes a seizure). As a practical matter, driving away under these
circumstances posed an obvious risk of endangering the safety of both the police
officer and the police dog.8 A reasonable person would not have taken such an
unnecessary risk and would not have felt free to leave once Breeser retrieved the
police dog from his vehicle and initiated the dog sniff. And, without this seizure,
there is every indication that Gauger would have simply entered his vehicle and
driven away, as he was in the process of doing when first approached by police.
Thus, Gauger was unlawfully seized, and evidence obtained as a result of that
seizure should have been suppressed.9

8
Notably, animals used by law enforcement or fire departments are subject to special
protections. See WIS. STAT. § 951.095 (2017-18). For example, a person who frightens,
intimidates, threatens, abuses, harasses, strikes, shoves, kicks, or “otherwise subject[s] [a police
or fire department] animal to physical contact” has committed a crime, with a penalty ranging
from a Class B forfeiture to a Class H felony. See § 951.095(1)(a) and (b); WIS. STAT.
§ 951.18(2m) (2017-18).
9
The State concedes that, if Gauger was seized during the dog sniff, then “any derivative
evidence gained from a search following an unlawful seizure would also be suppressed via the
fruit of the poisonous tree doctrine.”

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No. 2019AP700-CR

CONCLUSION

¶23 For the reasons stated above, we reverse the circuit court’s judgment
and remand for further proceedings consistent with this opinion.

By the Court.—Judgment reversed and cause remanded for further
proceedings.

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

12