State v. Russell James Hierl

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.
November 4, 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. 2020AP1187-CR Cir. Ct. No. 2017CF220

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RUSSELL JAMES HIERL,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Monroe County:
MARK L. GOODMAN, Judge. Affirmed.

Before Blanchard, P.J., 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. 2020AP1187-CR

¶1 PER CURIAM. Russell Hierl appeals a judgment, entered upon his
guilty plea, convicting him of one count of operating under the influence of an
intoxicant (OWI), as a seventh offense. See WIS. STAT. § 346.63(1)(a) (2019-20).1
On appeal, Hierl challenges the circuit court’s denial of his suppression motion,
raising two Fourth Amendment issues. For the reasons discussed below, we affirm
the decision of the circuit court.

BACKGROUND

¶2 The State charged Hierl with one count of OWI and one count of
operating with a prohibited alcohol concentration, both as a seventh offense, as well
as operating a motor vehicle while revoked, keeping an open intoxicant in a motor
vehicle, and non-registration of a vehicle.

¶3 Hierl moved to suppress the results of the blood test. The circuit court
held an evidentiary hearing at which the arresting officer testified. The court also
viewed part of a video of the traffic stop that had been recorded on the officer’s
squad car camera.

¶4 The following undisputed facts are taken from the evidence presented
at the suppression hearing.

¶5 The officer stopped a vehicle that Hierl was driving after the officer
ran the license plates and saw that the plates were expired and that the registered
owner of the vehicle had a suspended license and an active warrant. The officer
approached the vehicle and spoke with Hierl. Hierl reported that he did not have
identification, but the officer confirmed his identity through dispatch. The officer

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1187-CR

learned that Hierl was not the vehicle’s registered owner and that Hierl’s driver’s
license had been revoked. The officer also learned that Hierl had five prior OWI
offenses. The officer returned to his squad car and prepared citations for operating
after revocation and non-registration.

¶6 The officer went back to the vehicle Hierl had been driving and
explained the citations. Hierl did not have means to contact anyone for a ride, so
the officer allowed Hierl to use the officer’s cell phone to make a call. The officer
observed that Hierl turned away from him while he was on the phone. The officer
also noticed that Hierl’s eyes appeared to be glassy and possibly bloodshot, and that
there was an odor of intoxicants coming from inside the vehicle. The officer asked
Hierl how much he had had to drink and whether, if he took a preliminary breath
test (PBT), he would “blow zeros.” Hierl did not answer the question about
drinking, and he said that he was not going to blow into anything. The officer asked
Hierl to perform field sobriety tests, and Hierl refused. Hierl was placed under arrest
for OWI and taken to a hospital where he consented to provide a blood sample. The
results of laboratory testing showed a blood alcohol concentration of 0.17.

¶7 At the close of the evidentiary hearing, the court denied the
suppression motion. Hierl pled guilty to OWI as a seventh offense. He now appeals,
challenging the circuit court’s denial of his suppression motion.

STANDARD OF REVIEW

¶8 On review of a motion to suppress, we uphold the circuit court’s
findings of historical fact and credibility unless they are clearly erroneous, but we
independently review the application of the constitutional principles to the facts.
State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625.

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No. 2020AP1187-CR

DISCUSSION

¶9 A traffic stop is constitutionally permissible when the officer has
reasonable suspicion to believe that a crime or traffic violation has been or will be
committed. State v. Popke, 2009 WI 37, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569.
Here, Hierl does not dispute that there was an adequate basis for the initial traffic
stop. However, he argues that the stop was unlawfully extended. Alternatively,
Hierl argues that the officer lacked probable cause to arrest him. For the reasons
discussed below, we reject Hierl’s arguments.

¶10 A valid traffic stop may be extended, and a new investigation begun,
if “the officer 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 and distinct from the acts that prompted
the officer’s intervention in the first place[.]” State v. Betow, 226 Wis. 2d 90, 94-
95, 593 N.W.2d 499 (Ct. App. 1999). The validity of the extension is examined
under the same criteria as the initial stop. Id. That is, the extension must be
supported by reasonable suspicion. See State v. Hogan, 2015 WI 76, ¶35, 364
Wis. 2d 167, 868 N.W.2d 124.

¶11 Hierl acknowledges in his opening brief that certain facts in the
record, when considered along with Hierl’s prior OWIs, offer some support for an
extension of the stop to conduct an OWI investigation. These facts include the
officer’s remarks, which can be heard on the video from the squad camera, that he
could smell alcohol and that Hierl’s eyes appeared “a little bit glassy.” However,
Hierl argues that these two facts offer the only support for extending the traffic stop
to investigate an OWI offense. Hierl asserts that all other relevant facts weigh
against a finding of reasonable suspicion. Hierl points out that the stop occurred on

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No. 2020AP1187-CR

a Monday afternoon, that the stop was not triggered by poor driving, that Hierl did
not admit to having consumed any alcohol that day, and that the officer testified that
he did not notice any problems with Hierl’s speech or motor functioning. Hierl
argues that, when all of the facts are considered in their totality, it was unreasonable
for the officer to extend the stop. We disagree that the facts considered in their
totality do not support reasonable suspicion.

¶12 In addition to the officer reporting smelling the odor of alcohol and
saying that he believed that Hierl’s eyes looked glassy, the record establishes that
the officer knew that Hierl had five prior OWI convictions. Therefore, under WIS.
STAT. § 340.01(46m)(c), Hierl’s prohibited alcohol concentration limit was 0.02.
The State argues that, when a person is subject to the 0.02 limit, it takes little alcohol
consumption to exceed that limit, and the quantum of proof necessary to support the
reasonable suspicion standard is low. In support of this argument, the State relies
on State v. Goss, 2011 WI 104, 338 Wis. 2d 72, 806 N.W.2d 918.

¶13 In Goss, our supreme court stated that there was probable cause for an
officer to request a driver to give a PBT sample under the following circumstances:
the officer knew the driver was subject to a 0.02 standard; the officer knew that it
would take little alcohol consumption for the driver to exceed that limit; and the
officer smelled alcohol on the driver. Id., ¶2. Although the Goss case centered on
whether there was probable cause to request a PBT, which is not an issue in this
case, the court nonetheless discussed the reasonable suspicion standard that is
applicable here. The court stated that the standard of probable cause for requesting
a PBT is “‘a quantum of proof that is greater than the reasonable suspicion necessary
to justify an investigative stop.’” Id., ¶25 (quoting County of Jefferson v. Renz,
231 Wis. 2d 293, 317, 603 N.W.2d 541 (1999)).

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No. 2020AP1187-CR

¶14 Both parties address the arresting officer’s testimony reflecting that
the officer was subjectively not aware, based on his exchange with dispatch, that
Hierl was subject to a 0.02 prohibited alcohol concentration. However, for purposes
of determining whether there was reasonable suspicion to investigate, we agree with
the State that it does not matter whether this particular officer was aware that Hierl’s
five prior OWI convictions caused him to be subject to the 0.02 prohibited alcohol
concentration limit. See WIS. STAT. § 340.01(46m)(c) (a person with three or more
prior convictions is subject to the .02 limit). Law enforcement actions implicating
the Fourth Amendment are reviewed “with an objective lens.” State v. Brown, 2020
WI 63, ¶25, 392 Wis. 2d 454, 945 N.W.2d 584, cert. denied, 141 S. Ct. 881 (2020);
see also U.S. CONST. amend. IV. The relevant question, then, is what a reasonable
officer would have known. We conclude that a reasonable officer would have
known that Hierl was subject to the .02 limit. Further, a reasonable officer would
also know that little alcohol consumption would be required to exceed that limit.
Consistent with this expectation, the arresting officer here testified at the
suppression motion hearing that the average person would reach the 0.02 limit by
consuming roughly one drink.

¶15 When we view all of the facts together with an objective lens, we
conclude that the State carried its burden to show that there was reasonable
suspicion to extend the traffic stop to investigate whether Hierl had driven with a
prohibited alcohol concentration. Our supreme court has acknowledged, when
applying the reasonable suspicion standard, that any one fact, “standing alone, might
well be insufficient. But that is not the test we apply. We look to the totality of the
facts taken together.” State v. Waldner, 206 Wis. 2d 51, 58, 556 N.W.2d 681
(1996). To recap, the record here reflects that the officer reported smelling alcohol,
said that he observed that Hierl’s eyes were glassy and possibly bloodshot, and had

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No. 2020AP1187-CR

become aware that Hierl had five prior OWI offenses. A police officer can take
even a single prior OWI offense into account in determining whether there is
probable cause to arrest a person for an OWI offense. See State v. Lange, 2009 WI
49, ¶33, 317 Wis. 2d 383, 766 N.W.2d 551. Here, where the officer knew that Hierl
had not just one but five prior OWI offenses, we are satisfied that the facts satisfy
the less demanding standard for reasonable suspicion. See State v. Buchanan, 2011
WI 49, ¶9, 334 Wis. 2d 379, 799 N.W.2d 775 (providing that “‘reasonable suspicion
is a less demanding standard than probable cause’” (quoted source omitted)).
Further, as we have explained, a reasonable officer would have known that, as
person with five prior OWI convictions, Hierl was subject to a 0.02 prohibited
alcohol concentration.

¶16 We turn to Hierl’s argument that the officer lacked probable cause to
arrest him. “Probable cause to arrest … refers to that quantum of evidence within
the arresting officer’s knowledge at the time of the arrest that would lead a
reasonable law enforcement officer to believe that the defendant was operating a
motor vehicle [while intoxicated].” Lange, 317 Wis. 2d 383, ¶19. In making a
determination as to whether probable cause exists, we must look to the totality of
the circumstances. State v. Babbitt, 188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct.
App. 1994). Applying these principles, we agree with the State that it carried its
burden of showing that the circumstances in this case were sufficient to satisfy the
probable cause standard.

¶17 All of the facts that we have just discussed as relevant to our analysis
of whether the officer had reasonable suspicion to extend the traffic stop are also
relevant to our analysis of whether the officer had probable cause to arrest Hierl.
We will not repeat these facts here.

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No. 2020AP1187-CR

¶18 Additional facts also contribute to our conclusion that the standard for
probable cause to arrest is satisfied in this case. Hierl declined to perform field
sobriety tests when the officer asked him to do so. “[A] defendant’s refusal to
submit to a field sobriety test may be used as evidence of probable cause to arrest.”
Id. at 362. “The most plausible reason for a defendant to refuse such a test is the
fear that taking the test will expose the defendant’s guilt.” Id. at 359. Further, when
Hierl got out of his vehicle, he made the following incriminating statement to the
officer, “You might as well take me in.”

¶19 For all these reasons we conclude that the circuit court properly denied
Hierl’s suppression motion.

By the Court.—Judgment affirmed.

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

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