State v. Noah D. Hartwig

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 30, 2023
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. 2022AP1802-CR Cir. Ct. No. 2022CM111

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

NOAH D. HARTWIG,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Jefferson County:
ROBERT F. DEHRING, JR., Judge. Affirmed and cause remanded for further
proceedings.
No. 2022AP1802-CR

¶1 KLOPPENBURG, J.1 During the course of a traffic stop, and
following a search of his vehicle and person, Noah Hartwig was arrested for
possession of drug paraphernalia, possession of oleoresin device, and possession
of tetrahydrocannabinols (THC). Hartwig moved to suppress the evidence
obtained during the search on the grounds that law enforcement unlawfully
extended the traffic stop in order to conduct a drug investigation without having
reasonable suspicion to do so, thereby violating his constitutional right against
unreasonable seizures. After an evidentiary hearing, the circuit court granted
Hartwig’s motion to suppress the evidence obtained from the search of Hartwig’s
vehicle and his person. On appeal, the State argues that the circuit court erred in
granting Hartwig’s motion. For the reasons that follow, I affirm the court’s
suppression order and remand to the court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 After Hartwig filed his motion to suppress, the circuit court held an
evidentiary hearing at which the arresting officer and Hartwig testified.

¶3 The officer, a deputy with the Jefferson County Sheriff’s Office for
15 years with training in investigating drug cases, testified as follows. At
6:20 p.m. on January 15, 2020, the officer was patrolling the area of a Department
of Natural Resources boat launch in the Town of Koshkonong. She saw a car
parked in a corner of the lot. The car was unoccupied, with a purse on the front

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
By a separate order, I have denied Noah Hartwig’s motion for a three-judge panel under WIS.
STAT. § 752.31(3).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP1802-CR

seat. It was dark and cold, and the ground was icy. The officer, concerned that
someone associated with the car might be in need of assistance, checked the
surrounding area on foot and, finding nothing, returned to her squad car and asked
dispatch to look up the phone number of the registered owner to check in with the
owner and make sure everything was all right. The officer’s fully marked squad
car was in the middle of the lot, with the headlights on.

¶4 As the officer waited for a response from dispatch, a Jeep pulled up
next to the parked car. The Jeep parked next to the driver’s side of the car, 30-50
feet from the squad car. A woman got out of the passenger side of the Jeep,
looked at the officer in the squad car, and immediately got into the driver’s side of
the parked car. The officer was unable to ascertain whether the woman was a
juvenile. At that point, the officer’s original inquiry into the safety of the car’s
driver changed to an investigation of suspicious activity by both the woman and
the driver of the Jeep, and she expected them to stay there until she completed the
investigation.

¶5 The officer turned on her body camera and the emergency red and
blue lights on top of her squad car and walked over to the passenger side of the car
the woman had entered.2 The woman rolled down the front passenger side
window, and the officer smelled an odor of marijuana coming out of the car; the
officer could not determine whether the smell was coming from the woman or the
car.

2
The body camera video was received as an exhibit and pertinent portions were played
at the hearing.

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No. 2022AP1802-CR

¶6 In response to the officer’s questions, the woman said that she was
20 years old, had not been smoking and never used marijuana, and just came from
Noah Hartwig’s house and was being dropped off by Hartwig. The officer knew
that Hartwig’s house was about one mile from the boat launch and was familiar
with Hartwig because the officer had previously seen Hartwig in the county jail
and heard that he “was known to use controlled substances” in the past. Because
the woman told the officer that she did not use marijuana, the officer considered
whether the odor of marijuana was coming from her person after she had been in
the Jeep. At that point, the officer was pursuing a drug investigation.

¶7 The officer returned to her squad car to enter the woman’s
information and arranged for an officer with a drug detection dog to come to the
boat launch and have the dog perform a sniff outside both the car and the Jeep.

¶8 The officer then went to the driver’s side of the Jeep to identify
Hartwig and investigate whether “there was drug activity going on between” him
and the woman. Hartwig was smoking a cigarette and the officer did not detect
any odor of marijuana from Hartwig’s person or the Jeep. Cigarette smoke
generally masks the odor of fresh marijuana but not necessarily burnt marijuana;
the officer could not recall whether the odor she smelled at the woman’s car was
of fresh or burnt marijuana. Hartwig explained why he was there, and there was
nothing “suspicious” about his explanation. Specifically, both Hartwig and the
woman explained that they had gone to his house and she left her car in the boat
launch parking lot because the driveway at Hartwig’s house had a lot of cars in it
leaving no room for her to park there.

¶9 The officer asked when Hartwig last smoked marijuana and he said,
“I don’t have to answer that question.” The officer then asked Hartwig for his

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No. 2022AP1802-CR

driver’s license and he gave it to her. Hartwig asked the officer why she was
stopping him and she answered, “Because of suspicious activity.”

¶10 The officer returned to her squad car with Hartwig’s license and still
had the license when the canine officer arrived about 20 minutes later.3 The dog
indicated on both vehicles.

¶11 Hartwig testified as follows. He arranged to pick up the woman at
the parking lot and bring her to his parents’ house, where he was living at the time,
hung out with her at the house for about one to two hours, and brought her back to
the parking lot. The driveway at his parents’ house was full of his parents’ and
sister’s vehicles, and there was no space for another car to park in the driveway.
Additionally, it was icy, the driveway is steep, and it is dangerous to park on the
road because of the tight curve in the road. Hartwig did not hear the conversation
between the officer and the woman at the woman’s car, or at least was not “able to
make out what was being said.” He did not believe that he could leave when the
officer parked her squad car behind him with the lights on.

¶12 The circuit court issued its ruling granting Hartwig’s suppression
motion after hearing the officer’s and Hartwig’s testimony and the parties’
arguments. The court first determined that Hartwig was detained when the officer
parked her squad car behind his Jeep and turned on the emergency lights. The
court determined that the officer was initially properly exercising a community
caretaker function when the officer investigated the parked car in the boat launch

3
As the State notes, while the officer did not recall how long it took for the canine
officer to arrive, the circuit court found that it took 20 minutes. That finding appears to be
supported by Hartwig’s counsel’s cross-examination of the officer based on counsel’s viewing of
the body-camera video, and the State does not dispute that finding on appeal.

5
No. 2022AP1802-CR

parking lot and went to talk to the woman when she saw the woman go from the
Jeep into the parked car. However, the court did not find it suspicious that, “in the
middle of winter,” the woman hurriedly went from the Jeep to her car to start her
car. The court determined that, at that point, before the officer went to talk to the
woman, the officer had no reasonable suspicion to detain Hartwig. The court
noted that there was no evidence that the parking lot was an area of known drug
activity. The court said that, absent that kind of evidence, “dropping somebody
off to their car is not reasonable suspicion of a crime in progress or having been
committed.”

¶13 Alternatively, the circuit court considered the officer’s investigation
of Hartwig “to the extent that things changed” after the officer went to the
woman’s car and smelled the odor of marijuana, and the woman said she never
used marijuana and gave what might be a dubious explanation that she parked in
the lot rather than at the house where she was hanging out because the driveway
was full and she could not park there. In that event, the court determined that, in
continuing the investigation, the officer lawfully asked Hartwig for his
identification and name and address. The court found that Hartwig provided the
information requested and gave an explanation that was consistent with the
woman’s explanation of why she parked in the lot. The court also found that
Hartwig did not hear the conversation between the officer and the woman. The
court determined that the investigation of Hartwig should have ended after the
officer ran his license and found no issues such as concerns with its validity or
outstanding warrants. At that point, according the court, the officer could only
lawfully return the license to Hartwig and send him on his way.

¶14 The circuit court summarized its ruling as follows. The totality of
circumstances consisted of Hartwig smoking a cigarette after dropping off

6
No. 2022AP1802-CR

someone who smells of marijuana, and the officer having “heard while [Hartwig]
was at the jail that he used controlled substances.” Without more, the officer
unlawfully extended the stop for a dog sniff in violation of Hartwig’s
constitutional rights.

DISCUSSION

¶15 The Fourth Amendment of the United States Constitution and art. I,
§ 11 of the Wisconsin Constitution protect individuals from unreasonable searches
and seizures.4 Whether evidence should be suppressed “is a question of
constitutional fact,” which is in turn a mixed question of law and fact to which
appellate courts “apply a two-step standard of review.” State v. Post, 2007 WI 60,
¶8, 301 Wis. 2d 1, 733 N.W.2d 634. This court reviews the circuit court’s
findings of historical or evidentiary fact under the clearly erroneous standard; this
court reviews independently the application of constitutional principles to those
facts. Id.

¶16 Temporary detention during a traffic stop is a seizure and, therefore,
it must conform to the constitutional requirement of reasonableness. Id., ¶12.
“The burden of establishing that an investigative stop is reasonable falls on the
[S]tate.” Id.

¶17 A law enforcement officer may stop a vehicle when the officer
possesses reasonable suspicion that, “in light of [the officer’s] training and
experience,” a crime or other unlawful offense has been or may be committed.

4
The Wisconsin Constitution contains substantively identical protections that are usually
interpreted coextensively with the United States Supreme Court’s interpretation of the Fourth
Amendment. State v. Floyd, 2017 WI 78, ¶19, 377 Wis. 2d 394, 898 N.W.2d 560.

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No. 2022AP1802-CR

Id., ¶13. A law enforcement officer may also conduct a seizure without
reasonable suspicion under “‘a few well-delineated exceptions.’” State v.
Pinkard, 2010 WI 81, ¶¶13, 327 Wis. 2d 346, 785 N.W.2d 592 (quoted source
omitted). Tangentially pertinent here, one such exception involves an officer
functioning as a “community caretaker.” Id., ¶14.5

¶18 A law enforcement officer may extend the stop 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 from the justification for the officer’s initial
investigation. State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659
N.W.2d 394 (quoting State v. Betow, 226 Wis. 2d 90, 94, 593 N.W.2d 499 (Ct.
App. 1999)). If an officer measurably extends the stop beyond the time
reasonably required to complete its mission, it then becomes an unconstitutional
seizure. Rodriguez v. United States, 575 U.S. 348, 357 (2015).

¶19 Reasonable suspicion is “a common sense test” that asks “the crucial
question” of whether a reasonable police officer, based on articulable facts and
reasonable inferences from those facts, and in light of the officer’s training and
experience, would suspect “that the individual has committed, was committing, or

5
I do not address Hartwig’s suggestion that the community caretaker exception as
articulated in Wisconsin law no longer applies to vehicle searches and seizures, for two reasons.
First, Hartwig does not develop an argument to support this suggestion. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“We may decline to review issues
inadequately briefed.”). Second, my conclusion that the circuit court properly granted Hartwig’s
suppression motion because the officer unlawfully extended the stop when the officer no longer
had reasonable suspicion that Hartwig had committed, was committing, or was about to commit,
a crime, is dispositive. 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.”).

8
No. 2022AP1802-CR

is about to commit a crime.” Post, 301 Wis. 2d 1, ¶13; State v. Waldner, 206 Wis.
2d 51, 56, 556 N.W.2d 681 (1996). “The reasonableness of a stop is determined
based on the totality of the facts and circumstances.” Post, 301 Wis. 2d 1, ¶13.

¶20 The State concedes that both the woman and Hartwig were detained
for an investigatory stop when the officer parked the squad car behind their
vehicles and turned on the emergency lights. The State also asserts that the officer
properly engaged in a bona fide community caretaker function when at that point
the officer detained the woman and Hartwig based on a reasonable concern for the
woman’s safety. Hartwig argues that the record provides no support for the
application of the community caretaker exception to the officer’s investigation of
Hartwig. The State further argues that it was reasonable suspicion that a crime
had been committed, not the community caretaker exception, that warranted the
officer’s extending the stop “to make contact with” Hartwig. Hartwig disagrees.

¶21 I assume, without deciding, that the officer properly engaged in a
bona fide community caretaker function when the officer initially detained both
the woman and Hartwig. I also assume, without deciding, that the officer had, in
addition, reasonable suspicion to extend the initial stop to investigate Hartwig after
the officer smelled the odor of marijuana through the open window of the
woman’s car and the woman both denied ever using marijuana and gave a
potentially dubious explanation as to why she parked in the lot. However, as the
circuit court explained, the officer lacked reasonable suspicion to further detain
Hartwig when: Hartwig provided the information the officer requested including
an explanation of why the woman parked in the lot that mirrored the explanation
given by the woman which Hartwig had not overheard; the running of Hartwig’s
license and information revealed no concerns; and the officer did not smell the
odor of marijuana from Hartwig or his Jeep. That is, at that point the officer

9
No. 2022AP1802-CR

lacked reasonable suspicion that Hartwig had committed or was about to commit a
crime and was obligated to let him go.

¶22 The State argues that the officer lawfully extended the stop of
Hartwig, “for the purpose of having a canine respond to perform an exterior sniff
of the [Jeep],” because of the link between the odor of marijuana in the woman’s
car and the woman’s having just left the Jeep. However, while that link may have
sufficed to warrant the officer’s initial investigation of Hartwig in his Jeep, any
suspicion attendant to that link evaporated when: Hartwig provided the
information the officer requested including an explanation of why the woman
parked in the lot that mirrored the explanation given by the woman, which
Hartwig had not overheard; the running of Hartwig’s license and information
revealed no concerns; and the officer did not smell the odor of marijuana from
Hartwig or his Jeep.

¶23 The State also argues that the absence of any odor of marijuana from
Hartwig or the Jeep did not remove the officer’s suspicion because Hartwig was
smoking a cigarette and the officer testified that cigarette smoke may have masked
the odor of marijuana. However, the officer’s suspicion did not reasonably remain
when Hartwig was smoking a cigarette absent additional articulable facts that
would have reasonably permitted the inference that Hartwig had used or
possessed, or was using or possessing, marijuana. Given the totality of articulable
facts identified above, such an inference was unreasonable.

¶24 The State also argues that the 20 minutes it took for the canine
officer to arrive was not unreasonable. However, there is no evidence that the
officer needed the 20 minutes to run Hartwig’s license and information and learn
that there were no new concerns that might warrant continuing with the stop.

10
No. 2022AP1802-CR

Moreover, the isolation of the time that elapsed disregards the totality of
circumstances identified above, which establish that the officer unlawfully
extended the stop to request the dog-sniff when the officer no longer had
reasonable suspicion that Hartwig had committed, was committing, or was about
to commit, a crime.

¶25 In sum, the State fails to show that the circuit court erred in granting
Hartwig’s suppression motion.

CONCLUSION

¶26 For the reasons stated above, I affirm.

By the Court.—Order affirmed and cause remanded for further
proceedings.

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

11