State v. Traci Lynn Busha

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.
August 20, 2019
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. 2018AP1863-CR Cir. Ct. No. 2016CT83

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TRACI LYNN BUSHA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Douglas County:
KELLY J. THIMM, Judge. Affirmed.

¶1 SEIDL, J.1 Traci Busha appeals a judgment convicting her of
third-offense operating a motor vehicle while intoxicated (OWI). Busha contends
the circuit court erred by denying her motion to suppress statements that she made

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP1863-CR

to a police officer before she received Miranda2 warnings. We conclude Busha
was not in custody at the time she made the statements in question, and, as such,
Miranda warnings were not required. We therefore affirm.

BACKGROUND

¶2 City of Superior police officer Gary Gothner was the only witness to
testify at the hearing on Busha’s suppression motion. The following facts are
taken from Gothner’s testimony and from our review of a video recorded by his
body camera, which was entered into evidence during the suppression hearing.

¶3 Just before 10:00 p.m. on May 6, 2016, Gothner was dispatched to
investigate a report of a vehicle in a ditch. When he arrived at the scene, he found
a car “listing deeply in the ditch” at “roughly … a 45-degree angle,” with its
passenger side lower in the ditch than its driver’s side. It appeared as though the
vehicle’s tires had been spinning in an effort to get out of the ditch.

¶4 When Gothner approached the vehicle he saw that there was only
one person inside—a female seated in the front passenger seat. He opened the
driver’s side door of the vehicle, which he then had to hold open due to the angle
of the vehicle, and identified the lone occupant as Busha.

¶5 Gothner asked Busha what was going on, and she replied that
“Scott,” her boyfriend, was supposed to be coming to get her. Busha denied that
she had been driving the vehicle and told Gothner that Scott had been driving.
When Gothner asked about Scott’s whereabouts, Busha reiterated that he was “on

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

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No. 2018AP1863-CR

his way” and was “supposed to be coming to get [her].” However, while Gothner
was speaking to Busha, it appeared she was trying to use her phone to
communicate her location to Scott. Busha confirmed that she owned the vehicle
and provided Gothner with her insurance information. Busha admitted drinking
alcohol, and Gothner observed a beer can on the floor of her vehicle.

¶6 Gothner then told Busha, “Well, let’s start with getting you a
wrecker here,” and Busha responded, “Okay.” Gothner radioed dispatch to
request a wrecker, while continuing to stand next to Busha’s vehicle and hold the
door open. Shortly thereafter, a second officer approached the vehicle. Busha
asserts—and the State does not dispute—that the second officer asked Busha to
get out of her vehicle, and Busha refused to do so.3

¶7 As Busha and the officers waited for the wrecker to arrive, Gothner
continued to question Busha about Scott’s whereabouts. Gothner then asked
Busha, “How do I know you’re not fibbing to me?” Busha denied lying to
Gothner. Gothner continued questioning Busha about the alcohol she and Scott
had consumed that night, where Scott might have gone, and the route Busha
claimed they had taken before driving into the ditch.

¶8 Gothner then asked Busha whether she could call Scott. While the
officers waited for Busha to do so, Gothner told Busha, “I’m really having a hard
time believing what you’re telling me, Miss Busha.” The second officer then

3
Busha cites Gothner’s body camera video in support of her claim that the second
officer asked her to get out of her vehicle. However, the audio at the cited portion of the video is
not of sufficient quality for this court to confirm whether that exchange occurred. Nevertheless,
because the State does not dispute Busha’s assertion regarding the exchange in question, we
accept as true Busha’s claim that the second officer asked her to get out of her vehicle, and she
refused.

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No. 2018AP1863-CR

suggested that Gothner should have Busha get out of the car to see whether she
smelled like alcohol. Gothner responded that Busha had admitted to being
“bombed,” but he did not believe he could “put her behind the wheel.”

¶9 Shortly thereafter, Busha succeeded in reaching Scott and agreed to
allow Gothner to speak to him. Gothner spoke with Scott for less than one minute
before Busha’s phone lost the connection. At that point, Gothner told Busha,
“Okay Traci, time to climb out.” Busha then exited the vehicle through the
driver’s side door.

¶10 After Busha got out of her vehicle, Gothner directed her to stand in
front of his supervisor’s SUV.4 The following exchange then occurred:

Gothner: Now, you know, I’ve been really nice.

Busha: Yes.

Gothner: I’ve been very patient.

Busha: Yes, you have.

Gothner: And I’ve been trying to believe you.

Busha: Yes.

Gothner: But you know what, I don’t believe you.

Busha: I know.

Gothner: So I think we need to start telling the truth. Do
you agree with that?

Busha: Yes.

Gothner: Okay.

Busha: Okay.

4
The record does not indicate when Gothner’s supervisor arrived at the scene.

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No. 2018AP1863-CR

Gothner: So. Why don’t we start from the top?

Busha: Okay.

Gothner: What happened?

¶11 Busha subsequently admitted, in response to Gothner’s questions,
that she had been driving the vehicle, that she was consuming alcohol while
driving, and that there was no one else in the vehicle with her. Following the
administration of field sobriety tests and a preliminary breath test, Busha was
placed under arrest for OWI.

¶12 In support of her motion to suppress, Busha argued she was in
custody at the time she admitted that she, not Scott, was driving her vehicle.
Because Busha had not yet received Miranda warnings at that time, she argued
her statements to Gothner should be suppressed, along with all other evidence that
the police obtained after she made those statements. The circuit court disagreed
and denied Busha’s suppression motion. The court reasoned that Gothner’s
questioning of Busha was a “consensual encounter” and that, under the
circumstances, “a reasonable person … wouldn’t feel like they were in custody.”

¶13 Busha subsequently entered a no contest plea to the OWI charge.
She now appeals, arguing the circuit court erred by denying her suppression
motion.

DISCUSSION

¶14 When reviewing a circuit court’s decision on a motion to suppress,
we apply a two-step standard of review. State v. Eason, 2001 WI 98, ¶9, 245
Wis. 2d 206, 629 N.W.2d 625. We will uphold the circuit court’s factual findings

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No. 2018AP1863-CR

unless they are clearly erroneous. Id. However, we independently review whether
those facts violate constitutional principles. Id.

¶15 Law enforcement must provide Miranda warnings before
interrogating an individual who is in custody. State v Mitchell, 167 Wis. 2d 672,
686, 482 N.W.2d 364 (1992). In this case, the State concedes that Gothner
interrogated Busha when he told her he did not believe her story and asked her to
tell the truth about what happened. The only disputed issue is whether Busha was
in custody at that time.

¶16 A defendant is in custody for purposes of Miranda if, under the
totality of the circumstances, a reasonable person in the defendant’s position
would have considered himself or herself to be in custody. State v. Gruen, 218
Wis. 2d 581, 593, 582 N.W.2d 728 (Ct. App. 1998). Factors relevant to this
analysis include the defendant’s freedom to leave the scene; the purpose, place,
and length of the interrogation; and the degree of restraint. Id. at 594. When
assessing the degree of restraint, courts have considered: (1) whether the
defendant was handcuffed; (2) whether a gun was drawn on the defendant;
(3) whether the defendant was frisked; (4) the manner in which the defendant was
restrained; (5) whether the defendant was moved to another location; (6) whether
the questioning took place in a police vehicle; and (7) the number of police
officers involved. Id. at 594-96. The ultimate inquiry is “whether there was a
formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.” State v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d
552 (citation omitted).

¶17 In this case, we agree with the circuit court that a reasonable person
in Busha’s position would not have believed herself to be in custody at the time

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No. 2018AP1863-CR

she made the incriminating statements to Gothner. Busha’s vehicle was not
stopped by law enforcement. Instead, police responded to the scene because
Busha’s vehicle was stuck in a ditch. Only about fifteen minutes elapsed between
the time Gothner first made contact with Busha and the time she made the
statements in question. During that time, Busha was not handcuffed, frisked, or
placed in a police vehicle. She was not told that she was under arrest or that she
was not free to leave. Although there were apparently three officers at the scene,
only two of them interacted with Busha before she made the incriminating
remarks. In addition, while Gothner and the second officer were armed and in
uniform, neither of them drew their weapons or made any other display of force.
Under these circumstances, we agree with the circuit court that Busha was not in
custody, for purposes of Miranda, when she made the incriminating statements to
Gothner.

¶18 Both Gruen and State v. Wortman, 2017 WI App 61, 378 Wis. 2d
105, 902 N.W.2d 561, support our conclusion that Busha was not in custody. In
Gruen, a police officer came upon a car stuck in a snow bank at 1:30 a.m. and
observed Gruen walking away from the car. Gruen, 218 Wis. 2d at 586. The
officer stopped Gruen “to determine whether he owned the car or whether he knew
who it belonged to.” Id. The officer was outside his jurisdiction, however, and he
therefore told Gruen that he needed to call for another officer from the appropriate
municipality. Id. at 586-87. Because it was cold outside, the officer asked Gruen
if he wanted to have a seat in the officer’s police van, and Gruen accepted that
offer. Id. at 587. The officer frisked Gruen before placing him in the van. Id.
Once Gruen was inside the van, the officer closed the van’s back door, “making it
impossible for Gruen to open the door from the inside.” Id. Gruen was inside the
police van for about ten to fifteen minutes before the second officer arrived and

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No. 2018AP1863-CR

began questioning him. Id. at 587-88. On these facts, we concluded Gruen was
not in custody when he made incriminating statements to the second officer. Id. at
598.

¶19 Gruen is similar to the instant case in several respects. Neither
Gruen nor Busha were handcuffed. See id. at 597-98. In both cases, the
defendants were not told that they were under arrest or that they were not free to
leave. Both Gruen and Busha interacted with two officers before making
incriminating statements, and in each case approximately fifteen minutes elapsed
before they made those statements. The officers did not draw their weapons in
either case or make any other display of force. Unlike Busha, however, Gruen
was stopped by law enforcement, was frisked, and was placed in a police van, the
back door of which could not be opened from the inside. Despite these additional
factors, we nevertheless concluded that Gruen was not in custody. The absence of
these factors in Busha’s case further supports our conclusion that Busha was not in
custody at the time she made the incriminating statements at issue here.

¶20 In Wortman, an officer responded to a report of a truck in a ditch.
Wortman, 378 Wis. 2d 105, ¶2. The officer saw Wortman walking away from the
scene and stopped him. Id. Wortman admitted that he was the driver of the truck.
Id. After observing indicia of intoxication, the officer “told Wortman to get in the
squad car so they could return to the scene of the accident,” and Wortman
complied with that directive. Id.

¶21 Wortman ultimately moved to suppress incriminating statements he
made to the officer who stopped him. Id., ¶4. The circuit court concluded
Wortman was not in custody when he made those statements, and we affirmed that
decision on appeal. Id., ¶¶4, 11. We noted that “[t]he entire encounter, from

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No. 2018AP1863-CR

investigatory stop to arrest, took approximately fifteen minutes.” Id., ¶11. We
further noted that “[u]ntil his arrest, Wortman was not in handcuffs, was not held
for an extended period of time in the squad car, and was not frisked.” Id. We also
rejected Wortman’s argument that he was in custody when he made the relevant
statements because the officer had not yet returned his driver’s license at that time.
Id.

¶22 Here, as in Wortman, Busha was not handcuffed or frisked, and only
about fifteen minutes elapsed before she made the incriminating statements in
question. However, unlike the defendant in Wortman, Busha was not placed in a
police vehicle or transported to a different location. Our conclusion that Wortman
was not in custody, despite those additional facts, therefore supports our
conclusion that Busha was not in custody in this case. Wortman also defeats
Busha’s argument that she was in custody when she made the incriminating
statements because Gothner had not yet returned her driver’s license at that time.
See id.; see also State v. Quartana, 213 Wis. 2d 440, 449-50, 570 N.W.2d 618
(Ct. App. 1997) (stating an officer’s failure to return a defendant’s driver’s license
would not necessarily lead a reasonable person in the defendant’s position to
conclude that he or she was in custody).

¶23 Busha also argues that she was in custody because: (1) Gothner told
her to climb out of her vehicle; (2) she was “surrounded by squad cars”; and
(3) Gothner “clearly communicated” to her that he believed she was lying and was
guilty of a crime. However, Busha views these facts in isolation, without
considering the other factors discussed above. See supra, ¶17. When determining
whether a defendant was in custody for purposes of Miranda, we must consider

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No. 2018AP1863-CR

the totality of the circumstances. See Gruen, 218 Wis. 2d at 593. Although the
factors Busha cites arguably weigh in favor of custody,5 after considering the
circumstances in their entirety, we conclude Busha was not in custody at the time
she made the incriminating statements.

¶24 Finally, Busha relies on United States v. Richardson, 700
F. Supp. 2d 1040 (N.D. Ind. 2010), aff’d, 657 F.3d 521 (7th Cir. 2011), to support
her claim that she was in custody. However, Richardson is distinguishable.

¶25 In Richardson, an officer stopped the defendant’s vehicle for
speeding. Id. at 1044. The defendant and his passenger acted nervous during the
stop, and when the officer returned to his vehicle to perform a license check, he
saw them moving around inside their vehicle and looking back at him. Id. at
1044-45. The officer then called for backup. Id. at 1045. After two additional
officers arrived at the scene, a canine drug sniff was performed, during which the
dog alerted at both the driver’s side and passenger side doors of the defendant’s
vehicle. Id. The first officer then told the vehicle’s occupants that he had

5
Notably, we are not convinced that Busha’s being told to climb out of her vehicle
supports a determination that she was in custody, under the circumstances of this case. As Busha
concedes, prior to that point, the second officer had asked Busha to exit her vehicle, and Busha
refused to do so. Busha’s initial refusal to exit her vehicle when asked to do so suggests that she
did not believe she was required to comply with the officers’ requests.

In addition, when asked at the suppression hearing why he told Busha to get out of her
vehicle, Gothner responded, “Eventually—couldn’t leave the car where it was. Eventually, she’s
got to get out, so let’s move on to the next step here. Let’s at least make progress and get her out
of the car.” It is undisputed that, at the time Gothner told Busha to get out of her vehicle, the
vehicle was stuck in a ditch and could not be removed without a wrecker. Busha does not dispute
that she would have needed to get out of the vehicle in any event once the wrecker arrived at the
scene. Under these circumstances, a reasonable person in Busha’s position would not have
viewed Gothner’s directive to exit the vehicle as an indicator that he or she was in custody.
Rather, exiting the vehicle was simply the “next step” that needed to take place before the vehicle
could be removed from the ditch.

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No. 2018AP1863-CR

probable cause to search the vehicle and asked them to get out. Id. After the
defendant exited the vehicle, the officer conducted a pat-down search of his outer
clothing. Id. During the search, the officer discovered a bag containing a white
rock-like substance in the defendant’s pocket. Id. The officer asked the defendant
what the substance was, and the defendant replied, “[Y]ou know what it is.” Id.
The district court concluded the defendant was in custody when he made that
statement because “[n]o reasonable person in [the defendant’s] place would have
felt free to leave from the instant [the officer] pulled the drugs from [the
defendant’s] pocket.” Id. at 1053.

¶26 Busha argues Richardson is on point because, like the defendant in
that case, she was told to exit her vehicle, multiple police officers were present at
the scene, and Gothner clearly communicated that he suspected her of committing
a crime. In Richardson, however, there were additional factors that supported a
conclusion the defendant was in custody. Specifically, the defendant’s vehicle
was stopped by police, a drug sniff was performed, the officer informed the
defendant that there was probable cause to search his vehicle, and the defendant
was subjected to a pat-down search. None of these additional factors are present
in Busha’s case. Their absence supports a determination that—unlike the
defendant in Richardson—Busha was not in custody at the time she made the
incriminating statements.

By the Court.—Judgment affirmed.

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

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