State v. Joseph Martin Blankenship

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 7, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP791-CR Cir. Ct. No. 2023CT86

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JOSEPH MARTIN BLANKENSHIP,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Grant County:
CRAIG R. DAY, Judge. Affirmed.

¶1 KLOPPENBURG, P.J.1 The State of Wisconsin appeals the circuit
court’s order granting Joseph Martin Blankenship’s motion to suppress evidence

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2024AP791-CR

arising from an investigatory stop. The court determined that the arresting officer
lacked reasonable suspicion to administer field sobriety tests and, on that basis,
granted Blankenship’s motion to suppress the evidence obtained after Blankenship
was directed to step out of his vehicle to perform field sobriety tests. The State
argues that the court erroneously granted the motion to suppress because the
totality of the circumstances gave rise to reasonable suspicion that Blankenship
was operating under the influence of an intoxicant or operating with a prohibited
alcohol concentration.

¶2 Like the circuit court, I assume without deciding that the officer had
reasonable suspicion to stop Blankenship’s vehicle to investigate whether he was
operating under the influence of an intoxicant or with a prohibited alcohol
concentration. Also like the circuit court, for the reasons set forth below, I
conclude that, after the officer had completed his questioning of Blankenship, the
facts and reasonable inferences from those facts did not give rise to reasonable
suspicion that Blankenship was operating under the influence of an intoxicant or
operating with a prohibited alcohol concentration, so as to support the
administration of field sobriety tests. Accordingly, I affirm.

BACKGROUND

¶3 The State charged Blankenship with third-offense operating a motor
vehicle while under the influence and third-offense operating with a prohibited
alcohol concentration, based on evidence obtained after the arresting officer
directed Blankenship to step out of his vehicle to perform field sobriety tests
following an initially consensual interaction. Blankenship filed a suppression
motion challenging the lawfulness of the arresting officer’s administration of field

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No. 2024AP791-CR

sobriety tests. Blankenship sought suppression of all evidence obtained after
Blankenship was directed to step out of his vehicle to perform field sobriety tests.

¶4 The circuit court held a hearing on Blankenship’s motion to
suppress, at which the State offered the testimony of the arresting officer, Max
Hougan, and a body camera video of the interaction. The following undisputed
facts are taken from the officer’s testimony and video.

¶5 At approximately 11:30 p.m. on July 31, 2023, Hougan received a
report from dispatch that a “potential drunk driver” in a blue Ford Escape was
heading toward Wisconsin Avenue in the Village of Muscoda. The person who
called dispatch (“the caller”) said that the caller was “trying to get the keys” from
the driver. Hougan saw a blue Ford Escape turn on Wisconsin Avenue and
followed the vehicle in his marked squad car to observe its driving. There were no
other vehicles on the road. Hougan did not observe any bad driving or traffic
violations by the Escape. Shortly after Hougan initially observed and began
following the Escape, the Escape pulled over legally and came to a stop, despite
the fact that Hougan had not activated his emergency lights or siren and had not
initiated a traffic stop. Hougan pulled over behind the Escape and approached the
vehicle “to make contact with the driver to see what was going on.”

¶6 As Hougan approached the vehicle, the driver, identified as
Blankenship, handed his identification out of the window without prompting by
Hougan. Hougan did not observe an odor of intoxicants and noted that
Blankenship did not have bloodshot or glossy eyes or have any difficulty handling
his identification. Hougan asked Blankenship if he was involved in the incident
that dispatch described. Blankenship confirmed that he was involved and
described the incident as follows. Several people made false accusations that

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No. 2024AP791-CR

Blankenship hit a child with his vehicle a few weeks earlier. The same individuals
who accused him of hitting the child then took and threw Blankenship’s keys on
the hood of his car. After this incident, Blankenship “grabbed his keys and left.”

¶7 Hougan noticed that Blankenship “had slurred speech” and asked
him if he had been drinking that evening. Blankenship responded that he “might
have had two or three beers earlier today, but that was like three or four hours
ago.” At this point, Hougan directed Blankenship to step out of his vehicle to
perform field sobriety tests. Blankenship did as Hougan directed.

¶8 Based on the testimony and video, the circuit court made factual
findings that included the following: (1) Blankenship’s speech was “not
substantially slurred,” and Blankenship’s demeanor “was not drunk demeanor”;
and (2) Blankenship explained the key-throwing incident reported to dispatch as
“essentially people picking on” Blankenship, which “reduced the reliability of the
initial report.”

¶9 The circuit court concluded that Hougan did not have reasonable
suspicion, at the time he directed Blankenship to step out of his vehicle, to support
an investigatory stop to administer field sobriety tests. Accordingly, the court
granted Blankenship’s motion to suppress the evidence obtained after Hougan
directed Blankenship to step out of his vehicle to perform field sobriety tests.

¶10 The State appeals.

DISCUSSION

¶11 The parties dispute whether Hougan had reasonable suspicion that
Blankenship was operating a vehicle while intoxicated or with a prohibited alcohol
concentration at the time that Hougan directed Blankenship to step out of his

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No. 2024AP791-CR

vehicle to perform field sobriety tests.2 The State argues that all of the facts and
circumstances, taken together, gave rise to reasonable suspicion that Blankenship
was operating a motor vehicle while intoxicated so as to justify an investigatory
stop for field sobriety testing. As I explain below, I conclude that the
investigatory stop to administer field sobriety tests was not supported by
reasonable suspicion, and, therefore, the circuit court properly granted
Blankenship’s suppression motion.

¶12 I first state the standard of review, next summarize applicable legal
principles, then apply those principles to the facts from the suppression hearing
and explain my conclusion, and finally address and reject the State’s arguments to
the contrary.

I. Standard of Review

¶13 This court analyzes the grant or denial of a suppression motion under
a two-part standard of review. State v. Scull, 2015 WI 22, ¶16, 361 Wis. 2d 288,
862 N.W.2d 562. First, we uphold the circuit court’s findings of fact unless they
are clearly erroneous. Id. A finding of fact is clearly erroneous when “‘it is
against the great weight and clear preponderance of the evidence.’” Phelps v.
Physicians Ins. Co. of Wis., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615

2
The parties’ briefs do not comply with WIS. STAT. RULE 809.19(8)(bm), which
addresses the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, when
paginating briefs, parties should use “Arabic numerals with sequential numbering starting at ‘1’
on the cover”). This rule has recently been amended, see S. CT. ORDER 20-07, 2021 WI 37, 397
Wis. 2d xiii (eff. July 1, 2021), and the reason for the amendment is that briefs are now
electronically filed in PDF format, and are electronically stamped with page numbers when they
are accepted for efiling. As our supreme court explained when it amended the rule, the new
pagination requirements ensure that the numbers on each page of a brief “will match ... the page
header applied by the efiling system, avoiding the confusion of having two different page
numbers” on every page of a brief. S. CT. ORDER 20-07 cmt. at xl.

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No. 2024AP791-CR

(quoted source omitted). Second, we independently review whether those facts
warrant suppression. Scull, 361 Wis. 2d 288, ¶16. Put differently, we review de
novo the ultimate question of “whether the facts as found by the [circuit] court
meet the constitutional standard.” State v. Hindsley, 2000 WI App 130, ¶22, 237
Wis. 2d 358, 614 N.W.2d 48.

II. Applicable Legal Principles

¶14 The Fourth Amendment of the United States Constitution
and Article I, Section 11 of the Wisconsin Constitution offer protection against
unreasonable searches and seizures.3 When analyzing a claim that a person was
seized in violation of the United States and Wisconsin Constitutions, we first
“determine when [the seizure] began and whether it was constitutionally
permissible at its inception.” State v. VanBeek, 2021 WI 51, ¶25, 397 Wis. 2d
311, 960 N.W.2d 32. If we conclude that it was, we then “determine whether the
officer’s continued actions were ‘reasonably related in scope to the circumstances
which justified the interference in the first place.’” Id. (quoted source omitted)
(citing Terry v. Ohio, 392 U.S. 1, 20 (1968)).

¶15 To be constitutionally permissible, a direction that a suspect perform
field sobriety testing must be supported by reasonable suspicion; that is, it must be
“based on more than an officer’s ‘inchoate and unparticularized suspicion or
hunch.’” State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634 (quoting

3
The Fourth Amendment of the United States Constitution states, “The right of the
people to be secure in their persons … against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause ….” Article I, Section 11 of the
Wisconsin Constitution provides, “The right of the people to be secure in their persons ... against
unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon
probable cause ….”

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No. 2024AP791-CR

Terry, 392 U.S. at 27); State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406,
659 N.W.2d 394. The officer “‘must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably
warrant’ the intrusion of the stop.” Post, 301 Wis. 2d 1, ¶10 (quoting Terry, 392
U.S. at 21). “Reasonable suspicion depends on the totality of the circumstances[,]
… [with] the whole picture viewed together.” State v. Nimmer, 2022 WI 47, ¶24,
402 Wis. 2d 416, 975 N.W.2d 598 (citations and internal quotation marks
omitted).

¶16 “The question of what constitutes reasonableness is a common sense
test.” State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996). “The
crucial question is whether the facts of the case would warrant a reasonable police
officer, in light of [the officer’s] training and experience, to suspect that the
individual has committed, was committing, or is about to commit a crime.” Post,
301 Wis. 2d 1, ¶13. Behavior that may have an innocent explanation can still give
rise to reasonable suspicion. State v. Hogan, 2015 WI 76, ¶36, 364 Wis. 2d 167,
868 N.W.2d 124. An officer is not required to rule out innocent explanations
before initiating the stop. State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763
(1990).

III. Analysis

¶17 As stated, the circuit court concluded that Hougan would have been
justified in stopping Blankenship’s vehicle based on the dispatch report, in other
words, that Hougan had reasonable suspicion at the time he saw Blankenship’s
vehicle at the place the caller said the vehicle being driven by a potential drunk
driver was going. I assume without deciding that this is correct. However, the
question in this case is not whether Hougan had reasonable suspicion at the

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No. 2024AP791-CR

moment Blankenship stopped his car, but whether Hougan had reasonable
suspicion of impairment at the moment he directed Blankenship to step out of his
vehicle to perform field sobriety tests. See, e.g., County of Sauk v. Leon,
No. 2010AP1593, unpublished slip op. ¶13 (WI App Nov. 24, 2010) (“A request
that a driver perform field sobriety tests constitutes a greater invasion of liberty
than an initial police stop or encounter, and must be separately justified by
specific, articulable facts showing a reasonable basis for the request.” (quoting
Colstad, 260 Wis. 2d 406, ¶19)); Town of Freedom v. Fellinger, No. 2013AP614,
unpublished slip op. ¶¶16, 22-23 (WI App Aug. 6, 2013) (concluding that “an
officer may not conduct field sobriety tests merely because the officer’s traffic
stop was supported by reasonable suspicion,” and considering the moment that the
officer asked the suspect to leave the suspect’s vehicle to perform field sobriety
tests); State v. Gill, No. 2022AP654-CR, unpublished slip op. ¶28 n.7 (WI App
Apr. 6, 2023) (reasonable suspicion for field sobriety testing assessed as of
moment officer asks suspect to perform such testing); Village of Little Chute v.
Rosin, No. 2013AP2536, unpublished slip op. ¶17 (WI App Feb. 25, 2014) (“an
officer must have reasonable suspicion that the driver is impaired before
requesting field sobriety tests”).4

¶18 For the purposes of reasonable suspicion, then, I consider all the
facts Hougan had available to him at the moment he directed Blankenship to step
out of his vehicle to perform field sobriety tests. See Gill, No. 2022AP654-CR,
¶28 n.7 (reasonable suspicion for field sobriety testing assessed as of moment
officer asks suspect to perform such testing); See also State v. Adell, 2021 WI App

4
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored unpublished
opinions issued after July 1, 2009, for their persuasive value).

8
No. 2024AP791-CR

72, ¶18, 399 Wis. 2d 399, 966 N.W.2d 115 (quoting Hogan, 364 Wis. 2d 167,
¶37) (the direction to perform field sobriety testing here is legally permissible if, at
the moment the direction was made, there existed “‘factors which, in the
aggregate, amount to reasonable suspicion that [the defendant] committed a crime
the investigation of which would be furthered by the defendant’s performance of
field sobriety tests.’”) cf. State v. Smith, 2018 WI 2, ¶¶32, 37, 379 Wis. 2d 86,
905 N.W.2d 353 (reasonable suspicion existing at one point during a police
encounter may dissipate based on subsequent events). For the following reasons, I
conclude that the officer here did not have a sufficient basis to direct Blankenship
to perform field sobriety tests because the totality of the factors present at the time
Hougan directed Blankenship to step out of the vehicle to perform field sobriety
tests would not warrant a reasonable officer to suspect that Blankenship “ha[d]
committed, was committing, or [was] about to commit a crime.” See Post, 301
Wis. 2d 1, ¶13.

¶19 I now set forth the factors present in this case and evaluate whether
those factors established reasonable suspicion that Blankenship was impaired.

¶20 One factor is that Hougan did not witness any erratic or otherwise
dangerous or illegal driving by Blankenship, nor was any such driving reported by
the caller. Cf. State v. Babbitt, 188 Wis. 2d 349, 357, 525 N.W.2d 102 (Ct. App.
1994) (report of erratic driving coupled with officer witnessing erratic driving
supports finding of probable cause); Post, 301 Wis. 2d 1, ¶37 (vehicle weaving
within lane and driving partially in parking lane supports finding of reasonable
suspicion). While the existence of bad driving is neither determinative nor
required, “[w]hen an officer is not aware of bad driving, then other factors
suggesting impairment must be more substantial.” Leon, No. 2010AP1593, ¶20.

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No. 2024AP791-CR

¶21 A second factor is that Hougan did not smell an odor of intoxicants,
see that Blankenship had bloodshot or glossy eyes, or witness Blankenship exhibit
problems handling his identification. Cf. State v. Kennedy, 2014 WI 132, ¶22,
359 Wis. 2d 454, 856 N.W.2d 834 (bloodshot eyes and odor of intoxicants support
finding of probable cause); Leon, No. 2010AP1593, ¶26 (individual “produc[ing]
his identification readily, without fumbling or confusion” weighs against finding
of reasonable suspicion).

¶22 A third factor is that the circuit court found that Blankenship’s
speech was “not substantially slurred” and that Blankenship did not exhibit “drunk
demeanor.” Cf. Kennedy, 359 Wis. 2d 454, ¶22 (slurred speech supports finding
of probable cause). On appeal, the State does not challenge the court’s factual
findings as being clearly erroneous. See State v. Walli, 2011 WI App 86, ¶17, 334
Wis. 2d 402, 799 N.W.2d 898 (“[W]hen evidence in the record consists of
disputed testimony and a video recording, we will apply the clearly erroneous
standard of review when we are reviewing the trial court’s findings of fact based
on that recording.”). Rather, the State simply recites the evidence that might have
supported a contrary finding, including Hougan’s testimony that Blankenship “had
slurred speech.” However, “‘[i]t is the function of the trier of fact, and not of an
appellate court, to fairly resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.’” State v.
Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990). The court viewed the
body camera video, listened to Hougan’s testimony, and drew a reasonable
inference from the evidence that the State fails to show was clearly erroneous.
“Although evidence may have presented competing factual inferences, the circuit
court’s findings are to be sustained if they do not go ‘against the great weight and
clear preponderance of the evidence.’” Phelps, 319 Wis. 2d 1, ¶39 (quoted source

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No. 2024AP791-CR

omitted). Accordingly, I defer to the court’s finding that Blankenship’s speech
was not substantially slurred and that he did not exhibit a drunk demeanor.5

¶23 A fourth factor is Blankenship’s admission to drinking earlier in the
night. See County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541
(1999) (admission to drinking three beers earlier supports finding of probable
cause). Although an admission to drinking weighs in favor of finding reasonable
suspicion, Blankenship told Hougan a fairly specific time and number of
beverages consumed that Hougan did not testify would, in his experience, support
an inference of impairment, and that cuts slightly against an inference of
impairment.6 See Leon, No. 2010AP1593, ¶21 (officer being presented with
specific number of drinks that would not support an inference of impairment and
not “a suspiciously vague admission of ‘some’ drinking or ‘a few’ drinks” was
relevant to finding a lack of reasonable suspicion); see also Post, 301 Wis. 2d, ¶13
(“The crucial question is whether the facts of the case would warrant a reasonable
police officer, in light of his or her training and experience, to suspect that the
individual has committed, was committing, or is about to commit a crime.”).

¶24 A fifth factor is that a caller reported Blankenship’s vehicle as being
operated by a “potential drunk driver.” See State v. Williams, 2001 WI 21, ¶36,

5
Blankenship suggests that Blankenship’s slurred speech was a result of a cognitive or
speech disability. However, there is no indication that Hougan knew Blankenship or became
aware of a speaking or cognitive disability during the stop. See Nimmer, 402 Wis. 2d 416, ¶26
(reasonable suspicion is supported by everything observed by and known to the officer). Since
this fact was not known to Hougan, a reasonable officer in his position would not have considered
it, and we agree with the circuit court that it does not factor into the reasonable suspicion analysis
here.
6
At the time of the incident, Hougan was employed by the Village of Muscoda Police
Department and had approximately eleven months of experience in that capacity and just under
two years of total experience in law enforcement.

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No. 2024AP791-CR

241 Wis. 2d 631, 623 N.W.2d 106 (reasonable suspicion can be based on an
informant’s tip, provided the tip is sufficiently reliable). “In assessing the
reliability of a tip, due weight must be given to: (1) the informant’s veracity; and
(2) the informant’s basis of knowledge.” State v. Rutzinski, 2001 WI 22, ¶18, 241
Wis. 2d 729, 623 N.W.2d 516. A deficiency in one of the factors can be
compensated for by sufficiency of the other. Id. It follows that in “cases where
the police receive a tip from an unidentifiable informant, the tip nonetheless may
be deemed reliable if it contains ‘inside information’ or a similar verifiable
explanation of how the informant came to know of the information in the tip,
which the police in turn independently corroborate.” Id., ¶25. The circuit court
concluded that it was unnecessary “to ascertain whether this was or was not an
anonymous tip,” and found that the caller was “very identifiable.” See id., ¶32
(informant exposing the informant to being identified weighs in favor of finding a
tip reliable). However, although the caller was able to describe the vehicle and
route that Blankenship was driving, the record does not reflect that the caller
provided any basis for the caller’s knowledge that Blankenship was “potentially
drunk.” The caller did not state that the caller saw Blankenship drinking, driving
erratically, or exhibiting otherwise intoxicated behavior. There were no “strong
indicia of an informant’s basis of knowledge” as the caller provided only a
conclusory allegation that there was a “potential drunk driver.” See id., ¶25 (tip
“may be deemed reliable if it contains ‘inside information’ or a similar verifiable
explanation of how the informant came to know of the information in the tip”).

¶25 In addition, the circuit court found that Blankenship’s explanation
that the key throwing incident was “essentially people picking on” Blankenship
“reduced the reliability of the initial report.” The State does not challenge this
finding as clearly erroneous, and as described above, I defer to the court’s factual

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No. 2024AP791-CR

finding. See Phelps, 319 Wis. 2d 1, ¶39 (“circuit court’s findings are to be
sustained if they do not go ‘against the great weight and clear preponderance of
the evidence’” (quoted source omitted)). Given the circumstances described
above, the tip weighs only slightly in favor of finding reasonable suspicion. On
the one hand, the tip provided a reasonably precise location and description of
Blankenship’s vehicle, and the caller was “identifiable.” Further, the tip alleged
that there was a “potential drunk driver,” and Blankenship did admit to Hougan
that he drank earlier in the night. On the other hand, the tip did not provide any
basis for the caller’s knowledge that Blankenship was intoxicated, and the tip was
made under what the court found was the circumstance of “people picking on”
Blankenship. Accordingly, although this factor does not weigh strongly in favor
of finding reasonable suspicion, I cannot say that it counts for nothing.

¶26 A sixth and final factor is that the stop occurred around 11:30 p.m.
See Post, 301 Wis. 2d 1, ¶37 (incident taking place at night supports finding of
reasonable suspicion); State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766
N.W.2d 551 (driving at bar time on the weekend supports finding of reasonable
suspicion). As the circuit court stated, “That’s not a classic witching hour. It’s not
one or two o’clock in the morning, nor is it six o’clock in the evening.” Given that
this is neither the middle of the day nor bar time, this factor does not weigh
strongly in either direction.

¶27 The above factors, viewed in the aggregate, do not establish
reasonable suspicion, at the time that Hougan directed Blankenship to perform
field sobriety tests, that Blankenship was driving while intoxicated or with a
prohibited alcohol concentration. See Nimmer, 402 Wis. 2d 416, ¶24
(“Reasonable suspicion depends on the totality of the circumstances[,] … [with]
the whole picture viewed together.”). To repeat, the totality of the circumstances

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No. 2024AP791-CR

available to Hougan were the following: dispatch received a tip of a “potential
drunk driver” with no description of the basis for the caller’s knowledge; Hougan
observed the vehicle dispatch described but did not witness any bad or illegal
driving; the vehicle legally pulled over without Hougan initiating a traffic stop;
once Hougan approached the vehicle, Blankenship did not have trouble handling
his identification, did not smell of intoxicants, did not have bloodshot or glossy
eyes, did not substantially slur his speech in a manner that suggests intoxication,
and did not exhibit a drunken demeanor; when asked, Blankenship told Hougan
that he “might have had two or three beers earlier today, but that was like three or
four hours ago”; and the tip may have been made in the context of people “picking
on” Blankenship. While the initial tip provided Hougan with a possibility that
Blankenship was a “potential drunk driver,” the facts as they unfolded did not
corroborate the tip, nor did they independently suggest that Blankenship was
impaired. See WIS. STAT. § 346.63(1)(a) (does not prohibit operating a motor
vehicle after having consumed alcohol, but instead prohibits driving “[u]nder the
influence of an intoxicant ... to a degree which renders [one] incapable of safely
driving”); § 346.63(1)(b) (prohibits driving with a prohibited alcohol
concentration). Simply put, the tip alone was not sufficiently reliable to support
reasonable suspicion without Hougan observing additional factors to support the
inference that Blankenship was either operating with a prohibited alcohol
concentration or intoxicated to a degree that rendered him incapable of safely
driving. As summarized above, no such additional factors were present here that
could provide Hougan with the necessary particularized suspicion that
Blankenship was impaired at the time Hougan directed him to perform field
sobriety tests.

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No. 2024AP791-CR

¶28 The State argues, in part, that the facts that a caller reported a “drunk
driver” in a blue Ford Escape, that Hougan saw that vehicle, and that there was no
other traffic on the road weigh in favor of reasonable suspicion. While those facts
may have sufficed to support reasonable suspicion to stop the vehicle to
investigate further, they did not, as explained above, support reasonable suspicion
to administer field sobriety tests based on what Hougan knew at the time that he
directed Blankenship to perform field sobriety tests. Reasonable suspicion
requires that an officer have a particularized suspicion that a crime was, is, or is
going to be committed. State v. Young, 2006 WI 98, ¶20, 294 Wis. 2d 1, 717
N.W.2d 729. The crime here, driving while intoxicated or with a prohibited
alcohol concentration, requires a particularized suspicion that Blankenship was, in
fact, intoxicated to a degree that rendered him unable to drive safely or above the
legal limit. See State v. Dotson, No. 2019AP1082-CR, unpublished slip op. ¶15
(WI App Nov. 24, 2020) (administering field sobriety tests requires reasonable
suspicion that a person “had consumed enough alcohol to impair [their] ability to
drive,” not just that the person “had been consuming alcohol”); see also WIS.
STAT. §346.63(1)(a)-(b).

¶29 The State also argues that the fact that Blankenship pulled over
without Hougan initiating a traffic stop weighs in favor of reasonable suspicion.
However, the State does not develop an argument, supported by legal authority,
that a vehicle pulling over legally without being prompted by a traffic stop
supports reasonable suspicion that Blankenship was impaired.

¶30 In sum, based on the totality of the circumstances, the facts and
reasonable inferences from those facts did not establish reasonable suspicion that
Blankenship was driving while intoxicated or with a prohibited alcohol
concentration.

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No. 2024AP791-CR

CONCLUSION

¶31 For the reasons set forth above, I affirm the circuit court’s order
granting Blankenship’s motion to suppress evidence obtained after Blankenship
was directed to step out of his vehicle.

By the Court.—Order affirmed.

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

16