State v. Scott J. Faruzzi

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.
September 25, 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. 2019AP167-CR Cir. Ct. No. 2018CT296

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

SCOTT J. FARUZZI,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Walworth County:
KRISTINE E. DRETTWAN, Judge. Affirmed.

¶1 NEUBAUER, C.J.1 The State appeals from the circuit court’s order
suppressing evidence obtained pursuant to the arrest of Scott J. Faruzzi, who had

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2019AP167-CR

been charged with operating a motor vehicle while under the influence of an
intoxicant (OWI). Although evidence supported the officer’s initial stop and
further investigation involving field sobriety tests, we see no error in the circuit
court’s conclusion that the totality of the evidence, including the police video, did
not establish probable cause to arrest for OWI. We affirm.

BACKGROUND

¶2 On May 19, 2018, at approximately 8:30 p.m., Officer Gregory Ryan
was dispatched to conduct a welfare check on a vehicle heading westbound into
the Village of Fontana on South Lakeshore Drive. A report had been made that
there were some “possible family troubles” and that the officer should check “on
the condition of the people in the truck.” The witness further described the truck
as a black pickup. Ryan testified that the witness also indicated the driver “might
have been intoxicated.”

¶3 Ryan located a matching vehicle heading in the reported direction
and stopped the vehicle to conduct a welfare check. The vehicle showed no
problems in safely and promptly responding to the officer’s request to pull over.
Ryan approached the driver, who was identified by an Illinois driver’s license as
Faruzzi. There was also a female passenger, and Faruzzi indicated to Ryan that
everything was ok.2

¶4 Faruzzi’s truck was jacked up, preventing Ryan from seeing inside
or smelling any odors. Ryan did observe that Faruzzi had glassy, bloodshot eyes.

2
Most, if not all, of the interactions between Faruzzi and the police were captured on
police video footage. None of the video was made part of the appellate record. However, the
circuit court reviewed the footage and, as discussed later, provided findings.

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No. 2019AP167-CR

Ryan had estimated that Faruzzi was exceeding the speed limit by fifteen miles per
hour at the time but did not write any related citation.

¶5 As Ryan returned to his squad to write a citation for lack of
insurance, Officer Ross Vogt had arrived due to a report of a “family offense” and
the need to conduct a welfare check. Because dogs were barking in the back of
the truck, Vogt asked the passenger to step out and, as she did, a beer bottle rolled
out and broke on the pavement. Although Vogt advised Ryan of the bottle, Vogt
did not save it, determine what, if anything, was in it, and no citation was issued
for it.

¶6 Because of Faruzzi’s red eyes and the bottle, Ryan decided to ask
Faruzzi to perform field sobriety tests. As Faruzzi exited the truck, Ryan could
now detect a “light” odor of intoxicants. Both Vogt and Sergeant Derrick
Goetsch, who had now arrived, detected an odor of intoxicants and saw Faruzzi’s
bloodshot, glassy eyes.

¶7 During the horizontal gaze nystagmus (HGN) test, Ryan initially
believed that he observed four of six clues, which is the threshold for impairment.
Ryan admitted, however, that while looking for nystagmus at maximum deviation,
he had Faruzzi hold his eyes for only three rather than the required four seconds.
Because he improperly administered the test under The National Highway Traffic
Safety Administration (NHTSA) manual, Ryan agreed that there were less than
four clues and that the “[c]ourt can’t rely on that.”

¶8 Ryan asked Faruzzi to perform the walk-and-turn test. During the
test, Ryan observed that, as Faruzzi walked nine steps in a straight line heel-to-toe,
Faruzzi made a gap of “[m]aybe an inch or two” after steps three and nine. After
Faruzzi turned and walked back another nine steps, Ryan noted another gap after

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No. 2019AP167-CR

step five. When asked whether the safety manual permits a one-inch gap, Ryan
acknowledged that it does and that he could not say whether Faruzzi’s gaps were
one or two inches as he “didn’t have a ruler with [him].”

¶9 In between the two sets of nine steps, Faruzzi was instructed to take
small choppy steps to make the turn. Faruzzi instead, however, performed a
military-style pivot. While doing so, he did not stumble or otherwise lose his
balance. Throughout the stop, Faruzzi did not slur his speech or exhibit any
problems with walking or balance.3

¶10 For medical reasons, Faruzzi could not perform the one-leg-stand
test, so Goetsch conducted the finger dexterity test instead. This is not a
standardized test. An argument ensued about this test. Before waiting for the full
instructions, Faruzzi did the test two times and simply stopped before Goetsch
completed the instructions. Goetsch instructed Faruzzi to do the test until he was
told to stop, but Faruzzi declined. Although Goetsch wanted Faruzzi to do the
tests again, he could not say that Faruzzi performed them incorrectly.

¶11 After completing the finger dexterity test, Ryan asked Faruzzi to
submit to a preliminary breath test (PBT), which Faruzzi refused. Ryan then
arrested Faruzzi for OWI.

¶12 Faruzzi moved to suppress all of the evidence obtained as a result of
his illegal arrest as there was no probable cause. After two evidentiary hearings,

3
Before beginning the walk-and-turn test, Ryan noted that Faruzzi had stepped out of
place during instructions. Otherwise, there is no indication or suggestion that Faruzzi stumbled or
revealed a lack of balance.

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No. 2019AP167-CR

and listening to arguments from counsel, the court granted the motion to suppress.
The court explained as follows:

And when I look at the facts here, what do we have? A
bottle fell out of the passenger side. There’s no indication
there was any alcohol in it but apparently it was a beer
bottle. Okay. That gives you the right to look at it. What
else do we have? There’s no bad driving here, other than
the speeding, 40 in a 25. And most people at one time or
another have sped and it’s not necessarily an indication of
bad, meaning poor, meaning dangerous driving. You
shouldn’t be doing 40 in a 25 in a residential area … but
it’s not like he put that truck in the ditch, like he was
swerving making unsafe turns, anything like that. I have no
indication of that.

Officer Ryan’s testimony was that the defendant’s
speech was not slurred. And I know that we have the caller
making the assertion that he thought the couple was
intoxicated. But other than that assertion there are no facts
by which the Court can consider that opinion. He—Ryan
testified the defendant had glassy and bloodshot eyes and
that once he got out of the truck he smelled a light odor of
intoxicants. And I think that’s important to note, he said it
was a light odor. He stated the defendant did not have a
problem getting out of that jacked-up truck, did not have a
problem walking to the back. I watched the video…. I do
note that the defendant was argumentative—not the best
attitude to have with officers who were investigating you,
let’s be honest.

….

[A]nd then we come to the field sobriety tests. I think
Officer Ryan was incredibly honest with this Court. I think
he’s a young officer. I think he tries very hard and he was
honest. When he did the HGN, although at the time he
noted four out of six clues, that’s what he noted at the time.
During the testimony he admitted that he did not administer
the HGN correctly and that he knew then he admitted you
can’t use all of those clues, I agree with that. So there were
only two of six clues on that HGN that this Court can
consider. And the Court has to—I know he testified to it,
and I know from hearing it a thousand times that on the
HGN four of six clues is indicative of impairment. So the
HGN does not show impairment here.

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No. 2019AP167-CR

On the walk and turn he exhibited two of eight clues for
missing a couple of the heel to toes, but even so, the officer
can’t say by how far and recognizes that under NHTSA an
inch is acceptable, and then for not doing the turn correctly.
I watched it on the video. And the officer admits he never
lost his balance. He did not use his arms to retain balance
or anything. And I didn’t see any balance problems on the
video. I was not assessing it for clues, I was just watching.
And then—so he got two clues out of eight. And although
that is indicative of impairment, I have to look at
everything under the totality of the circumstances here
including the way that he did perform the rest of the test.
He didn’t do the one leg because of the medical issue. The
officer rightly so did not force him to do that. And then
Sergeant Goetsch had him do the finger dexterity test
which is not a standardized test. And, quite frankly, the
defendant and Sergeant Goetsch started arguing about that
which, quite frankly, I can’t blame the sergeant for giving it
back to you, because you were giving it to him.

….

But I watched you do the finger dexterity and I didn’t see a
problem with it the way you did it. It’s not a field test
really anyway but it didn’t cause me any concern….

But I don’t believe under our Constitution and under case
law as defined in Wisconsin under the totality of the
circumstances that they had probable cause to arrest you for
OWI. I don’t—if they had—if there was a possibility, yes,
absolutely, but it didn’t rise to the level of probable cause.

The State appeals.

DISCUSSION

Standard of Review and the Law of Probable Cause to Arrest

¶13 It is a mixed question as to whether a motion to suppress evidence
should be granted or not. State v. Dumstrey, 2015 WI App 5, ¶7, 359 Wis. 2d
624, 859 N.W.2d 138 (2014). Unless clearly erroneous, we uphold the circuit
court’s findings of fact, and we review de novo the application of those facts to
constitutional principles. Id.

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No. 2019AP167-CR

¶14 In determining whether probable cause exists, we look to the totality
of the circumstances as to whether the “arresting officer’s knowledge at the time
of the arrest would lead a reasonable police officer to believe ... that the defendant
was operating a motor vehicle while under the influence of an intoxicant.” State v.
Kasian, 207 Wis. 2d 611, 621, 558 N.W.2d 687 (Ct. App. 1996) (alteration in
original; citation omitted). The State bears the burden to make this case-by-case
showing, and the determination can consider the collective knowledge of the
department, the existence or absence of field sobriety tests, and the training and
experience of the officer. State v. Lange, 2009 WI 49, ¶20, 317 Wis. 2d 383, 766
N.W.2d 551; Kasian, 207 Wis. 2d at 622; State v. Wille, 185 Wis. 2d 673, 683,
518 N.W.2d 325 (Ct. App. 1994).

¶15 We do not evaluate probable cause from a technical or legal sense,
but instead rely on real-world and practical considerations acted upon by
reasonable people during everyday life. See State v. Truax, 151 Wis. 2d 354, 359-
60, 444 N.W.2d 432 (Ct. App. 1989). The weight of the evidence need not show
guilt beyond a reasonable doubt or even that guilt is a likelihood. Rather, if the
information leads a reasonable officer to believe that guilt is more than a
possibility, then probable cause exists. Id. at 360.

¶16 WISCONSIN STAT. § 346.63(1)(a) generally prohibits any person
from driving while “[u]nder the influence of an intoxicant.” Being under the
influence requires a showing “that the person’s ability to safely control the vehicle
[is] impaired,” but this showing need not be made by any “particular acts of unsafe
driving.” WIS JI—CRIMINAL 2663A (2015).

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No. 2019AP167-CR

Although Some Factors Tend to Indicate Possible Intoxication, Taken Together
They Do Not Rise to the Level of Probable Cause for OWI

¶17 In support of its probable cause argument, the State notes several
factors that tend to show intoxication. When they are subject to some scrutiny,
however, they do not collectively rise to the level of probable cause for OWI. An
identified witness reported that Faruzzi and another person were fighting and other
reports indicated that they might be intoxicated, suggesting that a welfare check
should be in order; but, as the circuit court noted, there are no facts upon which
this assertion was based. Although Ryan estimated that Faruzzi exceeded the
speed limit by fifteen miles per hour, Faruzzi was not cited, and there were no
reports about reckless driving with telltale signs of an impairment of the ability to
safely control the vehicle under OWI, e.g., arbitrary lane changes, off-road
traveling, sluggish turns, etc.

¶18 After Ryan approached and spoke with Faruzzi, Ryan could see
glassy, red eyes, but detected no odor of alcohol. After Ryan learned of the bottle,
he decided to administer field sobriety tests.

¶19 But the field test results were either unclear or invalid. On the HGN
test, although Ryan at first believed he detected four clues, he later admitted that
this was not the case and that the test could not be relied upon.4 On the walk-and-
turn test, Ryan initially believed that Faruzzi failed to keep his heel and toe
sufficiently close together on at least three of the eighteen steps, but then

4
Ryan testified that he had previously made two OWI arrests. See State v. Pozo, 198
Wis. 2d 705, 712, 544 N.W.2d 228 (Ct. App. 1995) (explaining experience of officer may be
considered to determine probable cause); cf. County of Jefferson v. Renz, 231 Wis. 2d 293, 297,
603 N.W.2d 541 (1999) (officer had received OWI training, leading to over 200 OWI arrests in
six years).

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No. 2019AP167-CR

acknowledged that he could not be certain whether the gaps were an inch or more,
largely rendering even the two of eight clues doubtful. When the finger dexterity
test was used, there was an argument between Faruzzi and Goetsch, but that
argument did not appear to detract from Faruzzi’s ability to correctly complete the
test twice in a row.

¶20 Significantly, throughout the interactions between the officers and
Faruzzi and his performance of the tests, the State advances no assertion that
Faruzzi had any marked problems walking, talking, or maintaining his balance. 5
Further, neither the welfare check nor the purported speeding led to any type of
warning or citation.

¶21 The court made the following observations: an empty beer bottle
from the passenger side was of little value; Faruzzi may have driven in excess of
the limit but not in a dangerous or swerving nature as one might expect of an
intoxicated driver; no facts supported the caller’s assertion of intoxication; Ryan’s
honesty that Faruzzi’s odor was “light” and that the HGN was not properly
administered; and the officers’ acknowledgement that there was no slurred speech
or problems with walking or maintaining his balance.

¶22 Most noteworthy is the circuit court’s independent viewing of the
officer’s video footage. Because the video is not in the appellate record, we
cannot review it and, instead, assume that it supports the circuit court’s ruling. See
Schaidler v. Mercy Med. Ctr. of Oshkosh, Inc., 209 Wis. 2d 457, 469-70, 563
N.W.2d 554 (Ct. App. 1997) (“It is the appellant’s responsibility to insure that the

5
We note above that, just as he was receiving instructions on the walk-and-turn test, he
momentarily stepped out of place.

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No. 2019AP167-CR

record includes all documents pertinent to the appeal.”); see also T.W.S., Inc. v.
Nelson, 150 Wis. 2d 251, 254-55, 440 N.W.2d 833 (Ct. App. 1989) (when
presented with only a partial record on appeal, we are necessarily confined in our
review and will assume that “every fact essential to sustain the trial court’s
decision is supported by the record”).

¶23 After reviewing the video, the circuit court observed that there were
no problems with balance and walking, and Faruzzi never used his arms or
otherwise needed to maintain his balance. The court noted that it saw no problem
with Faruzzi’s performance of the finger dexterity test. The court also observed
the arguments between Faruzzi and the officers, and made no finding that this was
indicative of impairment. With no video to review, we must accept each of these
observations upon which the circuit court concluded that it did not see more than a
possibility that Faruzzi’s ability to safely control his vehicle was impaired by the
consumption of alcohol.

¶24 The State refers to several Wisconsin cases where the court
determined that probable cause existed with arguably even less evidence. We
respectfully disagree. As explained, the OWI indicators here are insufficient,
particularly compared to the more stark circumstances presented by the cases cited
by the State. These cases distinguish themselves. See, e.g., Lange, 317 Wis. 2d
383, ¶9 (crashed vehicle after unlawful driving at 3:00 a.m., leaving vehicle on its
hood, front caved in, utility pole cut in two with hanging wires, loud music and car
alarm blaring, with the area reeking of gasoline); State v. Babbitt, 188 Wis. 2d
349, 355, 525 N.W.2d 102 (Ct. App. 1994) (uncooperative driver refusing to take
field tests despite smelling of alcohol, hanging onto car for balance after driving
erratically, thrice cutting center line all at bar-closing time).

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No. 2019AP167-CR

¶25 Finally, the State notes that Faruzzi refused to take a PBT under
WIS. STAT. § 343.303, which can be used as evidence of probable cause to arrest
for OWI as it may show some “consciousness of guilt.” See Babbitt, 188 Wis. 2d
at 359-60. This point is unavailing. Before an officer may request a driver to take
a PBT, the officer must have “probable cause to believe” that the driver was
driving under the influence, which is a measure of evidence greater than the
reasonable suspicion to require an investigative stop, but less than what is required
to establish probable cause to arrest. State v. Felton, 2012 WI App 114, ¶8, 344
Wis. 2d 483, 824 N.W.2d 871. As already discussed, there was not sufficient
evidence to establish probable cause to arrest for OWI, and the State fails to
explain, in the alternative, why Ryan had “probable cause to believe” that Faruzzi
was driving under the influence in light of his largely successful completion of the
field tests, the lack of other indicia, and the circuit court’s determination under the
totality of the circumstances, including viewing the video. The circuit court found
the refusal was reasonable because it was not supported by probable cause. As
such, the PBT refusal could not establish probable cause to arrest for OWI.

By the Court.—Order affirmed.

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

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