State v. John A. Shilts

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.
December 5, 2023
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. 2021AP284 Cir. Ct. No. 2018TR5408

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN A. SHILTS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for St. Croix County:
J. MICHAEL BITNEY, Judge. Affirmed.

¶1 GILL, J.1 John Shilts appeals a judgment convicting him of
operating a motor vehicle while intoxicated (OWI), as a first offense. Shilts
argues that: (1) law enforcement officers lacked reasonable suspicion to believe

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2021AP284

that he was driving under the influence of alcohol and therefore violated his
Fourth Amendment rights by asking him to step out of his vehicle to perform field
sobriety tests, see Terry v. Ohio, 392 U.S. 1 (1968); and (2) the duration of his
Terry stop was unreasonable. This court rejects Shilts’ arguments and affirms the
judgment.

BACKGROUND

¶2 The circuit court made the following factual findings in its oral
decision denying Shilts’ motion to suppress all evidence obtained as a result of a
traffic stop. Shilts does not argue on appeal that any of these findings are clearly
erroneous.

¶3 St. Croix County Sheriff’s Deputy Derek Wells was traveling
northbound on County Highway A in Richmond Township on September 30,
2018, at approximately 11:00 p.m. Wells noticed a vehicle traveling toward him
in the distance, and its headlights appeared to be moving at what he considered a
high rate of speed. Wells’ squad car’s radar device showed that the oncoming
vehicle was traveling at eighty-five miles per hour in areas with speed limits of
forty-five to fifty-five miles per hour. As the approaching southbound vehicle
came around a curve on County highway A, it was traveling in Wells’ northbound
lane. Wells took evasive action by driving into the ditch to avoid being hit
head-on. He was not able to identify the make or model of the vehicle.

¶4 Wells observed the vehicle’s taillights and its continuous travel in
his rearview mirror. He then made a U-turn and drove out of the ditch, which
caused him to lose sight of the vehicle for approximately one second. Wells
testified that he then pursued the vehicle, saw the taillights continuously ahead of
him, and did not see any other vehicles. During the pursuit, the other vehicle was

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traveling at a high rate of speed, and Wells had to drive nearly 100 miles per hour
to catch up to it. Wells activated his squad car’s red-and-blue emergency lights,
and the other vehicle pulled over once Wells was close to it. Wells testified that
the total length of time that elapsed from his entry into the ditch until he stopped
the other vehicle was two or three minutes.

¶5 Wells executed a modified high-risk stop, approaching the vehicle
with his gun drawn. He immediately realized that the driver was Shilts, who was a
coworker and good friend. Wells then holstered his weapon, and Shilts said
“something along the lines of, ‘I swear to God it was the vehicle that passed me.’”
Wells observed that Shilts, who had gotten out of his car, was uneven on his feet
and his initial words were slurred. Wells also detected an odor of chewing
tobacco and intoxicants.

¶6 Shilts and Wells returned to their respective vehicles and Wells
called his superior, Sergeant Thomas Williams, in compliance with the procedure
for the St. Croix County Sheriff’s Department in situations where there was a
potential conflict of interest. Williams then contacted Chief Deputy
Cathy Borgschatz to discuss the conflict of interest. They determined that they
would contact an outside agency, the Wisconsin State Patrol, to have them respond
and process the traffic stop. Sergeant Clifford Parr of the Wisconsin State Patrol
decided against sending Trooper Jody Wood, who was on duty in St. Croix
County that night, because she works hand-in-hand with the St. Croix County
Sheriff’s Department. Instead, Parr sent the closest state trooper from outside of
St. Croix County, Trooper Brett Boley.

¶7 Boley was approximately fifty-five minutes from the scene of the
traffic stop when he was asked to respond. He proceeded directly to the location

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after dropping off some equipment at a weigh station, which added less than one
minute to his trip time. He arrived at the scene at 12:15 a.m. After gathering
information from Wells and speaking with other law enforcement personnel
present, Boley asked Shilts to step out of his vehicle.

¶8 Boley noted a moderate odor of intoxicants coming from Shilts and
that his eyes were bloodshot and glassy. Boley testified that Shilts’ demeanor was
argumentative and that he admitted to having one drink per hour starting at
5:00 p.m. Boley conducted field sobriety tests, which provided multiple indicators
that Shilts was impaired, including six out of six indicators during a horizontal
gaze nystagmus test and the observation of vertical gaze nystagmus, indicating “a
high amount of an intoxicant in [Shilts’] system.” Shilts also exhibited clues of
intoxication on the walk and turn test. Boley testified that Shilts declined to take a
PBT, stating that he believed that he had passed the field sobriety tests. Boley
then placed Shilts under arrest and issued a citation for OWI, as a first offense.

¶9 Thereafter, Shilts filed a motion to suppress evidence obtained after
the traffic stop was extended, arguing that the officers lacked reasonable suspicion
to expand the initial traffic stop, that the duration of the stop was unreasonable,
and that there was a lack of probable cause to administer a PBT. After a motion
hearing, the circuit court concluded that the actions of the law enforcement
officers were reasonable under the Fourth Amendment, and it denied Shilts’
motion to suppress.

¶10 Shilts was found guilty of first-offense OWI after a bench trial that
was based on stipulated facts. The circuit court revoked Shilts’ driving privileges
for six months, imposed a forfeiture of $811.50, and mandated an alcohol and

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other drug abuse assessment and a driver safety plan. The court stayed the
sentence pending this appeal.

DISCUSSION

¶11 Shilts first argues on appeal that Boley lacked reasonable suspicion
to conclude that Shilts was driving under the influence of alcohol and therefore
violated his Fourth Amendment rights by asking him to step out of his vehicle to
perform field sobriety tests.

¶12 “In reviewing a denial of a motion to suppress, we will uphold the
circuit court’s findings of fact unless they are clearly erroneous.” State v. Young,
212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997). “Whether those facts
satisfy the constitutional requirement of reasonableness is a question of law, which
we review de novo.” Id.

¶13 “Traffic stops are meant to be brief interactions with law
enforcement officers, and they may last no longer than required to address the
circumstances that make them necessary.” State v. Floyd, 2017 WI 78, ¶21, 377
Wis. 2d 394, 898 N.W.2d 560. “[T]he tolerable duration of police inquiries in the
traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic
violation that warranted the stop, and attend to related safety concerns.”
Rodriguez v. United States, 575 U.S. 348, 354 (2015) (citation omitted). “[A]
police stop exceeding the time needed to handle the matter for which the stop was
made violates the Constitution’s shield against unreasonable seizures.” Id. at 350.

¶14 Boley received information from Wells and made numerous tangible
observations himself that gave rise to a reasonable suspicion that Shilts had
operated his vehicle while impaired. In particular, Wells informed Boley that

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Shilts was driving in the wrong lane of traffic and nearly collided with Wells’
vehicle head-on, requiring Wells to take evasive action by driving into a ditch to
avoid an accident. Wells also told Boley that Shilts was driving at eighty-five
miles per hour before he almost hit Wells in areas where the speed limit was
forty-five to fifty-five miles per hour. Further, Shilts was driving even faster after
the near collision.

¶15 Wells also informed Boley that after the stop when Shilts exited his
vehicle, Shilts was uneven on his feet and was slurring his words. Then, when
Boley began to question Shilts, Boley smelled alcohol on Shilts, observed that his
eyes were bloodshot and glassy, and found Shilts to be argumentative. Moreover,
Shilts admitted to consuming alcohol throughout the evening. Under a
commonsense test, these facts gave rise to a reasonable suspicion that Shilts was
driving under the influence of an intoxicant. In all, Boley acted reasonably under
the Fourth Amendment in asking Shilts to exit his vehicle in order to perform field
sobriety tests.

¶16 Shilts next argues, without authority, that local New Richmond
police officers or the Wisconsin State Patrol trooper working in St. Croix County
should have conducted the investigation, rather than waiting for a state trooper
from outside the county.

¶17 The circuit court found that Williams was aware that New Richmond
police officers had responded, but both he and Parr wanted a law enforcement
officer who did not work locally to investigate in order to ensure that the traffic
stop was conducted fairly and in an unbiased manner. Williams testified that
where one of the employees of the sheriff’s department is involved, department
policy provides that they request an outside agency to process the traffic stop to

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avoid a conflict of interest. He further testified that he did not want to have an
employee of his agency investigate another employee of the agency because it
gives the appearance of impropriety. We have no reason to second-guess the
decisions of law enforcement personnel here who were attempting to avoid a
conflict of interest.

¶18 Finally, Shilts argues that the duration of his Terry stop was
unreasonable.2 Specifically, Shilts argues that the State unlawfully extended the
duration of his stop—first, by waiting for a state trooper from outside the county
to conduct the investigation, and, second, by Boley stopping at the weigh station
after he was called and prior to arriving at the scene.

¶19 Shilts relies upon Rodriguez, in which the United States Supreme
Court reiterated that “a traffic stop ‘can become unlawful if it is prolonged beyond
the time reasonably required to complete th[e] mission’” of the stop. Id. at 354-55

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Shilts also argues that the results of his PBT should be suppressed because Boley
lacked probable cause to request that Shilts take a PBT. We are confused by this argument, as,
upon reviewing the record, we find no record of Shilts actually taking the PBT, Boley relying on
the PBT when taking Shilts into custody, or the circuit court relying on the PBT in its oral ruling.
Shilts provides a record citation for the fact that he took a PBT, but the citation only states that
Boley requested that Shilts take a PBT. Further, immediately following the record citation that
Shilts provides, Boley states that Shilts declined to take a PBT and that Boley then took Shilts
into custody based on “his driving performance,” the “initial contact,” and his “performance on
the field sobriety tests as a whole.” There is no mention of Boley actually administering the PBT.

Regardless, even if Shilts was correct that he took a PBT, we are unpersuaded by his
argument that Boley lacked probable cause to request the PBT. As we explained above, “[i]n
reviewing a denial of a motion to suppress, we will uphold the circuit court’s findings of fact
unless they are clearly erroneous.” State v. Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84
(Ct. App. 1997). The court found that Shilts’ performance on the field sobriety tests provided
multiple clues that he was intoxicated. This finding is well supported by Boley’s testimony.
Because facts as found by the court establish that Shilts did not perform satisfactorily on the field
sobriety tests, and in light of the numerous other indicia of intoxication, Boley had probable cause
to ask Shilts to take a PBT.

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(alteration in original; citation omitted). Shilts also argues that his case is like
State v. Davis, 2021 WI App 65, 399 Wis. 2d 354, 965 N.W.2d 84, where this
court concluded that the State unlawfully extended a traffic stop by checking to
see if the defendant had violated any bond conditions, which was not an ordinary
inquiry that was part of the original mission of the stop. Id., ¶¶2, 4-6, 26-32, 36.

¶20 We conclude that the facts of Shilts’ stop differ from those in
Rodriguez and Davis in two key ways. First, in Rodriguez, the purpose of the stop
was already completed when the police unlawfully extended the stop. Rodriguez,
575 U.S. at 352. Similarly, in Davis, the police unlawfully extended the stop after
completing their investigation for the underlying reason for the stop. Davis, 399
Wis. 2d 354, ¶¶4-6. Here, the original purpose of Shilts’ stop—to investigate the
basis for his reckless driving—was not completed when the stop was delayed in
order for an unbiased trooper from a different county to arrive and conduct the
investigation. While he was waiting for Boley to arrive, Shilts returned to his
truck. Shilts was not questioned, interrogated, or contacted by Wells while they
were waiting. Wells merely remained in his car while waiting for Boley to arrive.

¶21 Second, the delays in Rodriguez and Davis occurred so that the
police could perform searches that were unrelated to the stops and which did not
arise out of evidence gained from the stops. See Rodriguez, 575 U.S. at 352;
Davis, 399 Wis. 2d 354, ¶¶4-6. Here, the delay was necessary so that the
underlying reason for the stop—Shilts’ reckless driving—could be investigated in
an unbiased manner, free of any conflict of interest. Accordingly, we conclude
that the length of the delay was reasonable under Terry.

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By the Court.—Judgment affirmed.

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

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