State v. Emily Anne Ertl

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.
February 18, 2025
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. 2023AP234-CR Cir. Ct. No. 2021CT64

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EMILY ANNE ERTL,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Oneida County:
MARY ROTH BURNS, Judge. Affirmed.

¶1 HRUZ, J.1 Emily Anne Ertl appeals a judgment convicting her,
pursuant to a no-contest plea, of operating a motor vehicle with a prohibited alcohol
concentration (PAC), as a second offense. Ertl argues that the circuit court erred by
denying her motion to suppress evidence on the ground that law enforcement

1
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. 2023AP234-CR

impermissibly extended the scope of her initial detention for “inattentive driving.”
Specifically, she contends that the court misapplied this court’s decision in State v.
Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), to the facts of her
case. We conclude that Gaulrapp’s holding is applicable and that Ertl’s detention
was not unreasonably prolonged by law enforcement’s single request that she
voluntarily submit to field sobriety tests. Accordingly, we reject Ertl’s arguments
and affirm.

BACKGROUND

¶2 On May 19, 2021, at approximately 7:33 p.m., Officer Alex Schmidt,
with the Minocqua Police Department, received a dispatch communication from an
anonymous caller reporting “a reckless driver heading south on U.S. Highway 51
coming into the town of Minocqua.” The caller provided the vehicle’s license plate,
make, model, and color and “advised that the driver pulled into the McDonald’s in
the town of Minocqua.” Schmidt was able to locate the vehicle, later found to be
driven by Ertl, in the McDonald’s drive-through lane. After the vehicle left
McDonald’s, Schmidt followed Ertl for a period of time, and he “observed [her]
vehicle cross the center yellow median once,” “observed the vehicle cross into the
other lane once,” “and then the vehicle began to straddle the white traffic lane
separating the two [southbound] lanes.”

¶3 Ultimately, Officer Schmidt executed a traffic stop on Ertl’s vehicle.
See State v. Houghton, 2015 WI 79, ¶30, 364 Wis. 2d 234, 868 N.W.2d 143
(holding that “reasonable suspicion that a traffic law has been or is being violated is
sufficient to justify all traffic stops”). According to Schmidt’s testimony, when he
first encountered Ertl, he did not note any signs of intoxication. Schmidt told Ertl
that the reason he stopped her was because she had been swerving her vehicle on

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the road and that law enforcement had also received a complaint that she had been
swerving. He then inquired whether Ertl had been drinking, and Ertl said, “No.”
Nevertheless, Schmidt asked Ertl if she would “be willing to do standardized field
sobriety tests for me.” Ertl consented. Her consent occurred within approximately
one minute of Schmidt beginning his discussion with Ertl. When Ertl exited the
vehicle, Schmidt noted “a strong odor of alcohol coming from her person.” Schmidt
also observed that Ertl had slurred speech and “glossy,” bloodshot eyes.

¶4 Officer Schmidt had Ertl perform the horizontal gaze nystagmus test,
the vertical gaze nystagmus test, the walk-and-turn test, and the one-leg stand test,
all of which revealed multiple clues of intoxication. Schmidt also asked Ertl to
submit to a preliminary breath test (PBT), to which she eventually agreed. The
result of the PBT was a .19 blood alcohol concentration (BAC). Schmidt then
placed Ertl under arrest for operating a motor vehicle while intoxicated (OWI), as a
second offense.

¶5 Ertl was charged in Oneida County with OWI and PAC, both as
second offenses. Ertl filed several pretrial motions to suppress evidence, raising
five distinct challenges to the traffic stop. The circuit court held an evidentiary
hearing on Ertl’s motions. At that hearing, Officer Schmidt was the sole testifying
witness.2

2
Ertl explains that during the hearing on the motions, Officer Schmidt’s testimony
revealed an “unforeseen issue” related to Schmidt’s request that Ertl exit the vehicle. With the
circuit court’s permission, Ertl then filed a supplemental brief, moving for suppression on the
ground that Schmidt impermissibly extended the scope of Ertl’s initial detention—i.e., the issue
addressed in this appeal.

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No. 2023AP234-CR

¶6 The circuit court issued a written decision, granting suppression of
certain evidence based on one of Ertl’s motions and denying the rest.3 Relevant to
the issue on appeal, the court concluded that “Officer Schmidt’s questioning and
request for [Ertl] to perform field sobriety testing did not impermissibly extend the
stop.” The court stated that “[t]he instant case is analogous to Gaulrapp,” reasoning
that “the amount of time that [the] investigation took was … modest” and that
Schmidt’s request for Ertl to conduct field sobriety tests was “not, in itself, an
unreasonable extension of the stop, any more than requesting to search the driver’s
vehicle in Gaulrapp.” The court concluded that because Ertl consented to perform
the tests, “the extension caused by that testing was consented to by” Ertl. The court,
therefore, denied Ertl’s motion to suppress evidence on this basis.

¶7 Thereafter, Ertl entered a no-contest plea to the PAC charge, and the
circuit court found her guilty. Ertl now appeals.4

DISCUSSION

¶8 On appeal Ertl argues that Officer Schmidt impermissibly extended
the scope of her traffic stop, and she challenges the circuit court’s denial of her
motion to suppress evidence on the basis that the court failed to properly apply
precedential Fourth Amendment case law.5 When reviewing a motion to suppress,

3
The Honorable Patrick O’Melia entered the order on Ertl’s motions to suppress. After
Judge O’Melia’s retirement, the Honorable Mary Roth Burns was assigned to the case.
4
Our review of an order denying a motion to suppress evidence is preserved
notwithstanding Ertl’s no-contest plea. See WIS. STAT. § 971.31(10).
5
The Fourth Amendment provides:

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No. 2023AP234-CR

whether law enforcement’s conduct violated the constitutional guarantee against
unreasonable searches and seizures is a question of constitutional fact. State v.
Griffith, 2000 WI 72, ¶23, 236 Wis. 2d 48, 613 N.W.2d 72. We give deference to
the circuit court’s findings of evidentiary or historical fact, upholding the court’s
findings unless they are clearly erroneous. Id.; City of Sheboygan v. Cesar, 2010
WI App 170, ¶10, 330 Wis. 2d 760, 796 N.W.2d 429. We independently determine
whether those facts constitute a violation of the Fourth Amendment. Cesar, 330
Wis. 2d 760, ¶10.

¶9 “The temporary detention of individuals during the stop of an
automobile by the police, even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons’ within the meaning of the Fourth Amendment.”
Gaulrapp, 207 Wis. 2d at 605; see also State v. Gammons, 2001 WI App 36, ¶6,
241 Wis. 2d 296, 625 N.W.2d 623 (stating that when conducting an investigatory
stop, law enforcement “must have a reasonable suspicion, grounded in specific
articulable facts and reasonable inferences from those facts, that an individual is
violating the law”). Here, Ertl does not challenge the validity of the initial traffic
stop.

¶10 Instead, Ertl argues that Officer Schmidt impermissibly extended the
scope of the traffic stop by requesting that Ertl consent to perform field sobriety

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.

U.S. CONST. amend. IV. Historically, Wisconsin courts have interpreted article I, section 11 of the
Wisconsin Constitution consistent with the United States Supreme Court’s interpretation of the
Fourth Amendment. E.g., State v. Malone, 2004 WI 108, ¶15, 274 Wis. 2d 540, 683 N.W.2d 1.

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No. 2023AP234-CR

tests. “A traffic stop can become unlawful if it is prolonged beyond the time
reasonably required to effectuate its purpose.” State v. Crone, 2021 WI App 29,
¶10, 398 Wis. 2d 244, 961 N.W.2d 97. “After a stop is made, an officer may expand
the scope of inquiry only to investigate ‘additional suspicious factors’ that come to
the officer’s attention.” Id. (citation omitted).

¶11 As previously noted, the circuit court relied on this court’s decision in
Gaulrapp to support the propriety of Officer Schmidt’s conduct in this case. In
Gaulrapp, law enforcement conducted a traffic stop of Gaulrapp’s vehicle for a loud
muffler. Gaulrapp, 207 Wis. 2d at 603. After asking where Gaulrapp was coming
from and whether he had any drugs or weapons in his vehicle, law enforcement
asked Gaulrapp if they could search his vehicle and then also “asked for permission
to search his person for any contraband or weapons.” Id. Gaulrapp voluntarily
consented to both searches, and law enforcement discovered drugs during the
search. Id. at 603-04.

¶12 Gaulrapp argued on appeal “that the very asking of the first question
about drugs and firearms, without a reasonable suspicion that he possessed either,
transformed the legal stop into an illegal stop, making his consent automatically
invalid.” Id. at 608. We rejected Gaulrapp’s argument, explaining that “when there
is justification for a [brief detention], it is the extension of a detention past the point
reasonably justified by the initial stop, not the nature of the questions asked, that
violates the Fourth Amendment.” Id. at 609. In support of our conclusion, we
explained that “[m]ere police questioning does not constitute a seizure.” Id. (citing
Florida v. Bostick, 501 U.S. 429, 434 (1991)). Thus, “[n]o seizure occurs when
police, without the reasonable suspicion justifying a [brief detention], ask questions
of an individual and ask to search him or her, so long as the police do not convey
that compliance with the request is required.” Id. Instead, we explained that “the

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No. 2023AP234-CR

Fourth Amendment’s touchstone is reasonableness, which is measured in objective
terms by examining the totality of the circumstances.” Id. at 607 (citing Ohio v.
Robinette, 519 U.S. 33, 39 (1996)). Finally, we concluded that “Gaulrapp’s
detention was not unreasonably prolonged by the asking of one question. After that
question, the detention was prolonged because Gaulrapp consented to the search.”
Id. at 609.

¶13 We agree with the circuit court that Gaulrapp is on point. In this case,
Officer Schmidt executed a traffic stop because he witnessed Ertl’s traffic
violations. Schmidt spoke with Ertl and subsequently asked if she would perform
field sobriety tests. Ertl consented to Schmidt’s request. When Ertl exited her
vehicle, Schmidt then noticed the odor of intoxicants, glossy eyes, and slurred
speech. Schmidt also observed signs of intoxication during the field sobriety tests,
and a voluntary PBT showed a .19 BAC.

¶14 Like in Gaulrapp, we conclude that Ertl’s traffic stop was not
unreasonably prolonged by Officer Schmidt’s request that Ertl submit to field
sobriety tests. Based on our independent review of Schmidt’s body camera video,
approximately one minute elapsed from the time Schmidt began speaking with Ertl
to the point at which she exited her vehicle. There is also no evidence in the record
that Schmidt conveyed that compliance with his request was required.6 See id. Ertl

6
We note that our review of Officer Schmidt’s body camera video reveals that after
Schmidt inquired whether Ertl would perform field sobriety tests, Ertl asked: “Do I have to say
yes? I’m just heading home.” Schmidt responded, “I’ve seen indicators of possible intoxicated
driving. So, this is kind of your chance to prove to me that you’re not [intoxicated]. So, would
you be willing to?” Ertl then agreed and exited her vehicle.

Ertl does not raise an appellate argument that her consent was involuntary based on this
brief exchange. Nevertheless, for the sake of completeness, we conclude that Schmidt’s statement
did not convey to Ertl that compliance with his request was required.

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No. 2023AP234-CR

consented to perform the tests; thus, “the detention was prolonged because [Ertl]
consented.” See id.

¶15 Ertl challenges the application of Gaulrapp to the facts of this case,
however, arguing that the circuit court “overextended and misapplied Gaulrapp.”
In particular, Ertl states that there was no “reasonable justification” offered for
Officer Schmidt “enlarging the scope of Ms. Ertl’s detention,” “which is precisely
what Gaulrapp requires.” According to Ertl, if we take “the State’s argument to its
logical conclusion, then in every instance in which a law enforcement officer detains
an individual for any traffic or equipment violation, the officer could permissibly
enlarge the scope of the person’s detention by simply asking them to submit to field
sobriety tests.”

¶16 Ertl misunderstands the holding in Gaulrapp, and her argument is
antithetical to both the analysis and the holding of that case. See supra ¶12. In
Gaulrapp, we specifically rejected Gaulrapp’s argument that “the very asking of
the … question about drugs and firearms, without a reasonable suspicion that he
possessed either, transformed the legal stop into an illegal stop.” Gaulrapp, 207
Wis. 2d at 608 (emphasis added). We reiterated that “the nature of the questions
asked” is not the proper consideration for Fourth Amendment purposes; the focus is
on the question’s “effect on the duration of the seizure.” Id. at 609. In other words,
law enforcement need not have reasonable suspicion related to the nature or topic
of the questions—i.e., a loud muffler did not provide reasonable suspicion to ask
Gaulrapp about the topic of drugs or weapons being in the vehicle or on his person.

¶17 Under Gaulrapp, Schmidt did not need reasonable suspicion of Ertl
driving while intoxicated to ask Ertl if she would be willing to voluntarily submit to
field sobriety tests. First, to the extent Ertl argues that Schmidt’s request that she

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No. 2023AP234-CR

submit to field sobriety tests was unrelated to the scope of the traffic stop for
“inattentive driving,” as explained above, the Gaulrapp court dictates that the nature
(and subject) of the questions did not violate the Fourth Amendment. See id. at
608-09. Even if we did not rely on that statement in Gaulrapp, we note that one of
the reasons to investigate “inattentive driving” is because it is indicative of driving
while under the influence of alcohol or drugs. See State v. Anagnos, 2012 WI 64,
¶56, 341 Wis. 2d 576, 815 N.W.2d 675 (“The facts … lead to a reasonable suspicion
that the driver of the vehicle made a series of unusual and impulsive driving choices,
suggestive of impairment.”); Martin v. Forest County, 677 F. Supp. 3d 853, 863
(E.D. Wis. 2023) (“[W]eaving within one’s lane can be a sign of fatigue, inattention,
or inebriation.”). Therefore, we disagree that Schmidt’s request was unrelated to
the scope of, and reason for, the initial stop.

¶18 Regardless, under Gaulrapp, relation of law enforcement’s request to
the reason for the traffic stop is not the standard; reasonableness is the standard,
including the minimal time required for the officer’s request to be asked. See id. at
607-09. Officer Schmidt’s detention of Ertl was not unreasonably prolonged by
Schmidt asking one question. This question came one minute after Schmidt first
contacted Ertl at her vehicle, which is not an unreasonable duration. Afterward, the
detention was prolonged based solely on Ertl’s consent to undertake various actions
outside of her vehicle. Despite Ertl’s arguments to the contrary, the amount of time
it took to complete the field sobriety tests and the PBT is irrelevant. See Gaulrapp,
207 Wis. 2d at 609. As to Ertl’s concern that law enforcement will simply ask
everyone to submit to field sobriety tests at every traffic stop, we do not disagree
that under Gaulrapp, and based on the totality of the circumstances in those
situations, that result is a possibility. What Ertl fails to acknowledge, however, is

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No. 2023AP234-CR

that the individual need not consent to this request and law enforcement cannot
convey that compliance is required.

¶19 Ertl relies upon three other cases in support of her position that
Gaulrapp’s holding is inapplicable. First, and most prominent in her argument, is
Gammons. In that case, Gammons was a passenger in a vehicle stopped by law
enforcement because the vehicle did not have a rear license plate. Gammons, 241
Wis. 2d 296, ¶2. The officer asked the driver whether there were any drugs in the
vehicle, which the driver denied. Id., ¶3. Thereafter, the officer asked for
permission to search the vehicle, and the driver refused. Id. The officer then stated
that “he would get a police dog to sniff around the vehicle and detect any drugs that
were present,” which prompted the driver to consent to the search. Id. Ultimately,
law enforcement found cocaine in “the area outside the vehicle where Gammons
had been positioned” and marijuana on Gammons’ person. Id., ¶4.

¶20 For our purposes, the Gammons court considered the question of
whether the officer “could permissibly ask [the driver] and the others about drugs
and to search the vehicle.” Id., ¶14. On that question, the court discussed the
Gaulrapp holding. Gammons, 241 Wis. 2d 296, ¶16. In its analysis, the Gammons
court determined that “[w]hile [the officer’s] initial questions may have been
permissible under … Gaulrapp, no additional suspicious factors suggesting drug
activity developed from [the driver’s] responses,” and, “[t]herefore, [the officer] had
no basis to continue to detain Gammons and the others after [the driver] stated that
the men did not have any drugs and denied [the officer’s] first request to search the
vehicle.” Gammons, 241 Wis. 2d 296, ¶24.

¶21 According to Ertl, Gammons “examined the appropriate application
of [Gaulrapp’s] holding.” Ertl explains that “[a]bsent any justification whatsoever,

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No. 2023AP234-CR

Officer Schmidt still put the question to Ms. Ertl regarding her willingness to submit
to field sobriety tests.” She further reasons that “[i]f the question in Gammons was
not sufficiently grounded in a suspicion, how could the complete and utter absence
of any indicia of impairment possibly justify the extension of the scope of Ms. Ertl’s
detention to include field sobriety testing? The short answer is that it cannot.”

¶22 Ertl misapprehends and misapplies Gammons’ holding because
Gammons is materially distinguishable on its facts. Unlike in Gammons, where the
driver refused the officer’s initial request, Ertl consented to Officer Schmidt’s initial
request that she submit to field sobriety tests. As the State argued, “If Ms. Ertl [had]
responded no, the Gammons case m[ight] be applicable, but that is not the case.”
Further, the Gammons court acknowledged that the officer’s initial questions “may
have been permissible under … Gaulrapp,” which are the facts we have before us
in this case. See Gammons, 241 Wis. 2d 296, ¶24. Gammons said nothing about
the “justification” required for the officer’s initial questions in that case. The focus
was on what occurred after the driver had refused to consent. Thus, we see no basis
in Gammons to conclude that the circuit court erred by applying Gaulrapp here.7

7
We pause to note that although not explicitly stated, Ertl’s arguments appear to equate
the phrase “reasonably justified,” as used in State v. Gaulrapp, 207 Wis. 2d 600, 609, 558 N.W.2d
696 (Ct. App. 1996), with the requirement of “reasonable suspicion”—i.e., that “reasonably
justified” means that law enforcement must have had “reasonable suspicion” of impaired driving
for the request that Ertl exit her vehicle and conduct field sobriety tests. To the extent that is Ertl’s
claim, we disagree that these terms are one and the same.

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No. 2023AP234-CR

¶23 Second, Ertl asserts that State v. VanBeek, 2021 WI 51, 397 Wis. 2d
311, 960 N.W.2d 32, is also on point. VanBeek came before our supreme court on
certification of the following question: “whether a consensual encounter becomes
an unconstitutional seizure under the Fourth Amendment when an officer requests
and takes an individual’s driver’s license to the officer’s squad car without
reasonable suspicion.” Id., ¶1. In VanBeek, law enforcement received an
anonymous call that a vehicle with two passengers had been sitting in the same spot
for nearly an hour, and an officer subsequently made contact with the driver,
VanBeek. Id., ¶¶3-5. The court stated that although “VanBeek was not seized when
[the officer] took her driver’s license to run a records check, VanBeek was seized
when [the officer] returned to her vehicle, withheld her driver’s license and
continued to question her and her passenger in order to hold her until a drug-sniff
dog … arrived.” Id., ¶2. “The entire incident lasted approximately 25 minutes.”
Id., ¶12. Our supreme court concluded that “the seizure was unlawful because,
based on the totality of circumstances, [the officer] did not have reasonable

Nothing in Gaulrapp suggested that law enforcement required reasonable suspicion—or
any “justification” for that matter—to ask Gaulrapp about drugs or weapons or to ask to search his
vehicle or his person. In fact, as explained above, the case states just the opposite because the focus
of the stop was not the subject of the question. Instead, we stated in Gaulrapp that the inquiry was
whether the valid traffic stop was extended “past the point reasonably justified by the initial stop.”
Id.; see also Rodriguez v. United States, 575 U.S. 348, 354 (2015) (“Authority for the seizure thus
ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.”);
State v. Wright, 2019 WI 45, ¶9, 386 Wis. 2d 495, 926 N.W.2d 157 (discussing the “mission” of a
traffic stop).

Ertl’s initial stop was due to traffic violations for deviating from her lane of travel. One
minute into the traffic stop would not have been sufficient to address the matter of the traffic
violations, regardless of whether she may have received only a warning versus a ticket. Therefore,
Officer Schmidt’s request did not extend the stop past a reasonably justified point under existing
law.

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No. 2023AP234-CR

suspicion that VanBeek was engaged in criminal activity at the time he seized her.”
Id.

¶24 According to Ertl, “[b]ased upon the VanBeek court’s
characterization of Gammons,” “it is evident that the VanBeek court was concerned
about the ‘proffered foundation’ for ‘the officer’s questions’ which, in that case,
‘exceeded the permissible scope of the stop[,]’ otherwise the VanBeek court would
never have favorably relied on Gammons in the first instance.”

¶25 We conclude that VanBeek is materially distinguishable and of no
help to Ertl. Unlike in VanBeek, prior to Ertl’s consent, Officer Schmidt executed
a legal traffic stop on Ertl; he did not retain Ertl’s license;8 he did not continue to
pose questions to Ertl; he was not attempting to hold Ertl at that location; and the
relevant conversation lasted approximately one minute, rather than twenty-five
minutes. In terms of the VanBeek court’s reliance on Gammons, the court
discussed Gammons in the context of whether the officer had reasonable suspicion
that VanBeek had been, or was about to be, involved in criminal activity. VanBeek,

8
Ertl notes that “Officer Schmidt testified that while Ms. Ertl was still seated in her
vehicle, he asked her for her driver’s license,” and she argues that “[t]here is nothing in the record
which indicates that he ever returned the driver’s license to her before asking her to submit to field
sobriety testing.” According to Ertl, because “the burden to establish consent falls to the State and
not the accused, the record in this matter does not suffice to support any conclusion the State may
proffer that Ms. Ertl voluntarily consented to the field sobriety tests.” (Footnote omitted.) “As
such,” argues Ertl, “the decision of the [circuit] court should be reversed on this ground if for no
other reason.”

Based on our independent review of Officer Schmidt’s body camera video, Ertl never
provided her driver’s license to Schmidt. In the video, after Schmidt asked Ertl to perform field
sobriety tests and she agreed, Schmidt asked, “Are you [Ertl]?” She replied, “Yeah. Do you need
my license?” Schmidt responded, “No, that’s alright.” Ertl then exited the vehicle. Based upon
further review of the video, there is no evidence that Ertl provided her license to Schmidt between
the time she exited her vehicle and the point at which she was arrested. Thus, Ertl’s assertion that
her consent was not voluntary because Schmidt retained her license is not supported by the evidence
in the record.

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No. 2023AP234-CR

397 Wis. 2d 311, ¶¶54, 64. As we made clear above, provided that Schmidt
executed a valid traffic stop on Ertl, he did not require reasonable suspicion or a
“proffered foundation” to ask Ertl whether she would voluntarily submit to field
sobriety tests.

¶26 Third, and finally, Ertl cites State v. Luebeck, 2006 WI App 87, 292
Wis. 2d 748, 715 N.W.2d 639, asserting that the case speaks to whether “Ertl’s
consent to field sobriety testing can even be deemed freely and voluntarily given.”
In Luebeck, we held that the police impermissibly extended the scope of a traffic
stop—thus invalidating the driver’s consent to a search—because he was “detained
for over twenty minutes, his driver’s license was held by the police, no citation or
warning … had yet been issued, he passed all of the field sobriety tests and his
[PBT] indicated a [BAC] below the legal limit, and yet he was” held for questioning
about his passenger’s ability to drive. Id., ¶¶14-15, 17. We rejected the State’s
reliance on Gaulrapp, explaining that the case was distinguishable but noting that
its “legal analysis”—i.e., objective reasonableness under the totality of the
circumstances—“inform[ed] our conclusion.” Luebeck, 292 Wis. 2d 748, ¶12.
Ultimately, this court determined that “[u]nder the totality of the circumstances,”
“Luebeck, or any reasonable person in Luebeck’s position, would have believed that
he or she was not free to leave or terminate the encounter with the officers”; thus,
“Luebeck’s consent to search was tainted by the illegal seizure.” Id., ¶17.

¶27 As with Gammons and VanBeek, Luebeck is materially
distinguishable from our facts. Indeed, none of these three cases address a
circumstance such as occurred in Gaulrapp and here. Unlike in Luebeck, Ertl was
not detained for an unreasonable amount of time, Officer Schmidt did not hold her
driver’s license, and Schmidt had not yet completed his investigation (in fact, he
had barely started it) of the traffic violations before asking Ertl to submit to the field

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No. 2023AP234-CR

sobriety tests. While the Luebeck court stated that whether law enforcement
returned the driver’s documents was “a key factor in assessing whether the person
is ‘seized’ and, therefore, whether consent is voluntary,” that factor is not relevant
in this case. See Luebeck, 292 Wis. 2d 748, ¶16. Thus, Luebeck does not mandate
a conclusion that Schmidt’s request unreasonably prolonged the traffic stop.

¶28 For the foregoing reasons, we conclude that the circuit court properly
relied on this court’s decision in Gaulrapp to deny Ertl’s motion to suppress
evidence. Officer Schmidt’s request that Ertl voluntarily submit to field sobriety
tests did not impermissibly or unreasonably extend the scope of Ertl’s initial traffic
stop.

By the Court.—Judgment affirmed.

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

15