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State v. Creviston10/21/1999
"staggering" down the middle of the highway. Arriving at the scene almost immediately, Hoege observed a pickup truck stuck in a snowbank and a single set of fresh footprints going away from the vehicle. He looked down the road and saw an individual, later identified as Creviston, "walking down the roadway in a zigzag type course." According to Hoege, there was an inch of fresh snow on the ground, and no tracks were visible other than those made by the truck, his squad car and Creviston. Pulling his squad car alongside Creviston, Hoege noted that he (Creviston) was holding a glass in his right hand and a plastic, grocery-type bag in his left. When Creviston saw Hoege, he threw the glass into the snow. Hoege stopped, got out of the squad car and told Creviston to stop. He refused and continued to walk away. Hoege then took hold of Creviston's arm to stop him from leaving the area.
. Hoege testified that, prior to arresting him, he asked Creviston if the truck belonged to him and Creviston said it did. Hoege noticed that the footprints in the snow led precisely from where Creviston was standing to the truck, and he testified that, during the course of the conversation, he could smell intoxicants on Creviston's breath. According to Hoege, Creviston's eyes were bloodshot, his speech was "almost slurred," and he had trouble enunciating his words. Hoege saw no indication that Creviston could have acquired the suspected intoxicant from any point other than inside his vehicle. At that point, Hoege arrested Creviston for possession of open intoxicants, handcuffed him and placed him in the squad car.
. From all of the facts known to Hoege at that time, he could reasonably infer that Creviston had been driving the truck when it went into the snowbank, for his was the only set of footprints in the area, and they led directly to the truck. He could also infer that the container Creviston threw into the snowbank contained an intoxicant because of his experience as a police officer in similar situations. Such an inference also finds support in the evidence of intoxication observed by Hoege-Creviston's slurred speech, bloodshot eyes and odor. Finally, when Creviston continued walking away after being ordered to stop, Hoege could conclude that he was attempting to avoid arrest or to flee, which, also in his experience, is not unusual behavior for a culpable individual trying to avoid arrest. We conclude that, based on the totality of the circumstances, a reasonable police officer in Hoege's position, could believe that Creviston had probably been driving with an open container of intoxicants in violation of § 346.935(2), Stats. In other words, probable cause existed for the arrest.
. Creviston also claims his arrest for open intoxicants was simply a pretext to permit Hoege to investigate further. He bases this assertion primarily on the fact that he was never charged with the possession of open intoxicants, but only with DWI. We have ruled, however, that probable cause existed for the possession arrest; and Creviston's "pretext" argument must fail as a result.
By the Court. -- Order affirmed.
This opinion will not be published. See Rule 809.23(1)(b)4, Stats.
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