By Kevin Murphy
For the Times
MADISON - A state appeals court this week upheld a Brodhead man's operating under the influence (third offense) and methamphetamine possession convictions, finding that police had probable cause to stop and detain him until a drug detecting dog arrived.
Roy A. Van Brocklin, 35, was stopped in March 2009 by Brodhead police officer Brian Bennett for failure to signal a left turn. According to court documents, during the traffic stop, Bennett noticed Van Brocklin, who Bennett knew from prior encounters, appeared nervous and uncomfortable. Bennett returned to his squad and radioed for another officer and a K-9 dog.
While Bennett wrote up a citation, he noticed Van Brocklin was rummaging through his glove box. In response to Bennett's call, Police Chief Thomas Moczynski arrived and then Green County Sheriff's Deputy Charles Worm with a K-9 dog.
Worm had the dog sniff the air around Van Brocklin's vehicle and based on the dog's response, Worm opened a door, and commanded the dog to sniff inside, which led to the recovery of a baggie of marijuana and a white pill.
Van Brocklin was taken to the police station where he failed sobriety tests and a further search of his vehicle recovered drug paraphernalia and materials to make methamphetamine.
Van Brocklin pleaded no contest to both charges and on the drug offense. Green County Circuit Court Judge James Beer put Van Brocklin on five years' probation with the first year to be served in jail, later amended to account for time already served. On the OWI, Beer imposed 30 days in jail, revoked Van Brocklin's license for two years and ordered an ignition interlock on his vehicle for three years.
In appealing the convictions, Van Brocklin's attorney, Suzanne Edwards, claimed that her client's failure to signal didn't give Bennett probable cause to stop him. She argued that another appeals court had found failure to signal when no other cars were present didn't violate the law and didn't give the officer probable cause.
However, in Van Brocklin's case, Bennett was close enough behind Van Brocklin at the intersection that his failure to signal could have affected Bennett's driving behavior and established probable cause to stop Van Brocklin, according to the District 4 Court of Appeals opinion.
Edwards also argued that Bennett prolonged the traffic stop in order to allow Worm and the K-9 dog to arrive, a violation of Van Brocklin's constitutional right against unreasonable search and seizure.
However, the appeals court found that the 18 minutes that lapsed between the request made for the dog and Worm's arrival wasn't an unreasonable delay.
Moczynski testified Bennett was writing citations for failure to signal and improper license display and the amount of time it takes to complete those can depend on how quickly dispatch can be contacted, how slow the computers operate and how fast the officer writes.
"The circuit court concluded that there was no prolonged detention, and also that the two minutes between when Officer Bennett finished writing the citation and when the free-air sniff began was not an unreasonable amount of time. We agree," according to the seven-page opinion.
Edwards wasn't immediately available Friday for comment on the opinion.
For the Times
MADISON - A state appeals court this week upheld a Brodhead man's operating under the influence (third offense) and methamphetamine possession convictions, finding that police had probable cause to stop and detain him until a drug detecting dog arrived.
Roy A. Van Brocklin, 35, was stopped in March 2009 by Brodhead police officer Brian Bennett for failure to signal a left turn. According to court documents, during the traffic stop, Bennett noticed Van Brocklin, who Bennett knew from prior encounters, appeared nervous and uncomfortable. Bennett returned to his squad and radioed for another officer and a K-9 dog.
While Bennett wrote up a citation, he noticed Van Brocklin was rummaging through his glove box. In response to Bennett's call, Police Chief Thomas Moczynski arrived and then Green County Sheriff's Deputy Charles Worm with a K-9 dog.
Worm had the dog sniff the air around Van Brocklin's vehicle and based on the dog's response, Worm opened a door, and commanded the dog to sniff inside, which led to the recovery of a baggie of marijuana and a white pill.
Van Brocklin was taken to the police station where he failed sobriety tests and a further search of his vehicle recovered drug paraphernalia and materials to make methamphetamine.
Van Brocklin pleaded no contest to both charges and on the drug offense. Green County Circuit Court Judge James Beer put Van Brocklin on five years' probation with the first year to be served in jail, later amended to account for time already served. On the OWI, Beer imposed 30 days in jail, revoked Van Brocklin's license for two years and ordered an ignition interlock on his vehicle for three years.
In appealing the convictions, Van Brocklin's attorney, Suzanne Edwards, claimed that her client's failure to signal didn't give Bennett probable cause to stop him. She argued that another appeals court had found failure to signal when no other cars were present didn't violate the law and didn't give the officer probable cause.
However, in Van Brocklin's case, Bennett was close enough behind Van Brocklin at the intersection that his failure to signal could have affected Bennett's driving behavior and established probable cause to stop Van Brocklin, according to the District 4 Court of Appeals opinion.
Edwards also argued that Bennett prolonged the traffic stop in order to allow Worm and the K-9 dog to arrive, a violation of Van Brocklin's constitutional right against unreasonable search and seizure.
However, the appeals court found that the 18 minutes that lapsed between the request made for the dog and Worm's arrival wasn't an unreasonable delay.
Moczynski testified Bennett was writing citations for failure to signal and improper license display and the amount of time it takes to complete those can depend on how quickly dispatch can be contacted, how slow the computers operate and how fast the officer writes.
"The circuit court concluded that there was no prolonged detention, and also that the two minutes between when Officer Bennett finished writing the citation and when the free-air sniff began was not an unreasonable amount of time. We agree," according to the seven-page opinion.
Edwards wasn't immediately available Friday for comment on the opinion.