COURT OF APPEALS

DECISION

DATED AND FILED

January 18, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1438-CR Cir. Ct. No. 2019CT730

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

KELLY A. MONSON,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Winnebago

County: JOHN A. JORGENSEN, Judge. Affirmed. 

¶1 LAZAR, J.1 Kelly A. Monson appeals from a judgment of 

conviction on one count of operating a vehicle with a restricted controlled 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP1438-CR

2

substance (RCS) in her blood (third offense) contrary to WIS. STAT.

§ 346.63(1)(am) and one count of operating a vehicle under the influence of an 

RCS contrary to § 346.63(1)(a). She contends that law enforcement lacked 

reasonable suspicion to extend a traffic stop to conduct standardized field sobriety 

tests. This court concludes that, given the totality of the circumstances, there were

articulable facts giving rise to reasonable suspicion of impaired driving sufficient 

to extend the traffic stop into an OWI/RCS investigation. The judgment of 

conviction is affirmed.

BACKGROUND

¶2 In April 2019, Officer Jessica Kramer2 was on patrol when she 

observed a car stopped in traffic. Kramer noticed that the driver of this car, 

Monson, was apparently struggling with an interlock ignition device (IID). 

Kramer called out a traffic stop3to her dispatcher and approached Monson, asking 

her questions about the vehicle and requesting insurance information. Monson 

said that she was having trouble with her IID, which was giving her error readings 

she had never seen before. Perhaps because she was searching for her insurance 

information, Monson did not make eye contact with Kramer during this initial 

interaction. Monson was unable to provide proof of insurance, and her vehicle 

registration was expired, so Kramer issued citations for these violations. When 

Kramer returned to Monson’s vehicle to explain the citations, she noticed that 

Monson had bloodshot, glassy eyes and what appeared to be dry mouth. She also 

 

2

 At the time of the stop, the officer’s name was Jessica Trochinski. When the officer 

testified at trial, her name was Jessica Kramer, the name used in this opinion.

3

 This court notes the irony in calling this a traffic “stop” when it was Monson herself 

who stopped her vehicle.
No. 2022AP1438-CR

3

noted that Monson was nervous (by Monson’s own admission she was having an 

anxiety attack), that her speech was “somewhat exaggerated and slurred,” and that 

her eyes were “all over the place.” Kramer further observed that Monson “kept 

clenching her teeth and smiling,” and Kramer knew from her training and 

experience that “the clenched, exaggerated movement has been significant with 

those from testing for methamphetamines.” 

¶3 These observations prompted Kramer to ask Monson whether she 

had been using drugs and to ask Monson to do field sobriety tests. Based on 

Monson’s inadequate performance, Kramer placed her under arrest. A subsequent 

blood test executed pursuant to a search warrant showed the presence of THC and 

methamphetamines in Monson’s blood. 

¶4 Monson’s attorney filed a motion to suppress this physical evidence 

in the trial court, arguing that Kramer lacked reasonable suspicion to extend the 

stop and perform the field sobriety tests. After hearing testimony from Kramer 

and watching video footage of the stop that had been recorded on Kramer’s body

camera, the trial court denied the motion, citing “the eyes all over the place, the 

slurred speech, [and Monson] acting nervous” as articulable reasons that Kramer 

suspected impaired driving and finding that these were sufficient to justify 

extension of the stop. The court noted that it found Kramer to be a credible 

witness and that her testimony was supported by the video evidence. It also 

pointed out that Kramer had life experience through her nineteen years on the job 

that informed her of behaviors that could indicate a person being under the 

influence of drugs. 

¶5 At trial on November 9, 2021, a jury convicted Monson on one 

count of operating a motor vehicle while under the influence of a controlled 
No. 2022AP1438-CR

4

substance and one count of operating a motor vehicle with an RCS in her blood. 

Monson appeals her conviction.

DISCUSSION

¶6 Monson contends that her constitutional rights were violated when 

the officer unlawfully extended the traffic stop by having her exit the vehicle and 

perform standardized field sobriety tests. She relies upon State v. Hogan, 2015

WI 76, 364 Wis. 2d 167, 868 N.W.2d 124, that she contends has similar facts, for 

support in showing that Officer Kramer did not have an articulable, reasonable 

basis for asking Monson to step out of her vehicle. The State argues that Hogan is 

clearly distinguishable and asserts that the judgment should be upheld. This court 

agrees.

I. Standard of Review

¶7 The issue on appeal centers upon constitutional rights, and, as such, 

it is subject to a two-step process of review. See State v. Dalton, 2018 WI 85, ¶33, 

383 Wis. 2d 147, 914 N.W.2d 120; State v. Tullberg, 2014 WI 134, ¶27, 359 

Wis. 2d 421, 857 N.W.2d 120. First, this court will uphold a trial court’s findings 

of fact unless they are clearly erroneous. State v. Hughes, 2000 WI 24, ¶15, 233 

Wis. 2d 280, 607 N.W.2d 621 (citing State v. Secrist, 224 Wis. 2d 201, 207, 589 

N.W.2d 387 (1999)). Second, this court applies the law to those facts de novo. 

See Dalton, 383 Wis. 2d 147, ¶33. This process requires courts to “analyze issues 

of constitutional fact” by “on one hand giving deference to the [trial] court’s 

findings of evidentiary fact, and on the other reviewing independently the [trial] 

court’s application of those facts to constitutional standards.” State v. Malone, 

2004 WI 108, ¶14, 274 Wis. 2d 540, 683 N.W.2d 1.
No. 2022AP1438-CR

5

II. Reasonable suspicion to extend the stop existed.

¶8 People are protected against unreasonable searches and seizures 

under the auspices of both the Fourth Amendment of the United States 

Constitution and article I, section 11 of the Wisconsin Constitution. “The Fourth 

Amendment protects the ‘right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures.’” Davis v. United 

States, 564 U.S. 229, 236 (2011) (quoting U.S. CONST. amend. IV). The key 

phrase is that the people are protected against “unreasonable” searches and 

seizures. See State v. Parisi, 2016 WI 10, ¶28, 367 Wis. 2d 1, 875 N.W.2d 619. 

¶9 Both of these constitutional “provisions’ purpose is to safeguard 

individuals’ privacy and security against arbitrary governmental invasions, which 

requires striking a balance between the intrusion on an individual’s privacy and 

the government’s promotion of its legitimate interests.” State v. Sykes, 2005 WI 

48, ¶13, 279 Wis. 2d 742, 695 N.W.2d 277. The Fourth Amendment is applicable 

to and binding upon the states. State v. Koch, 175 Wis. 2d 684, 700, 499 N.W.2d 

152 (1993). There is no dispute that “[t]emporary 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 this 

provision.” Whren v. United States, 517 U.S. 806, 809-10 (1996); State v. Popke, 

2009 WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d 569.

¶10 In evaluating whether probable cause exists in a traffic-stop 

scenario, the court must “look to the totality of the circumstances to determine 

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 [or an RCS].’” State v. Babbitt, 
No. 2022AP1438-CR

6

188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct. App. 1994) (first alteration in 

original) (quoting State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 

(1986)). This “is a common sense test: under all the facts and circumstances 

present, what would a reasonable police officer reasonably suspect in light of his 

or her training and experience.” State v. Colstad, 2003 WI App 25, ¶8, 260 

Wis. 2d 406, 659 N.W.2d 394; State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 

681 (1996). 

¶11 “Reasonable suspicion is ‘a low bar[.]’” State v. Nimmer, 2022 WI 

47, ¶25, 402 Wis. 2d 416, 975 N.W.2d 598 (alteration in original; citation 

omitted). It requires less certainty than probable cause. State v. Eason, 2001 WI 

98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625. But, it “must be based on more than 

an officer’s ‘inchoate and unparticularized suspicion or hunch.’” State v. Post, 

2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634 (quoting Terry v. Ohio, 392 

U.S. 1, 27 (1968)). To be reasonable, not only must a traffic offense stop (like 

other Fourth Amendment seizures) be justified at its inception, but subsequent 

police conduct must also be reasonable under the circumstances. See State v. 

Arias, 2008 WI 84, ¶32, 311 Wis. 2d 358, 752 N.W.2d 748. 

¶12 Reasonable suspicion is defined as “specific and articulable facts 

which, taken together with rational inferences from those facts, reasonably warrant 

that intrusion.” Terry, 392 U.S. at 21. This court has explained that: 

If, during a valid traffic stop, the officer becomes aware of 

additional suspicious factors which are sufficient to give 

rise to an articulable suspicion that the person has 

committed or is committing an offense or offenses separate 

and distinct from the acts that prompted the officer’s 

intervention in the first place, the stop may be extended and 

a new investigation begun. The validity of the extension is 

tested in the same manner, and under the same criteria, as 

the initial stop. 
No. 2022AP1438-CR

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State v. Adell, 2021 WI App 72, ¶16, 399 Wis. 2d 399, 966 N.W.2d 115 (quoting 

State v. Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d 499 (Ct. App. 1999)); see also

State v. Smith, 2018 WI 2, ¶28, 379 Wis. 2d 86, 905 N.W.2d 353 (“Discovering 

additional reasonable suspicion during the ordinary inquiries can lead to a legal 

basis upon which to extend the stop beyond the ordinary inquiries.”).

¶13 The court in Waldner, 206 Wis. 2d at 58, concisely set out how 

courts are to consider multiple facts and how the accumulation of those facts can 

build to a finding of reasonable suspicion: 

Any one of these facts, standing alone, might well be 

insufficient. But that is not the test we apply. We look to 

the totality of the facts taken together. The building blocks 

of fact accumulate. And as they accumulate, reasonable 

inferences about the cumulative effect can be drawn. In 

essence, a point is reached where the sum of the whole is 

greater than the sum of its individual parts. That is what 

we have here. These facts gave rise to a reasonable 

suspicion that something unlawful might well be afoot.

¶14 As the State succinctly states, the only contested issue on appeal “is 

whether Officer Kramer had reasonable articulable suspicion to ask Ms. Monson 

to perform field sobriety tests.” In this case, Kramer noted the following on her 

first interaction at Monson’s vehicle: Monson refused to make eye contact with 

her when Monson was looking for her insurance and vehicle information, and 

Monson appeared rather nervous (claiming she was having an anxiety attack). On 

the second trip to Monson’s vehicle, when Monson actually turned to face the 

officer, Kramer noticed that Monson’s eyes were bloodshot, glassy, and “all over 

the place,” that her speech was slurred and exaggerated, and that her teeth were

clenched, all of which Kramer recognized as signs of methamphetamine use. 

Taken together, these form significant building blocks of facts leading Kramer to 

have reasonable suspicion that Monson was driving while impaired.
No. 2022AP1438-CR

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¶15 Also, even though the trial court did not allow the question about 

precisely why Kramer first stopped her police car to be presented to the jury

pursuant to a motion in limine, the answer to that question is relevant in this 

appeal: Monson had stopped her vehicle in traffic about one full vehicle length 

back from a stop sign. This is out of the ordinary and would indicate to a 

reasonable police officer that something was amiss. Kramer then noticed that the 

driver of the vehicle (Monson) was “messing around with something in the car and 

from the distance where [Kramer] was at, eventually it looked like it was an IID.” 

Kramer had first thought the item was a syringe. Kramer initially stopped her own 

vehicle because of Monson’s stopped vehicle, but after some observation, Kramer 

had more concerns: Monson could have been in trouble physically, could have 

been attempting to inject something, or could have had mechanical issues with her 

vehicle. Once Kramer heard that Monson was having trouble starting the vehicle 

with her IID—a device she knew was only placed in vehicles where the owner had 

already been convicted of an OWI—it was logical that Kramer’s interest was 

piqued. Monson claimed that she was having trouble with the IID and was getting 

an error reading; that was something she claimed had never happened before. 

Kramer did not have to accept that explanation, even if the vehicle eventually did 

start up, because police officers do not have to just accept what they are told and 

stop investigations based solely on statements by possible law violators. See id. at 

61 (“Although many innocent explanations could be hypothesized as the reason 

for [a defendant’s] actions, a reasonable police officer charged with enforcing the 

law cannot ignore the reasonable inference that they might also stem from 

unlawful behavior.”).

¶16 While there are a myriad of Wisconsin (and nation-wide) opinions 

that allow for police officers to stop vehicles for equipment, burnt-out lights, or 
No. 2022AP1438-CR

9

other technical vehicle malfunctions even without any other observations of 

suspicious conduct, courts have declined to formulate a bright-line rule by which 

to judge the reasonableness of a traffic stop. Malone, 274 Wis. 2d 540, ¶34. But, 

“[a] law enforcement officer is justified in detaining an individual if he has 

suspicion ‘grounded in specific, articulable facts and reasonable inferences from 

those facts, that the individual has committed a crime.’” Id., ¶35 (citation 

omitted). The same applies if the officer reasonably believes that a crime was 

about to be committed. Adell, 399 Wis. 2d 399, ¶16.

¶17 “Even if no probable cause existed, a police officer may still conduct 

a traffic stop when, under the totality of the circumstances, he or she has grounds 

to reasonably suspect that a crime or traffic violation has been or will be 

committed.” Popke, 317 Wis. 2d 118, ¶23. Here, once Kramer noticed that 

Monson was blowing into an IID in a vehicle that had stopped in traffic, she had 

notice that Monson was under an order after an OWI conviction and that 

Monson’s breath was not being accepted by the IID to start the ignition. Kramer 

could reasonably believe that Monson may have imbibed something that prevented

her from starting up the vehicle and that Monson would drive while impaired if 

she were finally able to start the ignition. Or Kramer could have reasonably 

believed that Monson had ingested an illegal substance—a crime in and of itself—

that caused her exaggerated conduct, clenched teeth, and glassy and bloodshot 

eyes and that would have impaired Monson’s driving once she got the vehicle 

restarted. Either way, there were enough facts to support reasonable suspicion that 

Monson had committed or was about to commit the offense of driving while 

impaired.

¶18 Monson places her reliance upon Hogan, which she claims has facts 

that are “strikingly similar” to her case, in which our supreme court concluded that 
No. 2022AP1438-CR

10

a police officer did not have reasonable suspicion to extend a traffic stop. There 

are, however, stark differences between Hogan and Monson’s case. First is the 

presence of an IID. Next are the building blocks creating reasonable suspicion 

(the glassy and bloodshot eyes, the anxiety, the slurred speech, and the clenched 

teeth and exaggerated conduct that indicate drug use) that Kramer observed in 

Monson. But even more important is the fact that, while supportive buildingblock facts may have been factually present in Hogan, they were not before that

trial court. Our state supreme court in Hogan identified several facts, but then 

explained that the State had not presented them sufficiently for its consideration:

Upon careful examination of the record, we believe the 

State could have made a valid case that Deputy Smith had 

reasonable suspicion to pursue field sobriety tests with 

Patrick Hogan. However, the case the State could have 

made in circuit court was not made, and, consequently, 

Judge Day’s ruling on this point was not error.

Hogan, 364 Wis. 2d 167, ¶43. 

¶19 That being the case, Monson’s reliance on Hogan is patently 

inappropriate. This court looks to what case was made in the trial court with 

respect to Monson. There was more than just the anxiety attack and Monson’s

nervousness: several additional building blocks constructed reasonable suspicion. 

A reasonable police officer could have added these facts all together in the same 

fashion as Kramer. The foundation for suspicion was the unusual location of the 

stopped vehicle in traffic and the presence of an IID device that was not letting 

Monson start her ignition. If, as Monson asserts, there was just the anxiety of 

being questioned by a police officer, that might not have led to a reasonable 

suspicion that something criminal was afoot. But Kramer observed much more 

than that, and the trial court, looking to the totality of the circumstances, was not 
No. 2022AP1438-CR

11

in error to find that the facts all lead to reasonable suspicion to extend the traffic 

stop and have Monson step out of her vehicle to perform field sobriety tests.

¶20 “In a long line of cases, [the United States Supreme Court has] said 

that when an officer has probable cause to believe a person committed even a 

minor crime in his presence, the balancing of private and public interests is not in 

doubt. The arrest is constitutionally reasonable.” Virginia v. Moore, 553 U.S. 

164, 171 (2008). The trial court’s findings of fact were not only not clearly 

erroneous, they were not erroneous at all. Therefore, in Monson’s case, articulable 

facts warranted reasonable suspicion to extend the traffic stop, which led to 

Monson’s subsequent lawful arrest. See State v. Anagnos, 2012 WI 64, ¶56, 341 

Wis. 2d 576, 815 N.W.2d 675; Post, 301 Wis. 2d 1, ¶13.

CONCLUSION

¶21 In summary, this court concludes that the trial court’s findings of 

fact were not clearly erroneous and that, given the totality of the circumstances, 

there was reasonable suspicion to extend the traffic stop into an OWI/RCS 

investigation. Accordingly, the judgment is affirmed.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.