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COURT OF APPEALS DECISION DATED AND FILED August 10, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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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.� |
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Appeal No.� |
Cir. Ct. No.�
2004CF94 |
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STATE OF WISCONSIN��� |
IN COURT OF APPEALS |
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DISTRICT IV |
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State
of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Robert
E. Post, ��������� Defendant-Appellant. |
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����������� APPEAL from a judgment of the circuit court for Sauk County:� Patrick Taggart, Judge.� Reversed.�
����������� Before Dykman, Deininger and Higginbotham, JJ.�
�1����������������������� PER CURIAM. Robert Post appeals a judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration, as a fifth offense. �The issue is whether the police violated Post�s constitutional right to be free from unreasonable searches and seizures when the police stopped Post while he was driving.� We conclude that the stop violated the Fourth Amendment.� Therefore, we reverse.
�2����������������������� �A traffic stop is a form of seizure triggering Fourth Amendment protections from unreasonable searches and seizures.�� State v. Gammons, 2001 WI App 36, �6, 241 Wis. 2d 296, 625 N.W.2d 623.� For a traffic stop to comport with the Fourth Amendment, �[t]he police must have a reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts, that an individual is violating the law.�� Id. �The determination of whether Post has been subjected to a seizure in violation of the Fourth Amendment is an issue we review de novo.� State v. Williams, 2002 WI 94, �17, 255 Wis. 2d 1, 646 N.W.2d 834.�
�3����������������������� The arresting officer testified at the suppression hearing that Post drifted from the right part of his lane toward the left side of his lane and back several times.� The officer testified that Post stayed in his lane, but moved back and forth approximately five feet in either direction.� The officer also testified that Post was never closer than one foot to the center line and never closer than eight feet to the curb.� Finally, the officer testified that Post did not jerk back and forth, did not drive erratically, did not speed and did not otherwise commit any traffic violations.�
�4����������������������� Based on the officer�s testimony, we conclude that the police did not have a reasonable suspicion that Post was violating the law that would justify a traffic stop.� Post�s slight deviations within one lane of travel, with nothing more, does not, in our view, reach that quantum of evidence necessary to make the officer�s hunch that Post might be intoxicated reasonable under the Fourth Amendment.� The State argues that we should consider the fact that Post appeared to be traveling in tandem with the car in front of him and that car committed a traffic offense while turning.� The State contends that the other car�s violation justifies the stop of both vehicles.� In evaluating the reasonableness of the decision to stop Post, however, we will not consider other than Post�s actions.�
�5����������������������� Because the police violated the Fourth Amendment in stopping Post, any evidence flowing from Post�s illegal seizure must be suppressed.� We reverse the appealed judgment and remand for further proceedings consistent with this opinion.
����������� By the Court.�Judgment reversed.
����������� This opinion will not be published. �See Wis. Stat. Rule 809.23(1)(b)5 (2003-04).