COURT OF APPEALS DECISION DATED AND FILED October 5, 2010 A. John Voelker Acting 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.�	2010AP621-CR	Cir. Ct. No.� 2009CT1612
STATE OF WISCONSIN���			IN COURT OF APPEALS
			DISTRICT III
State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Rolando S. Cortes, ��������� Defendant-Appellant.

����������� APPEAL from a judgment of the circuit court for Brown County:� JOHN D. MCKAY, Judge.� Affirmed.�

�1������� BRUNNER, J.[1]   Rolando Cortes appeals a judgment of conviction for operating while intoxicated, third offense.� Cortes claims the circuit court should have suppressed evidence of intoxication because officers lacked reasonable suspicion to stop his vehicle.� We reject Cortes�s arguments and affirm.

BACKGROUND

�2������� The facts are undisputed and are based on the testimony of Green Bay Police Officer Thomas Conley at the suppression hearing.� At approximately 1:45 a.m., Conley was stopped at a controlled intersection on Main Street.� Another vehicle, driven by Cortes, was stopped across the intersection in the opposite lane.� Conley saw Cortes point at him and say something to his passengers.� As soon as the light turned green, Conley testified Cortes �took off at a high rate of speed.�

�3������� Conley traveled approximately one block on Main Street before performing a U-turn.� As he attempted to catch up with Cortes, he saw Cortes turn left on Roosevelt Street.� Conley knew that Cortes would come to a stop sign at the intersection of Roosevelt and Cedar Streets, and, as Conley approached Roosevelt Street, expected to see Cortes�s vehicle stopped.� Instead, Cortes had already turned left and was traveling on Cedar Street.� Conley did not believe there was any way Cortes �could have been that far ahead of me� if Cortes was driving within the speed limit.� �

�4������� Conley attempted to catch up to Cortes, who was �traveling at a high rate of speed.�� Conley did not have radar in his vehicle.� Based on Conley�s speed, he estimated Cortes was traveling �probably 55, 60 miles an hour.�� In Conley�s view, driving at excessive speeds and making frequent turns �is consistent with people trying to ditch contraband � or elude a traffic stop and/or arrest.�� Conley called for backup, activated his emergency lights, and initiated a traffic stop, during which he obtained evidence of Cortes�s intoxication.

DISCUSSION

�5������� The question of whether a traffic stop is reasonable is a question of constitutional fact.� State v. Post, 2007 WI 60, �8, 301 Wis. 2d 1, 733 N.W.2d 634.� �A question of constitutional fact is a mixed question of law and fact to which we apply a two-step standard of review.� We review the circuit court�s findings of historical fact under the clearly erroneous standard, and we review independently the application of those facts to constitutional principles.�� Id. (citations omitted).�

�6������� Police may conduct an investigative stop if the officer is ��able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant� the intrusion of the stop.�� Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).� The intrusion is warranted if the officer reasonably suspects the person stopped is committing, is about to commit or has committed a crime.� Wis. Stat. � 968.24; Post, 301 Wis. 2d 1, �13. �An inchoate and unparticularized suspicion, or �hunch,� will not suffice.� State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996).� �The reasonableness of a stop is based on the totality of the facts and circumstances.�� Post, 301 Wis. 2d 1, �13.�

�7������� Conley�s inference that Cortes was trying to elude or evade police was reasonable given the totality of the circumstances.� Cortes pointed at Conley�s cruiser, and, as soon as the light turned green, took off at high speed.� He then made a series of turns, driving at an estimated fifty-five to sixty miles per hour.[2]� �Flight at the sight of police is undeniably suspicious behavior.� �� Although it does not rise to a level of probable cause, flight at the sight of a police officer certainly gives rise to a reasonable suspicion that all is not well.�� State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).� In addition, unusual driving at a late hour is one factor strongly suggesting further investigation is necessary.� See Waldner, 206 Wis. 2d at 53, 57-58 (defendant�s unusual driving, which included stopping briefly at an uncontrolled intersection and turning onto a cross street at a high rate of speed, coupled with his dumping of liquid and ice from a plastic cup, coalesced to form reasonable suspicion).�

�8������� Cortes suggests Conley�s uncertainty regarding his speed suggests the traffic stop was based on nothing more than Conley�s �hunch.�� Conley�s inability to determine Cortes�s precise speed might be relevant if Conley lacked cause to suspect Cortes of anything other than a speeding violation.� See City of Milwaukee v. Berry, 44 Wis. 2d 321, 323-25, 171 N.W.2d 305 (1969) (approving a visual speed estimate based on the officer�s position, the length of his observation, the existence of reference points, and the experience of the officer).� As we have established, however, the totality of the circumstances�Cortes�s pointing, rapid acceleration, frequent turns and excessive speed�gave rise to reasonable suspicion that further investigation was warranted.�

�����������

By the Court.�Judgment affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 808.23(1)(b)4.

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[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

[2]  The intersections at issue are located near downtown Green Bay.� We suspect Cortes�s speed was well in excess of the posted speed limit in violation of Wis. Stat. �  346.57(5), but Conley provided no testimony about the speed limit on Main, Roosevelt, or Cedar Streets.� We also suspect Cortes�s speed was not reasonable and prudent under Wis. Stat. � 346.57(2), but Conley provided no testimony about the area or its potential hazards.� Accordingly, we cannot decide the case on either of these grounds.�