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COURT OF APPEALS DECISION DATED AND FILED October 31, 2012 Diane M. Fremgen Clerk of Court of Appeals |
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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
from an order of the circuit court for Waukesha County:�
J. mac davis, Judge.� Affirmed.
�1������� NEUBAUER, P.J.[1]� The State of Wisconsin appeals from a judgment vacating Raenold Quiles�s conviction for operating a vehicle while under the influence of an intoxicant (OWI) and operating a vehicle with a prohibited alcohol concentration (PAC).� Before trial, Judge Patrick C. Haughney denied Quiles�s motion to suppress for lack of reasonable suspicion.� After a jury trial and guilty verdicts, Judge J. Mac Davis, substituting for Judge Haughney, granted Quiles�s motion for reconsideration on the motion to suppress and dismissed the judgment against Quiles.� The State contends the stop of Quiles�s vehicle was supported by reasonable suspicion and, therefore, the trial court erred in vacating Quiles�s conviction. �We affirm the trial court judgment dismissing the case against Quiles.
BACKGROUND
�2������� The trial court, Judge Haughney presiding, held a hearing on Quiles�s motion to suppress.� Trooper Thomas McKay of the Wisconsin State Patrol testified regarding his stop of Quiles�s vehicle.� McKay�s written narrative report of the stop indicated that on September 4, 2011, at about 12:15 a.m., McKay was travelling east on I-94 in the center lane when he observed Quiles�s vehicle.� McKay testified at the pretrial suppression hearing that he saw Quiles�s vehicle ahead of him in the right lane, drifting on and off and over the fog line �multiple� times.� McKay initiated a traffic stop, smelled intoxicants in Quiles�s vehicle, administered field sobriety tests and ultimately arrested Quiles for driving while under the influence of intoxicants.� While McKay mentioned the video of the stop, the video was not introduced into evidence.� Based on McKay�s testimony, Judge Haughney denied Quiles�s motion to suppress.
�3������� The case proceeded to a jury trial, with Judge Davis
presiding, as Judge Haughney was out on medical leave.� At trial, the video of the stop was
introduced into evidence.� The jury found
Quiles guilty of OWI and operating with a PAC.
�4������� After trial, Quiles moved for reconsideration of the previous
ruling on reasonable suspicion.[2]� Judge Davis granted the motion, stating that
while he had not heard the testimony from the original suppression motion, he
had read McKay�s previous testimony, had heard McKay�s trial testimony, and had
seen the video from McKay�s vehicle.�
Judge Davis noted, �All we have here is wandering over to and touching
the fog line for a bit.� The video
doesn�t seem to show that it�s particularly remarkable or notable.� Everything else in the video � shows smooth,
normal driving that one might expect.��
Judge Davis found that the video, the transcript and what he heard at
trial �don�t meet the State�s burden of proof of showing that there was a
reasonable suspicion for the stop.�
DISCUSSION
�5������� The State�s challenge on appeal is limited to the trial court�s finding that McKay did not have reasonable suspicion to stop Quiles.� �Whether there was � reasonable suspicion to conduct a stop is a question of constitutional fact, which is a mixed question of law and fact to which we apply a two-step standard of review.�� State v. Anagnos, 2012 WI 64, �21, 341 Wis. 2d 576, 815 N.W.2d 675.� First, we review the trial court�s findings of fact under the clearly erroneous standard.� Id.� Second, we review de novo the application of those historical facts to the constitutional principles.� Id.� Finally, when the evidence in the record consists of disputed testimony and a video recording, we apply the clearly erroneous standard of review to the trial court�s findings of facts based on the record.� State v. Walli, 2011 WI App 86, �17, 334 Wis. 2d 402, 799 N.W.2d 898, review denied, 2011 WI 100, 337 Wis. 2d 51, 806 N.W.2d 639.
�6������� Wisconsin Stat. �968.24 permits a law enforcement officer to temporarily detain a person for the purpose of limited investigation when the officer reasonably suspects that the person may have committed, is committing, or is about to commit an offense.� State v. Waldner, 206 Wis. 2d 51, 55, 556 N.W.2d 681 (1996). �To execute a valid investigatory stop, the officer must reasonably suspect, in light of his or her experience, that criminal activity is afoot.� State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990).� Such reasonable suspicion must be based on �specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.�� Id.� (citation omitted).� This is a �common sense� test, id. at 139-40, and police officers are not required to rule out the possibility of innocent behavior before initiating a temporary detention. �State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).� In other words, �[t]he reasonableness of a stop is determined based on the totality of the facts and circumstances.�� State v. Post, 2007 WI 60, �13, 301 Wis. 2d 1, 733 N.W.2d 634.
�7������� Quiles contends that �[t]he crossing of the right wheels of
Quiles�[s] truck over the �fog line� was the only fact on which the trooper
based his decision to stop and search.��
Thus, Quiles argues that because he did not commit any violation by
crossing the fog line and because the only factor McKay considered in stopping
Quiles was Quiles�s crossing the fog line, McKay did not have the requisite
reasonable suspicion to stop and detain Quiles.�
�8������� We briefly address Quiles�s argument, but ultimately affirm on other grounds. �The supreme court recently addressed reasonable suspicion based on legal driving in Anagnos, stating that �[a]n investigative traffic stop may be supported by reasonable suspicion even when the officer did not observe the driver violate any law.�� Anagnos, 341 Wis. 2d 576, �47.� In addressing this issue, the supreme court further noted the reasoning in Post, that ��driving need not be illegal in order to give rise to reasonable suspicion� because such a standard �would allow investigatory stops only when there was probable cause to make an arrest.�� �Anagnos, 341 Wis. 2d 576, �47 (quoting Post, 301 Wis. 2d 1, �24). �The standard for whether an officer has reasonable suspicion to detain someone is not whether a law is broken, but rather whether the officer can �make an investigatory stop based on observations of lawful conduct so long as the reasonable inferences drawn from the lawful conduct are that criminal activity is afoot.�� Waldner, 206 Wis. 2d at 57.
�9������� Here, the evidence conflicted as to how many times Quiles crossed the fog line.� McKay testified that Quiles crossed onto and over the fog line �several� and �multiple� times.� The video recording, on the other hand, does not clearly show that Quiles crossed the fog line prior to the one time right before McKay pulled him over.� When asked if the video showed �everything else� he saw other than the horizontal nystagmus gaze test, McKay testified, �Yes.� �Given the conflicting evidence on whether Quiles crossed the fog line multiple times, we defer to the trial court on this finding of fact.� Walli, 334 Wis. 2d 402, �17.� The trial court found that the video showed no more than �wandering over to and touching the fog line for a bit.�� This finding is not clearly erroneous.� Based on the facts as found by the trial court, there was no reasonable suspicion to stop Quiles.� We affirm Judge Davis�s decision to set aside the verdicts and his judgment of dismissal.
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(c) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2] Quiles�s
motion had various titles and requests for relief, but it was treated by
Judge Davis as a motion for reconsideration on the reasonable suspicion ruling.