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COURT OF APPEALS DECISION DATED AND FILED February 13, 2013 Diane M. Fremgen 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.� 2012TR1824 |
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STATE OF WISCONSIN� |
IN COURT OF APPEALS |
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DISTRICT II |
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City of Oshkosh, ��������� Plaintiff-Respondent, ���� v. Eric R. Carley, ��������� Defendant-Appellant. |
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����������� APPEAL from a judgment of the circuit court for Winnebago County:� DANIEL J. BISSETT, Judge.� Affirmed.�
�1������� NEUBAUER, P.J.[1]�� Eric R. Carley appeals from a judgment convicting him of operating a motor vehicle while intoxicated (OWI).� Carley challenges the circuit court�s denial of his motion to suppress evidence for lack of probable cause.� We conclude that the officer had probable cause to stop Carley based on Carley�s driving left of center in violation of Wis. Stat. � 346.05.� We affirm.
�2������� According to the testimony at the hearing on Carley�s motion to suppress evidence, City of Oshkosh police officer Brandon Bonnett was traveling east on Pearl Avenue when he saw Carley approaching him in Bonnett�s lane of traffic.� Bonnett first saw Carley come into Bonnett�s lane when Carley was going around a turning vehicle.� �[H]e went around the car to the left and in the process of doing so went into my lane around it and then into his lane.�� Bonnett testified that Carley�s vehicle was in his lane to the extent that �it looked like all four tires,� and that Carley�s car came within several car lengths of Bonnett�s vehicle before moving back into the right lane.� Bonnett further testified that �had I continued on my current path and in my lane I would have ran head-on into him.�� After seeing Carley driving left of center, Bonnett turned around and stopped Carley.� Bonnett noticed the odor of alcohol when he spoke with Carley, performed field sobriety tests and ultimately arrested Carley for OWI.� Carley moved to suppress the evidence obtained at the stop, arguing that there was no reasonable suspicion to stop him.� The circuit court denied Carley�s motion ruling there was probable cause for the stop based on the officer�s observation of the traffic violation.� Carley was convicted of OWI.� Carley appeals the circuit court�s denial of his motion to suppress.
�3������� The temporary detention of individuals during the stop of an automobile by the police constitutes a seizure within the meaning of the Fourth Amendment. �State v. Popke, 2009 WI 37, �11, 317 Wis. 2d 118, 765 N.W.2d 569. �Whether an officer has probable cause or reasonable suspicion to make an investigatory stop presents a question of constitutional fact. �Id., �10. �As such, we will uphold the circuit court�s findings of historical fact unless clearly erroneous; however, we review de novo the application of constitutional principles to these historical facts. �See id.
�4������� When an officer is acting upon an observation of a traffic violation committed in his or her presence and is not acting upon a suspicion warranting further investigation, the appropriate test is whether the officer had probable cause to believe that a law had been broken.� State v. Longcore, 226 Wis. 2d 1, 8-9, 594 N.W.2d 412 (Ct. App. 1999), aff�d by an equally divided court, 2000 WI 23, 233 Wis. 2d 278, 607 N.W.2d 620.
�5������� An officer may conduct a traffic stop when he or she has probable cause to believe a traffic violation has occurred.
Probable cause refers to the �quantum of evidence which would lead a reasonable police officer to believe� that a traffic violation has occurred. �The evidence need not establish proof beyond a reasonable doubt or even that guilt is more probable than not, but rather, probable cause requires that �the information lead a reasonable officer to believe that guilt is more than a possibility.� �In other words, probable cause exists when the officer has �reasonable grounds to believe that the person is committing or has committed a crime.�
Popke, 317 Wis. 2d 118, ��13-14 (citations omitted).� Here, because Bonnett stopped Carley�s vehicle based on his belief that Carley had committed a traffic violation, the question is whether the facts observed by Bonnett constituted probable cause that Carley violated Wis. Stat. � 346.05.
�6������� The observation that prompted the stop was Carley�s driving left of center, a violation of Wis. Stat. � 346.05.� That statute provides that �the operator of a vehicle shall drive on the right half of the roadway � except � [w]hen overtaking and passing under circumstances in which the rules relating to overtaking and passing permit or require driving on the left half of the roadway.�� Sec. 346.05(1) and (1)(b).� Wisconsin Stat. � 346.09 prohibits driving to the left of center in overtaking another vehicle unless the left lane is �free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be done in safety.�
�7������� Bonnett testified that Carley was in the left lane, within several car lengths of oncoming traffic, that is, Bonnett�s vehicle, and that if he, Bonnett, had continued in his path he would have hit Carley head on.� It is reasonable to infer from this testimony that Bonnett concluded that Carley�s overtaking of the turning vehicle was not being done �in safety.�� Bonnett�s own observations gave him reason to believe that Carley had violated Wis. Stat. � 346.05, and Bonnett had probable cause to stop Carley.� The evidence gathered pursuant to Bonnett�s stop was properly admitted.[2]
����������� By the Court.�Judgment 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) (2011-12).� All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] We ordered the parties to address the viability of Carley�s appeal, as the record initially showed that Carley had entered a no contest plea, by which he would have waived the right to raise nonjurisdictional defects.� The record was supplemented with the transcript of Carley�s court trial, indicating that Carley was convicted by a trial to the court on stipulated facts, not pursuant to a guilty or no contest plea.