COURT OF
APPEALS DECISION DATED AND
RELEASED January
9, 1997 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1732
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RICK
A. KNUTSON,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Sauk County: VIRGINIA A.
WOLFE, Judge. Affirmed.
DYKMAN,
P.J. This appeal is decided by one judge pursuant to
§ 752.31(2)(c), Stats. Rick A. Knutson appeals from an order
convicting him of operating a motor vehicle while intoxicated (OMVWI) in
violation of § 346.63(1), Stats. Knutson argues that the trial court erred in
denying his motion to suppress evidence of his intoxication because the officer
who stopped him only had a hunch, not a reasonable suspicion, that he was
driving while intoxicated. We conclude
that the officer's investigative stop was based on a reasonable suspicion that
Knutson was driving while intoxicated, and therefore affirm.
BACKGROUND
On
July 28, 1994, Officer Gerard Vulstek of the Wisconsin State Patrol was
travelling eastbound on Highway 12, which at that point has two lanes going in
each direction. Vulstek noticed
Knutson's vehicle approaching in the westbound lanes. After observing the right tires of Knutson's vehicle cross over
into the right lane of traffic and then return to the left lane, Officer
Vulstek turned to follow Knutson's car.
Knutson's car crossed into the right lane two more times, and Vulstek
activated his emergency lights. Knutson
pulled over.
Vulstek
approached Knutson and noticed that his breath smelled of intoxicants and that
his eyes were red and watery. Knutson
admitted that he had a few drinks.
After Knutson performed field sobriety tests, Vulstek arrested him for
OMVWI.
Knutson
brought a motion to suppress all evidence obtained as a result of the stop on the
grounds that the officer did not have a reasonable suspicion to believe that he
was committing an offense. The trial
court denied Knutson's motion. After a
trial on stipulated facts, the court found Knutson guilty of OMVWI. Knutson appeals.
DISCUSSION
When
reviewing a trial court's decision regarding a motion to suppress evidence, we
will uphold the trial court's findings of fact unless they are against the
great weight and clear preponderance of the evidence. State v. Jackson, 147 Wis.2d 824, 829, 434 N.W.2d
386, 388 (1989). Whether those facts
satisfy the constitutional requirement of reasonableness, however, is a
question of law that we review de novo.
Id.
For
a police officer to make an investigative stop, he or she must possess a
reasonable suspicion that the person is committing, or has committed, an
offense. Id. at 833-34,
434 N.W.2d at 390. The officer's
reasonable suspicion must be based on "specific and articulable facts,
which, taken together with rational inferences from those facts, reasonably
warrant th[e] intrusion." Terry
v. Ohio, 392 U.S. 1, 21 (1968).
The facts must be "judged against an objective standard: would the facts available to the officer at
the moment of the seizure ... `warrant a man of reasonable caution in the belief'
that the action taken was appropriate?"
Id. at 21-22.
Knutson
argues that his conduct of crossing into an adjoining lane did not violate any
traffic law and was no different than the conduct of "a very large
category of presumably innocent travelers." Therefore, Knutson argues, the officer's investigatory stop was
based only a "hunch" that Knutson was intoxicated, not a reasonable
suspicion. See Reid v.
Georgia, 448 U.S. 438, 441 (1980).
We
do not agree with Knutson that his crossing into an adjoining lane three times
can be characterized as conduct that is repeated by "a very large category
of presumably innocent travelers."
Automobile drivers do not ordinarily cross into an adjoining lane three
times in succession for no apparent reason.
Rather, when the officer observed Knutson cross into the adjoining lane
three times, he had specific and articulable facts on which to reasonably
suspect that Knutson was driving while intoxicated or was occupied with
something that interfered with the safe operation of his automobile. See § 346.89(1), Stats.
Therefore, the investigatory stop was constitutionally justified.
We
do not see the relevance of Knutson's assertion that he did not violate any
traffic law by crossing into the adjoining lane. The officer did not stop Knutson because a traffic law was
violated; rather, the officer stopped Knutson because he suspected that he was
driving while intoxicated. In State
v. Krier, 165 Wis.2d 673, 678, 478 N.W.2d 63, 65 (Ct. App. 1991), we
noted: "Suspicious activity justifying an investigative stop is, by its
very nature, ambiguous. Unlawful
behavior may be present or it may not.
The behavior may be innocent.
Still, officers have the right to temporarily freeze the situation to
investigate further." (Citation
omitted.)
Similarly,
the fact that Knutson's conduct did not violate any law is of no
consequence. What is relevant is that
his behavior of crossing into the adjoining lane three times gave the officer a
reasonable suspicion to believe that Knutson was committing the offense of
OMVWI. Because the officer had a
reasonable suspicion to believe that Knutson was driving while intoxicated, the
trial court did not err in denying the motion to suppress.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.