COURT OF APPEALS DECISION DATED AND FILED January 15, 2008 David R. Schanker 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Daniel George Pendergast,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1
BACKGROUND
¶2 Pendergast received a citation for operating while
intoxicated on September 4, 2006. He
filed a motion to suppress and the court held a hearing on January 31,
2007. At the hearing, trooper Donald
Magdzas testified he observed Pendergast’s vehicle at approximately 3:10 a.m.
coming from the general direction of the bar district of downtown
¶3 The trial court concluded that Magdzas’s testimony was credible. The trial court further concluded that under the totality of the circumstances Magdzas had reasonable suspicion to stop Pendergast.
DISCUSSION
¶4 When reviewing a circuit court’s denial of a motion to
suppress, we uphold the circuit court’s findings of fact unless they are
clearly erroneous.
¶5 The Fourth Amendment to the United States Constitution
prohibits unreasonable searches and seizures.
In order to make a constitutionally permissible investigative stop, the
officer must have reasonable suspicion that the driver or occupants of the
vehicle committed an offense. State
v. Rutzinski, 2001 WI 22, ¶14, 241
¶6 Pendergast argues that under the totality of the
circumstances, the arresting officer did not have reasonable suspicion to stop
him. Pendergast cites State
v. Post, 2007 WI 60, 733 N.W.2d 634, to assert that his behavior could
not have given rise to reasonable suspicion because his weaving was minimal and
“happened a very few times over a great distance.” In Post, the supreme court held
“weaving within a single traffic lane does not alone give rise to the
reasonable suspicion necessary to conduct an investigative stop of a
vehicle.”
¶7 In Post, the court concluded that the
totality of the circumstances provided reasonable suspicion where the degree of
weaving was significant and the incident took place at 9:30 at night.
¶8 Pendergast’s attempt to characterize his weaving as “minimal” is not consistent with the officer’s testimony. Magdzas described Pendergast’s weaving as “very noticeable” and stated Pendergast was weaving “continuously” for approximately a mile. Additionally, Magdzas noted the time, 3:10 a.m., and location, coming from the bar district, as factors in his decision to stop Pendergast. These factors taken together give rise to a reasonable suspicion sufficient for a stop.[2]
¶9 Pendergast makes a host of other arguments that are
underdeveloped and unsupported by any citation to authority. Pendergast contends Magdzas could have turned
on his camera sooner, and Magdzas did not specify the number of times
Pendergast weaved. There is no
requirement that an officer specify the number of times a car weaves, nor is
there a requirement that an officer videotape a suspected offender. Pendergast also argues that he did not commit
any traffic offense. An officer need not
observe a traffic offense in order to stop a person. Waldner, 206
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). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Pendergast argues that
Magdzas’s stated reason for stopping him was to check his welfare and not for
any criminal or traffic violation. This
is not an accurate summary of Magdzas’s testimony. Magdzas stated that in addition to being
concerned for Pendergast’s welfare, he was concerned that Pendergast might have
been intoxicated. He was not required to
rule out the possibility of innocent behavior before stopping Pendergast. See State v. Anderson, 155