COURT OF APPEALS DECISION DATED AND FILED March 25, 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. Susan Marie Vinje,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1
BACKGROUND
¶2 On
May 5, 2007, a criminal complaint was filed charging Vinje with operating while
intoxicated and operating a motor vehicle with a prohibited alcohol
concentration, both as second offenses. Vinje filed a motion to suppress challenging
the reasonable suspicion for the stop.
¶3 At
the motion hearing, officer Patrick Carey testified that shortly after 8:30 p.m.
on Saturday, May 5, 2007, he received a call from the dispatch center reporting
that a yellow Hummer was being driven recklessly and “swerving on the bridge
and that people were concerned.” Carey
located a vehicle matching that description and followed it for three to four
blocks. Carey testified that he observed
the vehicle “swerving back and forth” within its lane. He stated that a concrete median divided the
highway where Vinje was driving, and the median ended at an intersection. According to Carey, after the intersection,
Vinje swerved to such a degree that “if the median had been there, then the
vehicle would have struck it.” In
addition to listening to Carey’s testimony, the court viewed a DVD of the
incident that Carey recorded when pursuing Vinje’s vehicle.
¶4 After
viewing the DVD, the court stated
and it certainly appears to this Court as though the
vehicle goes far over toward the center line, and it appears to the Court based
on the video that the wheels of Vinje’s vehicle actually touched upon or came
very, very close to the center line and then almost immediately then move over
to the left toward the fog line and actually touch upon or cross over the fog
line. And then there is a point at which
the vehicle goes over so far as, according to Officer Carey, that it certainly
would have struck the median if the median was there, but it happened to be in
an area where the median wasn’t there because there’s a roadway there. Officer Carey testified, and that was
confirmed by reviewing the tape, that Miss Vinje’s vehicle certainly was not traveling
in what would be considered a typical or normal fashion.
¶5 The
court concluded Carey had reasonable suspicion to stop Vinje and denied the
motion. Vinje then pled no contest to operating while intoxicated and the
remaining charge was dismissed.
DISCUSSION
¶6 When
reviewing a trial court’s denial of a motion to suppress, we uphold the court’s
findings of fact unless they are clearly erroneous.
¶7 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, is
committing, or is about to commit an offense.
State v. Rutzinski, 2001 WI 22, ¶14, 241
¶8 Vinje argues that under the totality of the circumstances, Carey did not have reasonable suspicion to stop her because her swerving was “minimal and almost non-existent” and she was not speeding or committing any traffic violations. Vinje’s attempt to characterize her weaving as “minimal” is not consistent with Carey’s testimony or the trial court’s finding. Carey testified that, at one point, Vinje’s vehicle swerved to a degree that if the road had been divided by a median, the vehicle would have hit the median. Additionally, Carey testified that he received a report of a yellow Hummer being driven recklessly, that he located a vehicle matching that description and observed it swerve within its own lane for three to four blocks. Taken together, these facts give rise to a reasonable suspicion justifying the stop. It is irrelevant that Carey did not observe Vinje speeding or otherwise committing a traffic violation. See id.
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.