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COURT OF APPEALS
DECISION
DATED AND FILED
June 17, 2009
David
R. Schanker
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.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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State of Wisconsin,
Plaintiff-Appellant,
v.
William A. Bohn,
Defendant-Respondent.
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APPEAL
from an order of the circuit court for Racine County: Allan
b. torhorst, Judge. Reversed.
¶1 SNYDER, J. The State appeals from an order suppressing
evidence gathered during a traffic stop of William A. Bohn. The State contends that the circuit court
incorrectly determined that the traffic stop was not based upon reasonable
suspicion. We agree and reverse the
order of the court.
¶2 While patrolling Durand
Avenue in Racine
at about 1:30 a.m. on August 13, 2007, Deputy Sheriff Chad Schulman observed a
vehicle that was stopped in the eastbound lane of traffic. He later learned that Bohn was the driver of
that vehicle. Schulman noted that Bohn’s
vehicle “appeared to be running,” because “the lights were on, the brake lights
were lit.” As Schulman drove past in the
opposite direction, he saw a person approach the vehicle on the passenger side,
look up and quickly walk away. Bohn then
made a u-turn and entered the westbound lane behind Schulman’s squad car. Schulman slowed down to let Bohn pass so that
he could see the license plate. Bohn did
not pass. Schulman slowed until he was
nearly at a complete stop, and Bohn then passed by the squad at about “ten,
fifteen miles per hour.” The posted
speed limit in the area is thirty miles per hour.
¶3 Bohn then signaled and turned northbound onto Kearney Avenue and
Schulman followed to continue observing.
Schulman explained that Kearney
has “two lanes, one northbound lane and one southbound lane,” and a “parking
shoulder,” but no markings. Schulman
noted that there was plenty of room on the road for traffic in both directions,
yet Bohn’s vehicle was driving “maybe a foot, foot-and-a-half” from the parked
vehicles on the shoulder. Schulman then
observed Bohn cross to the southbound lane with about half of his vehicle width
and stay there for “a matter of seconds.”
Schulman then saw Bohn deviate back into his lane so far as to “almost
strike” a parked car on the shoulder.
Schulman described the path of Bohn’s travel as weaving in an S motion. Upon seeing Bohn nearly strike the parked car,
Schulman decided to make an investigatory traffic stop. Bohn was ultimately arrested and charged with
operating a motor vehicle while intoxicated and with a prohibited alcohol concentration,
third offense.
¶4 By pretrial motion, Bohn challenged the legality of the
traffic stop for lack of reasonable suspicion and argued that all evidence
derived from the stop must be suppressed.
The circuit court conducted an evidentiary hearing and by decision dated
October 14, 2008, granted Bohn’s motion to suppress. The State appeals.
¶5 Wisconsin courts have
consistently followed the U.S. Supreme Court’s decisions regarding the
constitutionality of investigatory stops.
State v. Richardson, 156 Wis.
2d 128, 138, 456 N.W.2d 830 (1990).
Police may, in appropriate circumstances, approach a person for purposes
of investigating possible criminal behavior without probable cause to make an
arrest. Id.
(citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). However, in justifying the stop, the officer
“must be able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that
intrusion.” Terry, 392 U.S.
at 21. Investigative stops are
considered seizures within the meaning of the Fourth Amendment; therefore, the
stop must be based on a reasonable suspicion in order to pass constitutional muster. State v. Harris, 206 Wis. 2d 243, 258-59, 557
N.W.2d 245 (1996). “An
inchoate and unparticularized suspicion or hunch will not suffice.” State v. Fields, 2000 WI App 218,
¶10, 239 Wis.
2d 38, 619 N.W.2d 279.
¶6 Whether evidence obtained following an investigative stop
should be suppressed is a question of constitutional fact. See
State v. Alexander, 2008 WI App 9, ¶7, 307 Wis. 2d 323, 744 N.W.2d 909. In
reviewing questions of constitutional fact, we will uphold a circuit court’s
factual findings unless they are clearly erroneous, but we will independently
decide whether those facts meet the constitutional standard. Id. The State does not contest the circuit court’s
factual findings, but argues that the circuit court improperly determined that
the facts do not rise to the level of reasonable suspicion.
¶7 The burden of establishing reasonable suspicion falls upon the State. State v. Taylor, 60 Wis. 2d 506, 519, 210
N.W.2d 873 (1973). Determination of
reasonableness is guided by a common sense test that asks whether the facts
known to the officer at the time of the stop would lead that officer, given his
or her training, to suspect that a crime has occurred or is about to occur. See State v. Anderson, 155 Wis. 2d 77, 83-84, 454 N.W.2d 763 (1990). Reasonable suspicion derives from “specific
and articulable facts that warrant a reasonable belief that criminal activity
is afoot.” See State v. Young, 2006 WI 98, ¶21, 294 Wis. 2d 1, 717 N.W.2d 729.
¶8 The State argues that Schulman articulated with specificity
the factors that gave rise to his suspicion that criminal activity was
afoot. First, the State emphasizes that
Schulman saw Bohn’s vehicle cross into the southbound lane of traffic and stay
there for a matter of seconds before over-correcting his path and nearly
colliding with a vehicle parked alongside the northbound lane. Wisconsin
Stat. § 346.05(1) states that on roadways of “sufficient width,” the
operator of the vehicle “shall drive on the right half of the roadway….” Schulman’s description of the roadway indicates
that Kearney Avenue
was wide enough for two lanes of traffic, one in each direction, plus parking
on the shoulder.
¶9 Bohn contends that his “imperfect” driving violated no
traffic regulation and posed no danger.
He challenges the State’s assertion that Kearney Avenue was of sufficient width to
show a violation of Wis. Stat. §
346.05 and notes that Bohn’s lane deviation could simply reflect a desire to
put more distance between his car and those parked at the curb. His return to the proper lane could mean that
the line of parked cars ended and Bohn felt he could safely return to his
lane. For the sake of argument only, we
will accept that the State did not show that Bohn violated a traffic statute.
¶10 In the alternative, the State asserts, it is not necessary to
show that Bohn actually broke any law to prompt the investigatory stop. It directs us to State v. Waldner, 206 Wis. 2d 51, 556 N.W.2d
681 (1996), for support. There, Waldner
was observed driving very slowly at 12:30 a.m.
Id.
at 53. He stopped his car briefly at an
intersection with no stop sign or signal.
Id. He then turned and accelerated before pulling
into a parking spot on the side of the road. Id. While parked, Waldner opened the car door and
poured out a mixture of liquid and ice. Id. Although the “acts by themselves were lawful,”
the circuit court held that when taken together, the facts provided reasonable
suspicion for the investigatory stop. Id. at
58.
¶11 The State argues that similar building blocks of reasonable
suspicion were present here. It points
to the time of night that the events occurred, Bohn’s car parked with its
lights on in an eastbound lane of Durand Avenue, the pedestrian who approached the
car and then quickly left when Schulman’s squad car drove past, Bohn’s speed of
travel at ten to fifteen miles under the speed limit, and Bohn’s weaving
pattern on Kearney Avenue. We agree
that, while each factor alone may not support further investigation, the
accumulation of factors puts the evidence at the point “where the sum of the
whole is greater than the sum of its individual parts.” See
id.
¶12 Based on the totality of the circumstances gleaned from the
record, we conclude that Schulman provided “specific and articulable facts that
warrant[ed] a reasonable belief that criminal activity [was] afoot.” See
Young,
294 Wis. 2d
1, ¶21. Accordingly, the investigatory
stop was legal and Bohn’s motion to suppress should have been denied.
By the Court.—Order reversed.
This
opinion will not be published. See Wis.
Stat. Rule
809. 23(1)(b)4.