COURT OF APPEALS DECISION DATED AND FILED July 22, 2009 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 II |
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State of
Plaintiff-Respondent, v. Lance J. Kramer,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Lance Kramer appeals from a judgment of conviction of fifth offense operating a motor vehicle with a prohibited blood alcohol concentration. He argues that the police officer lacked a reasonable suspicion to conduct an investigatory stop and that evidence obtained during the stop should be suppressed. We agree and reverse the judgment.
¶2 Kramer was stopped at approximately 1:44 a.m. on January 18,
2008. The officer observed Kramer
activate his right turn signal, position his vehicle in the right turn lane,
and slow down as if he was going to make the turn off the highway. Kramer did not turn but went through the
intersection and returned to his lane of travel. Kramer continued on the highway at the slower
speed he had attained while negotiating the turn lane. The speed limit on the highway was forty-five
miles per hour. One-tenth of a mile
later the officer stopped Kramer’s vehicle.
Kramer smelled of intoxicants and did not perform well on field sobriety
tests. He was arrested and his vehicle
was searched. After he was read the
Informing the Accused form, Kramer was transported to a hospital for a blood
draw. Kramer’s motion to suppress
evidence obtained as a result of the vehicle stop was denied. Kramer entered a no contest plea to the
charge of which he is convicted.[1]
¶3 Investigative traffic stops are subject to the constitutional
reasonableness requirement. State
v. Post, 2007 WI 60, ¶12, 301
¶4 Whether
evidence obtained following an investigative stop should be suppressed is a
question of constitutional fact.
¶5 Here the facts are not disputed. In the mile or so that the officer followed Kramer before Kramer signaled for a right turn, the officer did not observe any lane drifting, weaving, or other erratic driving. The officer only observed the aborted right hand turn and the slow speed upon returning to the highway. It is not illegal conduct and the State concedes that no traffic violation occurred.[2]
¶6 We acknowledge that a driver’s actions need not be erratic,
unsafe, or illegal to give rise to reasonable suspicion. Post, 301
¶7 The
State argues there are three such building blocks: the time of day was approaching bar closing,
the aborted right hand turn, and the slow driving on the highway. The officer only observed the slow driving on
the highway for one-tenth of a mile—just a little over one block. It was not sufficient time to observe whether
Kramer was going to proceed at that speed or simply had not attained highway
speed after slowing for the aborted turn.
The officer indicated that Kramer had slowed down for the right hand
turn to twenty-five miles an hour and that after aborting the turn, Kramer
continued at that speed for one-tenth of a mile before the office initiated the
stop. It was not enough time to
determine if such driving was a sign of possible impairment. At best we have two building blocks of
reasonable suspicion. They are simply
too weak and not enough to provide a foundation for reasonable suspicion that
Kramer was driving while impaired. The
evidence acquired after the stop of Kramer’s vehicle should have been
suppressed.
By the Court.—Judgment reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Under the plea agreement, a related charge of possession of drug paraphernalia and a bail jumping charge in another case were dismissed as read-ins.
[2] In his testimony the officer did not explicitly state that he believed Kramer had committed a traffic violation by failing to turn right or driving too slow on the highway. The circuit court found that there was no evidence that the officer believed he had observed a traffic violation. Thus, there is no place in this appeal for Kramer’s argument that the officer was mistaken in his application of the law or Kramer’s citation to United States v. McDonald, 453 F.3d 958, 961-92 (7th Cir. 2006) (an officer’s mistaken or good faith belief that a law has been broken is not objectively reasonable so as to supply reasonable suspicion or probable cause) or State v. Longcore, 226 Wis. 2d 1, 9, 594 N.W.2d 412 (Ct. App. 1999), aff’d., 2000 WI 23, 233 Wis. 2d 278, 607 N.W.2d 620 (per curiam) (lawful stop cannot be predicated upon a mistake of law). It is a red herring.