COURT OF APPEALS DECISION DATED AND FILED August 5, 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 |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Mary L. Reis,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 BROWN, C.J.[1] Mary L. Reis appeals her conviction for operating a vehicle while intoxicated, second offense, in violation of Wis. Stat. § 346.63(1)(a) on the grounds that the state trooper did not have reasonable suspicion to stop her vehicle. Reis was stopped after a trooper observed her car weaving within her travel lane. To support her appeal, Reis relies on State v. Post, 2007 WI 60, ¶¶26-27, 301 Wis. 2d 1, 733 N.W.2d 634, in which our supreme court rejected a proposed rule that weaving within a single lane, on its own, gives rise to reasonable suspicion. Reis argues that because she was only weaving within her travel lane, her case does not meet the requirements of Post. In response to Reis, we cite State v. Popke, 2009 WI 37, ¶27, __ Wis. 2d __, 765 N.W.2d 569, where our supreme court recently addressed the method for assessing reasonable suspicion. In Popke, the court reiterated that the totality of the circumstances test based on the unique facts presented in each case, and not a comparison to Post, remains the sole procedure for finding reasonable suspicion for a stop. Popke, 2009 WI 37, ¶27. We conclude that, under the totality of the circumstances, the trooper had reasonable suspicion to stop Reis’ vehicle and affirm.
¶2 To adequately address the totality of the circumstances it is
necessary to have a firm grasp of the facts.
On February 9, 2007, a Wisconsin state patrol trooper was following a
Chevy Trailblazer traveling north on State Highway 147 toward the
¶3 The travel lane was twelve feet wide from the fog line to the center line. The vehicle was approximately six feet three inches wide. When the vehicle moved right to left within the travel lane and back again, it made a lateral movement of approximately four feet three inches, four separate times. After the four weaving motions, the speed limit reduced to twenty-five miles per hour and the car slowed to the correct speed limit but continued to weave. The trooper stopped counting the number of weaves at this point to search for a safe place to pull the vehicle over.
¶4 Once the trooper stopped the vehicle, he questioned Reis, who admitted to consuming a couple glasses of wine, beginning at around five o’clock that evening. The trooper asked Reis to exit her car and she appeared unsteady upon exiting the vehicle. Reis subsequently failed her field sobriety test and the trooper placed Reis under arrest. Once in custody, Reis submitted to a blood test, which indicated a BAC of .126.
¶5 The State charged Reis with operating a vehicle while intoxicated and operating a vehicle with a prohibited alcohol concentration, second offense, in violation of Wis. Stat. § 346.63(1)(a) and (b), respectively. After being charged, Reis filed a motion to suppress all the evidence based upon lack of reasonable suspicion for stopping her vehicle.
¶6 At the motion hearing, the trooper testified about the facts of the stop as discussed above. The trooper also noted that he did not observe any other factors such as strong winds, poor road conditions, or vehicle problems that would explain the “s-curve” pattern driving.
¶7 The trial court did not make a decision right away, but
ordered post-hearing briefs. In her
brief, Reis argued that the evidence for her stop was distinguishable from Post
and therefore was not significant enough to support a reasonable suspicion for
stopping her. See Post, 301
¶8 The trial court found that the trooper was a reliable witness because of his traffic enforcement experience. This is supported by the record. In addition to academy training, the trooper had spent almost eight years working in traffic enforcement when he stopped Reis. As part of his duties, the trooper regularly stopped and arrested intoxicated drivers that exhibited the same “s-curve” driving displayed by Reis. The trooper estimated that the majority of these stops occurred on Fridays and Saturdays. Lastly, as noted by the trial court, the trooper also testified that Friday evenings were a popular time for people in the area to attend Friday night fish fries, and that very often the consumption of alcohol occurred at these events.
¶9 The trial court then found that, under the totality of the circumstances, the trooper had reasonable suspicion for stopping Reis and denied the motion for suppression of the evidence. As a result, Reis pled no contest to the charges against her, and now appeals the conviction that resulted from that plea on the same theory proposed in her motion brief.
¶10 Whether an officer has reasonable suspicion to stop a vehicle
is a question of constitutional fact. State
v. Williams, 2001 WI 21, ¶18, 241
¶11 Stops are governed by constitutional principles in the Fourth
Amendment to the United States Constitution that protect citizens from
unreasonable searches and seizures. See U.S. Const. amend. IV; Wis.
Const. art I, § 11. In Terry
v. Ohio, 392
¶12 In
¶13 In Popke, the defendant proposed Reis’ same argument, that the
officer’s observations were too few and too vague when compared with Post
to establish that the officer had reasonable suspicion to make a stop. See
Popke,
2009 WI 37, ¶27. The facts of Popke
are simple enough. The officer observed
a vehicle driving with three-quarters of the vehicle to the left of the center
of the road at 1:30 a.m.
¶14 The critical portion of the Popke opinion was the supreme court’s clarification of the defendant’s reliance on the facts of Post. Popke, 2009 WI 37, ¶27. The court reiterated that the totality of the circumstances test for the defendant’s particular case was still the appropriate method for finding that the officer had reasonable suspicion that the driver was intoxicated. See id. (stating that “potential inadequacies set forth by the defendant do not undermine the totality of the other facts that support reasonable suspicion”). The supreme court’s reiteration of the importance of the totality of the circumstances test implicitly confirmed that the facts in Post are not the litmus test for what does and does not constitute reasonable suspicion. See Popke, 2009 WI 37, ¶27.
¶15 Turning to the facts of our own particular case, Reis was driving
in a discernible “s-curve” pattern that attracted the attention of a State
trooper experienced in identifying drunk drivers. The trooper observed this distinct pattern
for not just one block as in Popke, or even two blocks as in Post,
but over a quarter mile of driving, leaving little doubt that the driver was
not merely momentarily inattentive. Popke,
2009 WI 37, ¶5; see Post, 301
¶16 As a result, we affirm the trial court’s denial of her suppression motion, and the judgment of the conviction stands.
By the Court.—Judgment affirmed.
This opinion will
not be published in the official reports.
See Wis. Stat Rule 809.23(1)(b)4.
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