COURT OF APPEALS DECISION DATED AND FILED June 22, 2010 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
from an order of the circuit court for
�1������� BRUNNER, J.[1] The City of Chippewa Falls appeals an order suppressing evidence of intoxicated use of a motor vehicle obtained during a traffic stop of Kenneth Hein.� The City contends the stop was supported by reasonable suspicion and the evidence admissible.� We agree.
BACKGROUND
����������� �2������� At about 2:30 a.m. on April 18, 2009, police officers were dispatched to the parking lot of a Burger King in the City of Chippewa Falls.� Officer Mark Bauman was the first officer to the scene, and knew only that �something � was going on with a couple of vehicles in the lot.�� Hein�s pickup truck exited the lot as Bauman entered, cutting short the corner on a right-hand turn and running over the curb.� Bauman did not pursue the vehicle; in his words, he was �confused about what had happened in the lot,� and wanted to gather more information from Burger King employees.
�3������� The three employees at the scene told Bauman the truck was
involved in an �incident� in the lot, but did not elaborate.� As he spoke with the employees, Bauman could
still see the truck headed west on
�4������� Kelm made several observations while stopped at the
intersection of River and Main Streets.��
Kelm visually estimated the truck�s speed at thirty-five miles per hour
in a twenty-five mile-per-hour-zone.[2]� Although Hein was driving in the
left-turn-only lane as he neared the intersection, he did not turn left onto
�5������� After interviewing the employees, Bauman determined Hein was in the parking lot to pull a car that had rolled past the curb edge and into decorative rock surrounding the parking area.� However, Bauman observed no property damage and concluded the tow did not violate any laws.�
�6������� At the suppression hearing, Hein challenged the City�s purported justifications for the traffic stop.� Hein argued police lacked evidence of any law violation in the parking lot, rendering further investigation unnecessary.� He claimed he did not run over the curb when exiting Burger King and that, in any event, that information was never communicated to Kelm and could not support the stop. �Hein asserted his travel in the left-turn-only lane could not establish reasonable suspicion because there was �no indication within the lane, either by overhead sign, the sight of road signs, or within the lane paint, that would indicate � a restricted lane.�� Finally, Hein argued Kelm�s speed assessment was unreliable because the record was devoid of any reference to Kelm�s training or experience at visual speed detection.� The circuit court accepted Hein�s position and ordered suppression of all evidence derived from the traffic stop.�
DISCUSSION
�7������� An investigatory seizure is justified only where police have
�reasonable suspicion, grounded in specific articulable facts and reasonable
inferences from those facts, that an individual is [or was] violating the
law.�� State v. Gammons, 2001 WI
App 36, �6, 241
�8������� �The question of whether a traffic stop is reasonable is a
question of constitutional fact.�� State
v. Post, 2007 WI 60, �8, 301
�9������� As a preliminary matter, we agree neither Hein�s crossing the
curb, nor his operation in the left-turn lane, nor his alleged excessive speed
can support the traffic stop.� Even if
incidental contact with the curb when turning is a traffic violation�an
unlikely assumption given that Wis.
Stat. � 346.31(2) requires right turns �be made as closely as
practicable to the right-hand edge or curb of the roadway��the circuit court
found Bauman never informed Kelm he witnessed such conduct.� Hein�s travel in the left-turn-only lane on
�10����� We cannot agree, however, that Hein�s stop was unreasonable under all the facts and circumstances.� Bauman and Kelm responded to reports of suspicious activity about 2:30 a.m., the nature of which was unknown as Bauman arrived at the scene and observed Hein�s truck exiting the Burger King parking lot.� A prudent officer proceeding into such ambiguity and uncertainty will ensure the availability of witnesses or suspects and freeze the scene in order to further investigate:
[A] law enforcement officer will be confronted with many situations in which it seems necessary to acquire some further information from or about a person whose name he does not know, and whom, if further action is not taken, he is unlikely to find again �.
[I]n such circumstances, where a crime may have been committed and a suspect or important witness is about to disappear, it seems irrational to deprive the officer of the opportunity to �freeze� the situation for a short time, so that he may make inquiry and arrive at a considered judgment about further action to be taken.� To deny the police such a power would be to pay a high price in effective policing and in the police�s respect for the good sense of the rules that govern them.
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����������� �11����� The totality of the circumstances presented to the officers at the time of the stop supported their decision to temporarily detain Hein while gathering more information.� The circuit court erred in granting Hein�s suppression motion.� Consequently, we reverse and remand for further proceedings consistent with this opinion.
����������� By the Court.�Order reversed and cause remanded for further proceedings.
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 2007-08 version unless otherwise noted.�
[2] Kelm testified he could not use the speed detection equipment in his cruiser because the radar unit cannot read vehicles travelling perpendicular to the squad car.�