COURT OF APPEALS DECISION DATED AND FILED August 26, 2004 Cornelia G. Clark 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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Cir. Ct. Nos.
03TR003491 03TR003493 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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City of Madison, Plaintiff-Appellant, v. Vincent N. Spruill, Jr., Defendant-Respondent. |
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APPEAL from an order of the circuit court for Dane County: Daniel r. moeser, Judge. Affirmed.
¶1 DYKMAN, J.[1] The City of Madison appeals from an order granting Defendant Vincent Spruill’s motion to suppress. It asserts that Madison Police Officer Alexander M. Berkovitz had reasonable suspicion to initiate an investigative stop based on his observations of Spruill’s driving behaviors and the time of day. We affirm the decision because the record before us lacks specific, articulable facts necessary to support an objective inference that the officer’s stop was based on reasonable suspicion.
BACKGROUND
¶2 The parties stipulated to the
contents of the arresting officer’s report and the officer’s training as the
evidentiary bases for the circuit court to decide the motion to suppress. The report states that at approximately 2:16
a.m. on January 16, 2003, Officer Berkovitz observed a vehicle driving southbound
“closely behind” another vehicle on Park Street. Officer Berkovitz followed the vehicle and saw it “veering from
left to right within the right lane of Park Street.” Officer Berkovitz noted that the vehicle followed “awfully close”
to the car in front of it. The vehicle
then “veered southbound onto Fish Hatchery Road” from Park Street. Officer Berkovitz followed and observed the
vehicle again “veer to the left and to the right within its lane.”
¶3 As the vehicle approached the
intersection of Fish Hatchery Road and Emil Street, Officer Berkovitz saw it
“make a right-hand turn onto Emil Street without coming to a full stop or
signaling right.” The vehicle then
immediately turned left onto Damon Road.
Throughout the officer’s observation of the vehicle, it continued to
follow another vehicle “extremely closely.”
Officer Berkovitz pulled the vehicle over in the 2600 block of Damon
Road. Prior to approaching the vehicle,
Officer Berkovitz ran a record check on the license plate and found that it had
expired in October 2002. Officer Berkovitz
then contacted the driver, and identified him as Vincent Spruill, Jr. Officer Berkovitz smelled a strong odor of
intoxicants inside the vehicle. The
officer asked Spruill if he would perform some field sobriety tests, and
Spruill consented. When Spruill failed
the tests, Officer Berkovitz issued him two citations for first-offense
Operating a Motor Vehicle While Intoxicated and Operating with a Prohibited
Alcohol Concentration.
¶4 Spruill filed a
motion to suppress the chemical breath test and post-arrest statements to
police, and challenged probable cause to arrest. At the evidentiary hearing, Spruill asserted that Officer
Berkovitz also lacked reasonable suspicion for the traffic stop. The circuit court granted the motion to
suppress, finding that the officer lacked reasonable suspicion for the traffic
stop. The City appeals.
STANDARD OF REVIEW
¶5 Spruill argues that
the circuit court drew a reasonable inference from the facts, and that we must
accept this inference because more than one reasonable inference may be drawn
from the undisputed facts before us.
See Pfeifer v. World Service Life Insurance Co., 121 Wis. 2d
567, 571, 360 N.W.2d 65 (Ct. App. 1984).
However, this case requires us to apply constitutional principles to the
facts, a matter of law that we review de novo.
State v. Jackson, 147 Wis. 2d 824, 829, 434 N.W.2d
386 (1989). Additionally, the record
before us consists entirely of documentary evidence. Where the evidence is documentary, we are as equally competent as
the circuit court to interpret such evidence.
Frito-Lay, Inc. v. So Good Potato Chip Co., 540
F.2d 927, 930 (8th Cir. 1976). The
standard of review is therefore de novo.
Id.
¶6 The City argues that
Officer Berkovitz had reasonable suspicion to make the initial traffic stop
based on Spruill’s driving behaviors and the time of day. An
investigative stop is subject to the Fourth Amendment’s requirement that all
searches and seizures be reasonable. Terry
v. Ohio, 392 U.S. 1, 20-22.
An officer must be able to point to specific and articulable facts,
which, taken together with rational inferences from those facts, reasonably
warrant that intrusion. Id.,
392 U.S. at 21. The standard is the
same under article 1, section 11 of the Wisconsin Constitution. State v. Harris, 206
Wis. 2d 243, 258, 557 N.W.2d 245 (1996).
The question of what constitutes reasonable suspicion is a commonsense
test: given the facts and
circumstances, what would a reasonable police officer reasonably suspect in
light of his or her training and experience?
Jackson, 147 Wis. 2d 824 at 834.
¶7 Our review is
limited to the contents of the police report, the record stipulated to by the
parties. We agree with the circuit
court that too much information is missing from the report to support a
reasonable suspicion that Spruill’s driving behaviors were unusual or
erratic. This is critical because an
investigative stop is presumptively unconstitutional. Terry, 392 U.S. at 16.
¶8 The Madison Police
Department’s policies and procedures manual states that “a report is needed to
include all available information” when making a traffic arrest. Madison,
Wis., Police Policy Manual, §11-100 (2001). It also requires that police reports be “understandable, accurate
and concise.” Id. Here, the police report lacks such key facts
as Spruill’s speed, the applicable speed limit and road and traffic
conditions.
¶9 Furthermore, the
report lacks the specificity required to demonstrate that the officer had a
reasonable suspicion. First, it states
twice that Spruill followed another vehicle “awfully close” and “extremely
closely.” It also states that Spruill
followed another vehicle “extremely closely” during the entire
observation. This would have been
unusual driving behavior only if Spruill had followed another vehicle “more
closely than is reasonable and prudent having due regard for the speed of such
vehicle and the traffic upon and the condition of the highway.” Wis.
Stat. § 364.14(1). Absent
more information, we cannot determine if Spruill’s following distance was
unreasonable, imprudent, or how it factored into a reasonable suspicion
analysis.
¶10 Secondly, the
report states that Spruill made two right turns without coming to a full stop
or signaling at Fish Hatchery Road.[2] However, a signal is required only when
other traffic is present that could be affected by the turn. Wis.
Stat. § 346.34. Failure to
give a right-hand turn signal is not a traffic violation unless other traffic
was affected. Milwaukee v.
Johnston, 21 Wis. 2d 411, 413, 124 N.W.2d 690 (1963). The report does not indicate whether there
were other cars on the road. Moreover,
there is no indication that the operation of the officer’s vehicle was affected
by the unsignaled turn. We do not know
whether intoxicated drivers are more likely to fail to signal where a signal is
required. Thus, without this critical
information, it is not possible to conclude that Spruill’s turning was unusual
or erratic.
¶11 The City contends
that failure to signal should be sufficient to support a finding of reasonable
suspicion, citing Johnston, 21 Wis. 2d 411. But the Johnston court
said: “Standing alone, driving the
wrong way on a one-way street and failure to signal a turn are not indicative
of driving under the influence of liquor.”
Id. at 413.
¶12 Thirdly, the report
states that Spruill’s vehicle veered from left to right within its lane on Park
Street and Fish Hatchery Road. This
driving behavior may be usual depending on the road situation and the
frequency. Movement within one lane is
not a per se violation giving rise to reasonable suspicion. Inconsequential
movement within a lane does not give law enforcement the authority to make an
investigative stop. State v.
Hodge, 771 N.E.2d 331, 338 (Ohio Ct. App. 2002). We do not know how many times the vehicle
moved within its lane and the distance of the deviation.
¶13 The City asserts that this case is similar to another
case in which the court found reasonable suspicion. See State v.
Waldner, 206 Wis. 2d 51,
556 N.W.2d 681 (1996). In Waldner, an officer observed a vehicle accelerate
suddenly from an intersection. Id. The vehicle then came to a stop, at which
point the driver’s car door opened and the driver poured onto the road an
apparent mixture of liquid and ice from a plastic cup. Id. The court held that the officer’s investigative stop was based on
facts that, taken together, gave rise to a reasonable suspicion that the
subject could have been intoxicated. Id. at 58. However, the officer’s report in Waldner
contained specific, articulable facts on which to justify the stop, including
that the subject’s car reached twenty to twenty-five miles per hour in “several
seconds,” and the appearance of the drink.
Id. Here, the
police report contains comparatively little detail.
¶14 The
City also asserts that the court should give weight to the fact that the stop
occurred around bar time. Time is a
factor we consider in reviewing the totality of the circumstances. State v. Flynn, 92 Wis. 2d
427, 435, 285 N.W.2d 710 (1979).
However, it is only one factor, and without more it is insufficient to
provide an objective basis for a reasonable suspicion. Furthermore, because driving itself is an
otherwise innocent activity, this factor should be afforded relatively little
weight. See State v. Young,
212 Wis. 2d 417, 429-430, 569 N.W.2d 84 (Ct. App. 1997) (holding that a brief
contact with another person in a high-crime neighborhood was otherwise innocent
behavior that large numbers of law-abiding citizens exhibit and therefore did
not give rise to reasonable suspicion).
¶15 Finally, the City
contends that we should consider the fact that Spruill’s registration was
expired. We disagree. Seizure occurs when the liberty of a citizen
is in some way constrained by means of physical force or show of
authority. Terry, 392
U.S. 1 at 20 n.16. A police stop
on a roadway is a seizure. The police
report shows that the officer learned of Spruill’s license violation only after
stopping Spruill’s vehicle. Therefore,
evidence that Spruill’s registration had expired was gathered after the seizure
and must be excluded from our inquiry.
CONCLUSION
¶16 In sum, the absence of specific,
articulable facts leads us to conclude that the record before us does not
provide a basis on which to draw a reasonable inference that Officer Berkovitz
had reasonable suspicion to justify the investigative stop. We therefore affirm.
By the Court.—Order affirmed.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.