COURT OF APPEALS DECISION DATED AND RELEASED October 19, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1329
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
COUNTY OF LA CROSSE,
Plaintiff-Respondent,
v.
RICHARD H. MASRUD,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for La Crosse County:
PETER G. PAPPAS, Judge. Affirmed.
EICH, C.J.[1] Richard
Masrud appeals from a judgment, entered after a jury trial, convicting him of
operating a motor vehicle with a prohibited blood-alcohol concentration. He raises a single issue on appeal: whether
the arresting officer was justified in stopping him for a traffic violation
(after which the officer gathered the evidence supporting the prohibited
blood-alcohol charge). We reject his
challenge to the stop and affirm the judgment.
Masrud, driving at the
45 m.p.h. speed limit, entered an intersection on a yellow light. The light turned red when his vehicle was halfway
through the intersection. A police
officer, observing Masrud, followed him and stopped his vehicle. Subsequent events led to his arrest on the
blood-alcohol charge.
Masrud moved to suppress
the arrest on grounds that the officer lacked any justification for stopping
him. The trial court denied the motion
and the case proceeded to trial on the underlying charge, with the result
indicated above.
In order to justify a
traffic stop, the officer must have "`"specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant [stopping an individual for questioning]."'" State v. Washington, 120
Wis.2d 654, 660, 358 N.W.2d 304, 307 (Ct. App. 1984) (quoted sources omitted), aff'd,
134 Wis.2d 108, 396 N.W.2d 156
(1986). More specifically,
"Officers may stop an automobile if they have an `articulable and
reasonable suspicion that ... either the vehicle or an occupant is ... subject
to seizure for violation of law.'"
Id. (quoted source omitted).
Section 346.37(1)(b), Stats., states, "When shown with
or following the green, traffic facing a yellow signal shall stop before
entering the intersection unless so close to it that a stop may not be made in
safety." The arresting officer,
stopped at the red light at the same intersection, testified that Masrud was
traveling at the posted speed limit of 45 m.p.h. and entered the intersection
after the traffic signal had turned yellow.
According to the officer's testimony at the suppression hearing, Masrud
did not slow down before entering the intersection and was halfway through the
intersection when the light turned red.
He also testified that, in his opinion, Masrud had "adequate time
and distance" to come to a stop safely before entering the
intersection. And while the officer
believed Masrud's actions to be "a pretty overt violation" of the
statute, he decided not to arrest Masrud for the violation but to stop him and
point out what he believed to be poor judgment in not stopping.
Masrud argues that
because the officer could not state the exact distance he was from the light
when it turned yellow, and given the speed of the car at the time, "the
officer could not speculate as to whether the car might have been able to stop
if it had attempted to." As a
result, Masrud maintains, "it is clear there was not [] reasonable grounds
for the officer's [action]."
We think the Washington
test was met. We agree with the State
that, given the officer's testimony, Masrud could have safely stopped before
entering the intersection--an observation corroborated, to a degree at least,
by the fact that the light turned red when Masrud was only midway through the
intersection (traveling at an undiminished 45 m.p.h.).
Masrud points to an
inconsistency in the officer's testimony.
At the suppression hearing the officer testified that Masrud
"proceeded through the intersection without slowing down"; at trial
the officer stated that sometime after the light turned yellow "I noticed
there was a slowing down and then he proceeded through the intersection and
prior to getting to the halfway mark it changed to red." We do not see that discrepancy as warranting
reversal for two reasons.
First, it does not
appear from the record that Masrud ever asked the trial court to resolve what
he claims to be the officer's testimonial conflict. We adhere to the rule that it is for the trial court--the judge who
heard the testimony and had the opportunity to observe the demeanor of the
witnesses--to resolve perceived conflicts in the testimony. Estate of Dejmal, 95 Wis.2d
141, 151-52, 289 N.W.2d 813, 818 (1980).
Second, even if Masrud
had slowed down somewhat as he entered the intersection, the fact remains,
according to the officer's testimony, that Masrud could have brought his
vehicle to a safe stop before entering the intersection.
We conclude, therefore,
that specific articulable facts, and inferences from those facts, existed to
establish reasonable grounds for the officer to believe that Masrud had
violated § 346.37(1)(b), Stats.,
by failing to stop when the light turned yellow, under circumstances where it
does not appear that, at the time, he was so close to the signal that he could
not safely do so.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.