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COURT OF APPEALS DECISION DATED AND RELEASED November 8, 1995 |
NOTICE |
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A party may file with the
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Appeals. See § 808.10 and Rule
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This opinion is subject to
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No. 95‑1516‑CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff‑Appellant,
v.
JESSE J. SCHLOEMER,
Defendant‑Respondent.
APPEAL from an order of
the circuit court for Washington County:
LEO F. SCHLAEFER, Judge. Affirmed.
NETTESHEIM, J. The
State appeals from a trial court order suppressing evidence obtained by the
Village of Jackson Police Department of Jesse J. Schloemer's intoxicated use of
a motor vehicle. Because we conclude
that the officer failed to articulate sufficient reasonable grounds for
stopping Schloemer's vehicle pursuant to § 345.22, Stats., we affirm the suppression order.
Facts
At approximately 3:00
a.m. on September 24, 1994, Officer Craig Knox of the Jackson Police Department
was parked in his squad car with the window rolled down when he heard a vehicle
approaching with what he believed was a loud exhaust. When the vehicle passed, Knox followed it for almost one-half
mile to observe its driving pattern before he pulled over the driver. Knox issued the driver of the vehicle,
Schloemer, a warning citation for a defective exhaust and, after closer
contact, citations for operating a motor vehicle while intoxicated and with a
prohibited blood alcohol concentration, contrary to § 346.63(1)(a) and (b), Stats.
Several
days after Schloemer received the citations, he took his vehicle to the West
Bend Police Department without fixing or altering the exhaust system. At that time, an officer inspected the muffler
and pipes on the vehicle, and listened as Schloemer started it. The officer indicated that the vehicle
sounded good and signed off on the warning citation.
Prior to trial for the
intoxicated driving charges, the trial court granted Schloemer's motion to
suppress all evidence obtained as a result of the September 24 stop. At the evidentiary hearing, the court found
that there had not been a sufficient showing that Knox had a reasonable and
articulable suspicion that Schloemer had violated a traffic regulation to
justify his stop of the vehicle. The
State appeals.
Discussion
A law enforcement
officer's stop of a vehicle and detention of its occupants constitutes a
seizure under the Fourth Amendment. See
State v. Baudhuin, 141 Wis.2d 642, 648, 416 N.W.2d 60, 62
(1987). The validity of such a search
and seizure initially depends upon whether the vehicle was lawfully
stopped. Id. We independently review the legality of the
initial stop as a matter of law. See
id.
Section 347.39, Stats., provides, in part:
(1) No person shall operate on a highway any
motor vehicle subject to registration unless such motor vehicle is equipped
with an adequate muffler in constant operation and properly maintained to
prevent any excessive or unusual noise or annoying smoke. [Emphasis added.][1]
Pursuant
to § 345.22, Stats., an officer
may arrest an individual for the violation of a traffic regulation without a
warrant if the officer has reasonable grounds to believe that the person is
violating or has violated a traffic regulation. Baudhuin, 141 Wis.2d at 648, 416 N.W.2d at 62. Implicit in this statutory authority to
arrest for a traffic violation is the authority to stop the vehicle when the
officer has reasonable grounds to believe that a violation has occurred. Id.
At the evidentiary
hearing, Knox gave the following testimony in support of his decision to stop
Schloemer's vehicle:
I heard a vehicle traveling westbound on
Highway 60 which appeared to have a loud exhaust system. The vehicle passed my vehicle confirming
this was the only vehicle on the roadway with this exhaust.
I then followed this vehicle approximately
five-tenths of a mile up to Highway P, at which time I activated my red and
blue lights to stop this vehicle.
The
court concluded that based on the above-quoted testimony, Knox did not have
reasonable grounds to stop Schloemer's vehicle pursuant to § 345.22, Stats.
On appeal, the State
contends that because Knox's attention was initially drawn to the loud exhaust,
the stop was legal pursuant to §§ 345.22 and 347.39, Stats. Schloemer,
however, maintains that Knox did not sufficiently articulate the facts
supporting his opinion that a violation of the traffic laws had occurred. We agree with Schloemer.
Under the reasonable
grounds standard, an officer should have before him or her articulable facts to
believe that a defendant has violated a traffic regulation. See Baudhuin, 141
Wis.2d at 650, 416 N.W.2d at 63. In Baudhuin,
the officer stopped the defendant for impeding traffic and subsequently
detected the odor of intoxicants on his breath, leading to charges that he had
violated § 346.63, Stats. Baudhuin, 141 Wis.2d at 646,
416 N.W.2d at 61.
In upholding the
legality of the stop, the supreme court noted that the officer had before him
“objective facts” of Baudhuin's apparent violation of the law that prompted the
initial stop. Id. at 650,
416 N.W.2d at 63. Significantly, in
support of the officer's opinion that Baudhuin was impeding traffic, the
officer noted that Baudhuin was traveling 17 m.p.h. in a 25 m.p.h. zone, there
were eight to ten vehicles backed up behind the officer while he paced
Baudhuin's speed and there were no obvious signs of flat tires, defective
lights or any other condition to explain the slow speed. Id. at 645, 416 N.W.2d. at
61. Based on all of these articulated
facts, the officer believed that Baudhuin was impeding traffic. Id.
Here, we have no such
articulation of the facts. Knox merely
stated that Schloemer's car “appeared to have a loud exhaust system.” The trial court determined that there was insufficient
evidence regarding the degree of noise that Schloemer's vehicle made such that
the court could make a meaningful comparison and analysis. We conclude that the trial court was
correctly concerned about the lack of evidence regarding whether there was “any
excessive or unusual noise” as defined in § 347.39(1), Stats.
Knox did not testify
about the approximate distance from which he heard Schloemer's vehicle or about
its rate of speed, which could impact on how long the car was audible upon
approach or passing. Knox also
acknowledged that his window was down, that Schloemer's was the only vehicle on
the road, that it was relatively quiet that night, and that he had not tested
to see whether Schloemer's vehicle could be heard with the window raised. Further, the later examination of
Schloemer's vehicle by the West Bend Police Department confirmed that the
vehicle did not give off excessive exhaust noise. Therefore, the officer signed off on the warning citation,
despite the fact that the vehicle had not been repaired since the September 24
stop.
All of these factors
support the trial court's determination that Knox's meager and conclusionary
testimony did not demonstrate articulable facts to support his opinion that the
vehicle was emitting noise disruptive enough to be classified as “excessive or
unusual” pursuant to § 347.39(1), Stats. See Baudhuin, 141
Wis.2d at 650, 416 N.W.2d at 63. Knox's
bare statement, without more, that Schloemer's car “appeared to have a loud
exhaust system” is insufficient.
We conclude that
sufficient facts were not articulated to support a reasonable suspicion by Knox
that Schloemer had violated a traffic regulation. Therefore, Knox's subsequent stop of Schloemer's vehicle was
unlawful, and the trial court properly suppressed the evidence obtained as a
result of the stop.
By the Court.—Order
affirmed.
This opinion will not be
published.
See Rule 809.23(1)(b)4, Stats.