Friday, July 22, 2011

OWI Appeal - Driving Too Slow or Stopping Is Grounds For Seizure Says Wisconsin

When it comes to the 4th amendment, it seems that merely driving a car is tantamount to reasonable suspicion to stop it in Wisconsin. Well not exactly, but close enough. In State of Wisconsin v. Slip Copy, 2011 WL 2899066 (Wis.App.), the officer observed a truck that drew his attention. The truck drew his attention because it was traveling “at an extremely low rate of speed, slowing to an almost near stop” at an intersection at which there were no signs to stop or yield. The truck then accelerated and reached a second intersection one block away, which also had no stop or yield signs, despite which the truck came “to a complete stop.” So far as the officer could observe, there was no other traffic or other reason for the driver of the truck to have slowed to a near stop at the first intersection or to have come to a complete stop at the second intersection.'

The officer testified that he became suspicious that the driver was impaired based on the following combined factors: the time of night (namely, “the early morning hours[,] right around bar time”), the extreme slowing at the first unmarked intersection, and the complete stop at the second unmarked intersection. On that basis, the officer decided to make a traffic stop to investigate further.

The appeals court herein found the stop legal. In rejecting the argument that the stop was unlawful since the driver had done nothing wrong, the court stated:

"These arguments ignore the rule that “police officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.” (citation) “[S]uspicious conduct by its very nature is ambiguous, and the [principal] function of the investigative stop is to quickly resolve that ambiguity.” Id. “Therefore, if any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.” Id. In other words, a Terry stop allows police to obtain more information, through temporary “seizure,” regarding potential alternative innocent explanations for suspicious behavior; the potential for discovery of innocent explanations does not foreclose the stop. It is often going to be the case that aberrant driving behavior could have resulted from one or more causes that do not represent a violation of any statute or ordinance. However, where a reasonable suspicion arises from a pattern of aberrant driving, such as that exhibited by Burch under these circumstances, police are permitted to infringe on the right of the driver to be free of stops and temporary detentions so that police can attempt to resolve the ambiguity by detaining the driver for that limited purpose in a limited manner."

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