COA affirms denial of suppression motion in OWI 3rd case based on concession
State v. Richard T. Weske, 2025AP154-CR, 11/5/25, District II (ineligible for publication); case activity
Weske appeals the circuit court’s denial of his motion to suppress evidence on the basis that the investigatory traffic stop constituted an unreasonable seizure because the officer was outside his jurisdiction and was therefore without authority to conduct the stop. COA affirms, concluding that the officer had reasonable suspicion to conduct a traffic stop for a suspected OWI, and Weske conceded that the officer had the authority to do so outside his jurisdiction under Wis. Stat. § 349.03(4).
Weske was charged with OWI 3rd after a police officer pulled him over for weaving within the lane of traffic. (¶¶1-2). He filed a pretrial motion to suppress asserting that the investigatory stop constituted an unreasonable seizure contrary to the Fourth Amendment on the ground that the officer was without authority to conduct the stop because the stop occurred outside his jurisdiction. Weske argued that absent fresh pursuit or a request from another law enforcement agency, the officer could not lawfully conduct an investigative traffic stop outside of his jurisdiction.
The circuit court held an evidentiary hearing on the suppression motion, at which the officer testified. He was driving toward the border of his jurisdiction around midnight on the date in question when he saw two vehicles enter the road ahead of him from the nearest entrance ramp. He testified that although he initially intended to turn around and head back, he saw one of the vehicles weaving from left to right within its lane multiple times and instead followed it into a neighboring jurisdiction where he saw the vehicle begin to weave over the lane markers. The officer then pulled Weske over for a suspected OWI. (¶3).
The circuit court found the officer to be credible and concluded that the officer was not in fresh pursuit, but denied Weske’s motion based on its understanding of State v. Keith, 2003 WI App 47, ¶¶7-9, 260 Wis. 2d 592, 659 N.W.2d 403, which it said excludes suppression as a remedy for an extra-territorial traffic stop. Weske entered a plea and then appealed. (¶5).
On appeal, Weske argues that the circuit court erred in concluding that suppression was not required. Specifically, he contends that because the officer did not conduct the traffic stop within his own jurisdiction, the stop was unreasonable and therefore violated the Fourth Amendment, thus requiring suppression as a remedy for the constitutional violation. (¶7). In response, the state argues that the circuit court did not err because the officer had the authority to act under Wis. Stat. § 175.40(6)(a) and (d), when read together, or, alternatively, under Wis. Stat. § 349.03(4).
The state’s first statutory argument is that the officer was: on duty and on official business; taking an action that he would be authorized to take under the same circumstances in his jurisdiction; was responding to an emergency situation that poses a significant threat to life or of bodily harm (drunk driving); and had contacted the county to notify the neighboring police department that he was performing a traffic stop within its jurisdiction. (¶8). Its second argument is that Wis. Stat. § 349.03(4) unambiguously provides that if a violation of § 346.03 (the OWI law) occurs within an officer’s jurisdiction, he or she may enforce the violation anywhere in the state, and the officer here was within his jurisdiction when he spotted Weske’s vehicle swerve within his lane at a late hour of the night. (¶9).The state also contends that suppression was not warranted regardless of whether the officer had the authority to stop Weske. (¶10).
COA addresses only the states’ argument that the officer had the authority to stop Weske under § 349.03(4), which provides, as relevant, that if an OWI violation “occurs within a law enforcement officer’s jurisdiction, he or she may enforce the violation anywhere in the state.” Because Weske did not file a reply brief responding to the state’s arguments, COA concludes that he conceded that § 349.03(4) authorizes an extra-territorial traffic stop to investigate a suspected OWI that occurred within the officer’s jurisdiction. Thus, the only thing the court has to determine on appeal is whether the officer had the requisite reasonable suspicion that Weske was operating while under the influence to conduct the investigatory stop. (¶11).
The court then conducts the reasonable suspicion analysis, focusing on the officer’s observations of Weske weaving both within his lane of traffic and outside his lane, that this occurred after midnight, and that the road conditions were fine. COA concludes that when taken together, these facts are sufficient to lead a reasonable officer to suspect that a driver might be operating while under the influence. (¶15). Therefore, the court affirms on different grounds. (¶16). It also notes that it is unnecessary for the court to analyze the parties’ arguments regarding the applicability of Wis. Stat. § 175.40(2) and (6), or whether the circuit court correctly determined that suppression was not an available remedy. (¶17).