COA: Reasonable suspicion for traffic stop after report to police that vehicle hit road barrier and officer observed “unusual” driving behavior
State of Wisconsin v. Jonathan G. Berbaum, 2025AP1380-CR, 2/25/26, District II (ineligible for publication); case activity
The COA affirmed the circuit court’s order denying the defendant’s motion to suppress the fruits of a traffic stop, which included evidence that led to his conviction for operating a vehicle while intoxicated as a third offense. The COA found that a witness’s report that a vehicle hit a barrier, combined with the defendant’s erratic driving, provided reasonable suspicion to suspect the driver was operating while intoxicated.
A Port Washington police officer testified at the evidentiary hearing on the defendant’s motion to suppress that she learned at 12:30 a.m. that the Ozaukee County Sheriff’s Department was investigating a report from a citizen witness that a vehicle hit a “rail or plastic barrier” on Interstate 43. (¶ 3). The witness provided the make, model, and license plate for the vehicle and the officer was told that the vehicle exited I-43 and was approaching Port Washington. (¶ 3).
Shortly thereafter, the officer saw a vehicle with a matching license plate number parked in the middle of a road with its blinker on, but nowhere to turn. The officer followed the vehicle as it drove straight and stopped again with its turn signal activated and nowhere to turn. The officer then stopped the vehicle after observing driving behavior she considered “confusing,” “unusual” and “bizarre.” (¶ 4).
An Ozaukee County Sheriff’s Department deputy testified that he learned of the citizen witness’s report at 12:28 a.m. about a vehicle that was swerving and “possibly struck some sort of barrier.” In the circuit court’s factual findings denying Berbaum’s motion to suppress, the court determined the Port Washington officer was informed that the vehicle “in fact struck a barrier” and not that it was only a possibility. (¶ 6).
Berbaum did not argue on appeal that the circuit court’s factual findings were clearly erroneous and the COA concluded the traffic stop was supported by reasonable suspicion: “More than just ‘confusing,’ ‘unusual’ and ‘bizarre,’ Berbaum’s driving at this time of night, including his concerning contact with the stationary barrier, was such that it provided the officer with reasonable suspicion to stop him for further investigation as to whether he was operating his vehicle while under the influence of an intoxicant.” (¶ 11).
Berbaum argued there was no evidence regarding the severity of the alleged collision with the barrier, but the COA considered the issue immaterial to the reasonable suspicion analysis: “[A]ny contact between a moving vehicle and a stationary barrier on the interstate creates automatic suspicion that something is dangerously amiss with the driver of the vehicle.” (¶ 12).