On Point: G. Reasonable suspicion

County of Shawano v. Kory V. Amborziak, 2015AP462, 9/22/15, District 3 (1-judge opinion; ineligible for publication); case activity

Ambroziak didn’t challenge an officer’s decision to stop his car for disorderly conduct. Instead, he contended that the officer lacked reasonable suspicion to extend the stop to conduct field sobriety tests but he lost based on the facts found by the circuit court:

State v. Manuel Talavera, 2015AP701-CR, District 2, 9/9/15 (one-judge decision; ineligible for publication); case activity (including briefs)

To  justify a warrantless traffic stop based on a violation of § 346.34(1)(b), the officer doesn’t need evidence that a driver’s failure to signal before turning his vehicle actually affected other traffic because the statute simply requires motorists to signal turns whenever “other traffic may be affected by the movement.” Thus, evidence that Talavera failed to signal when there was a (police) vehicle following two car lengths behind him was sufficient to justify stopping him.

United States v. Rodolpho Hernandez Flores, 7th Circuit Court of Appeals No. 15-1515, 8/19/15 (per curiam)

Hernandez Flores was stopped for driving with an obstructed license plate because his rear plate was affixed to his car by a standard frame that covered the plate’s periphery. The stop violated the Fourth Amendment because it was based on an unreasonable mistake of law regarding the statute governing the display of license plates.

United States v. Dontray A. Smith, 7th Circuit Court of Appeals No. 14-2982, 7/20/15

Smith’s encounter with two officers on bicycles amounted to a seizure based on the totality of the circumstances surrounding the encounter, and because he was seized without reasonable suspicion, his Fourth Amendment rights were violated.

State v. Emiliano Calzadas, 2015AP162-CR, District 4, 9/3/15 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer stopped the vehicle Calzadas was driving because registered owner—who was female—had a suspended driver’s license; but immediately after stopping the car the officer realized Calzadas was male and thus not the registered owner. Even if the reason for the stop dissipated when the officer learned that Calzadas was not the registered owner, the officer’s request for and verification of Calzadas’s identification did not transform what was initially a lawful stop into an unreasonable seizure.

Columbia County v. Jessica N. Johnson, 2015AP332, District 4, 8/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The arresting officer had reasonable suspicion to extend Johnson’s detention and ask her to do field sobriety tests based on additional information he gleaned after the initial contact with Johnson. State v. Betow, 226 Wis. 2d 90, 93-95, 593 N.W.2d 499 (Ct. App. 1999), applied.

Village of Fredonia v. Bruce A. Gossett, 2015AP298, District 2, 8/12/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Police need probable cause to believe the driver is operating while intoxicated before they can request a PBT from the driver of a noncommercial vehicle; but for a commercial driver, they can request a PBT if they detect “any presence” of alcohol or have “reason to believe” the driver is operating with an alcohol concentration above zero, § 343.303, and State v. Goss, 2011 WI 104, ¶12, 338 Wis. 2d 72, 806 N.W.2d 918. The “reason to believe” standard was satisfied in this case, so police properly asked Gossett—the driver of a semi tractor-trailer—for a PBT.

State v. Kim M. Lerdahl, 2014AP2119-CR, District 3, 8/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

In an interesting decision that sheds some light on how to apply the newly-adopted “reasonable mistake of law” doctrine to traffic stops, State v. Houghton, 2015 WI 79, ___ Wis. 2d ___, ___ N.W.2d ___,  the court of appeals holds that it a police officer’s mistaken belief that the truck she stopped was required to have a center high-mount stop (or brake) lamp (CHMSL) was not a reasonable mistake of law and, therefore, the stop was unlawful.

State v. Tammy R. Fullmer, 2015AP640-CR, District 4, 7/30/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Trial counsel was deficient for failing to effectively impeach the officer’s testimony that Fullmer failed to stop in front of a stop line because the intersection in question didn’t have a stop line; however, there were multiple other observations the officer made that justified the traffic stop even in the absence of the stop line violation (e.g., extremely slow driving, driving down the middle of a two lane road, weaving in her lane), so Fullmer wasn’t prejudiced. (¶¶4-7, 11, 14).

State v. Richard E. Houghton, 2015 WI 79, 7/14/14, reversing an unpublished court of appeals opinion, 2013AP1581-CR; majority by Prosser, dissent by Abrahamson (joined by Bradley); case activity (including briefs)

You’ve seen this before. An officer makes a traffic stop based on a “misunderstanding” of the law, then conducts a search and finds incriminating evidence.  Last July, in State v. Antonio Brown, SCOW held that a seizure based on such a mistake violates the 4th Amendment. Six months later, SCOTUS reached the opposite result in Heien v. North Carolina. In this case, SCOW overturns Brown to hold that: (1) “pretextual stops . . . are not per se unreasonable under the 4th Amendment”; (2) probable cause is never required for a traffic stop; (3) the officer here “misunderstood” multiple provisions of Ch. 346, but his mistakes were “objectively reasonable”; and (4) Article I §11 of Wisconsin’s Constitution extends no further than the 4th Amendment. Slip op. ¶¶ 4, 5, 6, 50.