COURT OF APPEALS
DATED AND FILED
December 9, 2010
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Brian R. Rogers,
from a judgment of the circuit court for Dane County: William
E. Hanrahan, Judge. Affirmed.
¶<![if !supportFields]>1<![endif]> Sherman, J. Brian Rogers appeals from a judgment of
conviction for operating a motor vehicle while under the influence of an
intoxicant, second offense, contrary to Wis.
Stat. § 346.63(1)(a). Rogers argues the circuit
court erred when it denied his motion to suppress evidence obtained as a result
of the investigatory stop of his vehicle because the arresting officer lacked
reasonable suspicion to stop his vehicle.
We disagree and affirm.
¶<![if !supportFields]>2<![endif]> On May 9, 2009, at approximately 1:28 a.m., Dane County
Deputy Sheriff David Lambrecht observed a vehicle driven by Rogers
traveling eastbound on East
Washington Avenue in the City of Madison.
Lambrecht observed both right side tires of Rogers’ vehicle, which was traveling in the
center lane of three lanes of traffic completely cross the dotted white line
dividing the center lane from the adjoining right lane. Rogers’ vehicle returned to its lane of
traffic after three or four seconds, and then again partially crossed over into
the right lane of traffic for another three or four seconds before it
“corrected back to the center lane.”
According to Lambrecht, “[j]ust after that, [Rogers’] vehicle … drifted to its left in the
center lane,” then back to the center of its lane and then “drifted to the left
in the center lane with both left side tires on the divider.” Lambrecht’s observations of Rogers’ vehicle
took place over the span of one mile before he initiated a traffic stop based
on his belief that Rogers was operating his motor vehicle while impaired. Lambrecht also believed that Rogers had committed a
traffic violation by crossing the white broken line.
¶<![if !supportFields]>3<![endif]> Rogers
moved to suppress evidence which was obtained as a result of his detention and
arrest, arguing that his driving deviations were insufficient to give rise to
reasonable suspicion necessary for a traffic stop. In particular, Rogers argued that Lambrecht did not have
reasonable suspicion to believe he had committed a traffic violation,
specifically a violation of Wis. Stat. § 346.13(1)
by crossing over the white dotted line dividing the lanes of traffic. The circuit court denied Rogers’
motion, concluding Lambrecht had reasonable suspicion to believe Rogers had violated §
346.13(1). After his motion to suppress
was denied, Rogers
pled no contest to OWI, second offense, and a judgment of conviction was
entered by the court. Rogers appeals.
¶<![if !supportFields]>4<![endif]> For an officer to initiate a traffic stop without violating
an individual’s Fourth Amendment rights, the officer must have either probable
cause or reasonable suspicion to believe that the individual is committing, is
about to commit, or has committed a crime. State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634. An
officer has a reasonable suspicion if he or she is “‘able to point to specific
and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant’ the intrusion of the stop.” State v. Popke, 2009 WI 37, ¶23, 317
118, 765 N.W.2d 569 (citing omitted). “[W]hat
constitutes reasonable suspicion is a common sense test: under all the facts
and circumstances present, what would a reasonable police officer reasonably
suspect in light of his or her training and experience.” State v. Young, 212 Wis. 2d 417, 424, 569
N.W.2d 84 (Ct. App. 1997).
¶<![if !supportFields]>5<![endif]> Whether Lambrecht had reasonable suspicion to stop Rogers is a question of
constitutional fact, which presents a mixed question of fact and law. Post, 301 Wis. 2d 1, ¶8. We will uphold the circuit court’s factual
findings unless they are clearly erroneous, but will independently review the
application of those facts to constitutional principals. Id.
¶<![if !supportFields]>6<![endif]> Rogers
contends that Lambrecht did not have reasonable suspicion to stop his vehicle
because crossing the white broken lines was not a violation of any traffic law,
in particular Wis. Stat. § 346.13(1),
and because his driving was not indicative of an individual driving while
¶<![if !supportFields]>7<![endif]> We do not address whether Rogers violated Wis. Stat. § 346.13(1), or any other statute, when he
crossed over the white broken traffic line because we conclude that even
assuming he did not, Lambrecht’s observations nevertheless gave rise to
reasonable suspicion warranting the stop.
¶<![if !supportFields]>8<![endif]> In State v. Waldner, 206 Wis. 2d 51, 556 N.W.2d
681 (1996), the supreme court rejected an argument that lawful conduct cannot
form the basis for reasonable suspicion.
The court explained that if such conduct could not, “there could never
be investigative stops unless there [were] simultaneously sufficient grounds to
make an arrest.” Id. at 59. Thus, the legality or illegality of Rogers’ actions is
immaterial to our reasonable suspicion analysis.
¶<![if !supportFields]>9<![endif]> Although “weaving within a single traffic lane does not alone
give rise to the reasonable suspicion necessary to conduct an investigative
stop,” weaving in a single lane of traffic may give rise to sufficient
reasonable suspicion when viewed in light of all the circumstances. Post, 301 Wis. 2d 1, ¶2. For example, in Post, the supreme court
concluded that there was reasonable suspicion for an investigatory stop in
light of the nature and frequency of the defendant’s weaving—“smooth ‘S-type’”
weaving within an extra wide traffic lane over the distance of two blocks—and the
time the incident took place—9:30 p.m. Id., ¶¶5,
¶<![if !supportFields]>10<![endif]> Here too, the totality of the circumstances provided Lambrecht
with reasonable suspicion to initiate a traffic stop. Lambrecht observed Rogers’ vehicle weave both within and outside
its lane multiple times over the span of approximately one mile. Rogers’ pronounced weaving, in conjunction
with the fact that the incident took place around bar time, was adequate to
give rise to a reasonable suspicion that Rogers was driving under the influence
of intoxicants, justifying the investigatory stop of Rogers’ vehicle. See id., ¶36 (suggesting that investigatory stop is reasonable when
officer observes a vehicle weaving around bar time). Accordingly, we affirm the denial of Rogers’ motion to
suppress and the judgment of conviction.
By the Court.—Judgment affirmed.
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)(4).