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COURT OF APPEALS
DECISION
DATED AND FILED
January 12, 2011
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Thomas R. Paulick,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Fond du Lac County: robert
j. wirtz, Judge. Affirmed.
¶1 BROWN, C.J. Thomas R. Paulick appeals his conviction
for operating a vehicle while intoxicated, first offense. While Paulick’s argument is somewhat
confusing, for reasons we will soon relate, we deem the issue to be whether
there was reasonable suspicion for the state trooper to stop him. We conclude that there was and affirm.
¶2 On January 30, 2010, at or about 7:40 p.m., a state patrol
officer was driving his squad car west on Scott Street in the city of Fond du Lac. He observed a silver SUV in the left lane of Scott Street, going
east near Hickory Street.
He saw that the SUV was following
“extremely close to the car in front of it.”
At this point, the SUV made a sudden lane change into the right lane of Scott Street,
cutting off a vehicle that was also driving in the right lane. The
SUV then began to speed up and proceeded to pass a line of vehicles that had
been in front of the SUV, traveling in the left lane. The trooper was about one hundred feet from
the SUV when he observed this. The trooper
testified that the driving was performed in an aggressive manner. The trooper kept sight of the vehicle by
viewing the incident in his rearview mirror.
During this episode, the trooper “observed him exceeding the thirty mile
per hour speed limit” both as the vehicle passed and also by viewing the
vehicle in his rearview mirror. The
calculation was made based on his training and experience as a trooper for four
years. The trooper approximated that the
SUV was travelling “between five to ten miles an hour over the thirty mile an
hour speed zone.”
¶3 Based on this behavior, the trooper decided to turn around
and pursue the SUV. The trooper
accelerated to catch up to the SUV and made the stop. The stop soon evolved into
citations for operation of a vehicle while intoxicated and operating a vehicle
in excess of the minimum blood alcohol content. Paulick moved to suppress
all evidence obtained by the seizure.
The trial court found reasonable suspicion for the trooper to believe
that Paulick was speeding and denied the motion. Subsequently, he was convicted of operating
while intoxicated.
¶4 In his brief, Paulick’s theme is that the trooper’s opinion
as to speed, made visually through a rearview mirror, is an insufficient
factual basis for a law enforcement officer to stop a vehicle for speeding. This is especially so, he contends, when the
trooper had only four years of experience. That contention, standing alone, is not
confusing. But in applying these facts
to the law, Paulick gives us two different strains of thought. At the outset of his brief-in-chief, he
asserted that the issue is as follows: “Did
the arresting officer have reasonable suspicion to stop the defendant?” But in the argument section of both his
brief-in-chief and reply brief, he contends that we must assess the facts under
the rubric of whether the officer had probable cause to believe that a traffic
violation had occurred. So, we are
confused about what he is contending. Is
he asserting that the trooper lacked reasonable suspicion or that he lacked
probable cause?
¶5 We gather that Paulick is arguing the latter. In his reply brief, he cites State
v. Longcore, 226 Wis. 2d 1, 6, 8, 594 N.W.2d 412 (Ct. App. 1999), affirmed by an equally divided court,
2000 WI 23, 233 Wis.
2d 278, 607 N.W.2d 620, for the proposition that if an officer does not know
for sure that a particular offense has been or will soon be committed, but the
officer has reasonable suspicion that a crime has been committed, then the
officer may make an investigative stop to resolve any ambiguity. But if the officer relates facts to a
specific offense and makes the stop based on this offense, then the standard is
probable cause. See id. at 8-9.
¶6 We first note that Paulick never showed us that he raised
this probable cause issue before the trial court. So, it is waived. See Preuss v. Preuss, 195 Wis.
2d 95, 105, 536 N.W.2d 101 (Ct. App. 1995) (issues not raised before the trial
court are generally waived). And
even if there was no waiver, we are not sure that Longcore controls this
case. We note that the trooper did not
pull Paulick over just because he witnessed a speeding violation. Rather, the trooper testified that: “With the violations I observed, him following
too close and exceeding the speed limit, I decided to pursue this silver SUV… and
stop the vehicle for his driving
behavior.” (Emphasis added.) Indeed, the State argued to the trial court
that the stop was justified because Paulick was observed to have followed too
closely, deviated from the traffic lane without first ascertaining that it
could be done safely and because Paulick was speeding. That the trial court found insufficient
evidence of the first two is of no moment. It makes no difference whether the State
proved all the elements of improper lane deviation and following too closely at
the suppression hearing. The focus is on
the facts known to the trooper, not the precise elements of the law known to
the trooper. The question is whether the
facts known to the trooper gave rise to reasonable suspicion that Paulick’s
driving behavior was in violation of the law.
See Wis. Stat. § 968.24. We hold that such facts existed.
¶7 The question presented in Longcore was whether the
officer had probable cause to make an arrest despite the officer’s
misunderstanding of the law. Longcore,
226 Wis. 2d
at 9. The officer in that case stopped
the vehicle for what he thought to be a specific violation of the law regarding
safety glass, not because of reasonable suspicion of driving behavior. Id. at
4. In this case, Paulick was stopped because
of his overall driving behavior, and the speeding was part and parcel of reasonable
suspicion that a crime may have been committed.
So, we would apply the reasonable suspicion test here.
¶8 But even if we were to apply the probable cause test, Paulick
would lose. His contention seems to be
that a trooper with four years’ experience cannot have probable cause that
there was speeding when that trooper based it on a visual while looking in his
rear view mirror. The law is otherwise. In City of Milwaukee v. Berry, 44 Wis.
2d 321, 171 N.W.2d 305 (1969), a defendant appealed his speeding conviction on
a similar basis. The supreme court noted
that the officer had four years’ experience, was in position to estimate Berry’s rate of speed
because he had a clear view for one city block and had sufficient time to
observe and calculate the speed. Id. at
323. He also had reference points to aid
him. Id.
Of particular importance, Berry
also involved a visual estimate of speed.
The supreme court held that the evidence was sufficient to uphold the
trial court’s finding that guilt was determined by clear, satisfactory and
convincing evidence. Id. at 325. Here, we have another visual, another four-year
veteran, a trooper who likewise had a clear view of Paulick’s driving conduct, and
who was able to watch Paulick from Scott and Hickory Streets until he passed multiple
cars near the intersection with Highway 45.
If the supreme court could uphold a finding of guilt, we can certainly
find probable cause that a speeding violation was committed, based on similar
facts. And it goes without saying that
there is more than sufficient evidence of reasonable suspicion, which we
believe is the proper standard. We
affirm.
By the
Court.—Judgment and order affirmed.
This case will not be published in the
official reports. See WIS. STAT RULE 809.23(1)(b)4.