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COURT OF APPEALS DECISION DATED AND RELEASED September 21, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1291-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHNNY J. WALDNER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Richland County:
KENT C. HOUCK, Judge. Reversed.
EICH, C.J.[1] Johnny J. Waldner appeals from a judgment
convicting him of operating a motor vehicle while under the influence of an
intoxicant. The sole issue is whether
the arresting officer had a reasonable suspicion that Waldner was committing,
was about to commit or had committed a crime, so as to justify stopping and
detaining him. We conclude that, under
the totality of the circumstances of the case, the "reasonable
suspicion" standard has not been met, and we therefore reverse the
conviction.
The test is an objective
one, focusing on the reasonableness of the officer's intrusion into the
defendant's freedom of movement: "Law enforcement officers may only
infringe on the individual's interest to be free of a stop and detention if
they have a suspicion grounded in specific, articulable facts and reasonable
inferences from those facts, that the individual has committed [or was
committing or is about to commit] a crime.
An `inchoate and unparticularized suspicion or "hunch" ...
will not suffice.'" State v. Guzy, 139 Wis.2d 663, 675, 407
N.W.2d 548, 554, cert. denied, 484 U.S. 979 (1987) (quoting Terry
v. Ohio, 392 U.S. 1, 27 (1968)) (citations omitted); see
§ 968.24, Stats.
The test, which requires
applying a generally stated reasonableness standard to the "totality of
the circumstances" of the case, State v. Jackson, 147 Wis.2d
824, 833, 434 N.W.2d 386, 390 (1989), is difficult to apply, "particularly
by a law enforcement officer confronted with a situation in which he or she may
have but a few seconds in which to make a determination." Guzy, 139 Wis.2d at 679, 407
N.W.2d at 555. And we think it is
probably best described as a "common sense test":
What
is reasonable under the circumstances?
What would a reasonable police officer reasonably suspect in light of
his or her training and experience?
What should a reasonable police officer do?
State
v. Anderson, 155 Wis.2d 77, 83-84, 454 N.W.2d 763, 766 (1990)
(citation omitted).
We do know that police
officers "are not required to rule out the possibility of innocent
behavior before initiating a brief stop," and that, as a result, "if
any reasonable inference of wrongful conduct can be objectively discerned,
notwithstanding the existence of other innocent inferences that could be drawn,
the officers have the right to temporarily detain the individual for the
purpose of inquiry." Id.
at 84, 454 N.W.2d at 766.
The only testimony taken
at the suppression hearing was that of the arresting officer, Sgt. John R.
Annear of the Richland Center Police Department. Annear saw Waldner's car traveling on a main street in Richland Center
at a slow rate of speed. The car
stopped briefly at an intersection where there was no stop sign or light and
then turned onto a cross-street, where, according to Annear, it then
accelerated "at a high rate of speed"--which he described as reaching
20 to 25 miles per hour in "several seconds." He acknowledged that no laws had been
broken.
Following the car,
Annear saw it pull into a legal streetside parking space. The driver's-side door opened and Annear saw
Waldner, in the driver's seat, pour some liquid--which he described as looking
like "a mixture of liquid and ice"--out of a plastic glass onto the
roadway.
Annear pulled up behind
the car, noticing that Waldner had gotten out of the car. He described what happened next:
He
[Waldner] began walking around the front of [his car], and when I pulled up and
identified myself, he began to walk away from the squad car.
At
that point Annear asked Waldner to stop, which he did. The State concedes that the challenged stop
was made at that point. The State asks
us to accept the following inferences drawn from Annear's testimony to bolster
Annear's decision to stop Waldner: (1) that it is likely that anyone driving a
car at 12:30 a.m. "would be operating while under the influence of an
intoxicant" because "it is common knowledge and common practice in
the United States for persons to drink after work and at night"; (2) that
because Waldner briefly stopped his car at the intersection, he was
"confused," and, further, since "intoxicated persons are easily
confused," he was intoxicated; and (3) that Waldner's sudden acceleration
to 20 or 25 miles per hour could have been caused by a "sudden mood
swing[]," as "[i]t is commonly known ... that intoxicated individuals
experience sudden mood swings."
Beginning with the
undisputed facts, it appears that, prior to being stopped, Waldner had been
engaged in nothing but innocent and perfectly legal behavior. We appreciate, as we have noted above, that
the law does not require officers to "rule out the possibility of innocent
behavior" prior to making a stop, and that the officer is entitled to draw
reasonable inferences from the facts, but we reject the State's argument that
reasonable inferences from the facts of this case justify the stop under Terry,
Guzy, Anderson and other applicable cases.
There are any number of
reasons why someone would be driving a car at 12:30 a.m. that do not involve
drinking or intoxication, and we do not think that the hour alone can lead to a
reasonable inference that Waldner was driving while intoxicated. Similarly, a driver might well stop briefly
before turning onto a lightly traveled street for reasons of safety,
unfamiliarity with the neighborhood, some momentary malfunction of the
automobile or any number of other reasons; there is nothing in such an act,
whether considered by itself or in tandem with the other circumstances of this
case, from which intoxication reasonably may be inferred. Finally, to infer from a driver's entirely
legal acts of slowing, stopping and accelerating that he or she is experiencing
"sudden mood swings" caused by intoxication is to stretch reason far
beyond its breaking point. In short, we
are not persuaded by the undisputed facts of the case that grounds existed to
stop and detain Waldner on the night in question, nor has the State come forth
with any reasonable inferences from those facts that would lead us to
any other conclusion.
Citing Anderson,
155 Wis.2d at 87, 454 N.W.2d at 767, the State next asks us to consider
Waldner's act of walking around the front of his car and away from Annear's car
as Annear was approaching him as evidence of "flight," which,
according to Anderson, may justify a stop. This is not a case like Anderson,
however, where the defendant, after spotting a police car while parking his own
vehicle, drove away, turned into an alley and then onto another street, and
stopped only when the officers activated their flashing red lights. Id. at 80, 454 N.W.2d at
764. Nor is it a case like Jackson,
the primary authority relied on by the Anderson court. In Jackson the defendant,
seeing an approaching police car, fled the scene on foot, "evad[ing] the
[chasing] officer ... after running through yards and jumping
fences." Jackson,
147 Wis.2d at 826, 434 N.W.2d at 387.
In this case, as we have discussed above, Annear testified simply that,
as he approached Waldner's car, Waldner "began walking around the front
[of his car] ... away from the squad car." Without more, those facts--judged in light of all of the other
facts of the case, and in light of Anderson and Jackson--do
not, in our opinion, provide a basis for a reasonable suspicion that Waldner
was fleeing, or was about to flee, from Annear at the time the stop was made.
We conclude, therefore,
that the totality of the facts facing Sgt. Annear, and inferences reasonably
drawn from those facts, do not reasonably justify more than the kind of
inchoate and unparticularized suspicion or hunch which fails to provide
authority for police to stop or detain an individual under the cases. See Guzy, 139 Wis.2d at
675, 407 N.W.2d at 554.
By the Court.—Judgment
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.