State v. Anagnos (In re Anagnos)

• Decision Date: 27 July 2011
• Docket Number: No. 2010AP1812.,2010AP1812.
• Citation: 2011 WI App 118,805 N.W.2d 722,337 Wis.2d 57
• Parties: In the Matter of the Refusal of Dimitrius ANAGNOS.State of Wisconsin, Plaintiff–Appellant,† v. Dimitrius Anagnos, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

2011 WI App 118

337 Wis.2d 57

805 N.W.2d 722

In the Matter of the Refusal of Dimitrius ANAGNOS.State of Wisconsin, Plaintiff–Appellant,†

v.Dimitrius Anagnos, Defendant–Respondent.

No. 2010AP1812.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 24, 2011.Opinion Filed July 27, 2011.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Zeke S. Wiedenfeld, assistant district attorney, and Phillip A. Koss, district attorney, Elkhorn.

On behalf of the defendant-respondent, the cause was submitted on the brief of Barry S. Cohen of Barry S. Cohen, S.C., Elkhart Lake.

Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.REILLY, J.¹

Dimitrius Anagnos refused to take a chemical test after his arrest for operating a motor vehicle while intoxicated (OWI). Anagnos requested a refusal hearing. At the refusal hearing, the circuit court dismissed the State's case, concluding that Anagnos's refusal to take the chemical test was lawful as the deputy did not have reasonable suspicion to stop Anagnos.

¶ 2 The State appeals and raises two issues. First, it argues that the deputy who arrested Anagnos had probable cause or reasonable suspicion to pull over Anagnos. Second, the State argues that even if the traffic stop was not justified, the circuit court could not inquire into the lawfulness of the stop at a refusal hearing. We disagree with the State on both counts and affirm the circuit court.

FACTS

¶ 3 In the early morning of January 31, 2010, Walworth County Deputy Sheriff Garth Frami was stopped at a red light in the right-hand turn lane of a highway intersection when he noticed Anagnos's vehicle pull out of a Taco Bell and accelerate at “rapid speed” before stopping in the left-hand turn lane of the same intersection. The Taco Bell that Anagnos pulled out of was behind the deputy and to his left. The deputy thought that Anagnos had made an illegal left-hand turn over the median when he pulled out of the Taco Bell. After Anagnos pulled up to the left-hand turn lane of the intersection, the deputy observed Anagnos make a left turn “at a high rate of speed” and without using a turn signal. Based on this observation, the deputy pulled over Anagnos. Anagnos was subsequently arrested for OWI.

¶ 4 The deputy read Anagnos the informing the accused form as required by Wis. Stat. § 343.305(4) (2009–10),² but Anagnos refused to submit to chemical testing. The State filed a notice of intent to revoke Anagnos's operating privilege. See § 343.305(9)(a). Anagnos requested a hearing on the refusal charge. See § 343.305(9)(a) 4.

¶ 5 At the outset of the refusal hearing, Anagnos's attorney asked the circuit court to focus exclusively on whether the deputy had reasonable suspicion to pull over Anagnos. The court initially objected on the grounds that the issues to be determined at a refusal hearing do not include reasonable suspicion to conduct a traffic stop. See Wis. Stat. § 343.305(9)(a) 5. Once into the hearing, however, the court said that it would convert the refusal hearing into a motion to suppress hearing if the State consented. The State initially objected on the grounds that there was nothing to suppress, but eventually consented to a motion to suppress hearing after Anagnos stipulated that the deputy complied with § 343.305(4) and that Anagnos refused the test.

¶ 6 After the evidentiary hearing, the circuit court found that, as there was no oncoming or following traffic or any pedestrians present when Anagnos turned left without using his signal, he did not violate Wis. Stat. § 346.34(1)(b), which states that a driver must use a turn signal “[i]n the event that any other traffic may be affected.” (Emphasis added.) The circuit court also concluded that Anagnos did not make an illegal left turn over a median, and that there was no evidence of speeding. The circuit court concluded that the deputy did not have reasonable suspicion to pull over Anagnos, and thus had no probable cause to arrest Anagnos for OWI. The circuit court suppressed all evidence obtained as a result of the stop, and found that Anagnos's refusal to submit to a chemical test was reasonable. The State appeals.

STANDARD OF REVIEW

¶ 7 Whether there is probable cause or reasonable suspicion to conduct a traffic stop is a question of constitutional fact. State v. Popke, 2009 WI 37, ¶ 10, 317 Wis.2d 118, 765 N.W.2d 569. We apply a two-step standard of review. State v. Powers, 2004 WI App 143, ¶ 6, 275 Wis.2d 456, 685 N.W.2d 869. First, we review the circuit court's findings of historical fact and uphold them unless they are clearly erroneous. Id. Second, we apply de novo review to whether the deputy had reasonable suspicion or probable cause. Id.; State v. Mitchell, 167 Wis.2d 672, 684, 482 N.W.2d 364 (1992). A police officer may conduct a traffic stop when he or she has probable cause to believe that a traffic violation has occurred. Popke, 317 Wis.2d 118, ¶ 13, 765 N.W.2d 569. Probable cause exists when there is a “quantum of evidence” that would lead a reasonable police officer to conclude that a traffic violation occurred. Id., ¶ 14. Even if no probable cause exists, a police officer may still conduct a traffic stop when, under the totality of the circumstances, he or she has reasonable suspicion that a crime or traffic violation has been or will be committed. Id., ¶ 23.

¶ 8 Whether the circuit court was authorized to inquire into the legality of the stop at a refusal hearing requires us to interpret Wis. Stat. § 343.305(9)(a) 5. The interpretation of a statute is a question of law that we review de novo. See WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ¶ 45, 310 Wis.2d 397, 751 N.W.2d 736.

DISCUSSION

The Deputy Had Neither Probable Cause nor Reasonable Suspicion to Stop Anagnos

¶ 9 Wisconsin Stat. § 346.34(1)(b) states that a driver must use a turn signal “[i]n the event that any other traffic may be affected.” The circuit court found that Anagnos did not violate this statute when he made a left turn without using his signal, as there was no oncoming or following traffic or pedestrians present when he turned. The State counters that the sheer presence of the deputy in the far right-hand turn lane at the time Anagnos turned left is enough evidence that traffic was affected. We disagree. Evidence in the record must support a finding that Anagnos's failure to use a turn signal affected other traffic. See City of Milwaukee v. Johnston, 21 Wis.2d 411, 413, 124 N.W.2d 690 (1963). Given that the deputy was in the far right-hand turn lane, we cannot see how he was affected by Anagnos's failure to use a turn signal in the left lane. Furthermore, there is nothing in the record to indicate that there were any other vehicles on the highway that could have been affected by Anagnos's left turn. We affirm the circuit court's decision that Anagnos did not violate § 346.34(1)(b), and therefore hold that the deputy did not have probable cause to stop Anagnos for a traffic violation. See State v. Longcore, 226 Wis.2d 1, 9, 594 N.W.2d 412 (Ct.App.1999) (holding that there is no probable cause when an officer makes a stop based on a mistake of law), aff'd by an equally divided court, 2000 WI 23, 233 Wis.2d 278, 607 N.W.2d 620.

¶ 10 The State also argues that, regardless of whether Anagnos violated Wis. Stat. § 346.34(1)(b), the deputy had reasonable suspicion to conduct a Terry stop.³ A Terry stop requires that a law enforcement officer must reasonably conclude, in light of his or her experience, that criminal activity has taken place or is taking place. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Richardson, 156 Wis.2d 128, 139, 456 N.W.2d 830 (1990). The officer must be able to point to specific and articulable facts that, taken together with rational inference from those facts, objectively warrant a reasonable person with the knowledge and experience of the officer to believe that criminal activity is afoot at the time of the stop. State v. Rutzinski, 2001 WI 22, ¶ 14, 241 Wis.2d 729, 623 N.W.2d 516. Wisconsin law recognizes that a law enforcement officer may make an investigatory stop based solely on observations of lawful conduct, although such a seizure must be premised on reasonable inferences drawn from the lawful conduct that establish criminal activity is afoot. State v. Waldner, 206 Wis.2d 51, 57, 556 N.W.2d 681 (1996). The determination of reasonableness is a commonsense test based on the totality of the facts and circumstances known to the officer at the time of the stop. Richardson, 156 Wis.2d at 139–40, 456 N.W.2d 830.

¶ 11 The State argues that the standard for a Terry stop was met based on the totality of circumstances: the deputy first observed Anagnos make an apparently illegal turn over a median, “accelerate at a high rate of speed” up to the stop light, and then make a left turn at a highway intersection without using a turn signal. We first address whether Anagnos made an illegal left turn over a median when he pulled out of Taco Bell. Wisconsin Stat. § 346.15 governs driving on a divided highway. In relevant part, the statute provides that a driver “making a left turn to or from a private driveway ... may drive across a paved dividing space or a physical barrier not constructed to impede crossing by vehicular traffic, unless the crossing is prohibited by signs.” Id. The deputy testified that the median that Anagnos drove over was four to five inches high and was not meant to be driven over. The circuit court found that the deputy was wrong on both counts. First, Anagnos measured the height of the median and determined that it was one-and-one-half to two inches high. The State did not rebut this testimony and conceded that the deputy was incorrect. Furthermore, the circuit court found that there were no signs prohibiting turns over the median. Therefore, the circuit court found that the turn was legal. As the State has not challenged the circuit court's factual...