State v. Popke, No. 2008AP446-CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtAnnette Kingsland Ziegler
Citation2009 WI 37,765 N.W.2d 569
Decision Date27 May 2009
Docket NumberNo. 2008AP446-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael L. POPKE, Defendant-Appellant.
765 N.W.2d 569
2009 WI 37
STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Michael L. POPKE, Defendant-Appellant.
No. 2008AP446-CR.
Supreme Court of Wisconsin.
Argued March 6, 2009.
Decided May 27, 2009.

[765 N.W.2d 571]

For the plaintiff-respondent-petitioner the cause was argued by Mark A. Neuser, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

For the defendant-appellant there were briefs by John M. Carroll, Aaron W. Schenk, and the John Miller Carroll Law Office, Appleton, and oral argument by John M. Carroll.

¶ 1 ANNETTE KINGSLAND ZIEGLER, J.


This is a review of an unpublished court of appeals' decision1 that reversed the

765 N.W.2d 572

Waupaca County Circuit Court, Raymond S. Huber, Judge. The circuit court denied the defendant's motion to suppress evidence of operating a motor vehicle while intoxicated and operating with a prohibited alcohol concentration. The defendant asserted that any evidence should be suppressed because the police officer had neither probable cause nor reasonable suspicion to conduct the traffic stop. The defendant appealed the circuit court's decision, and the court of appeals reversed. The State petitioned for review. We accepted review and now reverse the court of appeals' decision.

¶ 2 The single issue for review is whether this traffic stop violated the constitutional protections of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. We conclude that the police officer had probable cause to believe a traffic code violation had occurred, namely operating left of center, and also that the officer had reasonable suspicion to believe the defendant was operating a motor vehicle while intoxicated. Therefore, the traffic stop was constitutional, and thus, the circuit court correctly denied the defendant's motion to suppress evidence.

I. BACKGROUND

¶ 3 The following facts are taken from the motion to suppress hearing. On July 8, 2007, at approximately 1:30 a.m., Sergeant Jeff Schlueter of the New London Police Department was sitting at the intersection of Beckert Road and Pershing Road in the City of New London.2 The officer observed the defendant approaching from the west on Pershing Road. Once the defendant reached the intersection where the officer was sitting, the defendant turned left to go northbound on Cedarhurst Drive.

¶ 4 After the defendant turned onto Cedarhurst Drive, the officer began following the defendant, and the officer made the following observations: The defendant initially turned onto Cedarhurst Drive within the correct lane of traffic, but he then "swerved" into the left lane. Three-quarters of the defendant's vehicle was left of the center of the road. The center of the road was identified by a black strip of tar. The defendant then moved back into the proper northbound lane but "overcompensated" and as a result "almost hit the curb" on the right-hand side of the road. The defendant's vehicle then began to "fade back" towards the middle of the road and "nearly struck th[e] median."

¶ 5 The officer made these observations as the vehicle traveled approximately one block. These observations led the officer to activate his emergency lights and initiate a stop of the defendant's vehicle one block later. As a result of the traffic stop, the defendant was arrested and charged with third-offense operating a motor vehicle while intoxicated and operating with a prohibited alcohol concentration with a .255 blood alcohol concentration.

¶ 6 The defendant moved the circuit court to suppress any evidence that arose from the traffic stop because, he argued, the officer had neither probable cause that a traffic violation had occurred nor reasonable suspicion that criminal activity was afoot. The State, however, argued that the traffic stop was reasonable because the officer had probable cause that a traffic violation—driving left of center—had been committed.

765 N.W.2d 573

¶ 7 The circuit court denied the defendant's motion to suppress finding that the officer had probable cause that a traffic code violation occurred when the defendant crossed the center of the road. The circuit court also commented that the officer could have had reasonable suspicion that the defendant was operating a motor vehicle while under the influence of alcohol, but the circuit court concluded that it did not need to decide that issue because it was "satisfied that the officer observed the violation of the Traffic Code and he was perfectly valid, appropriate in stopping the vehicle based on the observation of operating left of center." The defendant subsequently pled no contest to operating a motor vehicle while intoxicated, and the circuit court sentenced him to 75 days in jail, fined him $3,491, and revoked his license for 36 months.

¶ 8 The defendant appealed and the court of appeals reversed the circuit court's decision. The court of appeals concluded that the officer did not have probable cause to believe a traffic violation had occurred. The court of appeals reasoned that the defendant's "conduct did not constitute driving down the wrong side of the road within the meaning of [Wis. Stat.] § 346.05" because the defendant crossed the center of the road only "momentarily." In addition, the court of appeals concluded that the officer did not have reasonable suspicion that a traffic or criminal code violation had occurred. The court of appeals reasoned that, under the totality of the circumstances, the State did not show "specific and articulable facts" that warranted this intrusion. The appellate court determined that it was not uncommon for vehicles to momentarily cross the center of the road, there was no testimony to establish how close the defendant came to striking the curb, and that no erratic driving was recounted by the officer. Therefore, the court of appeals concluded that the traffic stop did not comport with constitutional protections, and as a result, the motion to deny suppression was reversed and the judgment of conviction vacated. The State petitioned this court for review, which we accepted.

¶ 9 We reverse the court of appeals' decision because the police officer had probable cause to believe a traffic code violation had occurred, namely operating left of center, and the officer also had reasonable suspicion to believe the defendant was operating a motor vehicle while intoxicated. Therefore, the traffic stop was constitutional, and thus, the defendant's motion to suppress evidence should be denied.

II. STANDARD OF REVIEW

¶ 10 Whether there is probable cause or reasonable suspicion to stop a vehicle is a question of constitutional fact. State v. Mitchell, 167 Wis.2d 672, 684, 482 N.W.2d 364 (1992); State v. Williams, 2001 WI 21, ¶ 18, 241 Wis.2d 631, 623 N.W.2d 106. A finding of constitutional fact consists of the circuit court's findings of historical fact, which we review under the "clearly erroneous standard," and the application of these historical facts to constitutional principles, which we review de novo. Id., ¶¶ 18-19.

III. ANALYSIS

¶ 11 "The temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of the Fourth Amendment." State v. Gaulrapp, 207 Wis.2d 600, 605, 558 N.W.2d 696 (Ct.App.1996) (citing Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). An automobile stop must not be unreasonable

765 N.W.2d 574

under the circumstances. Gaulrapp, 207 Wis.2d at 605, 558 N.W.2d 696 (citing Whren, 517 U.S. at 810, 116 S.Ct. 1769). "`A traffic stop is generally reasonable if the officers have probable cause to believe that a traffic violation has occurred,' id., or have grounds to reasonably suspect a violation has been or will be committed." Gaulrapp, 207 Wis.2d at 605, 558 N.W.2d 696 (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317, (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, (1968)).

A. Probable cause

¶ 12 The defendant argues that the officer did not have probable cause to believe a traffic violation had occurred because the defendant's vehicle crossed the center of the road only momentarily. The State, on the other hand, argues that crossing over the center of the road is a violation of Wis. Stat. § 346.05(1) (2005-06),3 and as a result, the...

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    • United States
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    • 25 November 2015
    ...traffic regulations. Iverson, No. 2014AP515–FT, unpublished slip op., ¶ 10. The court of appeals reviewed our decision in State v. Popke, 2009 WI 37, 317 Wis.2d 118, 765 N.W.2d 569, where we held that "[e]ven if no probable cause exist[s], a police officer may still conduct a traffic stop w......
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    ...stopped.6 “Whether there is probable cause or reasonable suspicion to stop a vehicle is a question of constitutional fact.” State v. Popke, 2009 WI 37, ¶ 10, 317 Wis.2d 118, 765 N.W.2d 569. As such, it is a mixed question of fact and law, requiring a two-step standard of review. State v. Po......
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