State v. Rusk, 082919 WICA, 2019AP135-CR

Docket Nº:2019AP135-CR
Opinion Judge:KLOPPENBURG, J.
Party Name:State of Wisconsin, Plaintiff-Respondent, v. Richard R. Rusk, Defendant-Appellant.
Case Date:August 29, 2019
Court:Court of Appeals of Wisconsin
 
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State of Wisconsin, Plaintiff-Respondent,

v.

Richard R. Rusk, Defendant-Appellant.

No. 2019AP135-CR

Court of Appeals of Wisconsin, District IV

August 29, 2019

This opinion will not be published. See Wis.Stat. Rule 809.23(1)(b)4.

APPEAL from a judgment of the circuit court for La Crosse County No. 2018CT71 GLORIA L. DOYLE, Judge. Affirmed.

KLOPPENBURG, J. 1

¶1 Richard Rusk pled no contest to and was convicted of operating a motor vehicle while intoxicated as a third offense. On appeal, Rusk challenges the circuit court's denial of his motion to suppress evidence obtained as a result of the traffic stop of his vehicle, which was based solely on the belief of the officer who conducted the stop that Rusk's white window tinting on the vehicle's windshield extended too far down in violation of Wis. Admin. Code § TRANS 305.34(6)(c) (May 2014).[2]

¶2 In support of his appeal, Rusk makes two discernible arguments. First, Rusk argues that the express prohibition against window tinting below a certain portion of the windshield in Wis. Admin. Code § TRANS 305.34(6)(c) is invalid because it imposes a standard that Rusk contends is more restrictive than the standard contained in what Rusk calls the rule's "enabling statute," Wis.Stat. § 346.88(3), as that statute was interpreted by our supreme court in State v. Houghton, 2015 WI 79, 364 Wis.2d 234, 868 N.W.2d 143.3 Therefore, according to Rusk, the stop premised on his vehicle's violation of an invalid rule was itself invalid, the officer's "mistake of law" was unreasonable, and the evidence obtained as a result of the stop must be suppressed.

¶3 Second, Rusk seems to argue that the language in Wis. Admin. Code § TRANS 305.34(6)(c), which prohibits window tinting below the "A" line, should not apply because it conflicts with the introductory language in subsection (6) providing that "[n]othing may be placed … so as to obstruct the driver's clear vision through the windshield." Rusk bases this argument on our supreme court's interpretation in Houghton of language similar to that introductory language.

¶4 As I explain, Rusk's first argument fails for at least the reason that this court lacks competency over his challenge to the validity of Wis. Admin. Code § TRANS 305.34(6)(c) because Rusk fails to show that he served the Joint Committee for Review of Administrative Rules as required by Wis.Stat. § 227.40(5).[4] Rusk's second argument is defeated by the plain language of Wis. Admin. Code §§ TRANS 305.34(6) and (6)(c).

BACKGROUND

¶5 Wisconsin State Trooper Cody Digre was on duty in La Crosse County on January 23, 2018, when he observed a "large, white window tinting" on the top part of the windshield of a vehicle that he later determined was being driven by Rusk. Believing that the window tinting violated Wis. Admin. Code § TRANS 305.34(6)(c), which prohibits the attachment of tinting below a windshield's "A" line, Digre stopped Rusk's vehicle. Ultimately, Rusk was arrested for operating while intoxicated.

¶6 The State charged Rusk with operating a motor vehicle while intoxicated as a third offense.5 Rusk moved to suppress the evidence obtained as a result of the stop, arguing that the stop was not based on reasonable suspicion of the violation of a law, as Rusk contended the law was interpreted in Houghton. The circuit court denied Rusk's motion, ruling that the stop was "predicated" on the officer's correct interpretation of Wis. Admin. Code § TRANS 305.34(6)(c).

¶7 Following the circuit court's denial of the suppression motion, Rusk pled no contest to operating while intoxicated as a third offense. Rusk challenges the court's denial of his suppression motion in this appeal.

DISCUSSION

¶8 The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…." U.S. Const. amend. IV.6 "Whether a search and seizure is constitutional remains a question of law that we review de novo…." State v. LaCount, 2008 WI 59, ¶34, 310 Wis.2d 85, 750 N.W.2d 780. "[A]n officer's reasonable suspicion that a motorist is violating or has violated a traffic law is sufficient for the officer to initiate a stop of the offending vehicle." Houghton, 364 Wis.2d 234, ¶5. "Generally, in reviewing motions to suppress, we apply a two-step standard of review...

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