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Reasonable Suspicion – Illegal Parking, § 346. 53

City of Kenosha v. Elizabeth R. Tower, 2009AP1957, District 2, 10/6/10  

court of appeals decision (1-judge, not for publication); for Tower: Michael F. Torphy; BiC; Resp.; Reply

Because the police knew Tower was merely stopped temporarily for the purpose of dropping of a passenger – an explicit statutory exception to illegal parking – they didn’t have reasonable suspicion to temporarily seize her for illegal parking:

¶10 The City argues that like the officers in Renz, Anderson had the requisite reasonable suspicion to make an investigatory stop. We disagree. While “illegal parking” may have been Anderson’s suspicion, under the facts of this case that suspicion was not reasonable and thus does not meet the Terry stop requirements. Anderson’s own testimony reveals the unreasonableness of his suspicion: he knew Tower’s vehicle was running, he saw its brake lights on and the reverse lights illuminated, his first instruction to Tower was to “put the vehicle in ‘park,’” and Tower told him she was “dropping off” a friend.[2]

This is on appeal from an order revoking Tower’s driving privileges (because she refused to provide a breath sample). The court of appeals reverses that order but is otherwise not explicit about relief. Clearly, though, the observations that led to the arrest for OWI and consequential request for the breath sample (the usual: odor of alcohol on Tower’s breath, her glassy eyes, etc.) were derived from the initital seizure for illegal parking. Subsequent events were suppressible, as derivative of that primary illegality, in turn making the OWI arrest illegal, and anything related to the breath test suppressible. Again: not explicit, but readily assumed.

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