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Traffic Stop – Mistake of Fact

County of Sheboygan v. Jeffrey L. Bubolz, 2010AP2997, District 2, 4/6/11

court of appeals decision (1-judge, not for publication); for Bubolz: Casey J. Hoff; case activity

Ignoring a warning sign that a road is closed except to local traffic creates reasonable suspicion for a traffic stop, even though the sign was an “unofficial” one put up by the contractor.

¶11      Failure to adhere to official traffic signs is a violation of WIS. STAT. § 346.04(2) and passing beyond lighted barriers closing a construction zone is a violation of WIS. STAT. § 86.06(2).[5] The deputy observed Bubolz swerve around Road Closed—Local Traffic Only signs that resembled official signs and travel the entire length of a closed construction zone.  Nothing indicated that the signs were not official signs. A reasonable deputy could believe the barricade signs closing the construction zone on STH 42 were official traffic signs.  Therefore, the deputy had reasonable suspicion to believe Bubolz had committed a crime.

¶12      Bubolz argues that Longcore’s mistake of law holding is relevant to this case.  See Longcore, 226 Wis. 2d at 9.  We disagree.  In Longcore, the officer observed an improvised plastic window covering and thought it was a traffic code violation because it was not safety glass.  Id. at 4.  At issue in Longcore was: What facts were required under the statute in order to be in violation of the statute?  See id. at 8-9.  Here the question is:  What did the officer reasonably perceive the facts to be?  Thus, the Longcore court was concerned with a mistake of law.  Conversely, believing an unofficial sign is an official sign is a mistake of fact, not a mistake of law.

¶13      We conclude that although Wimmer’s belief that the Road Closed—Local Traffic Only signs were official may be mistaken, it was reasonable under the circumstances.  As such, Wimmer had reasonable suspicion to believe Bubolz violated WIS. STAT. § 346.04(2).  Therefore, we affirm.

The distinction between mistake of law and mistake of fact is potentially recurrent, therefore well worth keeping in mind. Here’s how Longcore puts it:

… The issue is, then, whether an officer has probable cause that a law has been broken when his interpretation of the law is incorrect. If the facts would support a violation only under a legal misinterpretation, no violation has occurred, and thus by definition there can be no probable cause that a violation has occurred. We conclude that when an officer relates the facts to a specific offense, it must indeed be an offense; a lawful stop cannot be predicated upon a mistake of law.

The operative principle, United States v. Chanthasouxat, 342 F.3d 1271, 1276-77 (11th Cir. 2003):

A traffic stop based on an officer’s incorrect but reasonable assessment of facts does not violate the Fourth Amendment. Great deference is given to the judgment of trained law enforcement officers “on the scene.” …

An officer’s mistake of fact may provide the objective basis for reasonable suspicion or probable cause under the Fourth Amendment because of the intensely fact-sensitive nature of reasonable suspicion and probable cause determinations. … Thus, an officer’s mistaken assessment of facts need not render his actions unreasonable because what is reasonable will be completely dependent on the specific and usually unique circumstances presented by each case. …

In brief, “If an officer makes traffic stop based on a mistake of fact, the court must determine whether the officer’s mistake of fact was reasonable,” State v. Wimberly, 988 So. 2d 116, 119 (Fl. App 2008). While the court here did conclude that Wimmer’s mistake was reasonable, it didn’t explain its reasoning in any detail. A deputy charged with patrolling the local road can’t tell the difference between an “official” traffic sign and one jerry-rigged by a contractor? Maybe, but it hardly seems like a foregone conclusion.

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