Miller moved to suppress evidence of OWI on the grounds that the deputy who stopped him lacked reasonable suspicion. The suppression hearing involved two types of evidence: (1) the deputy’s testimony, and (2) the squad video. Miller asked the court of appeals to review the squad video de novo and to publish a decision saying that it is appropriate for appellate courts to do so. The court of appeals saw no need for publication. It found that the trial court denied suppression based on the deputy’s testimony and only used the video to assess his credibility.
The court of appeals ultimately did review the squad video de novo, but that did not help Miller:
¶8 I turn first to the question of whether the circuit court’s findings are clearly erroneous. The circuit court found that at the time of the investigatory stop, Deputy Whitaker: was aware that the time was 3:16 a.m.; observed Miller’s vehicle making choppy movements through a curve; and observed Miller’s vehicle weaving within the vehicle’s lane, traveling on the fog line and on or over the centerline. These findings are entirely consistent with Deputy Whitaker’s testimony. Further, nothing in the video directly contradicts Deputy Whitaker’s testimony or the court’s findings. The video shows Miller weaving within the lane and driving on the fog line and the centerline. It is not clear from the video whether or not Miller actually crossed the centerline. Accordingly, I conclude that the circuit court’s findings are not clearly erroneous.
The court of appeals also rejected Miller’s contention that weaving within a lane of travel alone is not sufficient to justify an investigatory stop. See State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634.
¶15 In Post, the totality of the circumstances was largely confined to weaving within the lane, although the weaving was substantial and not just “‘slight deviations within one lane of travel.’” Id., ¶29. While the weaving was confined to the lane of travel, that lane was nearly twice as wide as a normal lane of travel. Id., ¶36. The court also took into account the time of the incident, which was 9:30 p.m., although it was unclear what significance the court attached to that time. Id.
¶16 The driving which led Deputy Whitaker to stop Miller took place at 3:16 a.m. and involved more than merely weaving within the lane of travel. Even if Miller did not cross the centerline, Miller traveled upon both the centerline and the fog line. That is somewhat more aggravated than simply weaving within the lane of travel, just as Post’s weaving within his unusually wide lane was more than simply weaving within the lane of travel. In addition, Deputy Whitaker observed Miller making choppy movements while driving around a curve. Taken together, the circumstances here are not particularly close. Deputy Whitaker observed more articulable facts to arouse his reasonable suspicion than the arresting officer observed Post. Accordingly, I conclude that Deputy Whitaker had reasonable suspicion to believe that Miller was driving while under the influence and, therefore, affirm.