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Defense win! You don’t have to be a local to be “local traffic”

State v. Brandon M. Swiecichowski, 2016AP1808-CR, 1/25/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Mr. Swiecichowski was pulled over after an officer saw his vehicle driving in a construction area signed as being closed to through traffic. Before pulling him over the officer ran his plates and found the vehicle to be registered to an owner who lived seven or eight miles away from the construction zone.

The court of appeals reverses the circuit court’s holding that the officer had reasonable suspicion that the vehicle was “through traffic” and thus in violation of the sign. In fact, Swiecichowski did live on a road only accessible from the construction zone; the vehicle was his fiancée’s.  (¶6). The court of appeals notes that there were a number of houses on the closed stretch and goes on:

any number of persons might have had a reason to access the area closed to through traffic, even a person whose vehicle was registered to an owner who lived outside the construction area. A person delivering pizza to the area, visiting parents or a relative, attending a Saturday night party, dropping off a date, or returning home using someone else’s car, as Swiecichowski had done, among many other reasons, would have had a reason to access the area closed to through traffic. True, the police are not required to rule out innocent explanations before initiating a traffic stop, but there still must be a reasonable inference of wrongdoing. Buer had an “inchoate” suspicion that Swiecichowski was going to drive through the area because his vehicle was registered to someone outside the construction area. Buer could have easily acquired more information to transform his hunch—or seen it dispelled—if he simply followed Swiecichowski to see where he went.

The other factors the court cited as contributing to reasonable suspicion that Swiecichowski was not appropriately using the road for local access are, at best, neutral. The fact that the closed roads were in poor condition only confirmed what the closed-to-through-traffic signs indicated. It is a redundant factor and does not suggest that a driver is about to violate these signs. The time of night also does not lead to a reasonable inference that Swiecichowski was about to violate the closed-to-through-traffic signs. In fact, one might argue that a more rational inference is that because of the time of night only a person who is headed to a residence in the construction area would be using those roads. The circuit court did not find any other evidence of possible wrongdoing by Swiecichowski prior to the stop.

(¶¶15-16).

Because it agrees with Swiecichowski that there was no reasonable suspicion that he was not “local traffic,” the court does not address his alternative argument that the state did not prove the road closure signs to be “official traffic signs” he was legally bound to obey. (¶4).

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