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Deviating from lane, following to closely supported stop; and stop wasn’t unreasonably prolonged

State v. Robert A. Harris, 2014AP965-CR, District 2, 10/8/14 (1-judge; ineligible for publication); case activity

There was reasonable suspicion that Harris was operating his motor vehicle while intoxicated and the length of Harris’s detention was not unreasonable.

¶8        Although the officer in this case testified at the suppression hearing that he stopped Harris’s vehicle due to infractions of deviating from his traffic lane and following too closely, there was also reasonable suspicion for an officer in his position to stop Harris’s vehicle to investigate the possibility that Harris was operating while intoxicated. Harris had engaged in “a series of unusual and impulsive driving choices, suggestive of impairment.” See [State v. Anagnos, 2012 WI 64], ¶56[, 341 Wis. 2d 576, 815 N.W.2d 675]. Harris repeatedly swerved within his traffic lane, accelerated rapidly and dangerously close to another vehicle, and deviated twice from his lane in violation of the law.  Harris’s vehicle was lawfully stopped so as to investigate the reasons for the erratic driving, including possible intoxication. See [State v.] Rutzinski, [2001 WI 22,] 241 Wis. 2d 729, ¶34[, 623 N.W.2d 516].

¶9       As reasonable suspicion for the stop existed, the remaining question is whether the ten-minute wait for the back-up officer to arrive to perform the field sobriety tests was “a reasonable period of time.” See Wis. Stat. § 968.24. For an investigatory stop to pass constitutional muster, “the detention must be temporary and last no longer than is necessary to effect the purpose of the stop.” State v. Wilkens, 159 Wis. 2d 618, 625, 465 N.W.2d 206 (Ct. App. 1990). Courts should not second-guess an officer and must consider the totality of the circumstances in assessing whether the duration of a stop is reasonable. Id. at 626. We find that the delay between when Harris was stopped and when he was asked to exit his vehicle was reasonable based on the circumstances. The officer had a rational concern for safety due to the possibility of having an intoxicated individual perform field sobriety tests in the median of a busy highway such that the ten-minute delay to allow a back-up police officer to arrive was reasonable.

Wilkens, relying in turn on United States v. Sharpe, 470 U.S. 675, 686 (1985), actually says courts shouldn’t indulge in “unrealistic second-guessing” of the police. By declining to do any “second-guessing” of the officer, the court treats an invocation of “safety reasons” as a talisman and thereby abrogates its duty to review the officer’s conduct.

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