The stop of Schmalz’s car was not supported by reasonable suspicion or justified by the community caretaker doctrine.
The Village argues the stop was reasonable based on: (1) the time of day and day of the week, (2) Schmalz’s slow rate of speed, (3) the vehicle’s closeness to the fog line, and (4) Schmalz’s failure to avoid a collision with a deer and subsequent failure to stop. The first two factors don’t constitute suspicious behavior or evidence of impairment, and “[a]dopting the Village’s position that either of these lawful behaviors gives rise to reasonable suspicion of criminal activity would subject too many innocent people to investigation and invasions of their privacy.” (¶8, citing State v. Post, 2007 WI 60, ¶20, 301 Wis. 2d 1, 733 N.W.2d 634).
¶9 That leaves the Village with only the time of day—3:08 a.m. on a Sunday—and Schmalz’s reaction both before and after he struck the deer. The Village makes much of the fact that Schmalz only briefly tapped his brake before the impact with the deer and failed to stop following that impact. In evaluating the evidence presented by the Village at the suppression hearing, the court determined that it could not infer that Schmalz saw the deer prior to impact. The court noted that the Village had not presented evidence that would allow it to review the positions and line of sight between Schmalz and deer. Left only with inferences from the time of day and day of the week as well as Schmalz’s failure to immediately stop after hitting the deer, the court determined that these circumstances were insufficient to provide Johns with reasonable suspicion that Schmalz was committing a crime, i.e., operating while intoxicated. We agree. ….
The Village’s community caretaker argument fares no better, as it is premised on Schmalz’s “unusual vehicle conduct.” There’s nothing unusual about driving at a legal speed within a traffic lane, and the failure to stop after hitting the deer means little given there was no apparent sign of distress to the driver or damage to the car: “Hitting a deer that jumps in front of one’s vehicle and failing to stop to inspect for possible damage to the vehicle are insufficient grounds upon which to assert a bona fide community caretaker function.” (¶12).