The majority sees specific and articulable facts providing reasonable suspicion for a traffic stop. The dissent sees a change in the state’s justification for the stop that sandbags the defense and turns the court of appeals into a fact finder.
In the circuit court Taylor challenged the stop that led to his OWI charges, and at the suppression hearing the officer said he made the stop because he believed the window’s on Taylor’s van were excessively tinted. (¶¶3-5). The majority doesn’t rely on that rationale; instead, it points to other observations the officer described in his testimony to conclude there was reasonable suspicion to believe Taylor was involved in drug-related criminal activity:
¶8 …[A] around 9 p.m., the officer observed Taylor parked across from an apartment complex “known for its drug trafficking.” He appeared to be engaging with a female at his driver’s side window, but when she saw the officer approaching in his squad car, she left Taylor and went into the complex, and Taylor drove away from the area. When the officer turned his squad car around, followed Taylor, and eventually caught up to him, Taylor turned into a private driveway. When the officer passed by, turned around, parked and watched Taylor from a short distance away, Taylor just sat in the driveway for “maybe two minutes,” neither exiting his vehicle nor conducting any sort of business at that address, before backing out and driving in the opposite direction, away from the officer.
¶10 …. The most reasonable inference from Taylor’s conduct is that he was aware of the officer’s presence at the apartment complex, pulled into the driveway hoping the officer, who had turned around and likely appeared to be following him, would simply pass by and depart the area. Then, when the officer parked a short distance away, Taylor, likely nervous and unsure of how to proceed, pulled out and drove in the opposite direction in order to avoid passing nearby the officer. Taylor’s actions strongly suggest he was concerned about the officer’s presence, specifically that the officer may be following him, and that he was deliberately trying to avoid any sort of interaction with the officer. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“[E]vasive behavior is a pertinent factor in determining reasonable suspicion.”).
The dissenting judge (Davis) acknowledges that the court of appeals may affirm on grounds that were not the basis for the circuit court’s decision, State v. Holt, 128 Wis. 2d 110, 125, 382 N.W.2d 679 (Ct. App. 1985), but disagrees that principle should be invoked here because it “allow[s] the State to sandbag the defense with an entire fact-intensive case theory that is argued for the first time on appeal—effectively turning us into fact finders in the process….”(¶¶12, 20). (The majority disputes this claim in a lengthy footnote, saying the totality of the circumstances was explored and addressed below. (¶11 n.2).) To the dissent, abandoning the excessive window tint theory requires “picking out random, untethered facts from an officer’s description of the scene”—facts the officer himself didn’t see as relevant or significant—”and using these as building blocks in the reasonable suspicion analysis.” (¶19). While the test for reasonable suspicion is an objective one,
¶22 …. The point … is to have a yardstick by which to measure the reasonableness of the officer’s beliefs and actions. The objective standard does not mean—it cannot mean—that the court may cobble together facts the officer himself thought irrelevant or did not even describe so as to create an artificial construct: reasonable suspicion for the hypothetical officer…. To the contrary, our cases judge reasonable suspicion based on the level of training and experience that the officer who actually conducted the stop had in addressing the situation at hand. See State v. Jackson, 147 Wis. 2d 824, 834, 434 N.W.2d 386 (1989) (question is “what would a reasonable police officer reasonably suspect in light of his or her training and experience?”).
The dissent also says “the newly argued theory is itself dubious even had it been the subject of proper proof and argument” (¶12), citing the paucity of basis to believe Taylor and the woman were engaged in illegal activity to begin with other than their proximity to a place where other crimes have been committed (¶¶15-17), which in turn undermines the reasonableness of believing his subsequent driving behavior was evasive. (¶¶23-24).
¶25 Basically what we have here is someone who drove away after speaking with a woman at his car window on Christmas Day, who was followed by an officer, and who, a short time later, turned around in a driveway. Neither the officer who made the stop, nor the lawyers and trial judge who conducted the suppression hearing, viewed these facts as giving rise to reasonable suspicion sufficient to justify a stop. I see no basis on which this court is in a position to second-guess any of them on that point. Without more than these facts—and, particularly, given that the hearing involved no development of the facts that the Majority now deems relevant to the reasonable suspicion analysis—I cannot join the Majority opinion.