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Pro se defense win: Officer lacked reasonable suspicion to conduct traffic stop

State v. Paul R. Vanderlinden, 2015AP901-CR, District 3, 8/30/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Vanderlinden was convicted of OWI 2nd and driving with a PAC 2nd. An officer had stopped Vanderlinden’s car because two witnesses had reported him drinking beer and leaving the theater with a beer in his pocket. According to the court of appeals, this did not amount to reasonable suspicion of OWI.

¶14 . . . On cross-examination, [Officer] Krieg confirmed the dispatch report he received did not state that Vanderlinden had displayed signs of intoxication or that Vanderlinden had acted in a disorderly manner at the theater. Similarly, Krieg testified that while he was following Vanderlinden, he did not observe Vanderlinden speeding or weaving. Likewise, Krieg agreed he did not observe any other signs of intoxication that would have drawn his attention to the vehicle and made him think Vanderlinden was intoxicated. A statement that an individual was observed at night drinking an unspecified number of beers, during an unspecified amount of time, and leaving a theater with a beer in his pocket is not sufficient to give rise to a reasonable suspicion that criminal or wrongful activity is afoot.

¶17 We recognize the strong public interest in prosecuting and deterring intoxicated drivers. See Strenke v. Hogner, 2005 WI App 194, ¶21, 287 Wis. 2d 135, 704 N.W.2d 309 (“The state’s interest in punishing and deterring drunk driving within its own jurisdiction is powerful and well-established.”); State v. Carlson, 2002 WI App 44, ¶23, 250 Wis. 2d 562, 641 N.W.2d 451 (2001) (“It is clear that a serious threat to human life and well-being is posed by drunk drivers. Drunk driving and its consequences represent one of our society’s gravest problems.”); State v. Krause, 168 Wis. 2d 578, 590, 484 N.W.2d 347 (Ct. App. 1992) (“Wisconsin also recognizes that drunk driving is a problem with significant social costs and, often, innocent victims. Therefore, the state has a substantial interest in apprehending, punishing and deterring drunk drivers.” (citation omitted)). Nevertheless, the Fourth Amendment requires an officer to have reasonable suspicion of criminal or wrongful activity before initiating an investigatory traffic stop. See Gammons, 241 Wis. 2d 296, ¶6.

¶18 If we were to hold Krieg had reasonable suspicion to stop Vanderlinden under the facts of this case, law enforcement officers would have reasonable suspicion to stop any vehicle to rule out the possibility of intoxicated driving based solely upon a complaint or observation of the driver’s consumption of alcohol. The Fourth Amendment requires more.

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