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Traffic stop lawful despite absence of traffic violations or erratic driving

Justin P. Brandl, 2014AP1036-CR, District 2, 10/8/14 (1-judge; ineligible for publication); case activity

Even though police did not see any traffic violations or erratic driving, the totality of the circumstances gave rise to reasonable suspicion and made the stop of Brandl’s motorcycle lawful.

¶5        Brandl contends that because the officer did not observe any traffic violations or erratic driving, no specific facts gave rise to reasonable suspicion. However, driving does not need to be erratic, unsafe, or illegal to be part of the totality of the circumstances giving rise to reasonable suspicion justifying an investigatory stop. [State v.Post, [2007 WI 60,] 301 Wis. 2d 1, ¶26[, 733 N.W.2d 634]. Weaving within a single lane of traffic does not necessarily give rise to the reasonable suspicion necessary to conduct an investigatory stop, id., ¶18, but such driving is a fact to be considered in the totality of the circumstances. In Post, for instance, reasonable suspicion was established where the driver was weaving across the travel and parking lanes in an S-pattern. Id., ¶¶36-37. Similarly, reasonable suspicion was shown in State v. Popke, 2009 WI 37, ¶26, 317 Wis. 2d 118, 765 N.W.2d 569 (2009), when, over the distance of a single block, at approximately 1:30 a.m., the arresting officer observed a vehicle swerve to the extent that three-quarters of the car was in the left lane. Id., ¶¶3-4.

¶10[sic]  Like in Post and Popke, here the totality of the circumstances supported reasonable suspicion for the investigatory stop. An officer observed Brandl driving away from a concert after 11 p.m. Brandl swerved over the fog line twice within one-tenth of a mile. Brandl nearly struck a parked car as well as the motorcycle driving beside him. Thus Brandl’s driving was very similar to that in Popke and even worse than the driving observed Post…. There were sufficient specific and articulable facts giving rise to reasonable suspicion that Brandl was driving while intoxicated.

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