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Reasonable Suspicion – Traffic Stop, OWI

Village of DeForest v. Lynn J. Braun, 2011AP2116, District 4, 3/15/12

court of appeals decision (1-judge, not for publication); for Braun: Robert Nagel; case activity

Stop for driving under the influence unsupported by reasonable suspicion:

¶11      I likewise conclude that there were insufficient facts before Officer Schaefer which could lead him to reasonably suspect that Braun was driving a motor vehicle under the influence of an intoxicant.  The question here is whether, considering the totality of the circumstances, Officer Schaefer could reasonably suspect that Braun was driving impaired.   The only facts before Officer Schaefer indicating that Braun was driving impaired was the statement by the dispatcher that Braun was “intoxicated” and the statement by Sarah that Braun had been drinking.

¶12      The record does not indicate from whom the dispatcher received the information that Braun was intoxicated.  The supreme court has held that anonymous tips, not suitably corroborated, do not exhibit “‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’”  Florida v. J.L., 529 U.S. 266, 270 (2000) (citation omitted).  As to Sarah’s statement that Braun had been drinking, drinking and driving in and of itself is not a crime; there must be something more, for example, an indication of impairment or a prohibited alcohol concentration.  Officer Schaefer did not observe Braun commit any traffic violations or criminal activity.  What he did observe was Braun driving by the residence without stopping.  While doing so may be unusual, I conclude that a reasonable inference of criminal activity, in particular, driving while intoxicated, cannot be drawn from that perfectly legal behavior.  In short, the articulable facts, and the reasonable inferences which could be drawn from those facts, were insufficient to provide Officer Schaefer with reasonable suspicion to stop Braun’s vehicle for driving while impaired.  Accordingly, I conclude that suppression of evidence obtained from the stop of Braun’s vehicle was proper.

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