City of Ripon v. Jonathan Lebese, No. 2009AP2996-FT, District II, 6/16/10
court of appeals decision (1-judge; not for publication); for Lebese: Wendy A. Patrickus; BiC; Resp.
¶13 The circuit court’s “preliminary ruling” was based on the well-established standards of reasonable suspicion. Lebese’s counsel had proffered that the additional defense witness would corroborate Lebese’s account that he swerved in an evasive maneuver to avoid colliding with the car to his right. However, as the circuit court explained, for purposes of a motion to suppress and the reasonable suspicion inquiry, the focus is not on the explanations underlying the conduct the officer observed. Rather, the focus is on whether the officer’s observations leading up to the Terry stop would give rise to reasonable suspicion. See Amos, 220 Wis. 2d at 798-99. Here, the officer testified, and the circuit court found, that he had observed the vehicle swerve onto the yellow centerline and weave within its lane such that it was touching the white dotted line separating lanes of traffic. The circuit court also recognized the early morning hour, 1:30 a.m., as something that the officer had to consider. In the end, Lebese’s testimony, and the proffered testimony of the witness, as to an innocent explanation for the swerving does not contradict the officer’s testimony that he observed the vehicle swerve nor does it alter any other fact found to support the officer’s reasonable suspicion. Place was not required to rule out the possibility of innocent behavior before initiating a Terry stop. See Anderson, 155 Wis. 2d at 84.
Lebese’s argument was largely procedural: prior to hearing from a witness who would have corroborated Lebese’s version of the incident, the trial court made a “preliminary ruling” as described above in the block quote; this, Lebese says in effect, preempted his due process right to fully present his case. But in this instance, substantive law melds with procedure and on the merits Lebese loses even with the missing witness. Granted that witness wouldn’t have really added anything, it still seems like a pretty minimal basis for a stop. Judge for yourself (¶¶3-5). Weaving a bit within the lane of travel, early in the morning — that’s about it.