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Traffic Stop – Unsafe Backing

City of Tomah v. Matthew Pudlow, 2010AP1044, District 4, 9/15/10

court of appeals decision (1-judge, not for publication); for Pudlow: Rick Niemeier, Maggie Premo; BiC; Resp.; Reply

Traveling in reverse at 30 mph, near an intersection with a highway, provided reasonable suspicion to stop:

¶13      The totality of the circumstances provided Officer Furlano with reasonable suspicion to justify an investigative stop of the vehicle in order to investigate Pudlow’s driving behavior, specifically a violation of the unsafe backing law, WIS. STAT. § 346.87. Under § 346.87, “[t]he operator of a vehicle shall not back the same unless such movement can be made with reasonable safety.”

¶14      Officer Furlano observed Pudlow engaged in conduct that could constitute unsafe backing, which posed a danger to any person or motorist who might have appeared in his path. Motorists may use reverse gear to back up their vehicles in a safe manner on roadways for short distances, at low speeds, under many circumstances without violating the unsafe backing statute. In contrast, the officer’s uncontradicted testimony, which was not meaningfully impeached by the defendant, was that the defendant backed up at approximately thirty miles per hour in an area in which one could expect other people or vehicles to appear.Officer Furlano described the stretch of Highway 21 where the backing occurred as being busy, even at night. Several twenty-four-hour businesses, including hotels, fast-food restaurants, and a bus station create traffic at all hours. Moreover, Pudlow reversed near a convenience store where vehicles frequently enter and exit.

¶15      In addition, it only fueled Officer Furlano’s concern about the defendant’s unsafe driving, and its potential cause or causes, that the defendant followed this dangerous backing maneuver by quickly accelerating forward through two successive turns.

Pudlow argued that the stop violated the mistake-of-law doctrine of State v. Longcore, 226 Wis.2d 1, 9, 594 N.W.2d 412, 416 (Ct. App. 1999): “Under State v. Longcore, if an officer makes a stop pursuant to a mistaken belief that a set of facts violates a law or incorrectly interprets the law when no law has actually been broken, the stop is not lawful.” Pudlow then argued that, because the officer “mistakenly believed that anytime a driver backs up in an intersection that is usually busy, the driver has violated Wisconsin’s unsafe backing statute,” the stop was unlawful under this doctrine. Brief, pp. 14-15. The court rejects the argument: “As the circuit court correctly observed, Longcore does not apply here. If Pudlow has a complaint, it is that the officer made a mistake of fact, not law, in believing that he had either reasonable suspicion, or probable cause to believe an offense had been committed, justifying a stop,” ¶16. Police actions are measured by an objective test; so long as the stop was objectively reasonable, it doesn’t matter what the officer subjectively believed.

The distinction between a mistake of fact and of law in this context is worth keeping in mind, even if further elaboration isn’t warranted by this case. Relatively recent authority on the point, US v. Gross, 550 F. 3d 578, 585 n. 2 (6th Cir. 2008):

… we note that the vast majority of our sister circuits to decide this issue have concluded that an officer’s mistake of law, even if made in good faith, cannot provide grounds for reasonable suspicion or probable cause, because an officer’s mistake of law can never be objectively reasonable. United States v. McDonald, 453 F.3d 958, 961-62 (7th Cir.2006); United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir.2005); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir.2003); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir.2000); United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998); accord United States v. Coplin, 463 F.3d 96, 101 (1st Cir.2006) (“Stops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.”), cert. denied, 549 U.S. 1237, 127 S.Ct. 1320, 167 L.Ed.2d 130 (2007). …

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