Fond du Lac County v. Isaac Anthony Dahlke, 2017AP1417, District 2, 5/9/18 (one-judge decision; ineligible for publication); case activity (including briefs)
The stop of Dahlke’s car was unlawful because the officer didn’t have an objectively reasonable belief that Dahlke entered a wayside in violation of an ordinance prescribing hours when the wayside is closed.
Dahlke was stopped after he turned around at a wayside on Highway 45 at around 12:30 a.m. The wayside shares entrances and a parking lot with a county park that is closed between 10 p.m. and 6 a.m. Signs provide notice of the park’s hours, though the signs are unlit and inconspicuous to anyone entering the shared lot. After seeing Dahlke enter and turn around in the parking lot, an officer stopped him. He said the park is known for illicit after-hours activity, like drinking and drug use. The officer also believed the wayside was part of the park, and thus closed at the time Dahlke entered. (¶¶4-8).
The County argued that Dahlke’s actions provided reasonable suspicion to believe he was violating the ordinance by being at the wayside when it was closed. But the circuit court didn’t think the officer’s belief was reasonable because it was far from clear the wayside is part of the park and therefore covered by the ordinance governing park hours. (¶9). The court of appeals agrees:
¶16 Whether the wayside parking area was subject to the general park closing hours would seem to be a question with a definitive legal answer. But the ordinances and arguments presented by the County—which again, bears the burden to prove its contention—fail to settle the issue. The ordinances proffered by the County—specifically Fond du Lac County, Wis., Code of Ordinances §§ 42-31, 35 (2017)—simply state that the rules concerning the hours of use apply to “Highway 45 Wayside Park.” None of the ordinances describe the boundaries of Highway 45 Wayside Park or indicate whether the wayside parking lot is covered by the limitation of the park hours. In short, the County has failed to make its case that Dahlke’s presence in the wayside actually violated the County ordinance.
¶17 Even if the wayside parking area is not clearly subject to the County ordinance governing park hours, we must determine whether [Officer] Olson’s subjective belief in this regard was objectively reasonable nonetheless. In so doing, we take into account both our own lack of clarity, as well as the circuit court’s factual findings during the hearing. Olson testified that he believed the wayside was part of the park based on his knowledge that the County owns and maintains the “general location” of the wayside and that “[o]n the County website, it says a wayside is considered a park.” The circuit court, however, discredited this testimony and was “not  convinced that anybody has an idea that [the wayside] is a county park.”
¶18 Our review of the photographs showing the layout of the park and the signage yields no additional clarity. The signs along the highway merely indicate a “wayside”; they do not indicate whether this wayside is part of the park and subject to its closing hours. An ordinary driver accepting the highway sign’s invitation to pull in to the wayside for an evening nap on a long journey would appear to have no idea they are breaking the law if the County is correct. One would think that if the wayside parking area itself was closed at night, the sign on the highway inviting drivers in would say so. It does not.
¶19 Even the sign by the shelter—potentially visible in the parking lot if looking straight at it—does not communicate to the ordinary person that the wayside parking area is off limits at night. In fact, a plain reading of the sign appears to indicate that its regulations apply to an area other than the parking lot. The sign announcing “PARK CLOSED 10PM-6AM” also forbids “stopping” or “parking” among other things in the “park area.” These proscriptions applying to the “park area” cannot reasonably be read as referring to the wayside parking lot— which is expressly designed for stopping and parking. The natural reading of this language is that parking is forbidden in the park, but not the parking lot. This strongly indicates to the reader that the parking lot is separate from the park itself and therefore not subject to the same regulations—including the closing hours.
Thus, the County didn’t present sufficient evidence to conclude the officer’s belief that Dahlke violated the ordinance was objectively reasonable.
The County’s alternative justification for the stop is that the officer had reasonable suspicion Dahlke was involved in criminal activity. This argument fails, too. The officer saw no illegal or otherwise suspicious activity beyond what he thought was a violation of the park hours. Dahlke’s presence in an area known for illicit activity is not by itself sufficient, nor is the time of day. (¶22).
¶23 …[T]he County has no constitutional authority to stop someone simply for driving when and where bad things often happen. While this may cause a reasonable law enforcement officer to have an inkling something is up, it does not rise to the level of providing a reason to suspect that the individual has committed, was committing, or is about to commit a crime. While it might be a reasonable hunch, without more, it is still just a hunch.