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Defense win: slight lane deviation combined with leaving bar in early morning not reasonable suspicion

State v. John William Lane, 2021AP327, 8/19/21, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer saw Lane departing a bar around 2:10 in the morning. He followed him in his squad car and eventually pulled him over, and eventually arrested him for OWI. The tailing and the stop were recorded on the squad car’s camera. The circuit court concluded the officer’s observations didn’t create reasonable suspicion for the stop, and the court of appeals now affirms.The officer testified, and the video showed, that Lane’s motorcycle traveled for about three-quarters of a mile before the bike, “initially in the right-hand lane, went over to the left-hand lane, no signal, then back over to the right-hand lane.” (¶6). This was the only deviation, and there were no other vehicles nearby:

The circuit court reviewed the officer’s squad-camera video, which does not evince any swerving or weaving. Rather, it appears that Lane was driving close to the centerline, and the lane deviation resulted from him overcorrecting as he navigated a curve on the roadway. The court commented that Lane crossed the center line only “momentarily,” that the maneuver “was not done in an unsafe manner,” that this maneuver was not “perfect” but “drivers are not expected or required to be perfect,” and that overall, Lane’s overall driving appeared to be normal and safe.

(¶7). The safe nature of this lane deviation means that, as the circuit court found and the state does not contest, Lane’s driving did not amount to reasonable suspicion that he’d violated Wis. Stat. § 346.34(1)(a)3., which forbids changing course unless it can be done “with reasonable safety.”

Instead, the state argues that the combination of the lane deviation, the time of night, and Lane’s recent departure from the bar adds up to reasonable suspicion that he was intoxicated. The state relies on State v. Waldner, 206 Wis. 2d 51, 57, 556 N.W.2d 681 (1996), which held that observations of conduct that is not itself unlawful can generate reasonable suspicion, and State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634, which upheld a stop of a motorist who was “weaving approximately ten feet from right to left in a discernible S-pattern and at least partially in the unmarked parking lane over the course of two blocks.” The court rejects the state’s arguments:

Notably, in both cases, the officer observed a pattern of unusual behavior on the road. Here, by contrast, the isolated lane deviation was momentary and slight. As the circuit court determined, Lane’s driving, though not “perfect,” was insufficient to provide particularized suspicion that Lane was impaired. As Waldner and Post exemplify, something more was needed to constitute a reasonable suspicion that Lane was intoxicated at the time of the stop. See Waldner, 206 Wis. 2d at 58; Post, 301 Wis. 2d 1, ¶37. Even coupled with the possibility that Lane was coming from a bar and might have consumed alcohol, the slight lane deviation observed by the officer is not an objectively reasonable basis for stopping Lane.

To be clear, I take no issue with the State’s assertion that “the principal function of [an] investigative stop is to quickly resolve ambiguity [regarding an individual’s suspicious conduct or activity] and to establish whether the suspect’s activity is legal or illegal.” See State v. Jackson, 147 Wis. 2d 824, 835, 434 N.W.2d 386 (1989); see also Waldner, 206 Wis. 2d at 60 (“Suspicious conduct by its very nature is ambiguous, and the principal function of the investigative stop is to quickly resolve that ambiguity.”). However, as indicated above, the circumstances of this case simply do not support the State’s assertion that the facts observed by the officer were suspicious, warranting a “temporar[y] freeze [of] the situation.” Jackson, 147 Wis. 2d at 835.



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