State v. Thomas M. Gibson, 2016AP1933-CR, 2/22/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
An officer trained in visually estimating speed observed a car driven by Gibson going what he estimated to be 25 m.p.h. in a 15 m.p.h. speed zone. He trained a radar unit on the car, and that said the car was going 26 m.p.h. The officer stopped the car, and Gibson was ultimately arrested for OWI. It turns out the radar unit hadn’t been calibrated since the early years of the internet—1994. (¶¶3-5). No matter, says the court of appeals. The officer still had reasonable suspicion for the stop.
The circuit court didn’t credit the officer’s visual speed estimate because it isn’t easy to say a person is going 25 rather than 15; instead the court relied on the radar reading. (¶¶7, 11). Gibson argues the circuit court relieved the state of the burden of persuasion at the suppression hearing by requiring Gibson to show the radar unit was inaccurate. (¶13). The court of appeals disagrees:
¶14 The circuit court did not shift the burden. The court found that the State had proven that [Officer] Bautz had performed an internal test of the unit before the traffic stop and a “tuning fork” test after the stop. Gibson desired the circuit court, and desires for us on appeal, to assume the radar unit was not functioning properly for the sole reason it had not been “calibrated or tested in over 21 years.” Yet, Gibson provided no basis for the court to conclude the unit likely would not be functioning properly if a certain number of years passed since calibration or testing. Indeed, the court had no reason to believe anything had changed in the reliability of the unit since it was calibrated in 1994. The court did not switch the burden; it simply determined Bautz reasonably relied on the reading of the radar unit for the purpose of determining he reasonably suspected Gibson was traveling at a speed greater than fifteen miles per hour.
While Gibson also argues that Bautz “knew” the radar unit “had not been calibrated” in over two decades when he stopped Gibson, the record doesn’t show that, at the moment Bautz used the radar, he was aware it hadn’t been calibrated since 1994 or had any reason to doubt its accuracy. “Without a reason to doubt the radar unit at the time of the stop, Bautz’s reliance on the reading on the unit provided him with reasonable suspicion to temporarily detain Gibson for the purposes of inquiring further as to whether or not he had been speeding.” (¶15).