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Officer had reasonable suspicion for traffic stop; possible “mistake of law” was reasonable

Village of Bayside v. Ryan Robert Olszewski, 2015AP1033-34; 1/12/15; District 1 (not recommended for publication); case activity, including briefs

After Heien v. North Carolina and State v. Houghton, everyone predicted lots of litigation about law enforcement’s “reasonable mistakes of law” during traffic stops. This case marks the beginning of it.

Olszewski allegedly stopped his van just past the “stop line” and cross walk for a red light at an intersection controlled by traffic signals. When the light turned green, he proceeded appropriately. That’s when an officer stopped his van, smelled alcohol, conducted field sobriety tests and arrested him for his first OWI. He moved to suppress evidence of his intoxication.

At the suppression hearing, it was the officer’s word versus a video recorded by the DOT.  The video showed the intersection was partially covered in snow. Olszewski thus argued that he did not violate Wis. Stat. § 346.37(1)(c). According to the court of appeals, Olszewski relied for this point on §346.46(2)(c), which provides that where there is no clearly marked “stop line” at an intersection controlled by a stop sign, the driver must stop at a point that will enable him “to efficiently observe the traffic on the intersecting roadway.” The court of appeals rejected this argument because §346.46 does not apply to vehicles controlled by traffic lights. Slip op. ¶15.  In fact, Olzewski seemed to be relying on § 346.37(1)(c), which says that if there is no cross walk, then the driver shall stop before entering the intersection.

The court of appeals also held:

The question is not whether Olszewski actually violated a traffic law; it is whether [Officer] Picciolo reasonably suspected that Olszewski violated a traffic law. Reasonable suspicion exists even where no traffic violation occurred as long as the officer can point to facts that led him to reasonably believe that a traffic violation had occurred. Conaway, 2010 WI App 7, ¶5; State v. Griffen, 183 Wis. 2d 327, 333, 515 N.W.2d 535 (Ct. App. 1994) (“Police officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.”). Accordingly, we conclude that Picciolo did not make a mistake of law when he reasonably suspected Olszewski of violating WIS. STAT. § 346.37(1)(c). Slip op.  ¶14.

Even if the officer ultimately was mistaken on the law, the stop is lawful if the mistake was objectively reasonable. [Helen] at 534; Houghton, 2015 WI 79, ¶¶70- 71 (holding that a traffic stop was not invalid based on the officer’s mistake about what the law required because it was reasonable given the ambiguity of two competing provisions in the statute and there had yet to be an interpretation resolving that ambiguity). Similar to Houghton, here the application of WIS. STAT. § 346.37 when it is snowing has not been addressed by Wisconsin appellate courts. Furthermore, although the circuit court concluded that it probably would not have found that Olszewski violated WIS. STAT. § 346.37(1)(c) if that had been the issue before the court, it still found that there was reasonable suspicion. Picciolo made a decision in the field regarding whether Olszewski violated WIS. STAT. § 346.37(1)(c). To the extent that he was mistaken, we conclude that this mistake would have been reasonable. Slip op.  ¶16.

The Heien majority did not elaborate on the test for “reasonableness.” Justice Kagan’s concurring opinion proposed that an officer’s mistake is “unreasonable” when “the law at issue is ‘so doubtful in construction’ that a reasonable judge could agree with the officer’s view.” (Concur. at 2 (emphasis added; quoted source omitted)). SCOW appears to have adopted Kagan’s rule in Houghton. See ¶¶70-71. Combine that rule with the fact the trial judge here would not have found a violation of § 346.37(1)(c) and it seems Olszewski should have won either his suppression motion or his appeal.


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