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Reasonable suspicion supported investigative stop for violation of boating law

State v. Chad T. Kippley, 2015AP1671-CR, 5/19/16, District 4 (unpublished opinion); case activity (including briefs)

A warden observed Kippley’s boat travelling at a slow speed in bow-up position. Based on his training and experience, the warden suspected that the boat was equipped with a motor in excess of its maximum horsepower rating, so he stopped Kippley and obtained evidence that led to Kippley’s conviction for operating a boat while intoxicated.

Kippley moved to suppress and presented the testimony of a person who both observed the stop and had 40 years of experience repairing boats. The observer explained that whether a boat travels bow-up can depend on factors other than the horsepower of the motor, so the warden couldn’t gauge the capacity of the motor on Kippley’s boat just by looking at it.  The circuit court nevertheless found reasonable suspicion of an overpowering motor violation, and the court of appeals affirmed.

¶13 Here, the circuit court credited the warden’s testimony that he observed a small vessel with a large motor travelling very slowly in a bow-up position, that the motor had no visible horsepower markings, and that based on his training and experience those observations indicated that the vessel may be equipped with a motor in excess of the vessel’s maximum horsepower rating. Based on these facts, I agree with the circuit court that the warden had reasonable suspicion of an overpowering motor violation and, therefore, reasonable suspicion to conduct the investigative stop.

¶14 Kippley contends that there is no reasonable relationship between a motor’s size or weight and its horsepower. Kippley appears to suggest that it was, therefore, unreasonable for the warden to observe the vessel’s large motor and infer that it may be overpowered for the vessel. However, Kippley’s own witness—the person with engine repair experience—testified that higher horsepower motors are typically heavier than lower horsepower motors. Thus, Kippley’s argument is not persuasive.

¶15 Kippley also contends that a boat traveling bow-up in the water does not necessarily indicate that its motor is overpowered, and that “the setting of trim on the boat will impact” the position of the boat’s bow. However, Kippley does not dispute that a boat’s bow-up position could indicate that its motor is overpowered. The warden is not required to eliminate all possible innocent reasons for the bow’s position before conducting an investigative stop. See generally State v. Griffin, 183 Wis. 2d 327, 333, 515 N.W.2d 535 (Ct. App. 1994) . . .

¶16 Finally, Kippley contends that the warden lacked training or experience that would render him “capable of judging the standards of the statute” because the warden did not list any “trainings related to boat equipment.” However, the record supports the circuit court’s reliance on the warden’s undisputed experience and familiarity with boating equipment and laws. As noted above, the warden had been a conservation warden for approximately four years and was familiar with boating laws. The warden further testified that on a busy boating day it’s “not uncommon for [him] to have upwards of 50 contacts” with individuals, with nine out of ten of those contacts typically for fishing and boating equipment violations .

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