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Traffic Stop: Reasonable Suspicion, Traffic Violation; OWI Refusal Hearing: Lawfulness of Arrest

State v. Dimitrius Anagnos, 2011 WI App 118 (recommended for publication); for Anagnos: Barry S. Cohen; case activity; reversed, 2012 WI 64

Traffic Stop – No Turn Signal

Failure to use a turn signal where neither traffic nor pedestrians are present doesn’t support a traffic stop:

¶9        Wisconsin Stat. § 346.34(1)(b) states that a driver must use a turn signal “[i]n the event that any other traffic may be affected.”  The circuit court found that Anagnos did not violate this statute when he made a left turn without using his signal, as there was no oncoming or following traffic or pedestrians present when he turned.  The State counters that the sheer presence of the deputy in the far right-hand turn lane at the time Anagnos turned left is enough evidence that traffic was affected.  We disagree.  Evidence in the record must support a finding that Anagnos’s failure to use a turn signal affected other traffic.  See City of Milwaukee v. Johnston, 21 Wis. 2d 411, 413, 124 N.W.2d 690 (1963). Given that the deputy was in the far right-hand turn lane, we cannot see how he was affected by Anagnos’s failure to use a turn signal in the left lane.  Furthermore, there is nothing in the record to indicate that there were any other vehicles on the highway that could have been affected by Anagnos’s left turn.  We affirm the circuit court’s decision that Anagnos did not violate § 346.34(1)(b), and therefore hold that the deputy did not have probable cause to stop Anagnos for a traffic violation.  See State v. Longcore, 226 Wis. 2d 1, 9, 594 N.W.2d 412 (Ct. App. 1999) (holding that there is no probable cause when an officer makes a stop based on a mistake of law), aff’d by an equally divided court, 233 Wis. 2d 278, 607 N.W.2d 620.

Traffic Stop – Reasonable Suspicion

Given certain trial court findings, reasonable suspicion supported stop neither for rapid acceleration nor crossing a median. The trial court found, contrary to the officer’s testimony (median was 4-5 inches high and not meant to be driven over), that the median was no more than 2 inches high, with no signs prohibiting its traverse; therefore, Anagnos violated no traffic law in crossing the median in order to make a turn, ¶11. The trial court also found, as a matter of historical fact, that Anagnos wasn’t speeding at the time, ¶12. In consequence, the stop was illegal and all evidence obtained as a result of the stop was suppressible, ¶13.

It’s not clear just what evidence was suppressed. The court says only that Anagnos refused to submit to chemical testing, ¶4; must be that the refusal is itself suppressible (or, perhaps, the officer’s undescribed post-stop observations of his intoxication).

OWI – Refusal Hearing – Lawfulness of Arrest

The circuit court has authority, at a refusal hearing, to determine the lawfulness of the driver’s arrest. Therefore, the trial court in this instance properly reached the merits of Anagnos’s challenge to his stop and, upon determining it was unlawful, dismissed the charge of refusal to submit to a chemical test.

¶15      The refusal hearing statute states that a circuit court may consider “whether the [defendant] was lawfully placed under arrest.”  Wis. Stat. § 343.305(9)(a)5.a.  It was therefore proper for the circuit court to inquire into whether the deputy had reasonable suspicion to stop Anagnos.  Without reasonable suspicion or probable cause to pull over Anagnos, the deputy had no authority to require Anagnos to submit to a chemical test.  See Longcore, 226 Wis. 2d at 6 (evidence obtained as the result of an illegal traffic stop is inadmissible).

State v. Nordness, 128 Wis. 2d 15, 381 N.W.2d 300 (1986), distinguished:

¶20      In Anagnos’s case, the deputy did not have probable cause that Anagnos committed a traffic violation, nor reasonable suspicion that Anagnos was drinking and driving.  The deputy’s stop of Anagnos was therefore unlawful.  Without a legal stop, Anagnos could not lawfully be placed under arrest for OWI.  In Nordness, the officer had both reasonable suspicion to conduct a traffic stop, and probable cause to arrest Nordness.  The arrest of Nordness was legal, regardless of whether he was actually driving the vehicle.  Nordness does not, therefore, prevent a circuit court from determining the lawfulness of a traffic stop at a refusal hearing.  We conclude that whether there was reasonable suspicion or probable cause to make the stop, quite apart from whether there was probable cause to arrest for OWI after the stop was made, is a proper subject at a refusal hearing.

Note that the court formally upholds “the order of the circuit court suppressing the evidence against Anagnos,” ¶21, but the issue more pragmatically appears to be whether the trial court properly dismissed the refusal. The State’s principal brief indicates (p. 8), that “the trial court ruled that reasonable suspicion to stop is an element of proof in the refusal case,” which suggests dismissal premised on a failure of elemental proof. (Anagnos’s brief similarly indicates (p. 6), that the court found the refusal to be “reasonable,” which of course defeats the charge.) On the other hand, the trial court went on (State’s brief, p. 11) to say, “this court, reluctantly, as a result, must suppress the evidence and, therefore, find also retroactively that because there was no reasonable, articulable suspicion for the stop, that all of the evidence obtained thereafter is fruit of the poison tree.” Unstated: Washburn County v. Smith, 2008 WI 23, ¶14 n.5, ¶15, 308 Wis. 2d 65, 746 N.W.2d 243 held that revocation premised on refusal requires an arrest with probable cause, which in turns means the State has the burden “to present evidence sufficient to establish the officer’s probable cause to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.” Nordness, like effect, 138 Wis. 2d at 35. Perhaps this means that the cause to believe Anagnos was under the influence was derived from the illegal stop, therefore not available to the State as substantive proof under standard taint analysis. Perhaps it means something a bit different (arrest with probable cause means a lawful arrest, as a matter of elemental definition).

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