State v. John E. Ahern, 2011AP898, District 2, 10/26/11
court of appeals decision(1-judge, not for publication); for Ahern: Dennis M. Melowski, Sarvan Singh; case activity
The officer had reasonable suspicion to “stop” Ahern’s vehicle for a noncriminal traffic violation, namely that the vehicle was parked in a roadway without affording other traffic sufficient room to drive around it.
¶10 At the time of the stop, Vergos had reason to believe that Ahern was violating a noncriminal traffic law. Although not articulated by Vergos at the suppression hearing, his testimony that the vehicle “wasn’t pulled over as far as it can go” and that “a portion of his vehicle appeared to be in the middle of the roadway” supports the finding that Ahern committed a traffic violation. See Wis. Stat. § 346.54(1)(d) (providing that “[i]n parallel parking, a vehicle shall be parked facing in a direction of traffic with the right wheels within 12 inches of the curb or edge of the street when parked on the right side”). Vergos estimated that Ahern’s vehicle was approximately eighteen to thirty inches from the edge of the roadway and did not leave sufficient room for other traffic to drive around it. After viewing the video, the circuit court found that Ahern’s SUV was parked eighteen inches from the edge of the pavement. The law is well established that “an officer may make an investigative stop if the officer ‘reasonably suspects’ … that a person is violating the non-criminal traffic laws.” County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999) (citations omitted). Vergos’ observation, when coupled with the time of day and location of the vehicle, provided sufficient reasonable suspicion to conduct an investigative stop.
The court rejects Ahern’s argument that the prevalence of texting – which requires that the driver pull off the road – negates reasonable suspicion: “even if texting, a motorist is obligated to pull over and safely park his or her vehicle in compliance with traffic laws,” ¶11. Moreover, “the potential availability of an innocent explanation does not prohibit an investigative stop,” id.
Aside: Ahern’s vehicle was already “stopped” before the officer’s arrival on the scene, so it might be said that the officer “seized” rather than “stopped” him. Probably best, though, to adopt the expression apparently favored as conventional, which is to label as a “stop” all Terry-type seizures. Still, it might be wondered just when and, more importantly how, the “stop” occurred here. The court takes a stop as given (¶10, “At the time of the stop”), without explaining why. On approaching Ahern’s already-stopped car, the officer “turned his emergency lights on,” ¶2 – is that enough to establish a “stop”? Hard to say, not, at least, without knowing a bit more. E.g., State v. Williams, 185 S.W.3d 311, 317 (Tenn. 2006) (“the defendant’s encounter with the officer was not voluntary, but rather occurred under a show of authority — the activation of the blue emergency lights — from which a reasonable person would not have felt free to leave”); State v. Lynch, 2011-Ohio-5502 ¶28 (“When a police officer pulls behind or beside a parked vehicle and activates his or her flashing lights, it is clearly a seizure within the meaning of the Fourth Amendment.”). Ahern then got out of his car, approached the squad and the officer told him to get back in his car, ¶¶2-3: that sort of police-ordered restriction on Ahern’s movement should be enough to amount to a “stop,” even if merely turning on the squad’s emergency lights didn’t.