State v. Kevin J. Burch, 2011AP666-CR, District 4, 7/21/11
court of appeals decision (1-judge, not for publication); for Burch: Christopher W. Dyer; case activity
Reasonable suspicion of impaired driving supported the stop:
¶4 The officer was operating a squad car in West Salem late one weekday night when, at 12:44 a.m., the officer observed a truck that drew his attention. The truck drew his attention because it was traveling “at an extremely low rate of speed, slowing to an almost near stop” at an intersection at which there were no signs to stop or yield. The truck then accelerated and reached a second intersection one block away, which also had no stop or yield signs, despite which the truck came “to a complete stop.” So far as the officer could observe, there was no other traffic or other reason for the driver of the truck to have slowed to a near stop at the first intersection or to have come to a complete stop at the second intersection.
¶5 The officer testified that he became suspicious that the driver was impaired based on the following combined factors: the time of night (namely, “the early morning hours[,] right around bar time”), the extreme slowing at the first unmarked intersection, and the complete stop at the second unmarked intersection. On that basis, the officer decided to make a traffic stop to investigate further. When the officer stopped the truck, Burch was the driver.
¶18 … [A] Terry stop allows police to obtain more information, through temporary “seizure,” regarding potential alternative innocent explanations for suspicious behavior; the potential for discovery of innocent explanations does not foreclose the stop. It is often going to be the case that aberrant driving behavior could have resulted from one or more causes that do not represent a violation of any statute or ordinance. However, where a reasonable suspicion arises from a pattern of aberrant driving, such as that exhibited by Burch under these circumstances, police are permitted to infringe on the right of the driver to be free of stops and temporary detentions so that police can attempt to resolve the ambiguity by detaining the driver for that limited purpose in a limited manner.
¶19 As Fields suggests, if Burch had merely slowed to a near stop inexplicably one time, or had merely stopped inexplicably one time, such conduct, even at 12:44 a.m., might not have been sufficient. However, when considered together, in light of the officer’s training and experience and the late hour, Burch’s two separate unexplained interruptions of normal driving conduct created the circumstances for reasonable suspicion of impaired driving.