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Time, place, quick turn, hanging out in parking lot = reasonable suspicion of OWI

State v. Gregory J. McMillan, 2016AP127-CR, 12/16/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

12:30 a.m., Saturday, Dodge Charger, driving away from tavern-rich area of McFarland. No bad driving, but a “relatively sudden” right turn with a squad two car lengths behind. The turn is onto a dead-end street with only “large industrial-type buildings.” Officer drives around a back way and sees McMillan standing at the back of his car talking on his phone. From where he’s standing, McMillan could have snuck into the shadows had he seen the squad following him, instead of coming around a back way. Officer stops McMillan. Reasonable suspicion?Reasonable suspicion.

Given the time, location, and direction of travel, it was reasonable for the officer to wonder whether McMillan had been drinking at a local tavern. It was also reasonable, as the circuit court observed, to suppose that McMillan noticed the marked squad car following him. When McMillan made a relatively sudden turn onto a short dead-end street, that was unquestionably suspicious behavior indicating an ill-considered evasive maneuver. If, instead, McMillan had simply made a wrong turn onto the short dead-end street with nothing but closed businesses, you would expect that he would have turned around and immediately returned to Terminal Drive. He did not.

When the officer spotted McMillan standing at the back of his car, in the closed business’s lot—out of his car with his car between him and the public cul-de-sac—it was reasonable to wonder whether McMillan was preparing to distance himself from his car if he saw the headlights of what might be a police car approach. The overhead photo of the area and the dash-cam video show that it would have appeared to McMillan that he could disappear from easy view quickly. The circuit court did not rely on the idea that it was suspicious that McMillan positioned himself to the back of his car away from the public cul-de-sac. That does not prevent me from making the observation based on the testimony and physical evidence. Moreover, it is not necessary to my conclusion that reasonable suspicion exists. Rather, it adds to what is already reasonable suspicion.

In sum, the circumstances are more than merely curious. They would have indicated to any reasonable police officer that McMillan might be intoxicated.


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