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Traffic stop — reasonable suspicion to believe break-in was occurring

State v. John C. Baker, 2012AP2163-CR, District 2/4, 5/30/13; court of appeals decision (not recommended for publication); case activity

The totality of the circumstances shows a police officer could reasonably suspect that a break-in had occurred or was about to occur at the time the officer temporarily detained Baker for the purpose of investigating that reasonable suspicion. The court concludes that even though “pulling one’s vehicle into a closed business during the middle of the night, in itself, may not ordinarily provide the basis for reasonable suspicion of criminal activity, here there were a number of additional incriminating circumstances.” (¶16). In particular:

¶17      The officer saw a running vehicle with its headlights on that was parked oddly, not in any marked stall, near the entrance of a closed gas station store.  The time was approximately 2:00 a.m. in an area that had three recent night-time break-ins.  Although the gas pumps were operable, the vehicle plainly was not parked in a way suggesting the vehicle was getting gas.  Indeed, the circuit court specifically found that the particular positioning of the vehicle made this highly unlikely, reasoning that it might be “a different story” if the van was parked “under the lights by a pump.”  In addition, no person initially appeared to be visible in or around the vehicle, even after the officer shined bright lights on the vehicle, sufficient to flood the inside of the vehicle with light.  In the officer’s experience, shining such bright lights in a vehicle would normally get the attention of any occupants.  However, it was not until about thirty to forty-five seconds after the officer pulled in behind the vehicle that the driver “suddenly” sat up.  The officer “moved [his] spotlight around trying to get the attention of the driver,” and instead of responding to the officer’s attempt to get his attention, the driver proceeded to drive away.

Baker’s argument that the officer did not see him engage in any meaningful activity ignores the legal test, which requires consideration of the totality of the circumstances. “By focusing exclusively on what the officer saw him do, Baker fails to address the full picture, which we have summarized above.” (¶19). Similarly, “theoretical incriminating facts that the officer did not possess at the time of the stop, such as shattered windows or confederate burglars at the station,” are not required to show reasonable suspicion. (¶20).

The court “remind[s]” Baker’s appellate counsel about Rule 809.19(1)(d)’s requirement that the statement of the case include “a statement of facts relevant to the issues presented for review, with appropriate references to the record.” The court finds the statement of the case in Baker’s principal brief  “inadequate, lacking any of the facts that are material to the issue presented for review.” (¶3 n.2).

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