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Traffic stop unreasonable; officer had no reason to conclude driver violated parking statute

State v. Justin Carl Herman Hembel, 2015AP1220-CR, 5/10/16, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police lacked probable cause to believe Hembel violated § 346.54, governing “How to park and stop on streets,” so the stop of Hembel was unlawful.

An officer saw Hembel driving at 2:30 a.m. in a “rural” area. Hembel stopped at an intersection with four-way stop signs, put his car into park for about 45 seconds (to check Google maps, as he later told the officer), and then shifted back to drive and pulled away from the stop sign. The officer pulled him over—not for obstructing traffic (there were no other vehicles around), but because Hembel violated § 346.54. (¶¶3-7). The circuit court didn’t buy it, and neither does the court of appeals.

Section 346.54(1)(a) has three requirements for parking on streets where traffic is permitted to move in both directions simultaneously and where angle parking is not clearly designated: (1) a vehicle must be parked parallel to the edge of the street; (2) it must be headed in the direction of traffic; and (3) it must be on the right side of the street. Far from providing probable cause to believe Hembel violated one of these requirements, the officer’s testimony shows Hembel complied with them:

¶12     …. First, [Officer] Kastens testified Hembel’s vehicle was positioned parallel to the center line. The only reasonable inference from that testimony is that the vehicle was also parallel to the edge of the road. Second, reading Kastens’ testimony as a whole, it is clear Hembel’s vehicle was heading in the direction of traffic. Third, Kastens specifically testified Hembel’s vehicle was positioned on the right side of the road. Thus, the evidence demonstrates Hembel complied with § 346.54(1)(a).

The parties and the circuit court addressed only whether there was probable cause to believe Hembel violated § 346.54(1)(a), which applies where there’s two-way traffic and no designated angle parking; different rules apply for one-way streets and streets with angle parking. § 346.54(1)(b) and (c). There was no evidence as to whether the street where Hembel was driving satisfied those conditions, but because no one argued § 346.54(1)(a) doesn’t apply to that street, the court assumes that it does. (¶11 n.5).

Also, the parties didn’t address § 346.54(1)(d), which establishes additional requirements for parallel parking, in either the circuit court or court of appeals. Nonetheless, the court of appeals considers whether there was probable cause to believe Hembel violated the relevant requirement of that statute, which is that a vehicle is parked on the right side of the road must be parked facing in the direction of traffic with its right wheels within twelve inches of the curb or edge of the street. The answer is “no”: Kastens didn’t testify about the distance between the right wheels of Hembel’s vehicle and the edge of the street. Though he said the vehicle was “centered in the lane of traffic,” there was no evidence about the width of the street that might have permitted an inference that the wheels were not within twelve inches of the road’s edge. “Consequently, any inference that Hembel’s vehicle was not parked within twelve inches of the road’s edge would be based upon sheer speculation. As a result, the State failed to meet its burden to prove Kastens had probable cause to believe Hembel violated § 346.54(1)(d).” (¶14 & n.6).

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