City of New Berlin v. Eric John Dreher

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 25, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP850 Cir. Ct. No. 2019CV781

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

CITY OF NEW BERLIN,

PLAINTIFF-RESPONDENT,

V.

ERIC JOHN DREHER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
PAUL BUGENHAGEN, JR., Judge. Affirmed.

¶1 DAVIS, J.1 Eric John Dreher appeals a guilty finding, after a trial to
the court, on the charge of operating while intoxicated (OWI), first offense.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2020AP850

Dreher does not challenge any of the findings or conclusions concerning his
conviction; rather, he contends that the arresting officer lacked reasonable
suspicion for the traffic stop and that the trial court erred in denying a suppression
motion on that basis. We find that reasonable suspicion was amply demonstrated
on this record and accordingly affirm.

¶2 The facts are not complicated. At the suppression hearing, the
arresting officer, Thomas Johannik of the New Berlin Police Department, was the
only witness to testify. According to Johannik, in the early morning hours of
January 28, 2018, he saw a white sedan traveling on city streets at what appeared
to be “a high rate of speed.” Johannik saw the vehicle make a wide, and what he
believed to be illegal, right-hand turn by cutting across three lanes.

¶3 Johannik began following the sedan. He briefly looked down at his
speedometer and saw that he was traveling seventy miles per hour but still was
“not … really closing the gap” between the two vehicles. As Johannik continued
to follow the sedan, he saw it swerve into the adjacent lane and back again; he also
saw it make a left turn by “splitting” the left-hand turn lane with the adjacent lane.
Johannik testified, “The driving was so poor,” that he “believed most likely the
driver was impaired.” He further testified that “it was some of the worst driving
that [he] had observed in over 250 drunk driv[ing] arrests.” Johannik initiated a
stop and observed obvious signs of impairment in Dreher, the driver. Dreher
failed initial field sobriety tests and was arrested for OWI.

¶4 The trial court denied Dreher’s suppression motion. It accepted as
true Johannik’s unchallenged version of the facts: that Dreher improperly cut
across lanes while turning, deviated from his lane, and drove over the speed limit.
The court held that such driving created two bases for reasonable suspicion,

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No. 2020AP850

because Johannik reasonably believed both that Dreher was driving under the
influence and that Dreher committed several traffic violations.

¶5 Dreher challenges this finding on appeal, arguing that Johannik
lacked reasonable suspicion for the stop. An officer may conduct a traffic stop
where, under the totality of the circumstances, he or she has reasonable suspicion
that a crime or traffic violation has been, is being, or is about to be committed.
See State v. Young, 2006 WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729; State v.
Popke, 2009 WI 37, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569. “Reasonable
suspicion requires that a police officer possess specific and articulable facts that
warrant a reasonable belief that criminal activity is afoot.” Young, 294 Wis. 2d 1,
¶21. On review, we uphold the trial court’s findings of fact unless clearly
erroneous, but we review de novo whether these facts meet the “reasonable
suspicion” standard. Id., ¶17.

¶6 Dreher’s argument appears to be based on the notion that there was
insufficient evidence to cite him for violating several traffic laws; for example, he
argues that Johannik, who did not use radar or a lidar scanner, could not have
reliably estimated his speed. Even if this were true, the argument misses the mark
in light of the fact that Dreher’s challenge is to the denial of a suppression motion.
All that was required to initiate this stop was reasonable suspicion of a crime or
traffic violation—that is, Johannik had to have a particularized basis for suspecting
criminal activity beyond a “mere hunch.” See id., ¶21. The trial court found that
Dreher made a number of maneuvers that reasonably indicated that he was
impaired; the record supports this conclusion. We need not decide whether
Johannik, having actually seen the speeding, lane deviation, and improper turning,
had sufficient basis to cite Dreher for these traffic violations; we need not even
decide whether these violations, alone or taken together, created reasonable

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No. 2020AP850

suspicion that Dreher violated any traffic laws. It is sufficient that Johannik
articulated how the sedan was driving poorly and why, based on his training as an
officer, this poor driving led him to reasonably believe that the driver was
impaired. There is nothing in the record to indicate that the facts related by
Johannik were incorrect, and there is nothing to refute Johannik’s assertion that
such driving provided reasonable evidence of the driver’s impairment. We
therefore affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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No. 2020AP850