State v. John William Lane

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.
August 19, 2021
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. 2021AP327-CR Cir. Ct. No. 2017CT266

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JOHN WILLIAM LANE,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Portage County:
PATRICIA BAKER, Judge. Affirmed.

¶1 GRAHAM, J.1 The State charged John W. Lane with operating a
motor vehicle while intoxicated and with a prohibited blood alcohol concentration,

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP327-CR

third offense, based on evidence obtained during a traffic stop. The State appeals
a circuit court order granting Lane’s motion to suppress this evidence.2 I affirm.

¶2 The facts pertinent to this appeal come from the officer’s testimony,
which the circuit court credited, and from video footage of the stop. I reference
the testimony and footage as needed in the discussion below.

¶3 The Fourth Amendment prohibits unreasonable searches and
seizures. U.S. CONST. amend. IV. ‘“The temporary detention of individuals
during a stop of an automobile by police, even if only for a brief period and for a
limited purpose, constitutes a “seizure” of “persons” within the meaning of the
Fourth Amendment.’” State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d 118, 765
N.W.2d 569 (quoted source omitted). Therefore, the “stop must not be
unreasonable under the circumstances.” Id.

¶4 A traffic stop is reasonable if supported by reasonable suspicion that
a violation has been or will be committed. Id. To establish reasonable suspicion,
an officer “‘must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant’ the
intrusion of the stop.” State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d

2
This case has a lengthy history. In an earlier appeal, the circuit court, the Honorable
Thomas T. Flugaur presiding, suppressed the results of Lane’s blood alcohol test on the grounds
that Lane withdrew his consent to chemical testing. Following our supreme court’s decision in
State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223, this court reversed and
remanded for additional proceedings, State v. John W. Lane, No. 2019AP153, unpublished slip
op. (WI App October 17, 2019). The order on appeal resulted from the proceedings following
remand.

The Honorable Thomas T. Flugaur presided over the motion to suppress proceedings that
are the subject of this appeal and the Honorable Patricia Baker entered the order granting the
motion to suppress.

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634 (quoted source omitted). Ultimately, what constitutes reasonable suspicion
necessary to justify an investigative stop of a vehicle is a “‘common sense test:
under all the facts and circumstances present, what would a reasonable police
officer reasonably suspect in light of his or her training and experience.’” State v.
Colstad, 2003 WI App 25, ¶8, 260 Wis. 2d 406, 659 N.W.2d 394 (quoted source
omitted).

¶5 Appellate review of an order granting or denying a suppression
motion presents an issue of constitutional fact. State v. Johnson, 2013 WI App
140, ¶6, 352 Wis. 2d 98, 841 N.W.2d 302. The appellate court will uphold the
circuit court’s findings of fact unless they are clearly erroneous, and then
independently review the application of constitutional principles to those facts. Id.

¶6 As an initial matter, the State does not argue that any factual finding
by the circuit court is clearly erroneous. Here, the circuit court’s findings of fact
are based on the account given by the arresting officer, who testified as follows.
The officer observed Lane leaving a bar in the early morning hours of August 21,
2017. The officer followed Lane for about three-quarters of a mile and then
immediately stopped Lane after observing Lane’s motorcycle, which was “initially
in the right-hand lane, went over to the left-hand lane, no signal, then back over to
the right-hand lane.” There is no evidence that any other vehicles were on the
road in close proximity to Lane. Lane deviated from the right lane only once, and
the officer acknowledged that he saw no other concerning behavior.

¶7 The circuit court reviewed the officer’s squad-camera video, which
does not evince any swerving or weaving. Rather, it appears that Lane was
driving close to the centerline, and the lane deviation resulted from him
overcorrecting as he navigated a curve on the roadway. The court commented that

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No. 2021AP327-CR

Lane crossed the center line only “momentarily,” that the maneuver “was not done
in an unsafe manner,” that this maneuver was not “perfect” but “drivers are not
expected or required to be perfect,” and that overall, Lane’s overall driving
appeared to be normal and safe.

¶8 Based on these undisputed facts, and for reasons I now explain, I
conclude the officer lacked reasonable suspicion to stop Lane’s vehicle.

¶9 It is apparent from the record and the officer’s testimony that he
believed he could stop Lane’s vehicle due to an apparent violation of WIS. STAT.
§ 346.34(1)(a)3., which provides that no person may “[t]urn a vehicle from a
direct course or move right or left upon a roadway unless and until such movement
can be made with reasonable safety.” The circuit court concluded that Lane did
not violate § 346.34(1)(a)3., and the State does not challenge the court’s
subsequent determination that the purported violation of § 346.34(1)(a)3. does not
provide reasonable suspicion for the stop.

¶10 Instead, the State argues that, regardless of whether Lane violated
WIS. STAT. § 346.34(1)(a)3., and regardless of the officer’s subjective reasons for
stopping his vehicle, there existed reasonable suspicion to objectively believe
Lane was driving while intoxicated. Specifically, the State asserts that the lane
deviation coupled with the officer’s knowledge that Lane just departed from a bar
gave rise to reasonable suspicion of intoxicated driving.

¶11 Wisconsin law recognizes that a law enforcement officer may make
an investigative stop based solely on observations of lawful conduct. State v.
Waldner, 206 Wis. 2d 51, 57, 556 N.W.2d 681 (1996) An officer is not required
to rule out the possibility of innocent behavior before initiating the stop. State v.
Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990). Nevertheless, the seizure

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No. 2021AP327-CR

must still be premised on reasonable inferences drawn from the lawful conduct
that establish criminal activity is afoot. Waldner, 206 Wis. 2d at 57. An
“‘inchoate and unparticularized suspicion or hunch’” is not enough. Post, 301
Wis. 2d 1, ¶10 (quoted source and emphasis omitted).

¶12 The State concedes that leaving a bar in the early morning hours, by
itself, does not constitute reasonable suspicion of impaired driving. Although an
officer might reasonably suspect that there was a distinct possibility that Lane had
consumed alcohol at the bar, not every person who goes to a bar consumes
alcohol, and not every person who has consumed alcohol is impaired. By itself,
the fact that the officer observed Lane departing from a bar at approximately 2:10
a.m. amounts to nothing more than an inchoate and unparticularized hunch that
Lane consumed alcohol to the point where his driving was impaired.

¶13 The State relies primarily on Waldner, 206 Wis. 2d 51, and Post,
301 Wis. 2d 1, to support its assertion that departing from a bar coupled with
Lane’s slight lane deviation amounts to reasonable suspicion. I disagree.

¶14 In Waldner, the driver traveled at a slow rate of speed, stopped at an
uncontrolled intersection, turned a corner and accelerated at a high rate of speed,
and then poured liquid and ice onto the ground after stopping his vehicle.
Waldner, 206 Wis. 2d at 60-61. The Waldner court held that, although the officer
did not observe any illegal act, the stop was “based on more than a ‘hunch.’” Id. at
57.

¶15 Likewise, in Post, an officer observed a vehicle weaving
approximately ten feet from right to left in a discernible S-pattern and at least
partially in the unmarked parking lane over the course of two blocks. See Post,
301 Wis. 2d 1, ¶¶3-5, 30, 37. Our supreme court rejected a proposed bright-line

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No. 2021AP327-CR

rule that “weaving within a single traffic lane,” alone, gives rise to the reasonable
suspicion necessary to conduct an investigative stop. Id., ¶¶18-21. Nevertheless,
the Post court concluded that, although the case presented a “close call,” id., ¶27,
there was more than a “slight deviation within one’s lane,” id., ¶29. Based on the
totality of circumstances, there was reasonable suspicion for an investigative stop.
Id., ¶36.

¶16 Notably, in both cases, the officer observed a pattern of unusual
behavior on the road. Here, by contrast, the isolated lane deviation was
momentary and slight. As the circuit court determined, Lane’s driving, though not
“perfect,” was insufficient to provide particularized suspicion that Lane was
impaired. As Waldner and Post exemplify, something more was needed to
constitute a reasonable suspicion that Lane was intoxicated at the time of the stop.
See Waldner 206 Wis. 2d at 58; Post, 301 Wis. 2d 1, ¶37. Even coupled with the
possibility that Lane was coming from a bar and might have consumed alcohol,
the slight lane deviation observed by the officer is not an objectively reasonable
basis for stopping Lane.

¶17 To be clear, I take no issue with the State’s assertion that “the
principal function of [an] investigative stop is to quickly resolve ambiguity
[regarding an individual’s suspicious conduct or activity] and to establish whether
the suspect’s activity is legal or illegal.” See State v. Jackson, 147 Wis. 2d 824,
835, 434 N.W.2d 386 (1989); see also Waldner, 206 Wis. 2d at 60 (“Suspicious
conduct by its very nature is ambiguous, and the principal function of the
investigative stop is to quickly resolve that ambiguity.”). However, as indicated
above, the circumstances of this case simply do not support the State’s assertion
that the facts observed by the officer were suspicious, warranting a “temporar[y]
freeze [of] the situation.” Jackson, 147 Wis. 2d at 835.

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No. 2021AP327-CR

¶18 For all the foregoing reasons, I conclude that the traffic stop was not
supported by reasonable suspicion and therefore violated the Fourth Amendment’s
prohibition against unreasonable seizures. Therefore, the circuit court correctly
suppressed the evidence obtained in the stop, and I affirm.

By the Court.—Order affirmed.

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

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