State v. Joseph M. Heroff

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.
December 23, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2025AP684-CR Cir. Ct. No. 2012CT1185

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSEPH M. HEROFF,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Winnebago
County: SCOTT C. WOLDT, Judge. Affirmed.

¶1 GUNDRUM, J.1 Joseph M. Heroff appeals from a judgment
entered on his no contest plea convicting him of operating a motor vehicle while

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2025AP684-CR

intoxicated (OWI), fourth offense. He asserts the circuit court erred in denying his
motion to suppress evidence derived from the traffic stop, which led to the OWI
charge. For the following reasons, we affirm.

BACKGROUND

¶2 At around 1:35 a.m., a city of Oshkosh police officer performed a
traffic stop on Heroff. Heroff filed a motion to suppress the evidence derived
from that stop, asserting the officer lacked reasonable suspicion to lawfully stop
him. The relevant evidence from the evidentiary hearing on that motion is as
follows.

¶3 The officer testified that when he observed Heroff’s vehicle, the tint
on its windows was “darker than [on] other vehicles [he] saw on the road.” Even
though he agreed he was able to “see [through the rear window] something
dangling from the ceiling” of Heroff’s vehicle, the officer stated that it was
“almost impossible to see in/through” the windows, and because of this, the officer
believed the tint exceeded the level permitted by law, prompting the officer to
conduct the traffic stop. Through the officer, the State also entered into evidence
three photos of the vehicle that were taken in the daytime, hours after the traffic
stop.

¶4 The circuit court denied the suppression motion, stating that

based upon the totality of the circumstances the question
becomes, would a reasonable officer in this officer’s
position think that there’s criminal activity afoot? And the
essence of good police work is seeing all of this, making a
decision, and further investigating it.

The officer doesn’t have to know that it’s over 35% or
50%. It’s just, is there a reasonable suspicion that it might
be?

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No. 2025AP684-CR

¶5 Heroff appeals.

DISCUSSION

¶6 Heroff asserts the circuit court erred in denying his suppression
motion because the officer “could not establish reasonable suspicion” to perform
the traffic stop as he “had insufficient experience regarding what amount of tint
was too dark to meet the statute’s requirements.” We conclude the court did not
err.

¶7 “[R]easonable suspicion that a traffic law has been or is being
violated is sufficient to justify all traffic stops.” State v. Houghton, 2015 WI 79,
¶30, 364 Wis. 2d 234, 868 N.W.2d 143. “Reasonable suspicion is ‘a low bar.’”
State v. Nimmer, 2022 WI 47, ¶25, 402 Wis. 2d 416, 975 N.W.2d 598 (citation
omitted). It is an objective inquiry, decided by what a reasonable officer would
reasonably believe under the circumstances. See State v. Nesbit, 2017 WI App 58,
¶6, 378 Wis. 2d 65, 902 N.W.2d 266. Taking “everything observed by and known
to the [officer],” we “determine whether the officer[] had ‘a particularized and
objective basis’ to reasonably suspect” the defendant of unlawful activity.
Nimmer, 402 Wis. 2d 416, ¶26 (citations omitted).

¶8 The officer must possess “specific and articulable facts which, taken
together with rational inferences from those facts,” warrant a reasonable belief that
the person being stopped “has committed, was committing, or is about to commit”
an offense. State v. Post, 2007 WI 60, ¶¶10, 13, 301 Wis. 2d 1, 733 N.W.2d 634.
While a mere hunch is insufficient, “police officers are not required to rule out the
possibility of innocent behavior before initiating a brief stop.” State v. Young,
2006 WI 98, ¶21, 294 Wis. 2d 1, 717 N.W.2d 729 (quoting State v. Anderson, 155
Wis. 2d 77, 84, 454 N.W.2d 763 (1990)). Our supreme court has explained:

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No. 2025AP684-CR

[S]uspicious conduct by its very nature is ambiguous, and
the [principal] function of the investigative stop is to
quickly resolve that ambiguity. Therefore, if any
reasonable inference of wrongful conduct can be
objectively discerned, notwithstanding the existence of
other innocent inferences that could be drawn, the officers
have the right to temporarily detain the individual for the
purpose of inquiry.

Young, 294 Wis. 2d 1, ¶21 (alterations in original) (quoting Anderson, 155
Wis. 2d at 84). Indeed, “[i]t has been termed ‘the essence of good police work’ to
briefly stop a suspicious individual ‘in order to ... maintain the status quo
momentarily while obtaining more information.’” State v. Williamson, 58
Wis. 2d 514, 518, 206 N.W.2d 613 (1973) (citing State v. Chambers, 55 Wis. 2d
289, 294, 198 N.W.2d 377 (1972)).

¶9 “The question of whether a traffic stop is reasonable is a question of
constitutional fact,” which “is a mixed question of law and fact to which we apply
a two-step standard of review.” Post, 301 Wis. 2d 1, ¶8. First, “[w]e review the
circuit court’s findings of historical fact under the clearly erroneous standard, and
[second,] we review independently the application of those facts to constitutional
principles.” Id.

¶10 We have previously summarized the relevant window-tinting law as
“[r]ear window tinting is permitted only if the window allows at least 35% of light
to pass through ….”2 State v. Conaway, 2010 WI App 7, ¶3, 323 Wis. 2d 250,
779 N.W.2d 182.

2
WISCONSIN ADMIN. CODE § TRANS 305.32(5)(b) provides:

(continued)

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No. 2025AP684-CR

¶11 Heroff puts all his eggs in the basket of relying on Conaway, arguing
that the record in the present case does not show that the officer had sufficient
expertise to determine whether a particular tinted window would meet the 35%
threshold. But, Conaway does not carry the day for Heroff because the facts
presented to the circuit court in that case were not as strong as those presented to
the court here.

¶12 Significantly, the evidence from the officer who performed the
traffic stop on the vehicle in Conaway was no stronger than that he performed the
stop because the vehicle “appeared to [have] dark window tint.” Id., ¶2. Such a
thin evidentiary basis would, of course, cry out for more factual support, as it
would be impossible for the circuit court to have any idea if a window
“appear[ing]” to have “dark” tint was anywhere near too “dark,” meaning that it
did not permit “at least 35% of light to pass through.” See id., ¶3.

¶13 By contrast, in the case now before us, the officer testified that
although he was able to discern that “something [was] dangling from the ceiling”
inside the vehicle, the windows were so darkly tinted that it was “almost
impossible to see in/through” the windows. The extreme darkness of the windows
is obvious in the photographs of the vehicle that were admitted into evidence at the
suppression hearing, which photographs are consistent with the officer’s testimony

Tinting of the rear window is permitted as follows: … 2. The
window is tinted by the application of tinting film to the inside of
the glazing provided that the combination of the glazing and
tinting film permits passage through the window of at least 35%
of the visible light striking the window.

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No. 2025AP684-CR

that the circuit court found credible.3 While the court was itself unlikely an expert
in gauging percentage of window tint, the fact that the rear window was “almost
impossible to see in/through,” as the officer testified and as confirmed by the
admitted photograph, provides reasonable suspicion to believe the window tinting
was in violation of the law. Even a layperson with no window-tint expertise could
reasonably suspect that if it is possible for window tinting to be too extreme to be
legal, this certainly must be it, as it is difficult to fathom tint much more extreme
than it was on Heroff’s vehicle.4

¶14 The Conaway court, in “[f]ocusing solely on the 35%-light-pass-
through requirement,” stated, “[I]t would be enough [for reasonable suspicion], for
example, if an officer testifies that he or she is familiar with how dark a minimally
complying window appears and that the suspect window appeared similarly dark
or darker, taking into account the circumstances of the viewing.” Id. ¶7 (emphasis
added). But, as highlighted, we stated that this is only one example of how an
officer might demonstrate to the circuit court that his/her suspicion that a window
violated the 35% threshold was reasonable. Here, the officer’s testimony was
more than just a statement that the window “appeared” to have “dark” tint. In this
case, the officer demonstrated that his suspicion was reasonable by testifying and
showing photographic evidence to confirm that it was “almost impossible to see
in/through” the rear window. To conclude otherwise based upon the facts before
the court, would be to significantly elevate form over substance. The officer’s

3
While the circuit court did not make an explicit credibility finding, it did so implicitly.
See State v. Quarzenski, 2007 WI App 212, ¶19, 305 Wis. 2d 525, 739 N.W.2d 844 (“If the court
does not make express [credibility] findings” we will generally “assume it made implicit findings
on a witness’s credibility when analyzing the evidence.”).
4
We have attached a photograph of the rear window to this decision.

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No. 2025AP684-CR

suspicion here was based on more than a “hunch”; it was based on specific,
articulable facts related to his almost complete inability to see through the rear
window. See Post, 301 Wis. 2d 1, ¶¶10, 13. Even without testimony from the
officer as to his experience and expertise in gauging the level of tint on a window,
the court correctly concluded that the officer’s suspicion that the tinting in this
case exceeded the legal limit was reasonable.

By the Court.—Judgment affirmed.

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

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