Wisconsin: Slow Driving Not Cause For Traffic Stop

The Newspaper
by The Newspaper

Driving slowly is not a crime justifying a traffic stop, the Wisconsin Court of Appeals ruled last Wednesday. In an unpublished decision, Judge Anderson reviewed the events leading up to the August 13, 2008 arrest of Tommy K. Miller. At around 1:19am that morning, Miller’s white Lexus SUV passed by Hartland Village Police Officer Matthew Harper who happened to be patrolling Cottonwood Avenue. Miller was traveling 5 MPH.

Harper watched the SUV for a few seconds as it pulled into a parking lot. As he was about to investigate on foot, Harper saw the white SUV leave the lot. At some point, Miller turned back and drove past Harper slowly and accelerating to the speed limit after he passed. Harper floored his accelerator in pursuit, pulling over the SUV even though he admitted that he saw no traffic violation or any suspicious driving. Miller failed a breath test and was convicted of driving under the influence of alcohol (DUI). Judge Anderson only considered whether the initial traffic stop itself was justified.

The prosecution argued that the stop was justified because Officer Harper was acting as a “community caretaker” and ensuring that nothing was wrong with Miller that would have caused the slow driving at such a late hour. A circuit court agreed with this interpretation, but Anderson suggested the 2009 state Supreme Court case Wisconsin v. Kramer applied to the situation. In that ruling, the high court found that the community caretaker function must be “totally divorced” from his role of enforcing the law. In other words, a judge must evaluate whether the officer is acting on a hunch that a crime might be taking place, or whether he actually has an objectively reasonable reason for the stop.

“Harper did not testify that he was motivated by a belief that the driver was in need of any assistance, medical or mechanical,” Anderson ruled. “Additionally, Harper did not articulate an objectively reasonable basis for his actions as a community caretaker. Indeed, the record is void of any showing that Harper was concerned that Miller may have been in need of assistance. The record tells us little more than Harper ‘wanted to stop [Miller’s] vehicle right away before it merged onto [Highway] 16.’ Harper’s actions were not ‘totally divorced’ from his law enforcement function and, therefore, do not qualify as actions within his community caretaker function.”

The judgment against Miller was reversed. A copy of the opinion is available in a 30k PDF file at the source link below.

Wisconsin v. Miller (Court of Appeals, State of Wisconsin, 4/28/2010)

[Courtesy: Thenewspaper.com]

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  • Robert.Walter Robert.Walter on May 04, 2010

    If one can be stopped on the Interstate for driving too slowly, and causing a danger, why doesn't this also apply to too slow on surface streets? I can't quite understand why the officer was not justified as having probable cause.

    • PeriSoft PeriSoft on May 04, 2010

      I think you have to have a law against something specifically; just because something is a bad idea doesn't automatically mean it's illegal. Having suffered the local dimwits who putter around here at 38 in a 55, refusing to pull off to the side, I'm inclined to think that such a law might be a good idea. But if there isn't one already, you can't stop people for breaking it.

  • Pileit Pileit on May 05, 2010

    Looks like john.fritz and myself are the only ones who read the whole story. Before you trash this guy so mush why bon't you go and read the whole report. This guy was driving South and needed to go North on a road where it is not legal to make a u turn. At what speed would you make a turn into a driveway at? 5mph sounds reasonable to me.

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