Wisconsin Appeals Court Makes Cautious Driving a Crime
Driving with extreme care can be evidence of a crime, according to a ruling Thursday by the Wisconsin Court of Appeals. Motorist Kevin J. Burch was driving his pickup truck through West Salem at 12:44am when a police officer took notice. The officer watched as the truck slowed to a near stop at an intersection, even though there was no stop sign. At the next block, Burch again came to a full stop before proceeding. There was no other traffic nearby. The officer had taken a “drunk driving course” and found the driving suspicious — especially since he said it was “bar time.” The officer conducted a traffic stop.
The appellate court took up the question whether, up to this point, the officer’s actions were consistent with the Fourth Amendment requirement that police officers only stop someone they reasonably suspect has committed or is about to commit a crime. Burch argued the stop was unjustified because his driving was not unsafe, illegal or suspicious, and the bars close at 2am in the village, not 12:44. The appellate judge dismissed the timing argument.
“The phrase used by the [lower] court was clearly intended to capture the idea that a greater percentage of the drivers on the road are impaired during the post-midnight hours than at other times of day,” Judge Brian W. Blanchard wrote. “The preponderance of excess drinking occurs at night, and not all tavern patrons wait to hear the final bell before departing taverns.”
Burch then cited a Court of Appeals case from 2000, Wisconsin v. Fields, in which the appellate panel found that a five to ten second stop at an intersection that had no stop sign did not provide reasonable suspicion to pull over the driver. Judge Blanchard found the present case different because the second stop provided reasonable suspicion.
“If Burch had merely slowed to a near stop inexplicably one time, or had merely stopped inexplicably one time, such conduct, even at 12:44 am, might not have been sufficient,” Blanchard wrote. “However, when considered together, in light of the officer’s training and experience and the late hour, Burch’s two separate unexplained interruptions of normal driving conduct created the circumstances for reasonable suspicion of impaired driving.”
As a result, the court denied Burch’s motion to suppress evidence and affirmed his conviction for driving under the influence of alcohol. A copy of the unpublished decision is available in a 60k PDF file at the source link below.
Wisconsin v. Burch (Court of Appeals, State of Wisconsin, 7/21/2011)
[Courtesy: Thenewspaper.com]
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As stated above, I have no problem with this judge's decision. I agree that the reported behavior was certainly suspicious. I just don't think that the police should have the right to pull you over for driving while Californian anymore than driving while black (I believe that's the expression). A line needs to be drawn to prevent the police from hasseling the general populace, adn judges are the ones who have the duty to draw that line. The statement that you have nothing to fear if you're not doing anything illegal is just absolutely wrong.
The problem with the ruling is that it allows the police to define which non-criminal behaviors are suspicious. Driving late at night, in an unfamiliar area, looking for a street and stopping because you're not sure whether to proceed or turn. What's suspicious about that? I got pulled over once for having my brights on in the middle of the night on an empty interstate. I've also been pulled over for turning on my lights when I realized they were off. I'd been to a blues club in Royal Oak, had a single 20 oz beer in three hours. It's brightly lit up in downtown Royal Oak and it was not until I was approaching Woodward and turned them on while I was still in Royal Oak. When I crossed Woodward I noticed a Huntington Woods cop traveling in the other direction and said to myself, "He saw me turn my lights on, I bet he thinks I'm drunk". Mind you, I did nothing suspicious while I was in his own jurisdiction, but he indeed pulled me over. Gave me a full roadside sobriety test, that I passed with flying colors. He was annoyed that he couldn't give me a DUI, so for revenue purposes he wrote me up for displaying my license plate in the rear window (state law says that it has to be in a visible position). The thing is that I don't mind cops patrolling for drunks. That's actually one of the more worthwhile things that cops do. But they do it for the wrong reasons. It's all about revenue, like most traffic enforcement. If cops spent more time on actual safety and less time working as tax collectors they'd get a lot more cooperation from the public. Also, getting rid of "professional courtesy" for other cops would help too. Cops and municipalities love drunks. A DUI is a jackpot for the city, fines can run into the thousands, plus court fees. It costs almost nothing to prosecute since the prosecutor is already on salary or retainer (in the case of small cities). While the Wisconsin case has at least a plausible basis, yes, drunks stop when they shouldn't, there's at least one case that a court upheld a drug conviction because the suspects were obeying the traffic laws. They saw the cop, started obeying every traffic law very carefully, and the cop decided that obeying the law was suspicious. Do I have to really explain just how absurdly totalitarian that is? The problem with you guys who are saying "what's the problem? the guy was drunk, acted drunk, and the cop acted on reasonable suspicions" is that a lot of case law that determines our rights in criminal investigations is based on cases that involved genuine criminals. Gideon was a thief. Miranda was a rapist. The point is that giving the police enough latitude to say that perfectly legal behavior is "suspicious" chips away at our freedom.