City of Oshkosh v. Brian D. Hamill ( 2020 )

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 2, 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. 2020AP867 Cir. Ct. No. 2018TR12055
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
CITY OF OSHKOSH,
PLAINTIFF-RESPONDENT,
V.
BRIAN D. HAMILL,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Winnebago
County: KAREN L. SEIFERT, Judge. Affirmed.
¶1 REILLY, P.J.1 Brian D. Hamill appeals from his judgment of
conviction for operating a vehicle while intoxicated (OWI), first offense, contrary
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. 2020AP867
to WIS. STAT. § 346.63(1)(a). Hamill challenges the circuit court’s denial of his
motion to suppress evidence, arguing that reasonable suspicion did not exist to
support the traffic stop of his vehicle. We disagree and affirm.
Background
¶2 On September 16, 2018, at 2:38 a.m., Officer Donald Franklin of the
City of Oshkosh Police Department was traveling southbound on South Main
Street in the City of Oshkosh when his attention was drawn to a jeep traveling
southbound directly ahead of his squad. Franklin observed the jeep, which was in
the inside southbound lane,2 drift to the right and it rode “the dotted line for the
outside [southbound] lane” for approximately twenty to thirty feet (three to four
seconds). The jeep then corrected itself and traveled within its lane for
approximately thirty to forty feet, after which time it drifted to the left and rode the
centerline marker of the roadway for approximately forty to fifty feet (four to five
seconds). The jeep again corrected itself but then drifted back to the dotted line
lane marker on the right side of the lane and rode the line for approximately thirty
to forty feet (three to four seconds). Franklin testified that the jeep never crossed
over either lane marker. After the third time the vehicle touched a lane marker,
Franklin performed a traffic stop; Hamill was the driver.
¶3 Hamill challenged the legality of his stop at a suppression hearing.
At the hearing, Franklin testified as to his observations of Hamill’s operation of
his vehicle as noted above. Franklin testified that he stopped Hamill’s vehicle on
suspicion of impaired driving based upon his observations of the right-left-right
2
Franklin explained that the roadway has four lanes—two on each side—divided for
north and southbound traffic.
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No. 2020AP867
drifts and the time of day. Hamill did not testify or offer any witnesses. The
circuit court denied Hamill’s motion to suppress.3 Hamill pled no contest, and this
appeal followed.4
Standard of Review
¶4 Whether a traffic stop is reasonable is a question of constitutional
fact. State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733 N.W.2d 634. “A question
of constitutional fact is a mixed question of law and fact to which we apply a two-
step standard of review.” Id. The circuit court’s findings of historical fact are
reviewed under the clearly erroneous standard, while we independently apply
those facts to constitutional principles. Id.Discussion
¶5 We examine the totality of the circumstances surrounding the stop to
determine if reasonable suspicion exists. State v. Walli, 2011 WI App 86, ¶8, 334
Wis. 2d 402, 799 N.W.2d 898. The fundamental focus of the reasonable suspicion
requirement in traffic stops is reasonableness. See State v. Anderson, 155 Wis. 2d
77, 83, 454 N.W.2d 763 (1990). “The determination of reasonableness is a
common sense test. The crucial question is whether the facts of the case would
warrant a reasonable police officer, in light of his or her training and experience,
3
Hamill filed a motion for reconsideration, which the circuit court also denied.
4
On appeal, Hamill argues that he did not waive his right to appeal by his no contest
plea. While noting that our state courts have found that WIS. STAT. § 971.31(10), containing an
explicit exception that preserves the right to appeal denied motions to suppress when a defendant
pleads guilty or no contest, applies only to criminal cases, County of Racine v. Smith, 122
Wis. 2d 431, 436-37, 362 N.W.2d 439 (Ct. App. 1984), Hamill asks this court in its discretion to
review his appeal. The City of Oshkosh concedes this issue; therefore, we will address the merits
of Hamill’s case.
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No. 2020AP867
to suspect that the individual has committed, was committing, or is about to
commit a crime.” Post, 301 Wis. 2d 1, ¶13. In order to demonstrate reasonable
suspicion, an officer must have a “particularized and objective basis” to believe
that the person stopped is involved in, or is about to partake in, violating the law.
Walli, 334 Wis. 2d 402, ¶9 (citation omitted). This belief must be grounded in
specific and articulable facts. Id. Driving need not be illegal to give rise to
reasonable suspicion justifying an investigatory traffic stop. Post, 301 Wis. 2d 1,
¶24.
¶6 Hamill argues that there was not enough evidence to support the
circuit court’s finding that the officer had reasonable suspicion to perform a valid
investigatory traffic stop of his vehicle. We disagree. The circuit court made the
following findings:
Franklin observed the driving that included weaving, not
just an “S” curve within the lane but weaving to the point
of touching the lane divider on each side, in addition, the
observed driving occurred at 2:38 a.m. right after bar close
compared to 9:30 [p.m.] in Post[, 301 Wis. 2d 1, ¶36].
Taken together, the officer’s articulated observations do
give rise to the reasonable suspicion necessary for the
stop ….
While “weaving within a single traffic lane does not alone give rise to the
reasonable suspicion necessary to conduct an investigative stop of a vehicle,”
id., ¶2, the court’s determination was based on the totality of the circumstances
rather than one particular fact. The court examined the manner of the weaving
(right-left-right drift in a relatively short period of time) coupled with the time of
day—at “bar time,” which our supreme court has called “significant.” See id.,
¶36. Under the totality of the circumstances, Franklin had reasonable suspicion to
stop Hamill, and the stop did not violate Hamill’s constitutional right to be free
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No. 2020AP867
from unreasonable searches and seizures. The circuit court properly denied
Hamill’s suppression motion.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
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