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COURT OF APPEALS
NOTICE
DECISION
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, 2010
A party may file with the Supreme Court a
A. John Voelker                                                                                                                                                  petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                                                                 Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                                 and RULE 809.62.
                                                                                                                                                                 Cir. Ct. No.   2009CT3016
Appeal No.                                                                                    2010AP1170-CR
STATE OF WISCONSIN                                                                                                                                               IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JOHN M. EATON,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge.   Affirmed.
¶1                                                                                            SHERMAN, J.1    John Eaton appeals from a judgment of conviction
for  operating  a  motor  vehicle  with a  prohibited alcohol concentration  (PAC),
second offense, contrary to WIS. STAT. § 346.63(1)(b).   Eaton argues the circuit
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2007-08).
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.




No.   2010AP1170-CR
court erred when it denied his motion to suppress evidence obtained as a result of
the investigatory stop of his vehicle because the arresting officer lacked reasonable
suspicion to stop his vehicle.   We disagree and affirm.
BACKGROUND
¶2                                                                                        On June 5, 2009, at approximately 2:18 a.m., Joel Stelter, a police
officer for the City of Madison, observed a vehicle driven by Eaton, traveling
eastbound  on  East  Washington  Avenue  in  Madison.     Stelter  was  traveling
eastbound  on  East  Washington  Avenue  at  approximately  32  miles  per  hour,
observed Eaton’s vehicle approach his vehicle from behind  “at a high rate of
speed,” which he estimated to be approximately 45 miles per hour.   According to
Stelter, Eaton’s vehicle  “caught up to  [his vehicle]  …  very quickly and then
slowed very suddenly until [] the front of [Eaton’s] vehicle reached the driver’s
side door of [Stelter’s] squad car.”   At that point, Stelter slowed his vehicle down.
Eaton  also  slowed  his vehicle  down  along  with  Stelter’s  vehicle  until  Stelter
reached  a  speed  of  approximately  18  miles  per  hour,  at  which  point  Eaton
“resumed traveling around the speed limit.”   According to Stelter, the slowing of
Eaton’s vehicle led him to suspect that Eaton was attempting to prevent him from
obtaining information from Eaton’s rear license plate.
¶3                                                                                        Stelter followed behind Eaton’s vehicle after it resumed traveling at
a speed near the posted speed limit and observed Eaton's vehicle “slowly weaving
within its lane.”   According to Stelter, Eaton’s vehicle would “drift[] several feet
to the right and to the left.”    Stelter continued to follow Eaton’s vehicle and
observed Eaton approach an intersection marked by a yellow flashing light.   As
Eaton approached the intersection, he  “put his turn signal on,  [moved to] the
furthest right lane, came to a complete stop, [and] sat there for a second or two”
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No.   2010AP1170-CR
before  he                                                                                 “deactivated  the  turn  signal  and  proceeded  straight  through  the
intersection.”   Following this observation, Stelter initiated a traffic stop of Eaton’s
vehicle based on his belief that Eaton was operating his motor  vehicle while
impaired,   and was cited for operating a motor vehicle while intoxicated, second
offense, contrary to WIS. STAT. § 346.63(1)(a), and PAC, second offense.
¶4                                                                                         Eaton moved to suppress evidence which was obtained as a result of
his detention and arrest on the basis that Stelter did not have reasonable suspicion
to stop his vehicle.   The circuit court denied Eaton’s motion.   Following the denial
of his motion to suppress, Eaton pled no contest to PAC, second offense, and a
judgment of conviction was entered by the court.   Eaton appeals.
DISCUSSION
¶5                                                                                         For  an  officer  to  initiate  a  traffic  stop  without  violating  an
individual’s Fourth Amendment rights to the United States Constitution, an officer
must  have  either  probable  cause  or  reasonable  suspicion  to  believe  that  the
individual is committing, is about to commit, or has committed a crime.   State. v.
Post,  2007  WI  60,  ¶10,  301 Wis.  2d  1,  733 N.W.2d  634.    An officer has a
reasonable suspicion if he or she is “‘able to point to specific and articulable facts
which,  taken  together  with  rational  inferences  from  those  facts,  reasonably
warrant’ the intrusion of the stop.”    Id.  (citing Terry v. Ohio,  392 U.S.  1,  21
(1968).                                                                                    “[W]hat constitutes reasonable suspicion 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. Young,
212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997).
¶6                                                                                         Whether Stelter had reasonable suspicion to stop Eaton’s vehicle is a
question of constitutional fact, which presents a mixed question of fact and law.
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No.   2010AP1170-CR
Post, 301 Wis. 2d 1, ¶8.   We will uphold the circuit court’s factual findings unless
they are clearly erroneous, but will independently review the application of those
facts to constitutional principals.  Id.
¶7                                                                                         Eaton contends that Stelter did not have reasonable suspicion to stop
his vehicle under the totality of the circumstances.   He argues that the circuit court
“should have  [] completely discounted” Stelter’s testimony at the  suppression
hearing regarding the speed he was driving his vehicle and that the court should
not have taken into consideration the fact that Eaton slowed his vehicle down
when he approached Stelter’s vehicle.   Even assuming for the sake of argument
that Eaton is correct with respect to both arguments, we conclude that Stelter’s
observations nevertheless gave rise to reasonable suspicion justifying the stop.
¶8                                                                                         First,  Stelter  observed  Eaton’s  vehicle  weave  in  a  “pronounced”
manner within its own lane of traffic.   Eaton argues that the circuit court’s factual
finding that he weaved within his lane of traffic is unsupported by the record
because at the suppression hearing Stelter was not able to observe the weaving on
a video he recorded of the incident.   However, Stelter testified unequivocally that
he observed Eaton’s vehicle weaving.   He also testified that the video recording
had a “significant blurry glare” and that he was not able to see everything on the
video recording that he observed in person.    The circuit court found Stelter’s
testimony  regarding  the  issue  of  weaving  to  be  credible.    See  Cogswell  v.
Robertshaw Controls Co.,  87 Wis.  2d  243,  250,  274 N.W.2d  647  (1979)  (the
circuit court is the ultimate arbiter of a witness’s credibility).   Having reviewed the
video, we cannot say that the court’s credibility finding was clearly erroneous.
¶9                                                                                         Second, Stelter observed Eaton’s vehicle come to a complete stop at
a yellow blinking light, which Stelter testified is a “possible indicia of impaired
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No.   2010AP1170-CR
driving.” Eaton correctly points out that his conduct was not illegal.   However,
conduct need not be illegal to form the basis for reasonable suspicion.   See State v.
Waldner,  206 Wis.  2d  51,  59,  556 N.W.2d  681  (1996).    Although not illegal,
coming to a complete stop for a few seconds at a yellow blinking light is not
typical behavior.
¶10    Third, Stelter’s observations took place around bar time.   See Post,
301  Wis.  2d  1,  ¶36  (driving  deviations  taking  place  at  “bar  time”  can  lend
credence to a suspicion that a driver is intoxicated).
¶11    We conclude that the totality of the circumstances provide Stelter
with reasonable suspicion to initiate a traffic stop.   The pronounced weaving of
Eaton’s vehicle, the fact that he unnecessarily came to a complete stop, and the
fact that these events took place around bar time, were adequate to give rise to a
reasonable suspicion that Eaton was driving under the influence of intoxicants.
See,  e.g.,  id.                                                                          (suggesting  that  investigatory  stop  is  reasonable  when  officer
observes  vehicle  weaving  within  its  own  lane  of  traffic  around  bar  time).
Accordingly, we affirm the circuit court’s denial of Eaton’s motion to suppress
and the judgment of conviction.
By the Court.—Judgment affirmed.
                                                                                          This  opinion  will  not  be  published.                                See  WIS.  STAT.  Rule
809.23(1)                                                                                 (b)(4).
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