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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.
May 22, 2012
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                                                                  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.
                                                                                                                                                                  Cir. Ct. No.   2011CT920
Appeal No.                                                                                   2012AP54-CR
STATE OF WISCONSIN                                                                                                                                                IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MATTHEW O. MACARTHUR,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Outagamie
County:   MICHAEL W. GAGE, Judge.   Affirmed.
¶1                                                                                           HOOVER, P.J.1    Matthew   MacArthur   appeals   a   judgment   of
conviction for operating while intoxicated, third offense.   MacArthur argues the
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2).  All references
to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.




No.   2012AP54-CR
circuit court erred by denying his suppression motion because the officer lacked
probable cause or reasonable suspicion to stop his vehicle.   We affirm.
BACKGROUND
¶2                                                                                    At  the  suppression  hearing,  officer  Tyrell  West  testified  that  on
July 1, 2011, at approximately 1:47 a.m., he observed an individual, subsequently
identified as MacArthur, walking and stumbling through an alley.   MacArthur was
pulling on door handles and also knocked over a pallet leaning against the wall.
¶3                                                                                    By the time West made contact with him, MacArthur was seated in a
vehicle that was parked in a lot adjacent to the alley.   West did not recall where
MacArthur was seated in the vehicle.   However, he explained that MacArthur was
alone and that there was no one else around.
¶4                                                                                    West told MacArthur that he had observed him knock over the pallet
in the alley, and he asked MacArthur to go pick it up.   MacArthur agreed and left
to pick up the pallet.   After speaking to MacArthur, West believed MacArthur was
intoxicated.    MacArthur  smelled  of  alcohol  and his eyes were  bloodshot and
glassy.
¶5                                                                                    When MacArthur returned, West advised MacArthur that he should
not drive.   MacArthur told West that he would get a ride from a friend or have a
friend drive him.   MacArthur then began to walk away from the area.
¶6                                                                                    Minutes later, West observed the vehicle that MacArthur had been
sitting in pull out of  the parking lot.    West explained that approximately six
minutes had elapsed from his initial contact with MacArthur when he observed the
vehicle leave the lot.
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No.   2012AP54-CR
¶7                                                                                      West began following the vehicle, and there was no other traffic on
the road.   After the vehicle made two right turns without signaling, one at a stop
sign and one at a flashing red light, West stopped the vehicle.   MacArthur was
driving, and he was subsequently arrested for operating while intoxicated.
¶8                                                                                      The court found West had probable cause to stop MacArthur for
failing to signal, contrary to WIS. STAT. § 346.34(1)(b), and denied MacArthur’s
suppression motion.   MacArthur pled no contest, and the court found him guilty.
DISCUSSION
¶9                                                                                      On appeal, MacArthur argues West unlawfully stopped his vehicle
and, as a result, the circuit court erred by failing to grant his suppression motion.
To conduct a lawful traffic stop, an officer needs to have probable cause to believe
a traffic violation has occurred or have reasonable suspicion that a crime or traffic
violation has been or will be committed.   State v. Popke, 2009 WI 37, ¶¶13, 23,
317 Wis. 2d 118, 765 N.W.2d 569.   Whether there is probable cause or reasonable
suspicion to conduct a traffic stop is a question of constitutional fact.   Id., ¶10.
We uphold the circuit court’s factual findings unless they are clearly erroneous;
however, we independently apply those facts to constitutional principles.  Id.
¶10    Probable cause exists when the officer has “reasonable grounds to
believe that the person is committing or has committed a  [violation].” Id.,  ¶14
(citation omitted).   The evidence to support probable cause  “need not establish
proof beyond a reasonable doubt or that … guilt is more probable than not, but
rather, probable cause requires that ‘the information lead a reasonable officer to
believe that guilt is more than a possibility.’”   Id. (citation omitted).
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No.   2012AP54-CR
¶11    Reasonable  suspicion  exists  when,  under  the  totality  of  the
circumstances, “the facts of the case would warrant a reasonable police officer, in
light of  his or her training and experience,  to suspect that the individual has
committed, was committing, or is about to commit a crime.”   State v. Post, 2007
WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634 (citation omitted).   “Such a stop must
be based on more than an officer’s  ‘inchoate and unparticularized suspicion or
hunch.’”   Id., ¶10 (citation omitted).   Instead, the officer “‘must be 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. (citation omitted).
¶12    MacArthur  argues  West  lacked  probable  cause  and  reasonable
suspicion to stop his vehicle.   He first contends West lacked probable cause to
believe he violated WIS. STAT. § 346.34(1)(b) because that statute only requires a
motorist to signal “[i]n the event any other traffic may be affected ….”   See WIS.
STAT. § 346.34(1)(b).   He asserts his failure to signal did not affect other traffic
because West, who was behind him, was the only other traffic on the road and,
irrespective of the direction MacArthur traveled after each stop, West still had to
make his required stops after MacArthur.   Second, MacArthur argues West lacked
reasonable suspicion to stop his vehicle because, at the moment West stopped the
vehicle, West had only a “hunch” MacArthur was the driver and a hunch does not
amount to reasonable suspicion.
¶13    We conclude West had reasonable suspicion to stop MacArthur for
operating while intoxicated.   See Mercado v. GE Money Bank, 2009 WI App 73,
¶2, 318 Wis. 2d 216, 768 N.W.2d 53 (appellate court may affirm trial court on
different grounds than those relied on by trial court).   In this case, West observed
MacArthur stumbling through an alley at approximately 1:47 a.m. and had contact
with MacArthur while he was in his vehicle.   MacArthur was the only person in
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No.   2012AP54-CR
the vehicle and in the area.   He smelled of alcohol and his eyes were bloodshot
and glassy.    West told MacArthur not to drive and, within minutes, observed
MacArthur’s vehicle pull into traffic.
¶14    Although  MacArthur  argues  West  did  not  conclusively  know
whether  MacArthur  was the  driver,  an officer  may stop an individual  “[i]f  a
reasonable  inference  of  unlawful  conduct  can  be  objectively  discerned,
notwithstanding  the  existence  of  other  innocent  inferences  that  could  be
drawn ….”   See State v. Waldner, 206 Wis. 2d 51, 60, 556 N.W.2d 681 (1996).
Here, the time period from when West made his initial contact with MacArthur
until he observed MacArthur’s vehicle pull into traffic was approximately six
minutes.   Under the totality of the circumstances, this short duration combined
with MacArthur’s intoxication and the absence of nearby individuals who would
be able to drive MacArthur’s vehicle gave West grounds to reasonably suspect
MacArthur operated the vehicle while under the influence of an intoxicant.   See
Post, 301 Wis. 2d 1, ¶¶10, 13.
By the Court.—Judgment affirmed.
                                                                                     This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                            (b)4.
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