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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 21, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                                    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.   2004CT1381
Appeal No.                                                                                    2005AP1620-CR
STATE OF WISCONSIN                                                                                                                                                   IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
PATRICK T. GLOVER,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Waukesha County:
KATHRYN W. FOSTER, Judge.   Affirm.
¶1                                                                                            ANDERSON,  J.1       Patrick  T.  Glover  appeals  from  a  judgment
convicting  him of  operating a  motor  vehicle while  under  the influence of  an
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2003-04).
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.




No.   2005AP1620-CR
intoxicant, third offense  (OWI).   He challenges the trial court’s ruling that the
arresting  officer  possessed  the  reasonable  suspicion  necessary  to  conduct  the
traffic stop of his vehicle.   We hold that the officer had sufficient grounds for an
investigative stop and affirm.
¶2                                                                                                    On June  29,  2004, the State filed an amended criminal complaint
charging  Glover  with  OWI  and  operating  a  motor  vehicle  with  a  prohibited
alcohol concentration, both as third offenses.   Glover filed a motion to suppress
evidence based upon lack of probable cause to arrest.    The trial court held a
suppression hearing on February 4, 2005.
¶3                                                                                                    Glover and the arresting officer, City of Waukesha Patrol Officer
Erin Peters, testified to the events leading to his arrest.   Peters testified that on
June 5, 2004, at 2:10 a.m., while she was out on patrol, she observed Glover’s
vehicle in her rearview mirror.   She turned her vehicle around and began to follow
him.   She testified that as she was following him, she noticed that his license plate
light was not operating.2   Peters continued to follow Glover and observed him stop
at  an  intersection  with  a  flashing  red  light  for  three  to  five  seconds  before
proceeding.   She opined that although the cross traffic had a flashing yellow light
and the right-of-way, three to five seconds was a  “lengthy period of time” for
Glover to stop at the light.   She indicated that there was no traffic at the time.   She
then pulled Glover over.   She testified that she pulled him over both because his
license plate light was out and because he stopped for too long at the traffic light.
2  There appears to be some dispute about whether Peters’ testimony showed that she first
saw the defective license plate light in her rearview mirror.   Regardless, Peters without question
testified that when she turned her squad car around and followed Glover from behind, she noticed
the defective light.
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No.   2005AP1620-CR
She testified that she did not observe any other type of traffic violation or erratic
driving.
¶4                                                                                          After making contact with Glover, Peters testified that she apprised
him of the reasons for the stop and requested his drivers license.   She averred that
as Glover pulled out his license, he advised her that he was coming from a local
pub where he had consumed one beer.   Based on this admission, she asked Glover
to perform field sobriety tests, which he did.   Peters then asked Glover to submit
to a preliminary breath test.   The preliminary breath test produced a reading of .13
percent.   At that point, Peters arrested Glover for OWI.
¶5                                                                                          Glover offered a slightly different account of  the night’s events.
Glover testified that Peters told him that she pulled him over because he paused
too long at the flashing red light.   He stated that he gave Peters his drivers license
and she went back to her squad car.   When she returned, she asked him to step out
of his vehicle and perform field sobriety tests.   Glover testified that she asked him
to do so because she noticed he had two prior OWI convictions.
¶6                                                                                          Glover denied telling Peters he had been at a local pub.    Glover
refuted Peters’ testimony that she told him she was conducting the stop because
his license plate light was defective.    Glover testified that he did not learn of
Peters’ allegation concerning his license plate light until he received a copy of the
criminal complaint two or three days after his arrest.   Glover checked the license
plate light at that time and discovered it was working properly.   He also noted that
he had a trailer hitch installed.   The trailer hitch had a separate light, which further
illuminated the license plate light.   This light was also working properly.   Glovers’
wife also testified at the hearing that the plate and hitch lights were both working
properly two or three days after Glover’s arrest.
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No.   2005AP1620-CR
¶7                                                                                          In  his  argument  following  testimony,  Glover  argued  that  Peters
lacked both reasonable suspicion to perform the traffic stop and probable cause to
arrest.   With regard to Peters’ reasonable suspicion, Glover maintained that the
only basis for  the  traffic  stop was Peters’  observation that he  stopped at the
flashing red light for three to five seconds.   He claimed that under State v. Fields,
2000 WI App 218, ¶23, 239 Wis. 2d 38, 619 N.W.2d 279, this observation was not
sufficient grounds for the stop.    See id.  (holding that the defendant’s slightly
longer than normal stop at a stop sign alone did not justify a traffic stop).
¶8                                                                                          The  trial  court  denied  Glover’s  motion  to  suppress,  finding  that
reasonable suspicion supported the stop and probable cause supported the arrest.
The court refused to determine whether the license plate light was in fact defective
and accepted Glover’s representation that Peters did not mention the defective
license plate light when she pulled him over.    However, the court adopted as
credible the remainder of Peters’ testimony and noted Peters’ statement that she
observed  the  license  plate  light  failing  to  work  properly.     The  court  also
recognized  that the  stop  took  place  at  2:00  a.m.,  or  “bar  time,”  on  a  Friday
night/early Saturday morning and called Glover’s stop at the flashing red light
“inordinately  long”  given  that  he  was  on  a  well-lit  city  street.    The  court
distinguished this case from Fields in part because of “the added element of the
plate light out.”   Following the trial court’s ruling, Glover entered a no contest
plea to the OWI charge.
¶9                                                                                          On  appeal,  Glover  challenges  only  the  trial  court’s  reasonable
suspicion determination.   To execute a valid investigatory stop consistent with the
Fourth Amendment prohibition against unreasonable searches and seizures, a law
enforcement officer must reasonably suspect, in light of his or her experience, that
some kind of illegal activity has taken or is taking place.   Fields, 239 Wis. 2d 38,
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No.   2005AP1620-CR
¶10; WIS. STAT. § 968.24.   A police officer can make an investigative traffic stop
if he or she reasonably suspects that a person is violating or is about to violate civil
traffic regulations.   State v. Colstad, 2003 WI App 25, ¶¶11, 13, 260 Wis. 2d 406,
659 N.W.2d 394.   The question of whether the officer’s suspicion was reasonable
is a commonsense test:   was the suspicion grounded in specific, articulable facts
and reasonable inferences from those facts that the individual was committing a
crime.   Fields, 239 Wis. 2d 38, ¶10.   An inchoate and unparticularized suspicion
or hunch will not suffice.   Id.   However, the officer is not required to rule out the
possibility of innocent behavior.   Id.
¶10    Whether reasonable suspicion existed for an investigatory stop is a
question of constitutional fact.   State v. Williams, 2001 WI 21, ¶18, 241 Wis. 2d
631, 623 N.W.2d 106.   We will uphold the trial court’s findings of fact unless
clearly erroneous, WIS. STAT. § 805.17(2), but we review de novo whether those
facts meet the constitutional standard.   Williams, 241 Wis. 2d 631, ¶18.
¶11    Glover complains that the trial court rested its determination solely
upon “its belief that a three to five second stop at a flashing red light, where cross
traffic has preference … constitutes reasonable suspicion when it is close to bar
time, there is no other traffic, and the street in question is well lit.”   He argues that
the  trial  court’s  conclusion  runs  afoul  of  this  court’s  holding  in  Fields  and
“effectively converts activity which suggests a reasonably cautious driver into
reasonable suspicion to stop the driver.”   We disagree and hold that the trial court
correctly determined that Peters had reasonable suspicion to temporarily detain
Glover.
¶12    First, we reject Glover’s reliance on Fields.   Glover mischaracterizes
the basis for the trial court’s holding in this case.   In Fields, we held that the
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No.   2005AP1620-CR
defendant’s waiting five to ten seconds at a stop sign on a rural road with no
traffic, standing alone, did not support a particularized and reasonable suspicion of
wrongdoing.   Fields, 239 Wis. 2d 38, ¶¶5, 23.   Here, the court considered more
than just the length of Glover’s stop at the flashing red light at a well-lit city
intersection  when  it  rendered its reasonable  suspicion  ruling.    The  trial court
pointed out it was bar time on a Friday night/early Saturday morning.   The court
also factored in Peters’ assessment of Glover’s license plate light.    The court
specifically stated  that it was                                                          “the  added element of  the  plate  light out”  that
distinguished this case from Fields.
¶13    Second, as noted, Peters could lawfully perform an investigatory
detention of Glover if she reasonably suspected that he was violating a civil traffic
regulation.     See  Colstad,                                                             260  Wis.                                              2d   406,   ¶¶11,   13.   WISCONSIN  STAT.
§ 347.13(3) requires drivers to equip their vehicles with a lamp “so constructed
and placed as to illuminate with a white light the rear registration plate and render
it clearly legible from a distance of 50 feet to the rear.”   Peters testified that she
observed that Glover’s license plate light was not working when she followed him.
She stated that it was both Glover’s longer than normal stop at the flashing red
light and the defective license plate light that aroused her suspicions and caused
her to pull him over.   Although the court accepted Glover’s representation that
Peters did not mention the defective license plate light when she pulled him over,
the court deemed Peters’ testimony otherwise credible.   We are not in a position to
disturb this determination.   See Turner v. State, 76 Wis. 2d 1, 18, 250 N.W.2d 706
(1977)  (the trial court’s credibility determinations are generally not subject to
review).
¶14    Finally, contrary to Glover’s assertion, it does not matter that the
trial court refused to resolve the question of whether Glover’s license plate light
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No.   2005AP1620-CR
was in fact defective when Peters pulled him over.   The principal function of the
investigative stop is to temporarily freeze the situation so as to allow officers
possessing reasonable suspicion of wrongful activity the opportunity to further
investigate the situation and to quickly establish whether the suspect’s activity is
indeed legal or illegal.   See State v. Jackson, 147 Wis. 2d 824, 835, 434 N.W.2d
386 (1989).   Thus, for purposes of our review, it matters only that the trial court
adopted as credible Peters’ testimony that she had reason to believe that Glover’s
license plate light was not operating at the time she pulled him over.
¶15    In   sum,   we   uphold   the   trial   court’s   reasonable   suspicion
determination and its order denying Glover’s motion to suppress evidence.   When
looking at the totality of the circumstances surrounding the stop, it is apparent that
Peters, unlike the officer in Fields, had specific and articulable facts supporting
her  investigatory  detention  of  Glover.    Peters’  observations  of  the  length  of
Glover’s stop at the flashing red light, at that time and at that location, when
coupled with her observations of Glover’s defective license plate light provide an
objective basis to conduct the stop.    Accordingly, we affirm 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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