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10/15/2007
Wisconsin: Appeals Decision Grants Police License to Stop Innocent Motorists
Wisconsin Court of Appeals gives police ability to stop innocent motorists in license cases while suggesting new limits in speeding cases.

Judge Richard S Brown
The Wisconsin Court of Appeals last Wednesday ruled that police do not require a reason to stop a car registered in the name of someone with a suspended license, while questioning the practice of using a minor instance of speeding as the pretext for a stop. The court ruled that as long as a police officer makes no attempt to determine whether a spouse or other family member might be behind the wheel, he is free to pull over whoever happens to be driving.

"It is indeed a reasonable assumption that the person driving a particular vehicle is that vehicle's owner," wrote Chief Judge Richard S. Brown in a 3-0 ruling. "Here, the officer did not observe the driver of the vehicle and had no reason to think that it was anyone other than the vehicle's owner at any time during the stop."

Brown refers to the December 20, 2005 stop of Frank C. Newer who came to the attention of a police officer when he passed a radar at an alleged 3 MPH over the speed limit in Walworth County. The officer ran Newer's license plates and decided to stop him when the computer said Newer's license had been revoked. At the time, the officer had no idea whether there was a man or woman behind the wheel. The officer did not look.

The appeals court decision upheld the officer's actions and overturned the ruling of Walworth County Circuit Court Judge Michael S. Gibbs who had found the officer had no reasonable suspicion to stop the car. The decision represents new law for the state.

"We have been unable to discover any published Wisconsin cases addressing the question presented," Brown wrote in an August filing asking the state supreme court to take up the case.

Although the present decision gave license to police to stop anyone driving a car registered to someone in trouble with the department of motor vehicles, the three-judge panel expressed a problem with allowing the same principle to be applied to motorists driving a few miles per hour over the speed limit. The validity of such stops follow from the US Supreme Court's decision in Whren v. US.

"While there is no evidence on this point in the record, our experience tells us that traveling at a few miles per hour over the speed limit is not only common behavior, but the default driving style of the majority of Wisconsin residents," Brown wrote on behalf of the court in August. "If our experience on Interstate 94 is any guide, the driver observing the speed limit exactly is in a distinct minority. If police officers may always use a three-mile-per-hour violation as a 'pretext' for stopping motorists, then a police officer's discretion as to whom to stop may be, practically speaking, nearly unlimited. While this result was explicitly countenanced by the Supreme Court in Whren, the high courts of at least two states have rejected pretextual stops under the search and seizure provisions of their state constitutions." (Citing Arkansas and Washington)

The full text of the October decision is available in a 26k PDF file at the source link below.

Source: PDF File Wisconsin v. Newer (Wisconsin Court of Appeals District II, 10/10/2007)



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