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5/4/2010
Wisconsin: Slow Driving Not Cause For Traffic Stop
Wisconsin Appeals Court rules that slow driving does not create a pretext for a traffic stop.

Judge Daniel P. Anderson
Driving slowly is not a crime justifying a traffic stop, the Wisconsin Court of Appeals ruled last Wednesday. In an unpublished decision, Judge Anderson reviewed the events leading up to the August 13, 2008 arrest of Tommy K. Miller. At around 1:19am that morning, Miller's white Lexus SUV passed by Hartland Village Police Officer Matthew Harper who happened to be patrolling Cottonwood Avenue. Miller was traveling 5 MPH.

Harper watched the SUV for a few seconds as it pulled into a parking lot. As he was about to investigate on foot, Harper saw the white SUV leave the lot. At some point, Miller turned back and drove past Harper slowly and accelerating to the speed limit after he passed. Harper floored his accelerator in pursuit, pulling over the SUV even though he admitted that he saw no traffic violation or any suspicious driving. Miller failed a breath test and was convicted of driving under the influence of alcohol (DUI). Judge Anderson only considered whether the initial traffic stop itself was justified.

The prosecution argued that the stop was justified because Officer Harper was acting as a "community caretaker" and ensuring that nothing was wrong with Miller that would have caused the slow driving at such a late hour. A circuit court agreed with this interpretation, but Anderson suggested the 2009 state Supreme Court case Wisconsin v. Kramer applied to the situation. In that ruling, the high court found that the community caretaker function must be "totally divorced" from his role of enforcing the law. In other words, a judge must evaluate whether the officer is acting on a hunch that a crime might be taking place, or whether he actually has an objectively reasonable reason for the stop.

"Harper did not testify that he was motivated by a belief that the driver was in need of any assistance, medical or mechanical," Anderson ruled. "Additionally, Harper did not articulate an objectively reasonable basis for his actions as a community caretaker. Indeed, the record is void of any showing that Harper was concerned that Miller may have been in need of assistance. The record tells us little more than Harper 'wanted to stop [Miller's] vehicle right away before it merged onto [Highway] 16.' Harper's actions were not 'totally divorced' from his law enforcement function and, therefore, do not qualify as actions within his community caretaker function."

The judgment against Miller was reversed. A copy of the opinion is available in a 30k PDF file at the source link below.

Source: PDF File Wisconsin v. Miller (Court of Appeals, State of Wisconsin, 4/28/2010)



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