Article from: www.thenewspaper.com/news/32/3269.asp
9/22/2010Wisconsin Appeals Court Upholds Stop Over Quick Backing
Wisconsin Court of Appeals finds backing up quickly on an empty road to be suspicious.
Police can stop a driver for backing up quickly on an empty road in the middle of the night, the Wisconsin Court of Appeals ruled last Thursday. At around 1:35am on July 28, 2009, city of Tomah Police Officer Jarrod Furlano watched from a parking lot as Matthew Pudlow backed up his car at East McCoy Boulevard to get into the left-hand turn lane so he could turn onto North Superior Avenue. No other cars were anywhere near. Pudlow's car did not swerve, hit any curb or squeal its tires.
Furlano claimed that from his vantage point in a nearby parking lot, his "visual estimation" was that Pudlow was traveling 30 MPH in reverse. Furlano was "alarmed" and so followed, stopped and cited Pudlow for unsafe backing and driving under the influence of alcohol (DUI). Pudlow fought the charge, but lost in municipal court and then circuit court, both of which found Furlano had reasonable suspicion to initiate a traffic stop. The circuit court, however, threw out the backing charge as lacking in clear, satisfactory, convincing evidence. Pudlow appealed his conviction.
"An investigatory stop for criminal and noncriminal violations is warranted if an officer reasonably suspects, based on the totality of the circumstances, that the motorist has committed, is in the process of committing, or is about to commit an unlawful act," appeals court Judge Brian W. Blanchard wrote in his decision. "The officer must identify specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the intrusion of the stop. This approach strikes a balance between the governmental interest in preventing crime and the individual's right to be free from unreasonable governmental intrusion."
Pudlow argued that under a 1999 Wisconsin Supreme Court ruling, a traffic stop is invalid when it is based on a police officer's misreading of the law. Pudlow asserted that the circuit court showed Furlano misunderstood the backing law because it threw out the charge. Blanchard disagreed.
"If Pudlow has a complaint, it is that the officer made a mistake of fact, not law, in believing that he had either reasonable suspicion, or probable cause to believe an offense had been committed, justifying a stop," Blanchard wrote. "It is also irrelevant that the circuit court concluded at trial that the city had not met its burden in proving an actual violation of the unsafe backing statute."
Blanchard explained that, under the circumstances, Furlano clearly had reasonable suspicion that Pudlow may have made an unsafe maneuver on the empty street.
"Officer Furlano observed Pudlow engaged in conduct that could constitute unsafe backing, which posed a danger to any person or motorist who might have appeared in his path," Blanchard wrote. "Motorists may use reverse gear to back up their vehicles in a safe manner on roadways for short distances, at low speeds, under many circumstances without violating the unsafe backing statute. In contrast, the officer's uncontradicted testimony, which was not meaningfully impeached by the defendant, was that the defendant backed up at approximately thirty miles per hour in an area in which one could expect other people or vehicles to appear."
Because Furlano had reasonable suspicion, the stop was valid and Pudlow's conviction upheld. A copy of the decision is available in a 30k PDF at the source link below.
Source: Tomah v. Pudlow (Court of Appeals, State of Wisconsin, 9/16/2010)
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