State v. Richey

405 Wis.2d 132

983 N.W.2d 617

2022 WI 106

STATE of Wisconsin, Plaintiff-Respondent,

v.Charles W. RICHEY, Defendant-Appellant-Petitioner.

No. 2021AP142-CR

Supreme Court of Wisconsin.

Oral Argument: October 6, 2022

Opinion Filed: December 9, 2022

For the defendant-appellant-petitioner, there were briefs filed by Vicki Zick and Zick Legal, LLC, Johnson Creek. There was an oral argument by Vicki Zick.

For the plaintiff-respondent, there was a brief filed by Nicholas S. DeSantis, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Nicholas S. DeSantis, assistant attorney general.

DALLET, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., and HAGEDORN, J., joined.

REBECCA FRANK DALLET, J.

¶1 The Fourth Amendment requires a police officer to have particularized reasonable suspicion that a crime or non-criminal traffic violation took place before performing a traffic stop. Here, a stop based on the generic description of a Harley-Davidson motorcycle recently seen driving erratically in the area fell short of that threshold. We therefore reverse the court of appeals’ decision.

I

¶2 Officer Alexis Meier was on patrol in the Village of Weston at 10:59 p.m. on a Saturday night in late April. Over the radio, she heard a report that a sheriff's deputy was investigating a disabled motorcycle at a nearby intersection. After just fifteen seconds, the deputy cleared that stop without explanation. Five minutes later, at 11:04 p.m., that same sheriff's deputy told nearby officers to be on the lookout for a Harley-Davidson motorcycle driving erratically and speeding north on Alderson Street (near the intersection with Jelinek Avenue)—approximately a mile away from the location he had given for the disabled motorcycle. The sheriff's deputy did not give any additional details about either the motorcycle or its driver. Officer Meier later said that she believed that the motorcycle the deputy saw on Alderson Street was fleeing police.

¶3 Five minutes after the deputy's report, at 11:09 p.m., Officer Meier spotted a motorcycle driving east on Schofield Avenue a little more than a block west of the intersection with Alderson Street—about a half-mile from the reported location of the speeding Harley. Traffic was light at that time of night. Additionally, Officer Meier had seen relatively few motorcycles out that early in the year and none around the time of the deputy's report.¹ Meier looked up the registration, which showed that it was a Harley-Davidson registered to Richey. She followed the Harley-Davidson for several blocks, but did not see any erratic driving, speeding, or other traffic violations. Meier nevertheless performed a traffic stop, suspecting that this Harley-Davidson was the one seen driving erratically on Alderson Street five minutes earlier.

¶4 After the stop, Officer Meier learned that Richey was the driver and developed evidence supporting an arrest for his eighth operating while intoxicated (OWI) offense. See Wis. Stat. § 346.65(2)(am)6. (2017-18).² Richey moved to suppress that evidence, arguing that the stop violated the Fourth Amendment because it was not supported by reasonable suspicion.

¶5 At the suppression hearing, Officer Meier testified to the facts described above and marked the location of the relevant events on a printout from Google Maps. The circuit court³ received that map into evidence, but the copy contained in the record is faded, and would not be easily readable in this opinion. To aid the reader, we instead include a map we reproduced from that one. As with the map Officer Meier marked, ours labels the location of the relevant events as follows: The word "disabled" shows where the sheriff's deputy investigated the disabled motorcycle at 10:59 p.m.; the north-pointing arrow and letter "D" marks the spot and direction of travel of the Harley-Davidson the sheriff's deputy saw driving erratically and at high speed at 11:04 p.m.; "A" identifies the place where Meier first saw Richey's Harley-Davidson at 11:09 p.m.; and "S" signifies the location of the stop moments later.

?

¶6 The circuit court denied Richey's suppression motion, concluding that Officer Meier had reasonable suspicion to stop Richey. In doing so, the circuit court relied in large part on the fact that Richey's motorcycle was a Harley-Davidson, that Richey was driving in the same general area as the reported erratic driver five minutes after the deputy's report, and the officer's testimony that there were relatively few motorcycles on the road that early in the year and at that time of night. The court of appeals affirmed on substantially similar grounds. See State v. Richey, 2021AP142-CR, unpublished slip op., at ¶¶7-9 (Wis. Ct. App. Feb. 15, 2022).

II

¶7 Whether officers had reasonable suspicion to conduct a traffic stop is a legal question that we review de novo, accepting the circuit court's findings of fact unless they are clearly erroneous. See State v. Genous, 2021 WI 50, ¶10, 397 Wis. 2d 293, 961 N.W.2d 41.

III

¶8 The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures." Investigative stops, including traffic stops, are seizures and must therefore comply with the Fourth Amendment. See State v. Floyd, 2017 WI 78, ¶20, 377 Wis. 2d 394, 898 N.W.2d 560.

¶9 To conduct an investigative stop, the police must have "reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ; see also State v. Houghton, 2015 WI 79, ¶30, 364 Wis. 2d 234, 868 N.W.2d 143 (explaining that traffic stops can also be based on reasonable suspicion of a non-criminal traffic violation). Reasonable suspicion must be founded on concrete, particularized facts warranting suspicion of a specific individual, not " ‘inchoate and unparticularized suspicion[s] or hunch[es].’ " Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). We assess reasonable suspicion in light of the totality of the circumstances. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus, we look at the "whole picture" to determine whether the officer had reasonable suspicion, not each fact in isolation. Id. at 417, 101 S.Ct. 690.

¶10 The whole picture here includes the following information known to Officer Meier before she stopped Richey's motorcycle:

• A Harley-Davidson was driving erratically and speeding north on Alderson Street towards Schofield Avenue five minutes earlier.

• Meier first saw Richey's motorcycle driving east on Schofield Avenue a little more than a block west of the intersection with Alderson Street—about a half-mile from the reported location of the speeding Harley.

• Richey's motorcycle was a Harley-Davidson and was the only motorcycle she saw around the time of the deputy's report.

• Meier followed Richey for several blocks but did not observe any speeding, erratic driving, or other traffic violations.

• Traffic was light that night, and Meier had seen relatively few motorcycles out that early in the year.

It is undisputed that the only reason Officer Meier pulled Richey over is she suspected he was the erratic driver the deputy saw five minutes earlier. The question is whether that suspicion was reasonable.

¶11 Although we acknowledge that it is a close question, we hold that the stop was not supported by reasonable suspicion. To clear the reasonable-suspicion threshold, Officer Meier's suspicions had to be particularized; she needed concrete reasons for believing that Richey's Harley-Davidson and the one seen five minutes earlier speeding north on Alderson Street were one and the same. See Cortez, 449 U.S. at 418, 101 S.Ct. 690 (reasonable suspicion requires reason to believe "that the particular individual being stopped [wa]s engaged in wrongdoing"). But the sheriff's deputy's generic description of a Harley-Davidson gave her very little to work with. See State v. Guzy, 139 Wis. 2d 663, 677, 407 N.W.2d 548 (1987) (explaining that "the particularity of the description of the offender or the vehicle in which he fled" is a relevant part of the reasonable-suspicion analysis (quotation omitted)). Except for the manufacturer, she knew nothing specific about the Harley the deputy saw—not the model, type,⁴ size, or color, let alone a license plate number. Nor did she know anything about the driver, what he or she was wearing, whether he or she wore a helmet, or even whether the driver appeared to be a man or a woman. And although she followed Richey for several blocks before initiating the stop, there is no indication that she radioed the deputy during that time to ask for more details.

¶12 The State nevertheless argues that Officer Meier's suspicions were particularized because Richey's motorcycle "fit a highly specific and particular description." Namely, it was a Harley driving in the same general area as the deputy's report late in the evening and at a time of year when relatively few motorcycles were on the roads. These facts are part of the totality of the circumstances, but they are not enough to transform Officer Meier's hunch into particularized reasonable suspicion. See Guzy, 139 Wis. 2d at 677, 407 N.W.2d 548 (stating that "the size" and "number of persons about in th[e] area" are relevant to determining reasonable suspicion (quotation omitted)). For starters, the "highly specific" description of a Harley-Davidson could apply to a large number of vehicles. See generally United States v. Street, 917 F.3d 586, 594 (7th Cir. 2019) (" Terry does not authorize broad dragnets .... Without more, a description that applies to large numbers of people will not justify the seizure of...