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  • December 12, 2022

    Brand of Motorcycle Plus Proximity of Time and Place Not Enough for Traffic Stop

    A police officer who stopped a motorcyclist on a Harley five minutes after another officer reported a Harley driving erratically in the same area lacked reasonable suspicion for the stop, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    A Helmeted Figure On A Motorcyle Streaking Down A City Street At Night

    Dec. 12, 2022 – A police officer who stopped a motorcyclist on a Harley five minutes after another officer reported a Harley driving erratically in the same area lacked reasonable suspicion for the stop, the Wisconsin Supreme Court ruled (4-3) in State. v. Richey, 2022 WI 106 (Dec. 9, 2022). ​​​

    Justice Rebecca Dallet wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Bradley, and Justice Jill Karofsky. Justice Patience Roggensack dissented, joined by Chief Justice Annette Ziegler and Justice Brian Hagedorn.  

    A Fleeing Harley

    Alexis Meier, an officer with the Everest Metropolitan Police Department in Marathon County, was on patrol in the Village of Weston on the night of April 28, 2018.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Just after 11 p.m., Meier heard a radio call from Marathon County Sheriff’s Office deputy Daniel D’Acquisto. D’Acquisto told other officers to look out for a Harley-Davidson motorcycle driving erratically and speeding north on Alderson Street near the intersection with Jelenik Avenue.

    Meier later testified that she thought the motorcyclist D’Acquisto reported driving north on Alderson Street was fleeing the police. She also testified that: 1) traffic was light at that time of the evening; and 2) she had seen few motorcycles on the road at that time of the year.

    Richey’s Harley

    Five minutes after receiving D’Acquisto’s call, Meier saw a motorcycle heading east on Schofield Avenue, about one block west of that street’s intersection with Alderson Street. When Meier called in the motorcycle’s registration, she learned that it was a Harley-Davidson registered to Charles W. Richey.

    Meier followed the motorcycle for several blocks. The motorcyclist did not speed, drive erratically, or commit any other traffic violations.

    Because Meier thought the motorcycle was the one that D’Acquisto reported driving erratically on Alderson Street, she pulled the motorcyclist over.

    Arrested for OWI

    During the traffic stop, Meier learned that the driver was Richey. She also discovered evidence that led her to arrest Richey for operating while intoxicated. The Marathon County District Attorney filed charges against Richey.

    Richey moved to suppress the evidence gathered during the traffic stop. He argued that the Meier violated his Fourth Amendment rights because she lacked reasonable suspicion to pull him over.

    The Marathon County Circuit Court denied Richey’s motion. Richey appealed, and the Wisconsin Court of Appeals affirmed the circuit court’s ruling.

    Suspicion Must Be Particularized

    Justice Dallet began her opinion for the majority by explaining that under U.S. Supreme Court case law, the police must have a reasonable, articulable suspicion that criminal activity is ongoing to justify an investigative stop, given the totality of the circumstances.

    Dallet acknowledged that whether Meier had reasonable suspicion to stop Richey was a close question. But the stop failed to meet the constitutional standard, Justice Dallet concluded, because Meier’s suspicion was non-particularized.

    The state must show that Meier had “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,” Dallet wrote.

    “Except for the manufacturer, she knew nothing specific about the Harley the deputy saw – not the model, type, size, or color, let alone a license plate number,” Justice Dallet wrote. “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.”

    The state argued that Meier had a particularized suspicion because she saw Richey driving: 1) in the same area as the one reported heading north on Alderson; and 2) at a time of year when not many motorcycles were on the road.

    Justice Dallet reasoned that those two facts were not enough to make Meier’s suspicion particularized.

    “After all, Wisconsin is the home of Harley-Davidson, and it is one of, if not the most popular manufacturers of motorcycles in Wisconsin,” Dallet wrote. “Although reasonable suspicion is a low bar, it is not so low that it allows the State to stop so many otherwise law-abiding citizens based on such a generic description.”

    Proximity to Time, Place Not Enough

    Richey’s proximity to the time and place of the motorcycle that D’Acquisto reported speeding north on Alderson Street didn’t add up to much, Justice Dallet reasoned.

    Dallet pointed out that when Meier spotted Richey, he was driving towards Alderson Street, toward the location where D’Acquisto reported seeing the bike speeding up Alderson Street.

    “Given that Officer Meier thought the erratic driver was fleeing police, that would be a strange choice,” Justice Dallet wrote.

    Additionally, she noted, it would only take about one minute for the motorcyclist seen speeding north on Alderson by D’Acquisto to travel from where spotted by D’Acquisto to the spot where Meier first saw Richey five minutes later.

    “Thus, in order for Richey to have been the subject of the deputy’s report, he would have had to have driven north on Alderson Street at high speed, ridden around the general area for several minutes, and eventually looped back in the direction he came from while now driving normally,” Dallet wrote.

    That was unrealistic, Justice Dallet concluded, and undermined the particularity of Meier’s suspicion when she stopped Richey.

    Dissent: Officer Had Reasonable Suspicion

    In her dissent, Justice Roggensack argued that the totality of the circumstances warranted a conclusion that Meier had a particularized suspicion to stop Richey:

    • Meier spotted Richey in the same area as the traffic violator reported by D’Acquisto;

    • Richey was driving a Harley; and

    • it was late at night and early in the season for motorcycling.

    “It was possible that if Officer Meier did not act ‘immediately the opportunity for further investigation would be lost,’” Justice Roggensack wrote.

    The inference that Richey was the driver of the Harley that D’Acquisto had seen was not unreasonable, Roggensack argued.

    “The majority opinion does not address why the brief period of time after the lookout was called and the defined location of the traffic violation … do not support reasonable suspicion,” Justice Roggensack wrote.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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