State v. Sabrina Marie Hebert, 2015AP2183-CR, District 3, 10/12/2016 (one-judge decision; ineligible for publication); case activity (including briefs)
The court of appeals rejects Hebert’s challenges to the circuit court’s factual findings and its conclusion that there was reasonable suspicion to stop the car she was driving.
The evidence at the suppression hearing consisted of: the testimony of the officer that Hebert’s car touched the center line three times; the video from the officer’s squad car camera, which captured only a portion of what the officer said he observed; and testimony from Hebert that she didn’t recall touching the center line and that she had her phone in her hand for navigational use. (¶¶2-4). Based on the video and the officer’s testimony, the circuit court found there was reasonable basis to stop Hebert to investigate whether she was impaired because she was driving on or near the center line. (¶5).
The court of appeals first rejects Hebert’s claim that the circuit court’s factual findings about her driving are clearly erroneous because the testimony and the video lack clarity and are even contradictory at points:
¶10 …. Hebert is essentially inviting us to make findings of fact, which this court does not do. See Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980). More specifically, we cannot accept Hebert’s invitation to consider whether [Officer] Shield’s observations were inherently unreliable, and that her own testimony was correct, simply because the squad car video does not unambiguously support a portion of Shield’s testimony. See [State v.] Walli, [2011 WI App 86,] 334 Wis. 2d 402, ¶14[, 799 N.W.2d 898]. An appellate court cannot independently reach a factual finding from its review of a video recording when the circuit court’s findings of fact rely upon evaluating the witnesses presented to the court in combination with any observations of the video. See id. The circuit court had the opportunity to hear testimony from both Shield and Hebert, and it was entitled to resolve any factual dispute that may have arisen between their accounts. See id. …. Moreover, Hebert’s argument in this regard ignores Shield’s testimony that some of the driving behavior he observed occurred before the video began. Having reviewed the record, including the squad car video, we conclude the circuit court’s factual findings are not clearly erroneous.
Next, the court concludes the officer had reasonable suspicion to stop her:
¶12 [Officer] Shield observed several factors that, when considered in context, permitted a reasonable inference that Hebert was driving while intoxicated. Hebert was consistently weaving in her lane, as Shield observed her partially touch the center line several times within a short period of time. This included at least one instance where Shield observed Hebert touch the center line with both of her driver-side tires. The record is thus consistent with the circuit court’s finding that Hebert was “touching the centerline or coming very close to the centerline.” The circuit court additionally found upon reviewing the video that Hebert, when approaching the center line on one occasion, quickly corrected her movement when “confronted by the headlights of the vehicle in front of her” from the oncoming left lane. Shield could reasonably infer from this quick course correction that Hebert was having difficulty focusing on her driving.
¶13 While these factors taken alone may not necessarily appear “erratic,” a series of such similar movements at that time of night [2:30 a.m.], plus a near move into a lane with more than one directly oncoming vehicle, lends itself to a reasonable suspicion that the driver may have been intoxicated. ….
