State v. Jason T. Moynihan, 2011AP2858-CR, District 2, 5/30/12
court of appeals decision (1-judge, not for publication); for Moynihan: Lora B. Cerone, SPD, Madison Appellate; case activity
¶8 In this case, the deputy pulled over the vehicle driven by Moynihan because he believed it was being driven by Saeger and believed that Saeger’s driver’s license was revoked. The question is whether the deputy’s belief, or suspicion, was reasonable. We believe it was.
¶9 Moynihan argues that the deputy “knew only that a man named Scott Saeger had driven the vehicle the week before, and that the subject presently operating the vehicle was a male of an age consistent with that of Saeger.”[3] If that were all the information the deputy had available to him at the time of the stop, we likely would agree with Moynihan and affirm the circuit court. The deputy, however, was aware of additional specific and articulable facts: it was near bar time, the vehicle was traveling eight miles per hour under the speed limit, the vehicle drifted from the center line toward the curb line.
¶10 While the time of day and the manner in which Moynihan operated the vehicle, without more, may have been insufficient to stop the vehicle for drunk driving, these indicia of possible impaired driving together with the information the deputy had gathered from the status check—i.e., one week earlier, a man of a similar age as the man currently driving had been arrested for operating this same vehicle while intoxicated, and with a revoked driver’s license which was still revoked—supplied the requisite reasonable suspicion for an investigatory stop to inquire if the driver was, in fact, Saeger operating again with a revoked license.
¶11 We conclude that under the totality of the circumstances, the deputy’s suspicion that the operator of the vehicle was Saeger driving with a revoked license was based on more than just a “hunch”; it was based on specific and articulable facts and reasonable inferences from those facts.
So it is only the possibility that drunk-driver Scott Saeger was behind the wheel that gets the State over the hump, else the stop was bad. But, as Moynihan’s brief points out (but a reader of the opinion wouldn’t know because the opinion utterly fails to mention it): “In fact, Saeger was in custody” at the time of the stop, a fact ascribable to the deputy under the”collective knowledge” doctrine. In other words, the court can’t rely on the purported need “to inquire if the driver was, in fact, Saeger operating again with a revoked license,” because the deputy knew (or should have known) that Saeger couldn’t possibly have been behind the wheel. Odd that the court didn’t even acknowledge this potentially decisive argument.
