State v. Paul H. Olson, 2011AP1728-CR, District 4, 7/26/12
court of appeals decision (1-judge, ineligible for publication); case activity
¶11 Although Officer Welker did not observe Olson commit any traffic violations, the other facts known to Officer Welker at the time he initiated questioning demonstrate that he had reasonable suspicion to justify the investigatory stop. The incident took place at 11:30 p.m. “The hour of the day may … be relevant in that the individual’s activities may or may not be consistent with the typical behavior of law-abiding citizens at that time.” State v. Kyles, 2004 WI 15, ¶58, 269 Wis. 2d 1, 675 N.W.2d 449. Second, before exiting his vehicle, Officer Welker observed that Olson appeared to be having trouble balancing when he walked toward the back of his vehicle. Third, Officer Welker observed Olson drive in an unusual manner, which he characterized as “overly cautious.” Overly cautious driving due to police presence, standing alone, is generally not a sufficient basis for an investigative stop. See generally State v. Fields, 2000 WI App 218, 239 Wis. 2d 38, 619 N.W.2d 279. However, combined with the time of night, the spinning tires, and Olson’s difficulty with walking, Officer Welker had sufficient reasonable suspicion to conduct an investigatory stop. Accordingly, I conclude that the denial of Olson’s motion to suppress was proper, and affirm the judgment of conviction.
Olson wasn’t “stopped” (“seized” is probably a better way of describing it) until after he parked on his own and got out of the car; hence, his unsteady gait could be factored into the traffic stop calculus.
