Opinion
Appeal No. 2012AP915-CR Cir. Ct. No. 2010CF450
04-03-2013
STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. DONALD D. LAUFER, DEFENDANT-APPELLANT.
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS. S TAT. § 808.10 and R ULE 809.62.
APPEAL from a judgment of the circuit court for Washington County: JAMES G. POUROS, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 NEUBAUER, P.J. Donald D. Laufer appeals the trial court's denial of his motion to suppress evidence obtained pursuant to a traffic stop. An officer stopped him after a random registration check indicated that the license plate was registered to a vehicle that was a different color than the one driven by Laufer. After the officer pulled Laufer over, he realized that he had misread the plate, but continued to approach the car to speak with Laufer. Laufer attempts to categorize the officer's error as one of law because Laufer was not in violation of any registration laws when he was stopped. We disagree—the error is one of fact because the officer misread the plate and reasonably believed, based on the facts known to him at the time of the stop, that the vehicle described in the registration did not match the one driven by Laufer. We affirm.
BACKGROUND
¶2 The facts relevant to this appeal were testified to by the officer at the suppression hearing. In November 2010, between 12 and 12:30 a.m., an officer was following a truck and decided to do a random registration check on it. When he did so, the registration listed a red truck, which concerned him because the truck he was following was blue. Soon thereafter, he observed the truck pull into a driveway. He pulled in behind it and activated his emergency lights.
¶3 As the officer approached Laufer's vehicle, he noticed that he had misread the license plate by one digit. A subsequent check of the correct license plate revealed that Laufer's vehicle was properly registered. After realizing his mistake, however, the officer continued to approach the vehicle in order to explain why he had stopped. Once he made contact with the driver, he noticed an "odor of intoxicants." After asking some questions, the officer asked Laufer to do field sobriety tests and arrested him for operating while under the influence.
¶4 Laufer filed a motion to suppress, arguing that the officer lacked legal justification for stopping him. Based on State v. Longcore , 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999), aff'd by an equally divided court, 2000 WI 23, 233 Wis. 2d 278, 607 N.W.2d 620, Laufer argued that the officer's decision to stop him was based on a mistake and therefore the stop was unlawful because the officer lacked probable cause that Laufer had violated a law. The trial court denied his motion. He appeals.
STANDARD OF REVIEW
¶5 Whether there is probable cause or reasonable suspicion to justify a traffic stop is a question of constitutional fact. State v. Popke , 2009 WI 37, ¶10, 317 Wis. 2d 118, 765 N.W.2d 569. We apply a two-step standard of review to questions of constitutional fact. State v. Williams , 2001 WI 21, ¶18, 241 Wis. 2d 631, 623 N.W.2d 106. First, we review the trial court's findings of historical fact under the clearly erroneous standard. Popke , 317 Wis. 2d 118, ¶10. Then, we review de novo the application of those facts to constitutional principles. Id.
DISCUSSION
¶6 The parties first dispute whether the officer was required to have reasonable suspicion or probable cause to support the stop. "A traffic stop is generally reasonable if the officers have probable cause to believe that a traffic violation has occurred ... or have grounds to reasonably suspect a violation has been or will be committed." Id. , ¶11. Laufer argues that under Longcore , 226 Wis. 2d at 8-9, the officer needed probable cause because he stopped Laufer based on a perceived violation of the law. We disagree.
¶7 In Longcore , an officer observed a plastic window covering which he believed to be an equipment violation. Id. at 4. The Longcore court explained that the officer "did not act upon a suspicion that warranted further investigation, but on his observation of a violation being committed in his presence," which it concluded amounts to a stop based on probable cause. Id. at 8-9. We further held that "[i]f the facts would support a violation only under a legal misinterpretation, no violation has occurred, and thus by definition there can be no probable cause that a violation has occurred." Id. at 9. Thus, even a good-faith mistake of law will not support probable cause. Id. Longcore's holding regarding mistakes of law was recently reaffirmed in State v. Brown , 2013 WI App 17, ¶21, ___ Wis. 2d ___, ___ N.W.2d ___. In Brown , we held that an officer was mistaken in his belief that the observed conduct—one of three taillight bulbs was unlit—was a law violation, and thus the officer lacked probable cause for the stop. Id.
¶8 Here, unlike in Longcore , the officer's testimony indicates that he stopped Laufer to "mak[e] sure that the vehicle registration that I thought was on the vehicle was actually the vehicle that ... I was following." In other words, he believed, based on the color discrepancy between the vehicle he was following and the registration he pulled, that the vehicle might have been carrying plates that were not registered to it, in violation of WIS. STAT. §§ 341.15(3)(a) (2011-12). He was "act[ing] upon a suspicion that warranted further investigation," and because of that, reasonable suspicion was all that was required. See Longcore, 226 Wis. 2d at 8-9.
According to WIS. STAT. § 341.15(3)(a), "[a] person who operates a vehicle for which a current registration plate, insert tag, decal or other evidence of registration has been issued without such plate, tag, decal or other evidence of registration being attached to the vehicle, except when such vehicle is being operated pursuant to a temporary operation permit or plate" "may be required to forfeit not more than $200." Laufer does not argue that the conduct the officer related would not have amounted to a violation of § 341.15(3)(a).
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
¶9 Laufer further argues that the officer "was mistaken in his application of the law" when he stopped Laufer's vehicle because Laufer was not actually in violation of any registration requirements. However, he does not dispute that the observations made by the officer before the stop did constitute a possible violation of the law. See WIS. STAT. §§ 341.15(3)(a) and 341.04(1). It turned out that the officer was mistaken in his observations as a matter of fact, but the facts related by the officer constituted a violation of the law. The mistake in this case was one of fact, not law.
Laufer also attempts to fit this case into a mistake of law analysis by claiming that the officer misunderstood the law regarding registration. He points out that WIS. STAT. § 341.08(2)(c) only requires registration to specify the color of vehicles under 8000 pounds. From there, he argues there was no evidence of an actual law violation at the suppression hearing because there was no evidence that Laufer's vehicle weighed less than 8000 pounds. He also asserts that if he had painted the vehicle, nothing would have required him to update the color listed on the registration. See § 341.08(2). The State responds that Laufer did not raise either of those issues to the trial court. In his reply brief, Laufer asserts that he did raise the issues, but points us to places in the record where he argued generally that a mistake of law was made, without any reference to § 341.08(2) or the specific arguments he makes on appeal. As a general rule, we do not address issues raised for the first time on appeal. See State v. Konrath, 218 Wis. 2d 290, 297 n.8, 577 N.W.2d 601 (1998).
We do address Laufer's WIS. STAT. § 341.08(2) arguments, however, to make clear that they are based on a flawed analysis. As noted above, the officer testified that he made contact with Laufer's vehicle to determine whether the vehicle was carrying plates registered to a different vehicle contrary to WIS. STAT. § 341.15(3)(a). The further investigation could include exploring reasons for the discrepancy, including the facts relating to the statutes Laufer identifies on appeal. However, the officer need not rule out possible reasons for the discrepancy prior to further investigation of the facts. State v. Waldner , 206 Wis. 2d 51, 59, 556 N.W.2d 681 (1996) ("[P]olice officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.").
¶10 Thus, the real issue in this case is whether the officer's misreading of the license plate could form the basis for reasonable suspicion. Laufer does not allege bad faith; rather, he refers to the officer's "misreading of the license plate, done in good faith," in his brief. As a result, reasonable suspicion turns on whether the exclusionary rule applies in situations where officers have made a good-faith mistake of fact. In that analysis, a recent unpublished court of appeals decision is on point and persuasive. See State v. Reierson, No. 2010AP596, unpublished slip op. (WI App April 28, 2011); see also WIS. STAT. RULE 809.23(3)(b) (unpublished opinions issued on or after July 1, 2009, may be cited for persuasive value).
¶11 In Reierson , we analyzed a situation nearly identical to this one, where an officer stopped a vehicle for expired plates based on a misreading of the displayed plates. Reierson , unpublished slip op. 112-3. We observed that although Wisconsin cases have not directly addressed the issue, "as a general rule, courts decline to apply the exclusionary rule where an officer makes a reasonable, good-faith factual mistake." Id. , 19. To support that proposition, Reierson points to federal cases and law review articles, which we also find persuasive. See id.; see also United States v. Cashman, 216 F.3d 582, 587 (7th Cir. 2000) (where officer reasonably believed crack in windshield was long enough to violate statute, but it was not in fact, officer had probable cause to stop for traffic violation); United States v. Miguel , 368 F.3d 1150, 1153-54 (9th Cir. 2004) ("An officer's correct understanding of the law, together with a good-faith error regarding the facts, can establish reasonable suspicion." (citation omitted)); John Kaplan, The Limits of the Exclusionary Rule, 26 STAN. L. REV. 1027, 1044 (1974) ("[T]he exclusionary rule is already held inapplicable where a policeman makes a reasonable factual mistake."); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines " and "Good Faith," 43 U. PITT. L. REV. 307, 348 (1982).
¶12 Based on the reasoning in these authorities, the Reierson court concluded that so long as the officer's misreading of the plate was in good faith, "the officer had a reasonable, if mistaken, belief that [the defendant] was operating a vehicle with an expired registration." Reierson , unpublished slip op. ¶11. Likewise, the objective facts related by the officer supported a reasonable, if mistaken, suspicion that Laufer was driving a vehicle displaying incorrect plates based on the registration check he ran on the misread plates. We therefore adopt the reasoning set forth in Reierson and uphold the stop based on a good-faith mistake of fact in this case.
By the Court.—Judgment affirmed.
Recommended for publication in the official reports.