State v. Charles W. Richey, 2021AP142-CR, reversing an unpublished COA opinion; 12/9/22, case activity (including briefs)

“Freedom for all,” including the driver of the Harley in this case. In a quirky 4-3 decision, the liberal justices plus RBG hold that a deputy’s warning to be on the lookout for a Harley-Davidson driving erratically and speeding north on Alderson Street did not amount to reasonable suspicion for an officer stop a Harley driving normally about a 1/2 a mile away.

To demonstrate its rationale, the majority opinion includes an enhanced version of a faint map used at the suppression hearing in this case.

At 10:59 p.m. on a Saturday in late April, Officer Meier heard a radio report that a deputy was investigating a disabled motorcycle at a nearby intersection. That intersection is marked “Disabled.” After 15 seconds the deputy cleared that stop without explanation.

At 11:04 p.m. the same deputy warned nearby officers to be “on the lookout for a Harley-Davidson motorcycle driving erratically and at a high rate of speed, headed northbound on Alderson Street from Jelinek Avenue.” That area is marked with a “D” with an arrow pointing north.  Officer Meier heard that report too.

At 11:09 p.m. Officer Meier spotted Richey’s Harley on Schofield Avenue in the area marked “A,” about 1/2 mile from the speeding Harley. She followed it a few blocks, saw no speeding, erratic driving, or other traffic violations but stopped it anyway at the location marked “S.” She identified Richey as the driver and developed evidence to arrest him for his 8th OWI. Richey moved to suppress.

The majority called this a “close case.” After reviewing the totality of the circumstances, it held that the stop was not supported by “reasonable suspicion” because Officer Meier’s suspicions were not “particularized.” as required by cases like United States v. Cortez, 449 U.S. 411, 418 (1981) and State v. Guzy, 139 Wis. 2d 663, 677, 407 N.W.2d 548 (1987). Opinion, ¶11. The majority explained:

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. 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. And although she followed Richey for several blocks before initiating the stop, there is no indication that she radioed the deputy during that time to ask for more details. Opinion, ¶11.  (list of Harley models infootnote 4 omitted).

“Wisconsin is the home of Harley-Davidson, and it is one of, if not the most popular manufacturers of motorcycles in Wisconsin.” The reasonable suspicion bar is low but not so low that the State may stop law-abiding citizens based on such a generic description. Opinion, ¶12.

Roggensack filed a dissent which Ziegler and Hagedorn joined.  According to Roggensack, the majority refused to accept reasonable inferences from undisputed facts. Officer Meier was asked to look out for Harley speeding recklessly. She saw one within 5 minutes in the same geographic area. It was late at night in April. She had seen no other motorcycles on the road, and it was too early in the season for many motorcyclists to be out. If Officer Meier didn’t act immediately the opportunity for further investigation would be lost. Opinion, ¶24.

Richey asked SCOW to take this case based on Ornelas v. U.S., 517 U.S. 690 (1996), which indicated that appellate courts should look to cases with similar fact patterns to guide reasonable suspicion determinations. See our post here. Had the court of appeals applied Ornelas, it would have reached the same result as a similar case, State v. Adams, No. 2018AP174, unpublished slip op., (WI App Jan. 15, 2019). SCOW’s decision in Richey’s case does not mention Ornelas at all.