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State v. Westberg10/27/2004
We are obliged to revisit Kris A. Westberg's arrest on third offense drunk driving charges. In State v. Westberg, No. 02-2206-CR, unpublished slip op. (WiS.Ct. App. Feb. 12, 2003) (Westberg I), we held that there was reasonable suspicion to conduct an investigative traffic stop and reversed the circuit court's order suppressing evidence after it found just the opposite. Upon remand, Westberg brought a motion to suppress all evidence alleging that there was no probable cause to support his arrest. He is appealing the circuit court's denial of that motion. We determine that under the totality of the circumstances, the arresting officer's experience and knowledge at the time of Westberg's arrest would lead a reasonable police officer to believe that Westberg was operating a motor vehicle while under the influence of an intoxicant. Therefore, we affirm.
. Westberg I was an appeal by the State of the circuit court's order suppressing evidence. We reversed the trial court's finding that Westberg's fishtailing on snow-covered streets did not constitute sufficient reasonable suspicion to support an investigative stop.
Both parties debate the circuit court's conclusion that Westberg's driving did not constitute a traffic violation. Reasonable suspicion does not require that the officer have grounds to issue a traffic citation in order to make a traffic stop nor does it require that the officer have grounds to believe that the weaving is caused by intoxication rather than drowsiness or some other more "innocent" cause before the stop.... "[W]hen a police officer observes lawful but suspicious conduct, if a reasonable inference of unlawful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, police officers have the right to temporarily detain the individual for the purpose of inquiry."
Id., (citations omitted).*fn2 Because the procedural history of this case and the evidentiary history of the investigative stop are set forth in detail in Westberg I, we will skip directly to the challenge to the probable cause for arrest.
. Following remand, the circuit court heard Westberg's challenge to his arrest after the investigative stop. After reviewing the transcript prepared when Westberg questioned the investigative stop and hearing additional testimony from the arresting officer, the circuit court found that the officer's testimony was credible. The court went on to consider the totality of the circumstances, especially Westberg's display of consciousness of guilt, and concluded that there was probable cause to support Westberg's arrest. Westberg appeals.
. If the historical facts are undisputed, whether probable cause to arrest exists is a question of law. State v. Drogsvold, 104 Wis. 2d 247, 262, 311 N.W.2d 243 (Ct. App. 1981). When this court is presented with a question of law, the determination will be reviewed independently on appeal without deference to the conclusion of the circuit court. Id.
. In determining whether probable cause exists, the court applies an objective standard, see State v. Riddle, 192 Wis. 2d 470, 476, 531 N.W.2d 408 (Ct. App. 1995), and is not bound by the officer's subjective assessment or motivation. State v. Kasian, 207 Wis. 2d 611, 621, 558 N.W.2d 687 (Ct. App. 1996). The court is to consider the information available to the officer from the standpoint of one versed in law enforcement, taking the officer's training and experience into account. State v. Pozo, 198 Wis. 2d 705, 711-13, 544 N.W.2d 228 (Ct. App. 1995). When a police officer is confronted with two reasonable competing inferences, one justifying arrest and the other not, the officer is entitled to rely on the rea
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