by Anthony W Accurso

THe Supreme Court of Wisconsin held that the information upon which an officer relied to conduct an investigatory stop was insufficiently particularized to constitute reasonable suspicion because it consisted only a vehicle’s make – a Harley-Davidson motorcycle.

On a Saturday night in April, a sheriff’s deputy radioed regarding a disabled motorcycle in the Village of Weston. A few minutes later, the same deputy advised officers to be on the lookout for “a Harley-Davidson motorcycle driving erratically and speeding North.”

Traffic was light at the time, and since it was still early in the year, Officer Alexis Meier hadn’t seen many motorcycles on the roads yet and none around the time of the alert about the erratic Harley. But Meier spotted a Harley being driven by Charles W. Richey about five minutes after the alert was issued and “about a half mile from the reported location of the speeding Harley.”

Meier followed Richey for several blocks but did not observe him riding erratically, speeding, or committing any other traffic violations. Nevertheless, Meier performed a traffic stop on suspicion that he was the person reported driving erratically a few minutes earlier. During the stop, Meier developed probable cause to arrest Richey for his eighth operating while intoxicated (“OWI”) offense.

Richey filed a motion to suppress, arguing that the traffic stop violated the Fourth Amendment because it was not based upon reasonable suspicion. The circuit court denied the motion – a decision the court of appeals affirmed – “in large part on the fact that Richey’s motorcycle was a Harley-Davidson, that Richey was driving in the same general area as the reported erratic driver 5 minutes after the deputy’s report, and the officer’s testimony that there were relatively few motorcycles on the road that early in the year and at that time of night.”

On review, the Wisconsin Supreme Court discussed the requirements for a traffic stop, explaining that the Fourth Amendment governs seizures of a person, and “investigative stops, including traffic stops, are seizures and must therefore comply with the Fourth Amendment.” See State v. Floyd, 898 N.W.2d 560 (Wis. 2017). To conduct a lawful investigative stop, police are required to have “reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119 (2000); see also State v. Houghton, 868 N.W.2d 143 (Wis. 2015) (explaining that traffic stops can also be based on reasonable suspicion of a non-criminal traffic violation). Reasonable suspicion must be based on concrete, particularized facts to justify suspecting a specific individual, not “inchoate [not fully formed or developed] and unparticularized suspicion[s] or hunch[es].” Wardlow (quoting Terry v. Ohio, 392 U.S. 1 (1968)). The reasonable suspicion determination takes into account the totality of the circumstances and doesn’t examine each individual fact in isolation. United States v. Cortez, 449 U.S. 411 (1981).

The Court noted that the sole reason that Meier initiated the traffic stop was because she suspected that Richey’s Harley was the one reportedly driving erratically, and the question is whether that suspicion was reasonable. The Court acknowledged that “it is a close question” but held that the traffic stop was “not supported by reasonable suspicion.”

The Court explained that Meier’s suspicion was not particularized, and she lacked concrete reasons for suspecting that Richey’s Harley was the same one reported driving erratically. See Cortez (reasonable suspicion requires reason to believe “that the particular individual being stopped [was] engaged in wrongdoing”). The deputy’s alert contained only a generic description of the erratically driven motorcycle as being a Harley-Davidson. The Court pointed out that there were no particularized facts provided such as the “model, type, size, or color” of the motorcycle, nor was there any description of what the rider was wearing, whether the rider was wearing a helmet, or whether the rider appeared to be a man or woman. Thus, there were no particularized facts for Meier to reasonably suspect that Richey’s Harley was the same one being sought for erratic driving, according to the Court.  

The State argued that officer Meier’s suspicion was particularized because Richey’s motorcycle “fit a highly specific and particular description” and was discovered nearby the report of a fleeing vehicle matching that description. The Court stated that these facts are part of the totality of circumstances analysis, “but they are not enough to transform Officer Meier’s hunch into particularized reasonable suspicion.” It noted that “Wisconsin is the home of Harley-Davidson, and it is one of, if not the most popular manufacturers of motorcycles in Wisconsin,” adding “although reasonable suspicion is a low bar, it is not so low that it allows the State to stop so many otherwise law-abiding citizens based on such a generic description.” Therefore, the Court held Meier lacked reasonable suspicion to initiate the traffic stop of Richey.

Accordingly, the Court reversed the court of appeal and remanded to the circuit court with instructions to vacate Richey’s conviction and grant his motion to suppress. See: State v. Richey, 983 N.W.2d 617 (Wis. 2022).

Subscribe today

Already a subscriber? Login