Town of Dunn v. Brian S. LaFleur

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 23, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2023AP1529 Cir. Ct. Nos. 2022TR11268
2022TR11269
2023AP1530 2022TR11270
2023AP1531
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

TOWN OF DUNN,

PLAINTIFF-APPELLANT,

V.

BRIAN S. LAFLEUR,

DEFENDANT-RESPONDENT.

APPEALS from orders of the circuit court for Dane County:
DAVID D. CONWAY, Judge. Affirmed.

¶1 KLOPPENBURG, J.1 A law enforcement officer stopped a car
driven by Brian S. LaFleur on suspicion that LaFleur had failed to obey signs
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
Nos. 2023AP1529
2023AP1530
2023AP1531

marking a road as “closed to through traffic,” and the officer subsequently issued
three traffic citations to LaFleur. LaFleur moved to suppress all evidence derived
from the traffic stop. The circuit court determined that the stop was unlawful,
granted LaFleur’s motion, and dismissed the three cases in this consolidated
appeal.2

¶2 The Town appeals, arguing that the traffic stop was supported by
reasonable suspicion and that the circuit court erroneously granted LaFleur’s
suppression motion. I reject the Town’s arguments and affirm.3

BACKGROUND

¶3 The following facts are undisputed for the purposes of this appeal.
At 8:37 p.m. on a Saturday in July 2022, a law enforcement officer was on patrol
in his squad car on a road in a rural area of the Town of Dunn. The road is
6.2 miles long, running east to west. Numerous residences and farms, as well as a
church and a business, are on the road. At the time in question, the road was under
construction, and all access points to the road were marked with signs indicating
that the road was “closed to through traffic.”

2
These appeals were consolidated for briefing and disposition by an order dated
August 23, 2023. See WIS. STAT. RULE 809.10(3).
3
In his respondent’s brief, LaFleur makes two arguments in favor of affirming the circuit
court’s orders on alternative grounds; namely, he argues that the Town’s notice of appeal was
untimely, and that the Town cannot appeal the dismissal orders because they are the result of the
Town’s own motion to dismiss. I decline to address these arguments because my determination
that the traffic stop was not supported by reasonable suspicion is dispositive. See Barrows v.
American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An
appellate court need not address every issue raised by the parties when one issue is dispositive.”).
Further, I note that LaFleur previously filed a motion with this court arguing that the Town’s
notice of appeal was untimely, and this court rejected LaFleur’s argument by order issued on
September 13, 2023.

2
Nos. 2023AP1529
2023AP1530
2023AP1531

¶4 The officer encountered a car driven by LaFleur heading eastbound.
Upon conducting a license plate check, the officer learned that the car was
registered to LaFleur, and that LaFleur’s address was in Stoughton, which is to the
east of the road.

¶5 The officer followed LaFleur’s car east for approximately one-half
mile. LaFleur exited the road by taking a right turn at an intersection, and the
officer subsequently initiated a traffic stop. According to the officer’s later
testimony, the officer suspected that LaFleur was “not local traffic” and had failed
to obey the “closed to through traffic” signs. After an investigation, the officer
issued a citation to LaFleur for failure to obey a traffic sign, as well as citations for
operating while under the influence of an intoxicant and operating with a
prohibited alcohol concentration.

¶6 The Town initiated these three consolidated cases by filing the
citations. LaFleur moved to suppress evidence derived from the traffic stop,
arguing that the stop was unlawful because it was not supported by reasonable
suspicion. After an evidentiary hearing, the circuit court granted LaFleur’s
motion. Pursuant to the Town’s subsequent motion to dismiss for lack of
evidence, the court issued orders dismissing the three cases. The Town appeals.

DISCUSSION

¶7 “The right to be secure against unreasonable searches and seizures is
protected by both the Fourth Amendment to the United States Constitution and
Article 1, Section 11 of the Wisconsin Constitution.” State v. Dearborn, 2010 WI
84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97. “[A] traffic stop is a seizure within the
meaning of our Constitutions.” State v. Floyd, 2017 WI 78, ¶20, 377 Wis. 2d 394,

3
Nos. 2023AP1529
2023AP1530
2023AP1531

898 N.W.2d 560. “The burden of establishing that an investigative stop is
reasonable falls on the state.” State v. Post, 2007 WI 60, ¶12, 301 Wis. 2d 1, 733
N.W.2d 634.

¶8 “A traffic stop is reasonable at its inception if it is supported by
reasonable suspicion that a traffic violation has been or will be committed.” State
v. Adell, 2021 WI App 72, ¶15, 399 Wis. 2d 399, 966 N.W.2d 115. Reasonable
suspicion must be based on “specific and articulable facts, together with rational
inferences drawn from those facts, sufficient to lead a reasonable law enforcement
officer to believe that criminal activity may be afoot.” State v. Amos, 220 Wis. 2d
793, 798, 584 N.W.2d 170 (Ct. App. 1998) (citing Terry v. Ohio, 392 U.S. 1,
21-22 (1968)). “A reasonable suspicion determination is based on the totality of
the circumstances.” State v. Genous, 2021 WI 50, ¶9, 397 Wis. 2d 293, 961
N.W.2d 41.

¶9 This case involves the application of constitutional standards to
undisputed facts, which presents a question of law reviewed de novo. See State v.
Rutzinski, 2001 WI 22, ¶12, 241 Wis. 2d 729, 623 N.W.2d 516.

¶10 The Town contends that the traffic stop here was supported by
reasonable suspicion that LaFleur was “operating his motor vehicle in violation of
the road closure signage.” The Town does not specify in its briefing which traffic
law the officer suspected LaFleur of violating, but presumably the Town relies on
WIS. STAT. § 346.04(2), which provides that “[n]o operator of a vehicle shall
disobey the instructions of any official traffic sign or signal unless otherwise
directed by a traffic officer.” The parties appear to agree that the “closed to
through traffic” signs here were official traffic signs, and that they prohibited
drivers from using the road as a thoroughfare—that is, from using the road as part

4
Nos. 2023AP1529
2023AP1530
2023AP1531

of a route between two locations not on the road—but allowed drivers to travel to
or from locations on the road.

¶11 The Town concedes that the officer did not observe LaFleur’s car
enter the road, and so was unable to determine whether LaFleur had lawfully
“come from a property within the road closure.” However, the Town argues that it
was reasonable for the officer to conclude that the driver likely did not “reside in
the closed area” because the car was registered to a non-local address. The Town
also contends that the road is not in a “bustling urban area” where one would
expect a high volume of non-local traffic on a Saturday evening. Under the
circumstances, according to the Town, an “innocent explanation was no more
likely than one that supported guilt,” and the officer accordingly had reasonable
suspicion that LaFleur was using the road as a thoroughfare in violation of the
“closed to through traffic” signs.

¶12 The Town’s argument has several weaknesses. The fact that
LaFleur’s car was registered to a non-local address does little, by itself, to support
an inference that he was using the road unlawfully. The “closed to through
traffic” signs did not limit traffic only to individuals residing on the road—instead,
they permitted traffic going to or coming from locations on the road, regardless of
the driver’s place of residence. The Town notes that the officer observed
LaFleur’s car exit the road in the direction of LaFleur’s registered address,
suggesting that the driver “was likely on their way home.” However, the signs did
not prohibit a driver from using the road to return home, so long as the driver was
returning from a location on the road.

¶13 The Town reasons that, because the road is “in a rural area,” there
are “fewer places for a person not from the area to visit” than in a more densely

5
Nos. 2023AP1529
2023AP1530
2023AP1531

populated area, and therefore it is more likely that a non-local driver is using the
road unlawfully. However, as noted, there are numerous locations on the road
(such as residences, farms, at least one business, and a church) that LaFleur might
have been visiting. The Town identifies no evidence suggesting that the road is
commonly used as a thoroughfare, rather than a means of travel to and from these
locations. Moreover, the officer stopped LaFleur’s car after following it for only a
short distance: one-half mile of the 6.2-mile road. Under the circumstances, the
officer could not have ruled out any significant number of possible lawful local
origin points.

¶14 The Town further reasons that “there are 6 different places along the
closed area for vehicles to exit the road once leaving a property within the closed
area,” and that a driver not traveling through would likely use one of those exits
rather than exiting the road after traveling to its end. However, the Town does not
explain why that contributes to reasonable suspicion that a driver exiting the road
is violating the through traffic prohibition rather than heading from a location on
the road.

¶15 The Town also relies on the time of day, contending that, at
8:37 p.m. on a Saturday, “[b]usiness owners, business customers and farm
employees … are … not nearly as likely to be traveling this road for business or
employment purposes.” However, assuming this to be so, there were nevertheless
numerous residences on the road. Saturday evening may not be a common time
for business traffic, but it may be a common time for individuals making social
visits to return home. The Town identifies no evidence suggesting that a driver
may be more likely to use the road as a thoroughfare on a Saturday evening than at
another time.

6
Nos. 2023AP1529
2023AP1530
2023AP1531

¶16 The Town notes that “[r]easonable suspicion does not require ruling
out innocent explanations,” see State v. Conaway, 2010 WI App 7, ¶5, 323
Wis. 2d 250, 779 N.W.2d 182, and contends that, under the circumstances, “the
universe of innocent explanations” for LaFleur’s conduct was limited. However,
reasonable suspicion requires more than somewhat limiting the number of possible
innocent explanations. Instead, reasonable suspicion must “be founded on
concrete, particularized facts warranting suspicion of a specific individual.” State
v. Richey, 2022 WI 106, ¶9, 405 Wis. 2d 132, 983 N.W.2d 617. The facts on
which the Town relies encompass a broad a range of common, lawful uses of a
road closed to through traffic, and are not sufficiently particularized. As the
circuit court aptly noted, accepting the Town’s position would “impose too great
of a burden on the Fourth Amendment rights” of non-local drivers using a road
closed to through traffic for lawful purposes.

¶17 The Town also relies on, by distinguishing, State v. Swiecichowski,
No. 2016AP1808-CR, unpublished slip op. (WI App Jan. 25, 2017), in which this
court determined, based on facts similar to those here, that the traffic stop
conducted by the officer was not supported by reasonable suspicion. The Town’s
attempts to distinguish that case are unpersuasive.

¶18 In Swiecichowski, the officer observed a car enter a road closed to
through traffic, determined that the car was registered to a non-local driver, and
performed an investigatory stop. Id., ¶¶5-6. This court determined that the stop
was not supported by reasonable suspicion because the officer’s observations did
not give rise to a “reasonable inference of wrongdoing,” noting that “any number”
of non-local drivers might have had lawful reasons to enter the restricted area. Id.,
¶15. For example, “[a] person delivering pizza to the area, visiting parents or a

7
Nos. 2023AP1529
2023AP1530
2023AP1531

relative, attending a Saturday night party, dropping off a date, or returning home
using someone else’s car … among many other reasons, would have had a reason
to access the area closed to through traffic.” Id. This court also stated that the
officer “could have easily acquired more information to transform his hunch—or
seen it dispelled—if he simply followed Swiecichowski to see where he went.”
Id.

¶19 Here, as in Swiecichowski, the officer did not observe the driver use
the restricted road as a thoroughfare, and the officer’s suspicion was based
primarily on the fact that the car was registered to a non-local driver. In contrast
to Swiecichowski, the officer here observed LaFleur exit, rather than enter, the
restricted area. However, Swiecichowski’s reasoning, which I consider
persuasive, applies equally here. Just as there are any number of lawful reasons
why a vehicle registered to a non-local driver may enter a road closed to through
traffic, there are any number of lawful reasons why that vehicle may exit the road.
The facts known to the officer here, like the facts known to the officer in
Swiecichowski, do not give rise to a “reasonable inference of wrongdoing.”

¶20 According to the Town, Swiecichowski can be distinguished
because, unlike the officer in that case, the officer here could not follow LaFleur to
confirm or deny his suspicion that LaFleur had used the road unlawfully; rather,
because LaFleur was exiting the road, the only way for the officer to determine
“whether any innocent explanation actually existed” was to perform an
investigatory stop. However, an investigatory stop must be supported by
reasonable suspicion, and the Town cites no authority for the premise that this
standard may be relaxed if law enforcement is unable to confirm or deny a hunch
absent a Fourth Amendment intrusion.

8
Nos. 2023AP1529
2023AP1530
2023AP1531

¶21 In sum, I conclude that the Town has failed to meet its burden to
show that, under the totality of the circumstances, the investigative stop of
LaFleur’s car was supported by reasonable suspicion that LaFleur had committed
a traffic violation. I therefore conclude that the circuit court did not err by
granting LaFleur’s motion to suppress.

CONCLUSION

¶22 For all of these reasons, I affirm the orders of the circuit court.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

9