State v. Kevin A. Terry

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.
January 31, 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 No. 2023AP1053-CR Cir. Ct. No. 2019CT434

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEVIN A. TERRY,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: PAUL G. CZISNY, Judge. Affirmed.

¶1 GUNDRUM, P.J.1 Kevin A. Terry appeals from a judgment of
conviction entered by the circuit court. He contends the sheriff’s deputy who cited

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.
No. 2023AP1053-CR

him for a defective taillamp and arrested him for operating a motor vehicle while
intoxicated (OWI), second offense, lacked reasonable suspicion to conduct the
traffic stop. As a result, he contends the circuit court erred in denying his motion
to suppress all evidence flowing from the stop.2 For the following reasons, we
conclude the court did not err, and we affirm.

Background

¶2 After being criminally charged, Terry filed a motion to suppress,
asserting the arresting deputy did not have reasonable suspicion to conduct a
traffic stop. The deputy was the only witness to testify at the suppression hearing,
and his relevant testimony is as follows.

¶3 Around 10:56 p.m. on August 10, 2019, the deputy observed a
vehicle whose “upper left taillight area appeared to [have] a white light coming
from [its] upper portion” when the driver activated the vehicle’s brakes. The
vehicle, which was being driven by Terry, turned right at a stop sign and then
turned into a gas station, parking at a gas pump.

¶4 The deputy confirmed that while following the vehicle, he “had
observed a white light coming from [the left] taillamp.” He conducted a traffic
stop on Terry at the gas station, and as he approached Terry’s vehicle, he observed
an “approximately 3-inch-by-3-inch crack or hole in the taillight, but it was
covered by like a light red transparent tape.”

2
The Honorable Dale L. English presiding.

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No. 2023AP1053-CR

¶5 The State played the squad video for the court. Watching the video
and testifying to what he was seeing, the deputy stated, “You can kind of see right
there there’s a difference between the two stop lamps. Sometimes video quality is
not hundred percent what you can see in real eye. But there was definitely a
difference. It appeared white as I was behind it on that top left corner.” The
deputy further stated that at the 22:55:40 point on the video, while driving behind
Terry’s vehicle, he couldn’t see the tape covering. “When I was behind it it just
appeared white.”

¶6 On cross-examination, relevant engagement between defense
counsel and the deputy went as follows:

[Counsel:] Now, the statute under which you believe the
violation was occurring does not indicate specifically
regarding variations in color of the stop light or of the
lights, correct?

[Deputy:] … It has to be in proper working condition
emitting red.

[Counsel:] Well, you would agree they’re both red,
correct?

[Deputy:] It appeared white.

[Counsel:] But you’d agree that both lights are emitting
red? Maybe different shades of red, but they’re both
emitting red?

[Deputy:] To me, it appeared white in the upper left-hand
corner.

The deputy again indicated that the video recording did not show as clear of a
visual as what he had observed when he was directly behind the vehicle, adding
that when he was “behind the vehicle, like what you’re actually seeing it looked
like a white light to me.” The deputy reiterated that he observed a difference
between the left side and right side taillamps when Terry’s “blinker” turned off

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No. 2023AP1053-CR

and testified that “it appeared that the taillight was cracked or broken because of
the white light.”

¶7 The circuit court had the State play the video again from the
beginning, stopping at 22:55:29. Upon the State’s questioning, the deputy
testified, “Right now it looks pinkish. But like I said, there’s definite difference in
the two.” The deputy confirmed that “in person … that was emitting more of a
white tinted light than a pinkish tone.”

¶8 Following the presentation of testimony, the circuit court had the
State play the video two more times. The last time the court viewed it, it did so on
the State’s laptop computer “to see if there’s any difference.” The court noted that
“the image is sharper on the computer, a little bit more blurred on the, but not a
whole lot, on the screen.” The court further stated

[t]his isn’t my first suppression motion hearing which
involved testimony and a squad video. And it’s not
uncommon to have testimony and the squad video not
entirely correspond. Or, for example, the officer will say,
well, what I saw was this and it’s not clearly reflected in
the video, based on video quality, et cetera.

The court stated that “[i]t is clear that the two taillights have different colors …
pretty much throughout. But it does have a pink tinge.” The court further found
that at the 22:55:39 point in the video, “just before the turn was about to take
place—the squad is closer to the Jeep. And it’s clear at least from that vantage
point that the left taillight is emitting white light, not a red light.” The court
added, “So I think to that extent the video was consistent with the deputy’s
observation that night.” The court denied Terry’s suppression motion, and Terry
ultimately pled to prohibited alcohol concentration (PAC), second offense and was
sentenced. He now appeals.

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No. 2023AP1053-CR

Discussion

¶9 As our supreme court has stated, “reasonable suspicion that a traffic
law has been or is being violated is sufficient to justify all traffic stops.” State v.
Houghton, 2015 WI 79, ¶30, 364 Wis. 2d 234, 868 N.W.2d 143. On review of a
circuit court’s ruling from a suppression hearing, we review the court’s factual
determinations for clear error, but whether the facts meet the constitutional
standard—here, reasonable suspicion—is a question of law we review de novo.
State v. Popke, 2009 WI 37, ¶10, 317 Wis. 2d 118, 765 N.W.2d 569.

¶10 Throughout most of his appellate briefing, Terry insists the video
played at the suppression hearing shows only red light emitting from his left
taillamp. Based upon this, he asserts that “[b]ecause [his] vehicle was emitting a
red light from both his left and right taillight, as required by [WIS. STAT.
§] 347.13(1), his taillights were in ‘good working order,’” and therefore, the
deputy did not have a lawful basis to conduct the traffic stop. Again relying on the
video, he also claims the circuit court’s finding of fact that Terry’s taillight was
illuminating white, and not red, is clearly erroneous.

¶11 Yet, Terry admits in his briefing that “it is possible that the [d]eputy
was able to see a small white light emit[ing] from the upper portion of the left
taillight that is not otherwise visible on the video.” He further states that “[e]ven if
[the deputy’s] testimony is credible that he saw a white light emitting from a small
portion of a taillight, that does not make the entire taillight white.” He later again
states that “the taillight may have been emitting a small white light.” He waves
this white-light observation off, however, on the basis that “it does not change the
fact that the video clearly shows that the taillight was emitting a red light” and
“was functioning in good working order.” Essentially, Terry appears to be saying

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No. 2023AP1053-CR

that even if the taillight emitted some white light, as the deputy testified, the stop
was unlawful because it was also emitting some red light. The statutes are not on
Terry’s side.

¶12 WISCONSIN STAT. § 347.07(2) appears to be directly on point. It
states: “Except as provided in sub. (3) [relating to motorcycles, and not applicable
here], or as otherwise expressly authorized or required by this chapter, no person
shall operate any vehicle … on a highway which has displayed thereon: … (b) Any
color of light other than red on the rear ….” (Emphasis added.) In its response
brief, the State directs us to WIS. STAT. § 347.26(4) as providing one instance of
an exception that is “expressly authorized or required by” WIS. STAT. ch. 347.
That statutory provision permits “white or amber” “back-up lamps” on the rear of
the vehicle, for when the vehicle “is about to be or is being driven backward.”
This exception does not apply here. Another exception the State directs us to is
found in WIS. STAT. § 347.15(2) and allows for “a flashing red or amber light
visible to the rear” for “direction signal lamps.” This exception also does not
apply here. In his reply brief, Terry directs us to no other exceptions that might be
relevant to this case. Thus, we are left with the plain language of § 347.07(2). If it
appeared to the deputy prior to the traffic stop that some white light was emitting
from the left taillamp, he had reasonable suspicion, indeed probable cause, to
believe Terry was operating his vehicle in violation of § 347.07(2) and conduct the
traffic stop to investigate further. While § 347.07(2) may or may not have been
the statute the deputy focused on when he conducted the traffic stop, the stop was
nonetheless lawful “[a]s long as there was an objectively lawful basis” to conduct
the stop, see State v. Rose, 2018 WI App 5, ¶28, 379 Wis. 2d 664, 907 N.W.2d
463; see also State v. Baudhuin, 141 Wis. 2d 642, 649-51, 416 N.W.2d 60 (1987),
and here there was.

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No. 2023AP1053-CR

¶13 Terry’s appeal teeters on his contention that the circuit court’s
factual finding that the officer observed white light emitting from the left taillight
was clearly erroneous. He bases his contention on the squad car video that was
admitted into evidence at the suppression hearing. Several things go against Terry
in this regard. First, as previously discussed, Terry effectively concedes that the
deputy may have observed some white light emitting from the taillamp. Second,
the circuit court itself carefully reviewed the video, multiple times, and observed
Terry’s left taillamp to have been emitting white light. Third, the court found the
deputy’s testimony credible, noting that it is not unusual to observe things a bit
differently in person than on a video recording; at the hearing, the court even
noted the difference in imaging quality on the State’s laptop computer versus the
screen on which the court had originally viewed the video. Relatedly, while it was
only after the deputy had turned on his emergency lights and conducted the stop—
and therefore it could not have provided a foundation for the stop—the undisputed
fact that the deputy observed tape covering Terry’s left taillamp could only
support the deputy’s credibility in the court’s eyes, as this observation was
contemporaneous with the stop and supports the deputy’s testimony that
something was amiss with that taillamp and he observed white light emitting from
it, which led to the stop.3

¶14 Lastly, we have carefully reviewed the video ourselves and note that
the left lamp appears lighter in color than the right lamp, and the color of the left
lamp could be fairly described at times as pink and at times even as white. Also,

3
Additionally, review of the squad video/audio shows that as the deputy approached the
vehicle, he immediately told Terry he pulled him over because of his taillamp. The record
indicates that this portion of the video/audio was played for the court.

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No. 2023AP1053-CR

as Terry approaches and stops at the stop sign, before turning right, his taillamps
activate and his vehicle is canted in a rightward direction. As Terry completes his
stop, the left lamp actually appears to this court as amber.4

¶15 Terry attempts to convince us the question here is whether or not the
left taillamp was in “good working order,” which is a legal requirement of WIS.
STAT. § 347.13. While it is true the deputy’s traffic stop would have been lawfully
justified if the taillamp was not in good working order, that is not the end of the
story. The question before us is whether the deputy reasonably suspected Terry
violated some legal requirement or prohibition, see Popke, 317 Wis. 2d 118, ¶14,
whether that be because the taillamp was not in good working order or because he
was violating some other legal requirement or prohibition.

¶16 As noted, the circuit court pointed out some difference in the video
quality between the screen on which the court first viewed the video and the
State’s laptop computer on which it also viewed the video. This court’s computer
system and screen could be projecting to this court yet a little different video
appearance than what the circuit court saw on either of the screens on which it
viewed the video. Furthermore, as the circuit court correctly pointed out, it is not
unusual for things to appear a bit different on video than in person.

¶17 As the appellant, Terry bears the burden of demonstrating that the
circuit court erred. See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d
448, 899 N.W.2d 381. At the end of the day, a key question we must answer here

4
It is possible that the street light in the background is affecting the appearance of the
lamp at that particular moment, but whether that is the cause of the amber appearance is
unknown.

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No. 2023AP1053-CR

is not whether this court or the circuit court viewed on the video that Terry’s
vehicle was displaying “[a]ny color of light other than red on the rear” moments
before the traffic stop, but whether the circuit court clearly erred in its factual
finding that the deputy observed some “color of light other than red on the rear” of
Terry’s vehicle (other than with the turn signal/“blinker”). See WIS. STAT.
§ 347.07(2). The deputy testified that while on the video the left taillamp did
appear to have a “pinkish tone,” he insisted that “in person,” it appeared “white.”
The circuit court concluded that when it viewed the video the left taillamp at one
point had “a pink tinge” and at another point—apparently the point at which the
left taillamp appeared more amber to this court—the circuit court viewed the left
taillamp as “emitting white light, not a red light.” Having viewed the video
ourselves, repeatedly and freezing/stopping it at key points, Terry has not
convinced us the circuit court clearly erred in essentially finding that while
following Terry’s vehicle in person just moments before the stop, the deputy
observed Terry’s left taillamp to be “display[ing]” a “color of light other than red.”
See § 347.07(2). If the left taillamp was in fact displaying a color of light other
than red, that would be a violation of § 347.07(2). We conclude the deputy had at
least reasonable suspicion that Terry was in violation of this law, and the circuit
court did not err in denying Terry’s suppression motion.

By the Court.—Judgment affirmed.

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

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