State v. Jonathan Glen Berbaum

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.
February 25, 2026
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. 2025AP1380-CR Cir. Ct. No. 2023CT96

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHAN GLEN BERBAUM,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Ozaukee County:
SANDY A. WILLIAMS, Judge. Affirmed.

¶1 GUNDRUM, J.1 Jonathan Berbaum appeals from a judgment of
conviction entered following a guilty plea for operating a motor vehicle while

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2025AP1380-CR

intoxicated (OWI), third offense. Specifically, he asserts the circuit court erred in
denying his motion to suppress evidence procured following the underlying traffic
stop. For the following reasons, we conclude the court did not err.

BACKGROUND

¶2 Two law enforcement officers testified at the evidentiary hearing on
Berbaum’s suppression motion. Their relevant testimony is as follows.

¶3 An officer with the Port Washington Police Department testified that
she was on patrol around 12:28 a.m. on March 31, 2023, when she learned the
Ozaukee County Sheriff’s Department was investigating a report by an identified
citizen that a vehicle had hit a “rail or plastic barrier” on Interstate 43 (I-43). The
officer was informed that the citizen had provided the make, model, and license
plate of the vehicle, that the vehicle had exited I-43 and “was coming into our
city,” and that “two officers in the area [were] looking for this vehicle.”

¶4 Shortly after learning the above, the officer “observed a vehicle
parked in the middle of the roadway [in front of a residence] with its blinker on
and there was no turn area.” The license plate on this vehicle matched that of the
vehicle Ozaukee County was looking for. The vehicle proceeded straight, and the
officer followed it. The vehicle stopped again in the lane of traffic and with its
turn signal on, but again there was “nowhere to turn. There was no road or
entryway.” The officer conducted a traffic stop on the vehicle. She described the
driver’s operation of the vehicle to be “confusing” and “unusual.”

¶5 A deputy with the Ozaukee County Sheriff’s Department testified
that he was on patrol at around 12:28 a.m. on March 31, 2023, when he learned of
a citizen complaint about “a vehicle that was swerving and possibly struck some

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No. 2025AP1380-CR

sort of barrier.” The citizen had identified himself, informed dispatch he would
provide a statement, and provided the make, model, and license plate of the
vehicle. The deputy was informed the vehicle had been traveling on I-43 but had
exited onto a highway leading into the city of Port Washington, so he requested
assistance from Port Washington law enforcement. Within minutes, the deputy
learned “that Port Washington had observed the vehicle,” and the deputy
“requested Port Washington to stop and hold [it] while [he] conducted an
investigation.” The deputy further testified that the Port Washington police officer
who had stopped the vehicle had informed him that the officer thought the driving
behavior of the operator of the vehicle was “bizarre.”

¶6 In denying Berbaum’s suppression motion and responding to an
argument by Berbaum, the circuit court found inter alia that the testimony of the
officer was not that she had merely been informed that it was a “possibility”
Berbaum “had struck a barrier on the highway,” but that the officer had testified
that the “identified citizen” had reported, and the officer had been informed, that
Berbaum had in fact struck a barrier, “that [Berbaum] had actually hit the barrier
or the rail.” The court found that the officer had been informed that after
“str[iking] either the rail or the barrier, [the vehicle] continued without stopping
and was heading into the City of Port Washington.”

¶7 Berbaum appeals.

DISCUSSION

¶8 Berbaum contends the circuit court erred in denying his motion to
suppress evidence because the officer lacked reasonable suspicion to perform the
traffic stop. We conclude the court did not err.

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No. 2025AP1380-CR

¶9 “The question of whether a traffic stop is reasonable is a question of
constitutional fact.” State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733 N.W.2d
634. Where, as here, the relevant facts are undisputed, we review independently
the application of those facts to constitutional principles. State v. Olson, 2001 WI
App 284, ¶6, 249 Wis. 2d 391, 639 N.W.2d 207.

¶10 An officer may conduct a traffic stop if the officer has reasonable
suspicion that a traffic violation has been or is being committed. State v.
Houghton, 2015 WI 79, ¶30, 364 Wis. 2d 234, 868 N.W.2d 143. Reasonable
suspicion, “a low bar,” State v. Nimmer, 2022 WI 47, ¶25, 402 Wis. 2d 416, 975
N.W.2d 598 (citation omitted), is an objective inquiry, determined by what a
reasonable officer would reasonably believe under the circumstances, State v.
Nesbit, 2017 WI App 58, ¶6, 378 Wis. 2d 65, 902 N.W.2d 266. Taking
“everything observed by and known to the [officer],” we “determine whether the
officer[] had ‘a particularized and objective basis’ to reasonably suspect” the
defendant of unlawful activity. Nimmer, 402 Wis. 2d 416, ¶26 (citations omitted).
The officer must possess “specific and articulable facts which, taken together with
rational inferences from those facts,” warrant a reasonable belief that the person
being stopped “has committed, was committing, or is about to commit” an offense.
Post, 301 Wis. 2d 1, ¶¶10, 13 (citation omitted).

¶11 Because Berbaum admits he “cannot demonstrate that any of the
[circuit] court’s findings of fact are clearly erroneous,” we accept the court’s
factual findings that law enforcement, including the officer, learned from an

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No. 2025AP1380-CR

“identified citizen” that a vehicle had struck a barrier2 along I-43 before exiting the
highway and heading into the city.3 Just minutes after learning that the sheriff’s
department was investigating this incident, the officer directly observed Berbaum,
at approximately 12:28 a.m.—a time of night that “lend[s] some further credence”
to an officer’s suspicion of intoxicated driving, see Post, 301 Wis. 2d 1, ¶36; see
also State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551
(concluding the time of night is a relevant factor in an OWI investigation)—
“park[] in the middle of the roadway [in front of a residence] with its blinker on”
when there was nowhere to turn in to. The officer learned that the license plate on
Berbaum’s vehicle matched that of the vehicle that had reportedly struck the
barrier and then exited the interstate and headed into the city. The officer then
observed Berbaum proceed straight before again stopping in the traffic lane with
its turn signal on, at a spot where there was “nowhere to turn. There was no road
or entryway.” More than just “confusing,” “unusual” and “bizarre,” Berbaum’s

2
The circuit court found that the identified citizen reported that Berbaum “had actually
hit the barrier or the rail,” rejecting Berbaum’s argument that the testimony established only “a
possibility that the defendant had struck a barrier on the highway.” Despite conceding in his
moving brief that he could not “demonstrate that any of the court’s findings of fact are clearly
erroneous,” Berbaum attempts in his reply brief to dispute the court’s finding that the citizen
reported that Berbaum had hit the barrier by resurrecting his “possibility” argument. This he
cannot do. See Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis. 2d 278, 294 n.11, 528
N.W.2d 502 (Ct. App. 1995) (stating it is a well-established rule that an appellate court will not
consider arguments raised for the first time in a reply brief).
3
While Berbaum sets forth the law on police reliance of information from an informant,
citing State v. Miller, 2012 WI 61, ¶¶31-32, 341 Wis. 2d 307, 815 N.W.2d 349, he fails to
develop an argument that law enforcement unreasonably relied on the identified citizen’s report
that Berbaum had been swerving and had struck the barrier. Thus, we do not address whether law
enforcement reasonably relied on the citizen’s report. See Clean Wis., Inc. v. PSC, 2005 WI 93,
¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (“We will not address undeveloped arguments.”).
We do note, however, that “a citizen informant—‘someone who happens upon a crime or
suspicious activity and reports it to police’— … is generally considered among the most reliable
informants.” Miller, 341 Wis. 2d 307, ¶31 n.18 (citation omitted).

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No. 2025AP1380-CR

driving at this time of night, including his concerning contact with the stationary
barrier, was such that it provided the officer with reasonable suspicion to stop him
for further investigation as to whether he was operating his vehicle while under the
influence of an intoxicant.4

¶12 Strangely, Berbaum attacks the fact that “[t]here was no information
concerning the severity of the purported collision. There is a world of difference
between a slight scrape of the barrier, and a full-on collision with it.” Although it
could go without saying, any contact between a moving vehicle and a stationary
barrier on the interstate creates automatic suspicion that something is dangerously
amiss with the driver of the vehicle. In this case, it is obvious that the contact with
the barrier was sufficiently minor so as to allow Berbaum to continue driving the
vehicle after the contact, and any damage to the vehicle failed to rise to the level

4
Berbaum suggests the officer did not have reasonable suspicion because she did not
personally observe him commit a traffic violation. To begin, as indicated, with all the facts of
which the officer was aware, she had reasonable suspicion that Berbaum was operating his
vehicle while under the influence of an intoxicant, which was enough to legally support the traffic
stop; she did not need probable cause that he committed that violation or any other. See State v.
Popke, 2009 WI 37, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569 (“Even if no probable cause existed,
a police officer may still conduct a traffic stop when, under the totality of the circumstances, he or
she has grounds to reasonably suspect that a crime or traffic violation has been or will be
committed.”). As for the fact that the officer did not personally observe Berbaum strike the
barrier but instead learned of this from a citizen informant, the Supreme Court has “firmly
rejected the argument ‘that reasonable [suspicion] for a[n investigative stop] can only be based on
the officer’s personal observation, rather than on information supplied by another person.’”
Navarette v. California, 572 U.S. 393, 397 (2014) (second alteration in original; citation
omitted).

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No. 2025AP1380-CR

of a highlight noted by the officer in her testimony.5 The extent of the damage
does nothing to undermine reasonable suspicion here.

By the Court.—Judgment affirmed.

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

5
In her direct examination testimony, the officer did not testify to observing damage on
Berbaum’s vehicle. Only when she was asked on cross-examination as to whether she observed
damage on the vehicle, did she explain that she observed “a small amount of damage to the
vehicle.” It is not clear from her testimony, however, whether she observed that damage before
or after she stopped Berbaum.

7