Appeals court says traffic stop was legal

By: 

Kevin Murphy, Leader Correspondent

A state appeals court this week rejected a Shawano man’s claim that police unlawfully invaded his privacy by checking his license plate, which led to his arrest for operating while intoxicated.

The District III Court of Appeals rejected Daniel R. Folkman’s argument and found that he had no reasonable expectation of privacy in the vehicle and the driver records maintained by the state.

The traffic stop that resulted from accessing vehicle records did not infringe on Folkman’s constitutional right against unlawful search and seizure, the court concluded.

Folkman’s attorney, Alf Langan, said he wanted to the Wisconsin Supreme Court to take the case, arguing that police should not be allowed to randomly check license plates without a good reason.

“This is an invasion of our privacy. The Patriot Act allowed increase surveillance of the public, the (National Security Agency) is tracking phone calls and emails gathering metadata … Big Brother is watching us,” he said Wednesday.

Folkman, 33, was driving on North Warrington Avenue in Cecil in May 2012 when Shawano County Sheriff’s Department deputy Ben Klenke ran a registration check on the vehicle through a computer in the squad car.

Learning the car was registered to Folkman, Klenke ran Folkman’s name through the computer system and discovered his license was expired.

Klenke stopped the vehicle, and after Folkman refused to take a breath test, subsequently arrested him for OWI.

Langan asked Circuit Judge William Kussell Jr. to throw out the blood-alcohol test evidence against Folkman, arguing that Klenke lacked reasonable suspicion to initially check on Folkman’s license plate.

“The sheriff’s deputy saw (Folkman) driving at night, but there was nothing remarkable about the way he was driving,” Langan said. “He wasn’t breaking any law. The police, in my theory, which hasn’t been denied, had nothing else to do so they ran the plate.”

It is an inappropriate use of police power to check a license plate for no other reason than to prevent an officer from becoming bored at work, Langan said.

Kussell refused to suppress the evidence against Folkman, who pleaded no contest to OWI second offense.

Kussell put Folkman on two years probation with five days in jail, revoked his driver’s license for one year, and assessed $1,150 in costs and fees, according to online court records. The sentence was stayed pending appeal.

District III Appeals Judge Michael Hoover upheld Kussell’s suppression ruling Tuesday, agreeing that Folkman had no right to privacy since state law requires license plates to be displayed.

On appeal, Assistant District Attorney Scott Niemi defended the conviction, arguing that Folkman was trying to invoke a right to privacy that does not exist.

Hoover agreed and said checking on license plates differed from the government reading emails and monitoring phone calls.

“That individuals have an expectation of privacy in personal emails and telephone conversations that were collected through ‘hacking’ does not mean individuals have the same expectation of privacy in vehicle registration and licensing information, which, as the circuit court observed, is information that individuals are required to submit to the state,” Hoover wrote in the nine-page opinion.

Niemi didn’t return a call seeking comment on the decision.

Langan said he will consult with Folkman about asking the state’s high court to take the case.