COURT OF APPEALS

DECISION

DATED AND FILED

January 31, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

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.
No. 2023AP1053-CR

3

¶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 
No. 2023AP1053-CR

4

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.
No. 2023AP1053-CR

5

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 
No. 2023AP1053-CR

6

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.
No. 2023AP1053-CR

7

¶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.
No. 2023AP1053-CR

8

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.
No. 2023AP1053-CR

9

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.