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COURT OF APPEALS DECISION DATED AND FILED November 7, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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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.� |
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����������� APPEAL from a judgment of the circuit court for Dane County:� nicholas mcnamara, Judge.� Affirmed.�
�1������� LUNDSTEN, J.[1] Brent Curry appeals his judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration.� Curry argues that the circuit court erred in denying his motion to suppress the evidence that supported his conviction.[2]� Curry argues that the officer lacked reasonable suspicion for the Terry stop that led to his arrest.� I agree with the circuit court that the officer had reasonable suspicion to stop Curry for a theft-of-property-related crime, and I further conclude that the officer had reasonable suspicion to stop Curry for intoxicated driving.� I affirm.
Background
�2������� The sole witness at the suppression hearing was the police officer who stopped and arrested Curry.� I rely on that testimony for background.�
�3������� The officer was on patrol in his squad car in a residential neighborhood.� He explained that part of the reason he was patrolling the neighborhood was because there had been a lot of thefts from vehicles in that area.�
�4������� At about 3:40 a.m., the officer noticed a vehicle that seemed to be in the middle of a road with its brake lights on. �The officer drove toward the vehicle, but lost sight of it for about 30 seconds because of a hill in the road.� As the officer came over the top of the hill, he saw a vehicle performing a Y-turn on a dead-end road.� The officer did not see any other vehicles around, but was not entirely certain whether the brake-light vehicle and the Y-turn vehicle were the same vehicle.�
�5������� The vehicle making the Y-turn finished turning around and drove past the officer, accelerating at a high rate of speed.� The officer believed the vehicle was exceeding the 25 mile per hour speed limit.� The officer turned around and followed the vehicle.� The vehicle made a turn at a high rate of speed, then pulled into the driveway of a residence.�
�6������� The officer stopped his squad nearby and observed the vehicle for a couple of minutes.� No one exited the vehicle during that time.� The officer repositioned his squad and was able to see that someone remained in the vehicle and was also able to see the vehicle�s license plate number.� He ran a check on the plate and discovered that it was registered to Brent Curry at a Middleton address.�
�7������� The officer exited his squad, and, as he headed toward the vehicle, the driver exited the vehicle and began walking up the driveway toward the house.� The officer observed the driver walk toward the residence�s garage doors.� The officer then observed the driver walk along the front of the garage, away from the front door of the residence.�
�8������� At that point, the officer �asked� the driver to �come speak with� him, or said �hey, can you come talk to me.�� The driver identified himself as Curry and, in response to questioning, Curry admitted that he had been drinking.� The officer�s subsequent investigation produced additional evidence of intoxication, leading to Curry�s arrest.�
�9������� The circuit court concluded that the officer possessed reasonable suspicion of criminal activity justifying a Terry stop at the time that the officer initiated verbal contact with Curry.� The circuit court appeared to conclude that the officer had reasonable suspicion that Curry was trespassing or was engaged in some other type of theft-of-property-related crime.�
Discussion
�10����� In reviewing a suppression decision, this court upholds a circuit court�s findings of fact unless those findings are against the great weight and clear preponderance of the evidence. �State v. Guzy, 139 Wis. 2d 663, 671, 407 N.W.2d 548 (1987). �The legality of an investigative stop, however, is a question of law for de novo review. �Id.
�11����� As a preliminary matter, I note that the City has not argued that the officer�s initial questioning of Curry was a voluntary police-citizen encounter instead of a Terry stop.� Rather, the City asserts that the officer initiated a Terry stop when the officer made verbal contact with Curry.� I will assume, without deciding, that the officer initiated a Terry stop when he made verbal contact with Curry.� The only dispute on appeal is whether the officer possessed reasonable suspicion of criminal activity at that time.
�12����� �The question whether the officer�s suspicion was reasonable is a common sense test:� was the suspicion grounded in specific, articulable facts and reasonable inferences from those facts that the individual was committing a crime.�� State v. Fields, 2000 WI App 218, �10, 239 Wis. 2d 38, 619 N.W.2d 279. ��An inchoate and unparticularized suspicion or hunch will not suffice.�� Id.� �However, the officer is not required to rule out the possibility of innocent behavior.�� Id.
�13����� Curry�s argument consists mostly of the generalized assertion that the officer�s stop was based on nothing more than an �inchoate and unparticularized hunch.� �Curry asserts that the officer could not �conclusively� say that Curry was speeding or was guilty of any other wrongdoing.�
�14����� I disagree with Curry that the officer had only an inchoate hunch that Curry was engaged in illegal activity.� As to whether the officer could �conclusively� say that Curry was engaged in wrongdoing, that is not the standard.
�15����� I agree with the circuit court that the officer could have reasonably suspected that Curry was engaged in some type of theft-of-property-related crime based on the following facts:� the time of night, Curry�s lingering in the vehicle, the license plate check showing Curry probably lived at a different address, Curry�s odd action consisting of sitting in the car for a time and then walking to and along the front of the garage and away from the front door of the house, and the officer�s knowledge of problems with thefts of property from vehicles in the neighborhood.�
�16����� In addition, I conclude that the officer could have reasonably suspected that Curry was driving while intoxicated based on the following circumstances:� the time of night, Curry�s series of unusual driving behaviors, including fast acceleration, Curry�s lingering in the vehicle, and Curry�s behavior after he exited the vehicle.� As to the unusual driving behaviors, the officer could have reasonably inferred that the vehicle the officer saw with its brake lights on in the middle of the road was Curry�s vehicle because it was 3:40 a.m. and because the officer saw no other vehicles in what the officer described as a residential area.� The fact that the officer could not say for certain whether the brake-light vehicle was Curry�s vehicle does not make it unreasonable to infer that they were the same vehicle.
Conclusion
�17����� For the reasons stated, I affirm.
����������� By the Court.�Judgment affirmed.
����������� This opinion will not be published.� Wis. Stat. Rule 809.23(1)(b)4.