COURT OF APPEALS

DECISION

DATED AND FILED

 

August 10, 2010

 

A. John Voelker

Acting 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.�

2010AP348-CR

Cir. Ct. No.� 2008CT84

STATE OF WISCONSIN���

IN COURT OF APPEALS

 

DISTRICT III

 

 

 

 

State of Wisconsin,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Glenn L. Earhart,

 

��������� Defendant-Appellant.

 

 

 

����������� APPEAL from a judgment of the circuit court for Bayfield County:� JOHN P. ANDERSON, Judge.� Affirmed.�

�1������� HOOVER, P.J.[1]   Glenn Earhart appeals a judgment of conviction for operating while intoxicated, third offense.� Earhart argues the police did not have reasonable suspicion to temporarily detain him, because the complaining witness lacked credibility.� We reject Earhart�s argument and affirm.

BACKGROUND

�2������� Bayfield County Sheriff�s Deputy Jeffrey Kistner responded to a dispatch concerning Bonnie Hitchon.� Hitchon, who was at work, reported she received a phone call from her former boyfriend, Glenn Earhart. �According to Hitchon, Earhart stated, �I know where you are, I know where you live, bitch,� and then hung up the phone. �Hitchon told Kistner the caller ID displayed the call as �unavailable,� but she recognized his voice.

�3������� Hitchon further informed Kistner she had a restraining order against Earhart. �Kistner did not locate a restraining order, but did find a Sawyer County case pending against Earhart that had a no-contact bond provision regarding Hitchon. �Kistner then verified the bond condition with the Sawyer County jail and made arrangements to meet with a Sawyer County deputy.[2] �

�4������� Kistner and the other deputy decided to question Earhart about the alleged phone call.� They proceeded to Earhart�s residence, but nobody was home.� As the deputies were leaving in their vehicles, however, a truck entered the driveway, proceeded past them, and stopped in the driveway.� After the driver, later identified as Earhart, exited, the deputies walked up and spoke with him outside his vehicle.� While conversing with Earhart, Kistner smelled the odor of an intoxicant from Earhart and noticed his speech was slightly slurred.� Kistner administered field sobriety tests and a preliminary breath test, and arrested Earhart for operating while intoxicated.

�5������� Earhart moved to suppress the evidentiary fruits of the encounter, arguing the police lacked reasonable suspicion to temporarily detain him.� Following an evidentiary hearing, the circuit court denied the motion.� Earhart pled no contest and now appeals.

DISCUSSION

�6������� For an investigatory stop to be constitutional, a law enforcement officer must reasonably suspect �that a crime has been committed, is being committed, or is about to be committed.� �State v. Young, 2006 WI 98, �20, 294 Wis. 2d 1, 717 N.W.2d 729.� Whether reasonable suspicion existed for an investigatory stop is a question of constitutional fact, to which we apply a two-part standard of review. �State v. Williams, 2001 WI 21, �18, 241 Wis. 2d 631, 623 N.W.2d 106. �We uphold a circuit court�s findings of historical fact unless they are clearly erroneous. �Id. �Whether those facts constitute reasonable suspicion is a question of law that we decide independently of the circuit court. �Id. �

�7������� As an initial matter, we observe the facts of this case suggest Earhart was not the subject of an investigatory stop so as to require reasonable suspicion in the first place.� Nonetheless, because the State does not address this issue, we will assume for the sake of argument that reasonable suspicion was required.

�8������� Earhart concedes that all of the facts known to the deputies would constitute reasonable suspicion if the officers could reasonably rely upon the information Hitchon provided.� He argues, however, the deputies should have sought further corroboration because she was an unreliable witness.� Earhart argues there were �special circumstances� indicating Earhart was unreliable, citing the following language: ��When an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case.�� State v. Sisk, 2001 WI App 182, �9, 247 Wis. 2d 443, 634 N.W.2d 877 (quoting State v. Kerr, 181 Wis. 2d 372, 381, 511 N.W.2d 586 (1994)).

�9������� Earhart argues Kistner unreasonably relied on Hitchon�s report because she was a known criminal.� Earhart�s argument flows entirely from the following testimony by Kistner when asked whether he knew Hitchon had pending cases against her:� �I may have been aware that she was stopped for driving after revocation.� But, I was unaware of how many, or � you know, with certainty, no.�� Earhart contends that, based on this knowledge, Kistner should have inquired into Hitchon�s criminal record, which, in turn, would have revealed she had a single misdemeanor conviction and several pending criminal traffic cases.� According to Earhart, this would have significantly undermined Hitchon�s credibility. �Thus, Earhart insists Kistner should have further corroborated Hitchon�s allegation, suggesting Kistner should have reviewed phone records.

�10����� We reject Earhart�s absurd argument.� Police need not conduct a criminal record search on a victim as a prerequisite to questioning the alleged actor, regardless of whether the investigating officer knows the victim has been arrested in the past.� �In considering the totality of the circumstances, ... our focus is upon the reasonableness of the officers� actions in the situation facing them. ��The essential question is whether the action of the law enforcement officer was reasonable under all the facts and circumstances present.�� �Williams, 241 Wis. 2d 631, �23 (quoting State v. Richardson, 156 Wis. 2d 128, 139-40, 456 N.W.2d 830 (1990)).

�11����� Here, Kistner set out to investigate Hitchon�s complaint further, seeking Earhart for voluntary questioning.� This was eminently reasonable. �At worst, Earhart was inadvertently temporarily detained due to the timing of his return home. �Hitchon�s minor criminal record and pending operating after revocation charges do not constitute special circumstances that would appreciably undermine her credibility as a victim witness.� In any event, those circumstances were unknown to Kistner at the time and, therefore, are not part of the totality of the circumstances bearing on reasonable suspicion.

����������� By the Court.�Judgment affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.�

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

[2]  Earhart�s residence was located approximately on the border of Sawyer and Bayfield Counties.