COURT OF APPEALS DECISION DATED AND FILED August 12, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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 No. |
2010AP723-CR |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Steve J. Will,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 VERGERONT, J.[1] Steve Will appeals the judgment of conviction for operating a motor vehicle while intoxicated (OWI), third offense, in violation of Wis. Stat. § 346.63(1)(a). He contends that a sheriff’s deputy who was looking for suspects from a nearby marijuana growing operation did not have reasonable suspicion to stop his vehicle, and therefore the circuit court erred in denying his motion to suppress evidence. For the reasons we explain below, we conclude that under the totality of the circumstances the deputy had reasonable suspicion to stop Will’s vehicle. Accordingly, the court properly denied the motion to suppress, and we affirm the judgment of conviction.
BACKGROUND
¶2 Will was stopped by Columbia County Deputy Sheriff Cory
Miller at approximately 9 p.m. on October 8, 2008. At the evidentiary hearing on Will’s motion
to suppress evidence, Deputy Miller and the arresting officer,
¶3 The Columbia County Sheriff’s Department had learned that
marijuana plants were growing in a cornfield and had set up an alarm that would
be tripped by someone walking in the field toward the plants. Deputy Miller responded when the alarm was
tripped on the evening of October 8, 2008.
Two deputies were hiding in the cornfield so that they could observe
whoever was in the field, and, Deputy Miller believed, they had been there a
few hours before the alarm was tripped.
Deputy Miller’s responsibility and that of a fourth deputy was to watch
for vehicles and stop suspects coming from the marijuana operation along Hall Road,
an approximately two-mile stretch that ends at Highway C on one end and at another
road on the other end. Deputy Miller
parked his vehicle at the corner of
¶4 After waiting twenty minutes without seeing a vehicle on Hall
Road or hearing from the hidden deputies, Deputy Miller, who was standing
outside his vehicle, saw Will’s truck coming toward him on Hall Road. He shined his flashlight into the vehicle and
observed one male, the operator of the vehicle.
As the vehicle turned onto Highway C, the deputy shined his flashlight
on the license plate and obtained the number.
Deputy Miller believed, but was not sure, that the fourth deputy
originally stationed at the other end of
¶5 Deputy Miller did not immediately follow Will. He first tried to make radio contact with the
deputies in the cornfield to ascertain whether the truck or its driver were associated
with the marijuana operation, but he received no response from them. However, a detective sergeant familiar with
the case told him over the radio that anyone leaving the area could be a
suspect. Deputy Miller did not see any
other vehicles on
¶6 Deputy Miller caught up to Will’s truck after about eight to
ten miles and pulled it over. He did not
observe Will commit any traffic violations.
After making contact with Will, he noticed the odor of intoxicants coming
from him and that he had bloodshot eyes. Sergeant Becker arrived on the scene as backup,
at which point Deputy Miller returned to his post at
¶7 The circuit court denied the motion to suppress and the motion for reconsideration. The court concluded that Deputy Miller had the requisite reasonable suspicion to make an investigative stop.
DISCUSSION
¶8 On appeal, Will renews his contention that Deputy Miller lacked reasonable suspicion that he was involved in the marijuana operation and the stop therefore violated his Fourth Amendment rights.
¶9 The Fourth Amendment to the United States Constitution
protects against unreasonable searches and seizures, and an investigative stop
is a seizure under the Fourth Amendment.
State v. Post, 2007 WI 60, ¶10, 301
¶10 In reviewing the circuit court’s determination, we accept the
court’s findings of fact unless they are clearly erroneous, and we review de
novo the application of those facts to the constitutional standard. State v. Young, 2006 WI 98, ¶17, 294
¶11 Will asks us to consider the following six factors utilized by
the supreme court in Guzy to determine whether an investigatory stop was
reasonable: (1) the particularity of the description of the defendant or the
vehicle in which he fled; (2) the size of the area in which the defendant might
be found, as indicated by such facts as the elapsed time since the crime
occurred; (3) the number of persons about in that area; (4) the known or
probable direction of the defendant’s flight; (5) observed activity by the
particular person stopped; and (6) knowledge or suspicion that the person or
vehicle stopped has been involved in other criminality of the type presently
under investigation. Guzy,
139
¶12 The State agrees that consideration of these factors is appropriate
and adds the following factors considered by the court in Guzy: (1) whether
alternative means of further investigation are available, short of an
investigative stop; (2) whether the opportunity for further investigation would
be lost if the officer does not act immediately; and (3) what actions following
the stop would be necessary for the officer to determine whether to arrest or
release the suspected individual. Guzy,
139
¶13 We conclude that the above nine factors are all appropriate to consider. After considering these factors as they apply to the facts of this case, we conclude for the following reasons that Deputy Miller had reasonable suspicion to stop Will’s vehicle.
¶14 While Deputy Miller was unable to get a description of the suspect
or suspects from the hidden deputies, he knew that
¶15 In addition, Will’s truck was the only vehicle Deputy Miller
saw on Hall Road during the first twenty minutes after the alarm was activated and during the additional time he was
attempting to gain more information over the radio. Also significant is the twenty minutes between
the alarm being tripped and the sighting of Will’s vehicle. Given that Will’s location was about a
quarter-mile from the location of the alarm, twenty minutes is consistent with
the time it would take for a suspect to leave the marijuana plants, walk to a
vehicle on
¶16 After seeing Will’s truck emerge from
¶17 Considering the alternatives available to Deputy Miller, we reject Will’s contention that the deputy acted unreasonably in stopping him instead of having the deputies in the cornfield look at a photo of Will to determine whether he was seen in the cornfield. According to Will, by using the license plate number, the deputy could have obtained Will’s photo from his vehicle registration or driver’s license (apparently based on the assumption that Will owned the vehicle). We note that there is no evidence on whether, through what procedure, and in what time frame Will’s photo was available to Deputy Miller in this way. However, in any case Deputy Miller would have lost the opportunity to investigate Will’s connection to the marijuana operation at the time when Will was readily available to him and when he might have evidence of the crime with him. The same is true of the alternative of using the license plate number to obtain an address for Will (assuming he owned the vehicle) and trying to locate him at that address.
¶18 We agree with Will that his presence in an area of expected
criminal activity, standing alone, is not enough to support reasonable
suspicion. However, “officers are not
required to ignore the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to warrant further
investigation.”
¶19 It is also true, as Will argues, that a suspect could have
turned the other way down
CONCLUSION
¶20 We conclude that the stop of Will’s truck was supported by the requisite reasonable suspicion. Accordingly, we affirm.
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)(f) and (3) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.