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COURT OF APPEALS DECISION DATED AND FILED September 7, 2011 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.� |
Cir. Ct. No.� 2009CT53 |
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STATE OF WISCONSIN� |
IN COURT OF APPEALS |
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DISTRICT III |
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State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Andrew W. Rosenthal, ��������� Defendant-Appellant. |
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����������� APPEAL from a judgment of the circuit court for Outagamie County:� MICHAEL W. GAGE, Judge.� Affirmed.�
�1������� HOOVER, P.J.[1] Andrew Rosenthal appeals a judgment of conviction for operating while intoxicated, fourth offense.� Rosenthal asserts the circuit court erred by denying his suppression motion, and contends officer Jeffrey Oberg did not have reasonable suspicion to stop his vehicle.� We affirm.
BACKGROUND
�2������� Rosenthal was charged with operating while intoxicated, fourth offense.� He moved to suppress the evidence, alleging Oberg illegally detained him.� ��
�3������� At the motion hearing, Oberg testified that on December 7, 2008, at approximately 2:30 a.m., he was traveling west on Northland Avenue in Grand Chute, Wisconsin, when the vehicle in front of him turned right on an access road.� The access road is a dead-end road that provides access to two businesses: a seasonal greenhouse and a twenty-four hour storage facility.� Both businesses were closed; however, general access to the storage facility remained open.�
�4������� The vehicle passed the greenhouse and traveled toward the storage facility. �Oberg found it peculiar that the vehicle was traveling toward the storage facility because that particular facility was a high priority patrol area and �of all the storage[ complexes], � [that] one gets broken into the most.� �He admitted he was suspicious of any vehicle that entered this facility at this time in the morning.� Oberg pulled over on Northland Avenue and observed the vehicle as it entered the storage facility complex.�
�5������� The storage complex is comprised of a business office and six large buildings that house the individual storage units. �When a vehicle enters the complex, it is facing north with the business office on its left and one of the storage buildings on its right. �The remaining five storage buildings are set back in a row behind the business office and first storage building.�
�6������� When Oberg could no longer see the vehicle from his vantage point on Northland Avenue, he turned around, went back to the access road, and traveled to the storage facility.� Oberg explained that it had just snowed, so he was able to follow the vehicle�s tire tracks.� When Oberg entered the facility, he followed the tire tracks to one of the set-back storage buildings.� As he followed the tracks around the building, he was able to observe the vehicle�s headlights and knew the vehicle was on the other side.�
�7������� Oberg continued to follow the tracks around the building and determined the vehicle had not stopped at a unit.� The vehicle then left the storage complex.� Oberg found it suspicious that the vehicle had not stopped at a unit because this showed the vehicle did not have business to conduct. �Oberg caught up with the vehicle when it reached the access road.� Oberg activated his lights and stopped the vehicle.� The driver, who was identified as Rosenthal, was ultimately arrested for operating while intoxicated.� Oberg conceded that prior to stopping Rosenthal, he observed no bad driving.�
�8������� The circuit court denied Rosenthal�s motion to suppress, concluding Oberg had reasonable suspicion to stop the vehicle based on the totality of the facts.� Rosenthal subsequently pled no contest and was convicted of operating a motor vehicle while intoxicated, fourth offense.�
DISCUSSION
�9������� Whether there is reasonable suspicion to stop a vehicle is a
question of constitutional fact. �State
v. Popke, 2009 WI 37, �10, 317 Wis. 2d 118, 765 N.W.2d 569. ���������� ��A finding of constitutional fact consists of
the circuit court�s findings of historical fact, which we review under the �clearly
erroneous standard,� and the application of these historical facts to
constitutional principles, which we review de novo.�� Id.
�10����� A police officer may temporarily stop an individual when the
officer reasonably suspects that the person has committed, is committing or is about to commit an offense.� Terry v. Ohio, 392 U.S. 1, 20-22
(1968); see also Wis. Stat. � 968.24.� �Such a stop must be based on
more than a police officer�s inchoate and unparticularized suspicion or hunch.�� State v. Post, 2007 WI 60, �10, 301 Wis. 2d 1, 733 N.W.2d
634 (citations omitted).� �The officer must be able to point to specific and
articulable facts that, taken together with rational inferences from those
facts, reasonably warrant the intrusion of the stop.�� Id.�
�11����� Police officers, however, are not required to rule out the possibility of innocent behavior before initiating a Terry stop. �State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990). �If any reasonable inference of present or potential wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences, the police have a right to temporarily detain the suspect for purposes of inquiry. �Id.
�12����� On appeal, Rosenthal argues that �[e]ven with the cumulative effect of the officer�s observations, any inference that Rosenthal was committing or about to commit a crime was nothing more than a hunch.�� In support, Rosenthal relies on our decision in State v. Young, 212 Wis. 2d 47, 569 N.W.2d 84 (Ct. App. 1997).�
�13����� In Young, an officer, who was conducting surveillance in a heavy drug trafficking area at 1:15 p.m., observed Young briefly meet with another individual.� Id. at 420.� Young was subsequently stopped on suspicion that a drug transaction had taken place.� Id.� We observed that �stopping briefly on the street when meeting another person is an ordinary, everyday occurrence during daytime hours in a residential neighborhood.�� Id. at 429-30.� We concluded that, because Young�s conduct also �described the conduct of a large number of law-abiding citizens in the neighborhood,� the officer did not have enough particularized information to give rise to a reasonable suspicion of criminal activity.� Id. at 430, 433.
�14����� Here, conversely, we conclude that Rosenthal�s conduct does not describe the conduct of a large number of innocent persons.� See id. at 433.� Oberg observed Rosenthal travel to a storage facility under the cover of night, enter the complex, encircle one of the set-back buildings, and then attempt to leave without stopping at a specific unit.� Although it is not unlawful to travel to a twenty-four hour storage complex at 2:30 a.m., Oberg testified the activity was peculiar and explained he became very suspicious when the vehicle, after driving around one of the buildings, failed to stop at a unit, and attempted to leave.� Oberg also considered this activity in light of his knowledge that the storage complex suffered the most break-ins of any storage facility and had been designated a high-priority patrol area.� Considering the totality of the circumstances, we conclude Rosenthal�s conduct could give rise to a reasonable inference that Rosenthal was �casing� the premises[2] and, thus, Oberg had reasonable suspicion to conduct a Terry investigation. �See Anderson, 155 Wis. 2d at 84.�
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����������� 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 2009-10 version unless otherwise noted.
[2] We also note that, while distinguishable, Terry v. Ohio, 392 U.S. 1, 4-7, 27-28 (1968), was a case where the Court determined the officer lawfully stopped Terry after making observations that led the officer to believe Terry was �casing a job.�