COURT OF APPEALS

DECISION

DATED AND FILED

 

May 3, 2012

 

Diane M. Fremgen

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.�

2011AP1371

Cir. Ct. No.� 2010TR2383

STATE OF WISCONSIN�

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

County of Waukesha,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Thomas C. Groshek,

 

��������� Defendant-Appellant.

 

 

 

����������� APPEAL from a judgment of the circuit court for Waukesha County:� mark d. gundrum, Judge.� Affirmed.� �

�1������� Sherman, J.[1]    Thomas Groshek appeals a judgment convicting him of operating a motor vehicle under the influence of an intoxicant (OWI), first offense.� Groshek contends that the arresting officer lacked reasonable suspicion to justify the investigative stop of his vehicle.� We affirm.

BACKGROUND

�2������� On April 3, 2010, at approximately 1:37 a.m., Deputy Stephen Smith, a deputy with the Waukesha County Sheriff�s Department, was dispatched to investigate an anonymous tip that a single motorcycle had been involved in an accident in the area of Highway 83 and Depot Road in Waukesha County.� Prior to arriving at the scene, Smith was informed by dispatch that the motorcycle had been joined by a second motorcycle, and that both had left the scene of the accident, heading north on Highway 83.� Shortly thereafter, Smith observed two motorcycles matching the descriptions provided to him by dispatch traveling north on Highway 83.� Smith initiated a traffic stop and after making contact with the drivers of the motorcycles, cited Groshek for OWI.�

�3������� Groshek moved to suppress all evidence obtained from the stop on the basis that Smith lacked reasonable suspicion to stop his vehicle.� The circuit court denied Groshek�s motion.� At the hearing on the motion, Smith testified that he stopped Groshek �as a community caretaker function to try and figure out what circumstances were surrounding the crash.�� The court concluded that the stop was not based on a bona fide community caretaker function, but that there was sufficient reasonable suspicion that Groshek had committed an offense to justify the stop.� Accordingly, the court denied Groshek�s motion to suppress.� Groshek was subsequently convicted of first offense OWI. �Groshek appeals.�

 

 

DISCUSSION

�4������� Groshek contends the circuit court erred in determining that Deputy Smith had reasonable suspicion to stop his motorcycle.[2]�

�5������� We apply a two-step analysis in reviewing a circuit court�s determination that an officer had reasonable suspicion to initiate an investigative stop.� State v. Post, 2007 WI 60, �8, 301 Wis. 2d 1, 733 N.W.2d 634.� We will uphold the circuit court�s factual findings unless they are clearly erroneous; however, we review de novo the application of those facts to constitutional standards.� Id.

�6������� In order to conduct an investigative stop consistent with the Fourth Amendment�s prohibition against unreasonable search and seizure, a police officer must have at least reasonable suspicion that the person has committed, is committing, or is about to commit an offense.� Post, 301 Wis. 2d 1, ��10, 13.� �[W]hat constitutes reasonable suspicion is a common sense test: �under all the facts and circumstances present, what would a reasonable police officer reasonably suspect in light of his or her training and experience.�� State v. Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997).� Although acts and circumstances by themselves may be lawful behavior that falls short of reasonable suspicion, the rational inferences drawn from those facts taken together as a whole may constitute reasonable suspicion.� State v. Popke, 2009 WI 37, �25, 317 Wis. 2d 118, 765 N.W.2d 569.

�7������� Deputy Smith was dispatched to a semi-rural area to investigate a report� that a motorcycle had been involved in an accident at approximately 1:30 a.m., around �bar time,� in the vicinity of a bar.� Smith was advised that following the accident, the motorcycle in the accident had taken off with another motorcycle.� Shortly thereafter, Smith encountered two motorcycles heading in the direction advised by dispatch.� Based on these facts, Smith could reasonably have suspected that Groshek had been involved in a car accident, was either injured or intoxicated, and was leaving the scene of the crash.� See, e.g., State v. Lange, 2009 WI 49, �32, 317 Wis. 2d 383, 766 N.W.2d 551 (time of night is a factor when considering the existence of probable cause to arrest for OWI, a standard more stringent than reasonable suspicion to make a traffic stop); State v. Purintun, No. 2010AP2493, unpublished slip op. �9 (WI App Mar. 15, 2011) (dispatch to rural location to investigate report of possible accident and observation of suspect leaving the scene factor in considering reasonable suspicion for investigatory stop).[3]

Accordingly, I conclude that the investigatory stop was supported by reasonable suspicion, and I therefore affirm the denial of Groshek�s motion to suppress.

CONCLUSION

�8������� For the reasons discussed above, I 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)(c) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.���

[2]  The State does not challenge the circuit court�s conclusion that the stop of Groshek was not justifiable under the community caretaker exception. �Accordingly, I limit my analysis to the question of whether the stop was based on reasonable suspicion.�

[3]  I cite State v. Purintun, No. 2010AP2493, unpublished slip op. �9 (WI App Mar. 15, 2011), as persuasive authority under Wis. Stat. Rule 809.23(3)(b) (an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under Wis. Stat. � 752.31(2) may be cited for its persuasive value).