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COURT OF APPEALS DECISION DATED AND FILED October 23, 2012 Diane M. Fremgen 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.� 2009CT125 |
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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. Terry E. Nelson, ��������� Defendant-Appellant. |
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����������� APPEAL from a judgment of the circuit court for Sawyer County:� GERALD L. WRIGHT, Judge.� Affirmed.�
�1������� PETERSON, J.[1] Terry Nelson appeals a judgment of conviction for operating while intoxicated, second offense.� Nelson argues the circuit court erred by denying his suppression motion because the arresting officer lacked reasonable suspicion to stop Nelson�s vehicle.� We disagree and affirm.
BACKGROUND
�2������� At the suppression hearing, officer Dan Glaze testified he was dispatched to 7788 Lake Avenue in Northwoods Beach.� Someone at the residence had called 911 but then hung up the phone.� Dispatch tried to call back but no one answered the call.� Approximately ninety seconds after receiving the dispatch, Glaze arrived at the residence, which is the only house on Lake Avenue.� As he neared the residence, Glaze observed a vehicle pulling out of the driveway.� He stopped the vehicle and made contact with the driver, subsequently identified as Nelson.�
�3������� Nelson had just dropped off an acquaintance who lived at the Lake Avenue residence and was unaware of the 911 hang-up call. �Nelson, however, exhibited signs of intoxication, and Glaze ultimately arrested him for operating while intoxicated.� �����
�4������� The circuit court denied Nelson�s suppression motion, reasoning Glaze had reasonable suspicion to stop Nelson�s vehicle based on the 911 hang-up call, the inability of dispatch to make contact with anyone at the residence, and Glaze�s observation of Nelson�s vehicle leaving the residence.� Nelson then pled no contest to operating while intoxicated, and the circuit court found him guilty.�
DISCUSSION
�5������� An officer may conduct a traffic stop if he or she has reasonable suspicion to believe a crime or traffic violation has been or will be committed.� State v. Popke, 2009 WI 37, �23, 317 Wis. 2d 118, 765 N.W.2d 569.� Whether there is reasonable suspicion is a question of constitutional fact.� Id., �10.� We uphold the circuit court�s factual findings unless they are clearly erroneous; however, we independently apply those facts to constitutional principles.� Id.�
�6������� Reasonable suspicion exists when, under the totality of the circumstances, �the facts of the case would warrant a reasonable police officer, in light of his or her training and experience, to suspect that the individual has committed, was committing, or is about to commit a crime.�� State v. Post, 2007 WI 60, �13, 301 Wis. 2d 1, 733 N.W.2d 634 (citation omitted).� �Such a stop must be based on more than an officer�s �inchoate and unparticularized suspicion or hunch.��� Id., �10 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).� Instead, the officer ��must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant� the intrusion of the stop.�� Id. (quoting Terry, 392 U.S. at 21).�
�7������� Nelson argues Glaze lacked reasonable suspicion to stop his vehicle.� In support, Nelson relies on United States v. Cohen, 481 F.3d 896 (6th Cir. 2007).� In Cohen, officers responded to a 911 hang-up call that came from a residence located in a cul-de-sac with five or six other houses.� Id. at 899.� The officers stopped a vehicle that was turning out of the cul-de-sac.� Id.� The Sixth Circuit determined the officers lacked reasonable suspicion to stop the vehicle.� Id.� The court observed that a 911 hang-up call, standing alone without any follow-up calls by a dispatcher or other information, was analogous to an anonymous tip.� Id. at 899. �Because the 911 hang-up call only suggested that �there might be an emergency, which might or might not include criminal activity,� the call did not amount to reasonable suspicion without some corroboration that criminal activity was afoot.� Id. at 900.� The court also determined the officers lacked reasonable suspicion to believe that the vehicle they stopped near the 911 hang-up call residence was involved.� Id.
�8������� The circumstances here differ from Cohen.� First, the dispatcher in this case followed up and attempted to establish contact with the 911 hang-up call residence.� Glaze responded to the scene only after the dispatcher could not re-establish contact.� Further, when Glaze arrived at the residence, approximately ninety seconds after he was dispatched, he observed a vehicle pulling out of the residence�s driveway.� He did not stop Nelson�s vehicle merely because it was near the area.� Based on the 911 hang-up call, the inability of dispatch to make contact with anyone at the residence, and Glaze�s near immediate arrival and observation of Nelson�s vehicle�s departure, Glaze had reasonable suspicion to believe criminal activity was afoot.
����������� 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.