State v. Bruce A. Kassube

Opinion Filed:	February 19, 2003
Submitted on Briefs:�	January 28, 2003
Oral Argument:�

JUDGES:	Cane, C.J., Hoover, P.J., and Peterson, J.
�� Concurred:
�� Dissented:

Appellant
ATTORNEYS:	On behalf of the defendant-appellant, the cause was submitted on the brief of Len Kachinsky of Kachinsky, Petit & Parker, LLC, Neenah.�

Respondent
ATTORNEYS:	On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.�

COURT OF APPEALS

DECISION

DATED AND FILED

February 19, 2003

Cornelia G. Clark

Clerk of Court of Appeals

2003 WI App 64

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.�	02-2334-CR	Cir. Ct. No.� 01-CF-118
STATE OF WISCONSIN��			IN COURT OF APPEALS



State of Wisconsin, �� Plaintiff-Respondent, �� v. Bruce A. Kassube, �� Defendant-Appellant.

�� APPEAL from a judgment of the circuit court for Outagamie County:� james t. bayorgeon, Judge.� Affirmed.�

�� Before Cane, C.J., Hoover, P.J., and Peterson, J.

�1�� PETERSON, J. Bruce Kassube appeals a judgment convicting him of possession of cocaine and possession of THC.� He argues that the trial court erred by denying his suppression motion because evidence was obtained after an illegal stop.� We disagree and affirm the judgment.

BACKGROUND

�2�� On November 24, 2000, officer Lowell James of the Black Creek Police Department stopped Kassube because he believed Kassube did not have a driver�s license.� Kassube was in possession of a metal pipe with marijuana residue on it, as well as marijuana and cocaine.� As a result, Kassube was charged with possession of THC and possession of cocaine.�

�3�� Kassube filed a motion to suppress the evidence obtained during the traffic stop.� He argued the stop was unlawful because it was not based on reasonable suspicion that he had committed a crime.� At the hearing, James testified that he had known Kassube for nine to twelve years and had never known Kassube to have a driver�s license.� He had last spoken to Kassube sometime during 2000 and Kassube did not have a license at that time.� The court denied Kassube�s motion.� Kassube later entered no contest pleas and was found guilty.� He now appeals.

STANDARD OF REVIEW

�4�� In reviewing a circuit court�s order denying a motion to suppress evidence, the court�s findings of evidentiary or historical fact will be upheld unless they are clearly erroneous.� State v. Matejka, 2001 WI 5, �16, 241 Wis. 2d 52, 621 N.W.2d 891.� However, whether the court�s findings of fact pass statutory or constitutional muster is a question of law that this court reviews independently.� Id.

DISCUSSION

�5�� The Fourth Amendment to the United States Constitution protects �[t]he right of the people � against unreasonable searches and seizures.�� While an investigative stop is technically a �seizure� under the Fourth Amendment, a police officer may, under the appropriate circumstances, detain a person for purposes of investigating possible criminal behavior even though there is no probable cause for arrest.� See Terry v. Ohio, 392 U.S. 1, 22 (1968).� Wisconsin has adopted the Terry rule, see State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377 (1972), and Wis. Stat. � 968.24.� Kassube argues that a lawful temporary stop under � 968.24 requires that the officer reasonably suspect that a person is committing, is about to commit or has committed a crime, and claims that no such suspicion existed here.

�6�� Kassube notes that no Wisconsin cases have addressed whether an officer�s personal knowledge of the status of a person�s driver�s license at some previous time is sufficient to justify a stop.� He relies on a Mississipi case, Boyd v. State, 758 So.2d 1032, 1033 (Miss. 2000), where an officer had knowledge that the driver had his license suspended eight years before.� The court determined that this information was too stale to justify a stop.� Id. at 1035.� In making its determination, the court looked at similar cases in other states that held that information only a few weeks old was too stale to justify a stop.� Id.� Kassube urges us to follow the Mississippi court�s decision and determine that James�s information was anywhere up to eleven months old and therefore stale.

�7�� We conclude, however, that the totality of the circumstances supports a reasonable basis for James�s suspicion.� James had known Kassube between nine and twelve years and had never known Kassube to have a driver�s license at any time during that period.� Further, within eleven months of the stop, Kassube informed James that he still did not have a license.�

�8�� This is different from Boyd and the cases it cites because those cases all dealt with temporary suspensions of drivers� licenses.� In such a situation, a driver may have regained his or her license at any time without the officer�s knowledge.� Here, Kassube did not simply have his privileges temporarily suspended, but had never had a license at all during the nine to twelve years James knew him.� It was reasonable for James to believe that if Kassube had not obtained a license in nine to twelve years, he did not do so in the last eleven months and was likely to be driving without a license.�

�� By the Court.�Judgment affirmed.

Case No.:	02-2334-CR
Complete Title of Case: