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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 24, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0356-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JERALD J. HUPE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Green County:
DAVID G. DEININGER, Judge. Affirmed.
LaROCQUE, J. Jerald J. Hupe appeals the denial of his
motion to suppress evidence following a "Terry" stop
and his conviction based on that evidence.
Hupe claims that the trial court erred when it found the police had a
reasonable and articulable basis for stopping him. This court agrees that officer Richard Bennett's actions were
reasonable under the circumstances and affirm.
The relevant facts are
not in dispute. On April 22, 1995,
Bennett was in his parked squad car observing traffic in the City of
Brodhead. Bennett observed a
dark-colored Lincoln drive past his squad.
He noticed nothing unusual about the Lincoln or its driver; he was not
speeding, driving erratically or violating any other traffic law. However, almost immediately after observing
the Lincoln, a pickup truck pulled up next to Bennett's squad. Bennett testified that he recognized the
driver of the pickup as a resident of Brodhead, although he had no prior
contact with him. Bennett also
testified that this person seemed very excited and upset, claimed to have been
following the Lincoln and that the Lincoln's driver "Must be drunk"
and was weaving all over the road.
Bennett then pointed to the Lincoln to confirm that it was the vehicle referred
to. After receiving confirmation,
Bennett told the driver of the pickup to remain at the scene and drove over to
where the Lincoln was then parked.
Bennett observed the driver of the Lincoln, Hupe, crossing the street
and asked to speak with him about the other driver's complaint. Bennett testified that Hupe at first
refused, but after further prompting approached Bennett. As he approached, Bennett detected a "strong
odor of intoxicants" from Hupe and noticed that Hupe's balance was poor
and that his eyes were "bloodshot and glassy." At that time, Bennett had Hupe perform
several sobriety tests and arrested him on suspicion of operating a motor
vehicle while intoxicated.
As a preliminary matter,
Hupe contends that when Bennett initially confronted him he was
"seized," thereby implicating constitutional protections. The State, however, argues that Hupe was not
seized. For purposes of this appeal, we
assume without deciding that Hupe was seized in the constitutional sense. Hupe's main argument is that the tip
provided by the pickup truck driver was insufficient to give Bennett
justification to detain Hupe. This
court disagrees.
The constitutional
validity of an investigatory stop is governed by Terry v. Ohio,
392 U.S. 1 (1968), as codified by § 968.24, Stats.[1] Terry and its progeny require
that a police officer reasonably suspect, in light of the officer's experience,
that some criminal activity has taken place or is taking place before stopping
an individual. Terry, 392
U.S. at 30. Reasonable suspicion must
be grounded in specific, articulable facts and reasonable inferences arising
from those facts. State v.
Richardson, 156 Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990) (quoting Terry,
392 U.S. at 21-22). When acting upon a
tip, the tip must have sufficient indicia of reliability for a police officer
to reasonably rely on that tip. Alabama
v. White, 496 U.S. 325, 328-29 (1990).
The determination of reasonableness "is a common sense question,
which strikes a balance between the interests of society in solving crime and
the [interests of individual] members of that society to be free from
unreasonable intrusions. The essential
question is whether the action of the law enforcement officer was reasonable
under all the facts and circumstances present." Richardson, 156 Wis.2d at 139-40, 456 N.W.2d at 834
(quoting State v. Jackson, 147 Wis.2d 824, 831, 434 N.W.2d 386,
389 (1989)). This court will uphold a
trial court's findings of fact unless they are against the great weight and
clear preponderance of the evidence. Id.
at 137, 456 N.W.2d at 833. However,
whether an investigatory stop passes constitutional muster is a question of law
that we review de novo. Id.
at 137-38, 456 N.W.2d at 833.
We conclude that
Bennett's conduct was reasonable under the circumstances. Contrary to Hupe's claims, Bennett was not
confronted with an anonymous tip; the "tipster" presented himself to
Bennett in person and agreed to remain at the scene until another officer could
arrive.[2] This raises an inference of the tipster's
reliability and negates the uncertainty associated with an anonymous tip. See id. at 140-43, 456
N.W.2d at 835-36, discussing White, 496 U.S. at 328-29 (stating
that an anonymous tip, standing alone, rarely evidences sufficient credibility
to justify a Terry stop).
This inference is further strengthened by the fact that Bennett was
familiar with the tipster as a resident of Brodhead.
Other facts available to
Bennett lead us to conclude that his conduct was reasonable. The tipster appeared genuinely excited and
upset after witnessing Hupe's driving, lending credibility to his claims. The pickup approached immediately after the
officer observed the Lincoln, which suggests the truck was indeed behind Hupe,
which lends credibility to the tipster's claim that he had occasion to observe
Hupe's driving. With these facts in
mind, Bennett's decision to stop Hupe to investigate the complaint was entirely
reasonable and constitutional.
Hupe claims that Bennett
should have independently investigated the veracity of the complaint by
following or observing Hupe's conduct after receiving the complaint. He cites Richardson for
support. In that case, police received
an anonymous tip regarding future drug trafficking in which they were able to
corroborate the tipster's information by observing the accused's behavior over
a certain period of time. The court
held that because the police were able to corroborate some details of the tip,
they could properly rely on the tip and detain the suspect. Id. at 142-43, 456 N.W.2d at
835-36. We conclude, however, that this
case is governed by State v. King, 175 Wis.2d 146, 499 N.W.2d 190
(Ct. App. 1993). Like the instant case,
King concerned a tip regarding dangerous ongoing criminal
activity. King held that Richardson
was inapplicable and that a police officer need not undertake independent
investigation of the tip as long as the tip evidenced sufficient other indicia
of reliability. King, 175
Wis.2d at 151-52, 499 N.W.2d at 192.
To require Bennett to
independently investigate Hupe's driving could seriously endanger the
public. Furthermore, as noted, Bennett
had sufficient facts before him to reasonably believe the citizen informant.
Hupe also argues that
Bennett's reliance on the tip was unreasonable because it was contradicted by
Bennett's own observations. Bennett,
however, testified that he only observed Hupe's driving for about two seconds. It was entirely reasonable for Bennett to
conclude that the pickup truck driver had a better opportunity to observe
Hupe's driving and therefore had a superior knowledge of his conduct.
Finally, this court
rejects Hupe's complaint that an affirmance would "lead to absurd results
and give police officers virtually unlimited power to detain
citizens." An anonymous tip,
standing along, is rarely sufficient to justify an investigatory stop. White, 496 U.S. at 329. Furthermore, any tip, whether anonymous or
not, must evidence sufficient indicia of reliability before a stop is
justified. Id. at
330. This requirement restricts a law
enforcement officer's ability to detain citizens to situations where the tip is
reasonably reliable. A citizen is
unlikely to make a false report to police when he is known to the officer and
remains at the scene. Because this is
such a case, this court affirms Hupe's conviction and the denial of his motion
to suppress.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1]
Both the Fourth Amendment to the United States Constitution and art. I,
§ 11, of the Wisconsin Constitution guarantee citizens the right to be
free from "unreasonable searches and seizures." State v. Richardson, 156
Wis.2d 128, 137, 456 N.W.2d 830, 833 (1990).
The Wisconsin Supreme Court consistently follows the United States
Supreme Court's interpretation of the search and seizure provision of the
Fourth Amendment in construing the same provision of the Wisconsin
Constitution. See State v.
Fry, 131 Wis.2d 153, 171-72, 388 N.W.2d 565, 573 (1986). The Wisconsin legislature has codified the Terry
v. Ohio, 392 U.S. 1 (1968), rule in § 968.24 Stats.
That section reads as follows:
After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.