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COURT OF APPEALS DECISION DATED AND RELEASED October 8, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1356-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD S. CABUNAC,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DENNIS P. MORONEY, Judge. Affirmed.
FINE,
J. Donald S. Cabunac appeals from a judgment entered on a
no-contest plea convicting him of operating a motor vehicle while under the
influence of an intoxicant. See
§§ 346.63(1)(a) and 346.65(2), Stats. The sole issue presented by this appeal is
whether the police officer's stop of Cabunac was lawful.[1]
We affirm.
A police officer employed by the City of
Greenfield testified at the suppression hearing that he stopped the Chevrolet
pickup truck that Cabunac was driving because the officer saw that the truck
had “black tinted windows on the back window and the side windows, that the
coloring appeared to the officer to be “after-market tint,” and that in his
experience he had not “seen any factory-installed tint on windows like
that.” He told the trial court that he
had “stopped other Chevy pickup trucks, none with factory-installed tint.” The officer testified that he stopped the
truck for violating then-existing Wis.
Adm. Code § MVD 5.52(1), which made it “unlawful for any vehicle to be
operated on a highway if ... (b) The front side windows or rear windows ... have
been tinted by any means other than that used in the original manufacturing
process.”[2]
Although the trial court
found that the officer could not have seen the truck's side windows until after
he stopped it, the trial court determined that the officer had reasonable
grounds to suspect that the truck's rear window violated Wis. Adm. Code § MVD 5.52(1)(b), and,
therefore, the stop was lawful. We
uphold a trial court's findings of fact unless they are “clearly
erroneous.” See Rule 805.17(2), Stats., made applicable to criminal proceedings by
§ 972.11(1), Stats. The
question of whether an investigatory stop was legally justified, however,
presents a question of law that we decide de novo. State v. Krier, 165 Wis.2d
673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991).
An investigatory stop is
permissible if the law enforcement officer reasonably suspects, considering the
totality of the circumstances, that some type of criminal activity either is
taking place or has occurred. Alabama
v. White, 496 U.S. 325, 328–331 (1990); State v. Richardson,
156 Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990). Although Cabunac attacks the officer's decision to stop his truck
as a mere “hunch,” the officer's uncontradicted testimony reveals that his
suspicion that the truck's back window violated Wis. Adm. Code § MVD 5.52(1)(b) was based on “specific and
articulable facts,” see Richardson, 156 Wis.2d at 139, 456
N.W.2d at 834, in light of his “training and experience,” see State
v. Jackson, 147 Wis.2d 824, 834, 434 N.W.2d 386, 390 (1989). The stop was lawful.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] A defendant may appeal from an order denying a motion to suppress evidence even though the judgment of conviction rests on a guilty or no-contest plea. Section 971.31(10), Stats.; State v. Howard, 171 Wis.2d 743, 745 n.1, 492 N.W.2d 371, 372 n.1 (Ct. App. 1992), reversed on other grounds, 176 Wis.2d 921, 501 N.W.2d 9 (1993).