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COURT OF APPEALS DECISION DATED AND RELEASED October 29, 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. 96-1382-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES STANKIEWICZ,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
ELSA C. LAMELAS, Judge. Affirmed.[1]
CURLEY, J. James
Stankiewicz appeals from a judgment convicting him of operating a motor vehicle
while under the influence of an intoxicant, following his entry of a no contest
plea which resulted in a guilty finding by the trial court. Stankiewicz raises one issue for
review—whether the trial court erred when it denied his motion to suppress
evidence police procured after they stopped him. He argues that police did not have reasonable suspicion for an
investigative stop after observing him parallel park his automobile and walk
away. Because the trial court could
validly conclude that under the totality of the circumstances the police had
reasonable suspicion to detain Stankiewicz, this court concludes the trial
court properly denied the motion to suppress and the judgment of conviction is
affirmed.[2]
Milwaukee police first
observed Stankiewicz parallel parking his auto at approximately
2 a.m. After observing him exit
his car, the police officer saw Stankiewicz either stumble getting out of his
car, or stumble walking over the curb.
After noticing the stumbling, the officer then left his squad car and
advanced towards Stankiewicz. Upon
approaching him, the officer noticed that Stankiewicz's eyes were bloodshot; he
had a strong odor of alcoholic beverages about him; and his speech was
slurred. Several field sobriety tests
were then administered to Stankiewicz which he performed unsatisfactorily. Following the administration of the tests, the police arrested
Stankiewicz and the State charged him with operating a motor vehicle while
under the influence of an intoxicant and operating a motor vehicle with a
prohibited blood alcohol concentration.
Stankiewicz brought a
motion to suppress the initial stop by the officer. At the suppression hearing he argued that the police officer did
not have sufficient probable cause to stop and question him, having only
witnessed the end of his parallel parking maneuver and his stumbling while
walking away from his car. The trial
court denied his motion. Subsequently,
Stankiewicz entered a plea of no contest to the operating a motor vehicle while
under the influence of an intoxicant.
The second charge was dismissed and this appeal follows.
“In reviewing an order
suppressing evidence, this court will uphold a trial court's findings of fact
unless they are against the great weight and clear preponderance of the
evidence.” State v. Richardson,
156 Wis.2d 128, 137, 456 N.W.2d 830, 833 (1990). The legality of the stop, however, is a question of law and is
reviewed de novo by this court. See
State v. Baudhuin, 141 Wis.2d 642, 648‑49, 416 N.W.2d 60,
62 (1987).
The validity of an
investigatory stop is governed by the landmark case of Terry v. Ohio,
392 U.S. 1 (1968), which has been codified by § 968.24, Stats.[3] As this court stated in State v. King,
175 Wis.2d 146, 499 N.W.2d 190 (Ct. App. 1993):
Terry and
its progeny require that a police officer reasonably suspect, in light of his
or her experience, that some criminal activity has taken or is taking place
before stopping an individual. The
focus of an investigatory stop is on reasonableness, and the determination of
reasonableness depends on the totality of the circumstances.
Id. at
150, 499 N.W.2d at 191 (citation omitted).
“The test is an objective test.
Law enforcement officers can infringe on the individual's interest to be
free of a stop and detention if they have a suspicion grounded in specific,
articulable facts and reasonable inferences from those facts, that the
individual has committed a crime.” See
State v. Guzy, 139 Wis.2d 663, 675, 407 N.W.2d 548, 554 (1987).
Stankiewicz argues in
his brief that the officer's “investigative stop ... was not reasonable
under the totality of the circumstances....
[Because the officer] did not receive any information that Stankiewicz
had committed, committed or was about to commit a crime.” Further, Stankiewicz argues that “[the
officer did not] receive any information that [Stankiewicz's] vehicle was
involved in any criminal activity.”
Stankiewicz contends that this case can be distinguished from several
others upholding a “stop” of an automobile because the officer never actually
saw any erratic driving or witnessed any traffic violations. The District Attorney's Office argues that
while the trial court neglected to make any specific findings as to when the
stop actually occurred, sufficient factual findings can be inferred from the
testimony at the suppression hearing to justify the officer's actions.
Contrary to the district
attorney's assertions, a careful review of the record reflects that the trial
court did make findings with regard to the stop by the police. As the trial court stated:
Here the issue is
whether there was enough ... indicia of the commission of a crime for [the
officer] to first, stop and question Mr. Stankiewicz and then whether there was
probable cause for his arrest on the charge of driving under the influence of
an intoxicant.
Initially [the officer]
saw Mr. Stankiewicz operating the vehicle.
And [the officer] then
also observed Mr. Stankiewicz exit the vehicle, and also [the officer's]
attention was brought to Mr. Stankiewicz because of Mr. Stankiewicz's
unsteadiness in his walking....
And obviously, at that
time of night without a lot of activity going on there, these officers took the
opportunity to watch someone who got out of his vehicle and noticed that Mr.
Stankiewicz was unsteady and was stumbling, tripping, and had difficulty
walking. There, by itself, is
sufficient reason for the officers to pursue the matter further.
[T]heir duty requires that the officers
investigate further and question Mr. Stankiewicz as to the possibility of
impaired -- of driving while under the influence of an intoxicant.
From
this record, one can deduce that the trial court found the officers had a
reasonable belief on the basis of their observations to suspect that
Stankiewicz had committed the crime of operating while under the influence of
an intoxicant.
As was articulated by
our supreme court in Guzy:
“[c]ertain investi-gative stops, prompted by an officer's suspicion that
the occupants have committed a crime, may in certain circumstances be
constitutionally permissible even though the officer lacks probable cause to
arrest.” Id. at 675, 407
N.W.2d at 554. Here, there may not have
been reason enough to initially arrest Stankiewicz for operating an automobile
while under the influence of an intoxicant without the additional confirming
evidence of intoxication; but the facts which presented themselves to the
officer were sufficient for an investigatory stop. An officer with four-and-one-half years of experience who sees a
car being parked late at night and then notices the operator of the automobile
stumbling along after alighting from the car can reasonably suspect that the
crime of operating while under the influence of an intoxicant may have been
committed.
These facts lead to the
suspicion of a specific crime; that is, operating an automobile while under the
influence of an intoxicant and the reasons for the officer's suspicion went beyond
a mere “hunch” and could be verbalized.
It is common knowledge that stumbling and staggered walking on the part
of healthy adults are frequently indicative of intoxication. This is a conclusion that any reasonable
police officer could make. Additionally,
the officer had just witnessed this person exit a car. It is entirely reasonable to believe this
combination of factors led the officer to think a crime had just been
committed. While it is possible that
the officer might have discovered the driver was not intoxicated and merely
clumsy or having difficulty seeing at night, given all the factors it was
reasonable to suspect that alcoholic consumption was the reason for
Stankiewicz's inability to walk. As a
result, under the totality of the circumstances, the officer could properly
detain Stankiewicz for further investigation.
Accordingly, the trial
court properly denied the suppression motion.
For these reasons, the judgment of the trial court is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] The Hon. Charles F. Kahn, Jr., presided over the suppression hearing. The Hon. Elsa C. Lamelas entered the judgment of conviction.
[3] Section 968.24, Stats., provides:
Temporary questioning without arrest. 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.