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COURT OF
APPEALS DECISION DATED AND
RELEASED March
20, 1997 |
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. 96-2677-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
GREGORY
M. DAVIS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MICHAEL N. NOWAKOWSKI, Judge.
Affirmed.
VERGERONT,
J.[1] Gregory
Davis appeals from a judgment convicting him of operating after revocation in
violation of § 343.44, Stats. He contends that the initial stop of the car
he was driving violated his rights under the Fourth Amendment to the United
States Constitution and the Wisconsin Constitution counterpart, Article I
Section 2, and that a further violation took place when the officer asked him
for identification and his driver's license after determining that his car was
not the suspect vehicle. We conclude
there was not a violation under either the federal or state constitution and we
therefore affirm.
The
pertinent facts are not disputed.
Officer Jeff Loud, an officer for the Wisconsin State Capitol Police,
was assisting City of Madison police officers at an accident at 2:45 a.m. one
morning when he received a report on his radio that three black males in a
green Oldsmobile with a gun were seen in front of the Black Bear Lounge, about
two blocks away. Within a minute of
that broadcast, Officer Lord saw a light-colored General Motors sedan driving
west about one-half block away.
At
that point in time, Loud could not tell the color of the sedan or the number or
race of the passengers. Loud testified
that under street lights, green, silver, gray and some shades of blue look
pretty similar, and he knew from experience that complainants do not always
accurately report the color of a vehicle.
He also testified that Chevrolets and Oldsmobiles are both GM products
and can have similar body styles. Loud
decided to pursue the sedan because it was a GM product in a similar color
range to that reported and was within two blocks of the reported incident
within a minute of the report.
Loud
activated his emergency lights, followed the sedan, and pulled it over. When Loud was close enough to the car to
call in the license plate, he saw that it was a silver Chevrolet. He remained in his squad car for
approximately five minutes, waiting for backup to arrive. At about the time his backup arrived, Loud
learned from dispatch that this was not the suspect vehicle and also learned
that this vehicle was registered to Veronica Hunter. Loud then went up to the car and spoke to the driver. Normally when Loud has contact with a
citizen suspect he makes a report to explain the actions he took, and this
incident was the type for which he would document what he did, with the names
of the individuals and a description of the vehicle.
Loud
explained to the driver, Davis, why he had stopped him, and asked Davis his
name and address, which Davis gave him verbally. Loud then asked Davis the name of the person to whom the car was
registered, and Davis gave Veronica Hunter's name, stating she was a friend or
neighbor in response to Loud's question about their relationship. Loud next asked to see Davis' driver's
license, and Davis said he did not have one; all he had was an ID card, but he
could not find it right away. Loud went
back to his squad car, contacted dispatch and was informed that the name was
valid but Davis' driving status was revoked.
Loud went back to the car, by which time Davis had found his ID card,
and gave it to Loud. The picture on the
ID card matched Davis' appearance. Loud
wrote Davis a citation for operating after revocation.
The
trial court concluded that the initial stop was constitutionally permissible
because it was based on an objectively reasonable, articulable suspicion. The court also concluded that the request
for identification was not an unconstitutional seizure. The court decided that it was reasonable to
explain the stop to Davis as a common courtesy, and reasonable to request a
driver's license as identification in order to prepare a report. Then, when Davis stated he did not have his
driver's license, it was reasonable, in the court's view, to check Davis'
driving status.
Davis
first contends that the initial stop of Davis' car was unreasonable and therefore
unconstitutional because: (1) Loud
saw that it was a silver Chevrolet rather than the green Oldsmobile that was
reported; (2) Loud could not determine anything about the passengers when
he saw Davis' car; (3) there were an average number of vehicles in the
area soon after bar time on a Saturday night; and (4) Loud was not told
what direction the suspect vehicle was going or when the alleged crime occurred
relative to the report Loud received.
We reject these contentions and conclude the initial stop did meet
constitutional standards.[2]
To
execute a valid investigatory stop consistent with the Fourth Amendment
prohibition against unreasonable searches and seizures, a law enforcement
officer must reasonably suspect, in light of his or her experience, that some
kind of criminal activity has taken or is taking place. State v. Richardson, 156
Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990).
In assessing whether there exists reasonable suspicion for a particular
stop, we must consider all the specific and articulable facts, taken together
with the rational inferences from those facts.
State v. Dunn, 158 Wis.2d 138, 146, 462 N.W.2d 538, 541
(Ct. App. 1990). The question of what
constitutes reasonable suspicion is a common sense test: under all the facts and circumstances
present, what would a reasonable police officer reasonably suspect in light of
his or her training and experience. State
v. Jackson, 147 Wis.2d 824, 834, 434 N.W.2d 386, 390 (1989). If any reasonable inference of wrongful
conduct can be objectively discerned, notwithstanding the existence of other
innocent inferences that could be drawn, police officers have the right to
temporarily detain the individual for purposes of inquiry. State v. Anderson, 155 Wis.2d
77, 84, 454 N.W.2d 763, 766 (1990).
Loud
observed a vehicle similar to the reported suspect vehicle within a minute of
the report and within two blocks of the reported incident, driving away from
the incident location. Because Loud had
been told the passengers in the suspect vehicle had a gun, the importance of
immediately detaining the car Loud observed in order to investigate further was
considerable. Although the color and
make of the car Loud observed were not an exact match, they were sufficiently
close, so that, in view of Loud's testimony about the reliability of color
observation and vehicle description under such conditions, it was reasonable
for Loud to stop the car he observed in order to investigate further. The degree of certainty that Davis argues
for is simply not required in order to meet the test of having a reasonable
suspicion.
Davis
next argues that, once Loud determined that Davis' car was not the suspect one,
it was constitutionally impermissible to ask him for his driver's license as
identification. Again, we do not
agree. It was reasonable for Loud to
make a report of the stop, even though he had determined that Davis' car was
not the suspect car. For that purpose,
it was reasonable to ask Davis' name and address.[3] We also conclude that it was reasonable for
Loud to ask for Davis' driver's license as a means of identification, and that
request did not transform the lawful stop into an unlawful seizure.
In State v. Ellenbecker, 159
Wis.2d 91, 464 N.W.2d 427 (Ct. App. 1990), we held that a request for a
driver's license from a driver whose vehicle was disabled, and a status check
on the license, did not transform a lawful "motorist assist" into an
unlawful seizure. We noted first the
reasons that a report by the officer and identification of the motorist may be
necessary: it may be required that the
officer record citizen contact; it may be helpful to the officer in the event
of later citizen complaints against the officer; and it may aid in an
investigation of a crime, such as theft of a car, even though at the time the
activity--refueling a disabled vehicle as in Ellenbecker--may be
innocuous. Id. at 97, 464
N.W.2d at 430.
We
next stated that § 343.18(1), Stats.,
gives law enforcement officers the authority to require a driver of a motor
vehicle to display his or her license on demand.[4] While we recognized that officers do not
have unfettered discretion to stop driver's and request display of their
licenses, we pointed out that Ellenbecker had not been singled out for a spot
check of his license but was already stopped under lawful circumstances. We concluded that the request for
Ellenbecker's license under these circumstances was reasonable. We also concluded that the check on the
license's validity was reasonable because the authority to demand the license
would be meaningless without that, and would not promote the purpose of §
343.18(1), which is to deter persons from driving without a valid license. Ellenbecker, 159 Wis.2d at
97-98, 464 N.W.2d at 430. We held that
the public interest in requesting the license and running the check did not
outweigh the very minimal intrusion on the driver. Id.
We
recognize that Ellenbecker involved a motorist assist--where the
vehicle was already stopped because it was disabled--while Davis was stopped by
Loud to investigate a possible crime.
However, we have already held that Davis was lawfully stopped by
Loud. The issue here is therefore
similar to that in Ellenbecker:
whether the request for a driver's license transforms that lawful stop
into an unlawful seizure. Under the
circumstances of this case, we think our reasoning in Ellenbecker
applies, and the conclusion as well:
Loud did not violate Davis' Fourth Amendment rights by requesting his
driver's license. Once Davis stated he
did not have one, Loud had an objectively reasonable and articulate suspicion
sufficient to check on his license status, although we hasten to add that under
Ellenbecker, even if Davis had had shown his license, Loud could
check on the status of Davis' license without offending the Fourth
Amendment.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] The Wisconsin Supreme Court 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 state
constitution. State v. Fry,
131 Wis.2d 153, 171-72, 388 N.W.2d 565, 573 (1986).
[3] There is no question that Loud could have
asked Davis for his name and address as part of an investigative stop, had he
not learned Davis' car was not the suspect vehicle before speaking to
Davis. 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.
[4] Section 343.18, Stats., provides in part:
(1) Every licensee
shall have his or her license document, including any special restrictions
cards issued under s. 343.10(7)(d) or 343.17(4), in his or her immediate
possession at all times when operating a motor vehicle and shall display the
same upon demand from any judge, justice or traffic officer.