COURT OF APPEALS DECISION DATED AND FILED October 3, 2007 David R. Schanker Clerk of Court of Appeals |
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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.� |
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����������� APPEAL from a judgment of the circuit court for Sheboygan County:� James J. Bolgert, Judge.� Affirmed.�
�1������� BROWN, C.J.[1]���� This case involves a motorist informant who reported to police that the defendant was speeding and �cutting off� other drivers.� After conducting an investigatory stop, two police officers determined that Russell Jarosinski was driving under the influence of alcohol.� Jarosinski filed a motion to suppress, contending that the report of his �cutting off� other drivers does not provide sufficient support for the police to conduct an investigatory stop.� However, �cutting off� is not a legal term of art that requires further explanation, but is a widely understood description of a dangerous driving behavior.� In the alternative, Jarosinski contends that his identification by the informant resulted from an improper �showup.�� This argument fails because the identification was not the product of a police procedure, and the informant remained at the scene of the incident, in constant view of Jarosinski.� We affirm the trial court�s denial of Jarosinski�s motion.
�2������� On March 31, 2006, the Sheboygan Police Department received a phone call from a woman who reported that she had just been �cut off� by a speeding vehicle.� While speaking with the police dispatcher, the woman reported that she was driving �right behind him� and that the vehicle was �cutting people off left and right.�� The woman continued to follow this vehicle into a gas station and notified the dispatcher of her location.� The caller remained at the scene, described the vehicle she had been following, and gave the dispatcher her full name and phone number. �
�3������� A Sheboygan police officer, responding to this report, arrived at the scene.� The officer parked his police car at the gas station and identified a vehicle that matched the description given in the police dispatch report.� At this time, Jarosinski was standing outside the vehicle pumping gas.� When the officer approached Jarosinski to question him about his driving behavior, he smelled intoxicating beverages.� Jarosinski denied being the driver of the vehicle and claimed that the driver was inside the gas station purchasing some beer.� However, no other drivers approached the vehicle during this interaction.� After a short period of time, a second police officer arrived at the gas station and confirmed with the informant that Jarosinski was the driver of the vehicle in question.
�4������� At this point, the first officer administered a Horizontal Gaze Nystagmus Test.� Jarosinski failed this test and was taken into custody for operating a motor vehicle while intoxicated�third offense.� Jarosinski filed motions to suppress based upon lack of reasonable suspicion to detain and lack of probable cause to arrest.� In the alternative, Jarosinski claims that the officers� actions amount to an impermissible �showup.��
�5������� Information provided by an informant can justify an investigatory stop.� State v. Rutzinski, 2001 WI 22, �17, 241 Wis. 2d 729, 623 N.W.2d 516.� When assessing the reliability of an informant�s tip, the court must consider two factors: �(1) the veracity of the informant and (2) the basis of knowledge from which the informant is reporting.� Id., �18.� These two factors are not elements of a mandatory test, and ��[a] deficiency in one [consideration] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.��� Id.
�6������� Applying these factors, the officers were justified in relying upon the tip provided by the informant.� An informant who subjects himself or herself to identification is generally deemed to be truthful because of the potential for arrest if the informant has fabricated the information.� See id, �32.� When stopping Jarosinski, the officers knew that the informant had not only identified herself to the Sheboygan police department, but had remained at the scene to identify the defendant.� The officers thus had no reason to question her veracity.� There was also no reason to doubt the informant�s basis of knowledge.� An informant is generally deemed to be reliable if his or her basis of knowledge involved contemporaneous observations.� See id., �33.� After hearing the dispatch report, the officers were aware that the informant had been following behind Jarosinski�s vehicle and had personally observed Jarosinski�s driving behavior.
�7������� While Jarosinski does not question the informant�s veracity or basis of knowledge, he argues that the officers did not have objective knowledge of specific facts to constitute a driving violation.� More specifically, Jarosinski contends that it is insufficient to state that a driver is speeding and �cutting off� other drivers.� It is true that the test for determining the constitutionality of an investigative stop is objective.� State v. Guzy, 139 Wis. 2d 663, 675, 407 N.W.2d 548 (1987).� This objective test requires that under the totality of the circumstances a reasonable police officer would have reason to believe that the defendant has committed the offense.� See State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986).� Jarosinski correctly points out that neither officer personally observed any traffic violations but instead relied upon information given by a witness, who claimed that Jarosinski was �cutting off� other drivers.� According to Jarosinski, a witness is required to give specific objective facts such as the speed of the driver, the distance between vehicles, and the manner in which the driver �cut off� other motorists.� However, �cutting off� is not a term of legal art requiring that specific elements be satisfied.� Rather, it is a term commonly used in society that does not require detailed explanation.
�8������� The sufficiency of an informant�s tip was explored in Rutzinski, in which the supreme court found that a police officer was justified in conducting an investigatory stop based upon the report of an informant who claimed that a vehicle was �weaving within its lane, varying its speed from too fast to too slow, and �tailgating.��� Rutzinski, 241 Wis. 2d 729, ��3-4.� The court held that this level of specificity was sufficient to merit an investigatory stop. �See id., �34.� The term �cutting off,� like the term �tailgating� or �swerving,� does not evoke specific objective facts such as the speed of the automobile or the distance between cars.� However, all three terms are sufficient to express unacceptable driving practices that may merit police intervention.� Furthermore, as in Rutzinski, the informant in this case claimed that Jarosinski�s vehicle was speeding.[2]
�9������� In addition to the claim that there was not reasonable suspicion to conduct an investigatory stop, Jarosinski also alleges that the actions of the officers amount to an unlawful �showup.�� Jarosinski relies upon State v. Dubose, 2005 WI 126, �1 n.1, 285 Wis. 2d 143, 699 N.W.2d 582, which defines a �showup� as �an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes.�� Studies have shown that �showups� are inherently suggestive and have many times resulted in eyewitness misidentification and, as a result, wrongful conviction.� Id., ��29-30.� However, it is important to note that �[t]he term �showup� itself denotes a police procedure.�� State v. Hibl, 2006 WI 52, �33, 290 Wis. 2d 595, 714 N.W.2d 194 (emphasis added).� Under this standard, the officers did not conduct an unlawful �showup� by confirming that Jarosinski was the driver of the vehicle.� The officers did not present the defendant to the informant.� In fact, the informant was constantly in the presence of the defendant.� The informant followed Jarosinski into the gas station to ensure that the arrest took place.� This scenario is a far cry from the situation in Dubose, where the defendant was singly presented to the witness by police officers for identification purposes.� Dubose, 285 Wis. 2d 143, �9.� In contrast, it was the informant in this case who presented Jarosinski to the police officers.
����������� By the Court.�Judgment affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(f) (2005-06).� All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Because we have determined that the investigatory stop was justified by the informant�s report of dangerous driving, we need not address Jarosinski�s argument that the officers could not have had reasonable suspicion that he was driving while intoxicated.