COURT OF APPEALS DECISION DATED AND FILED May 20, 2008 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. David Allen Hansen, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
¶1 KESSLER, J.[1] David A. Hansen appeals from a judgment of conviction resulting from Hansen’s guilty plea after the trial court denied his motion to suppress for failure of the police officer to have reasonable suspicion to stop his vehicle. We affirm.
BACKGROUND
¶2 On October 24, 2006, the Cudahy Police Department dispatch received a telephone call from an individual at the Back Inn tavern reporting that the former owner of the tavern, Tom Mettlach, was making a disturbance and requesting that police come to the tavern. Police Officer Horace Craft, Jr., an eighteen-year veteran of the Cudahy Police Department, was at the police station at the time of the call. Craft knew Mettlach and Mettlach’s history with the tavern and its current owner. Craft responded to the dispatch, arriving at the tavern approximately three minutes after leaving the police station. Craft was the first officer to arrive at the scene; however, several officers arrived shortly thereafter. Upon arriving at the tavern, Craft was met by a woman standing in front who “was pointing and yelling” to him, saying words to the effect, “he’s drunk, he’s leaving.” Craft took this to mean that Mettlach was in a pickup truck that was leaving the tavern parking lot and upon observing the truck, recognized Mettlach as the truck’s passenger. Craft also recognized the driver as Hansen, a person with whom Craft was also familiar.
¶3 Craft immediately directed Hansen to pull the truck into the parking lot across the street from the tavern, which Hansen did. Craft approached the driver’s side of the truck, and immediately noted that Hansen’s eyes were glassy and bloodshot and there was a strong odor of intoxicants on Hansen’s breath. Craft then ordered Hansen out of the truck and conducted field sobriety tests. Craft then arrested Hansen for operating a motor vehicle while intoxicated. Hansen’s blood alcohol level was tested later at St. Luke’s Hospital and was found to be .219% weight of alcohol.
¶4 Hansen filed a motion to suppress claiming Craft had no reasonable suspicion to stop his truck. After an evidentiary hearing, the trial court found that there was no “reasonable suspicion to stop for operating while impaired.” It did find, however, that the State had proven by a preponderance of the evidence that there was “reasonable suspicion to stop as it relates to the investigation of the disturbance [i.e., the subject of the dispatch].” The trial court found that given the fact that: (1) a call from the tavern regarding a disturbance involving Mettlach was received by the police; (2) when Craft arrived at the tavern, a woman yelled to him and pointed at Hansen’s truck, yelling that he is drunk, he is leaving, thereby providing Craft with the reasonable belief that he should stop the vehicle to investigate once he saw that Mettlach was in the passenger seat of that truck; and (3) because the woman was present and identifying her would be easily possible, this was not an anonymous tip case (Hansen’s characterization), Craft had reasonable suspicion to stop Hansen’s truck. The trial court then denied the motion.
¶5 Hansen subsequently entered a guilty plea and was found guilty of OWI (second offense), in violation of Wis. Stat. § 346.63(1)(a) (2005-06).[2] Hansen now appeals the judgment of conviction and denial of his motion to suppress.
DISCUSSION
¶6 On review of an order relating to the suppression of
evidence, the trial court’s findings of fact will be sustained unless they are
against the great weight and clear preponderance of the evidence. Bies v. State, 76
¶7 Whether reasonable suspicion existed for an investigatory
stop is a question of constitutional fact, to which we apply a two-part
standard of review. State v. Williams, 2001
WI 21, ¶18, 241
¶8 For an investigatory stop to be constitutional, a law
enforcement officer must reasonably suspect “that a crime has been committed,
is being committed, or is about to be committed.” State v. Young, 2006 WI 98, ¶20, 294
¶9 “Reasonable suspicion, like probable cause, is dependent upon
both the content of information possessed by police and its degree of
reliability. Both factors quantity and
quality are considered in the totality of the circumstances.” State v. Williams, 2001 WI 21, ¶22,
241
The totality-of-the-circumstances approach views the quantity and the quality of the information as inversely proportional to each other. “Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Conversely, if the tip contains a number of components indicating its reliability, then the police need not have as much additional information to establish reasonable suspicion.
¶10 Hansen argues that Craft did not have reasonable suspicion to stop his vehicle in that Craft recognized both Mettlach and Hansen and knew how to contact them, if necessary, after Craft had investigated the police call at the tavern. Hansen argues that because this was an option for Craft, Craft lacked the necessary reasonable suspicion to stop Hansen. We disagree.
¶11 A telephone call had come in to police dispatch that Mettlach was causing a disturbance at the tavern. Craft arrived at the tavern approximately three minutes after receiving the dispatch. When Craft arrived, a woman standing outside the tavern yelled to him words to the effect “he’s leaving, he’s drunk.” Craft looked in the direction the woman was pointing and recognized Mettlach and Hansen in the truck. Craft decided at that time, within his discretion, to stop Mettlach from leaving so that he could question him in the investigation regarding the dispatch call. It was only after Craft had stopped the vehicle to question Mettlach that Craft observed Hansen, someone with whom he was familiar, smelling of alcohol and appearing too intoxicated to drive. Determining that stopping Hansen from driving impaired outweighed the need to immediately question Mettlach and people at the tavern, as well as the fact that a number of other police officers had subsequently arrived on scene in response to the disturbance dispatch, Craft decided to begin an investigation of Hansen and whether he was operating a motor vehicle while intoxicated. Based on the totality of the circumstances, Craft had reasonable suspicion to stop the vehicle (Mettlach’s presence therein as the subject of the dispatch disturbance call) which was not diluted by Craft’s subsequent decision that preventing Hansen from driving intoxicated outweighed the immediate need to question Mettlach on the tavern disturbance.
¶12 Hansen argues that the woman in front of the tavern yelling to
Craft and pointing at Hansen’s truck should be considered an anonymous tipster
and analysis of the reliability of her tip should be evaluated under Florida
v. J.L., 529 U.S. 266 (2000). In
J.L.,
an anonymous caller contacted police and told them that “a young black male
standing at a particular bus stop and wearing a plaid shirt was carrying a
gun.”
¶13 Here, however, the woman was present in person, and with other
officers coming on the scene. She had
jeopardized her anonymity by approaching the officer in person and risked
arrest if her actions were later construed as obstructive. See
id.,
¶32 & n.8 (citing cases); State v. Williams, 2001 WI 21 ¶35,
241 Wis. 2d 631, 623 N.W.2d 106 (“Risking one’s identification intimates that,
more likely than not, the informant is a genuinely concerned citizen as opposed
to a fallacious prankster.”); see also
United
States v. Heard, 367 F.3d 1275, 1279 (11th Cir. 2004) (face-to-face
anonymous tip inherently more reliable because it allows officers to “observe
demeanor and perceive the credibility of the informant”). We agree with the State’s characterization of
the woman as a citizen informant. See State v. Sisk, 2001 WI App 182, ¶8,
247
[I]f “an informant places his [or her] anonymity at risk,
a court can consider this factor in weighing the reliability of the tip.” Williams, 2001 WI 21 at ¶35 (quoting
J.L.,
529
Sisk, 247 Wis. 2d
443, ¶9 (footnotes omitted); see also State v. Powers, 2004 WI App 143,
¶9, 275 Wis. 2d 456, 685 N.W.2d 869. Craft took the woman’s information to mean
that Mettlach was in the truck that was leaving. Craft then personally observed that Mettlach
was in the truck. Since Mettlach was the
subject of the disturbance dispatch that Craft was responding to, his stopping
the truck, “freezing the scene,” based first on the then-anonymous woman’s tip
and then based on his own personal observation, provided Craft the necessary
reasonable suspicion to stop Hansen’s truck.
See Jackson, 147
¶14 Because Craft had a reasonable suspicion to stop Hansen’s vehicle, the trial court properly denied Hansen’s motion to suppress.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat Rule 809.23(1)(b)4.