COURT OF APPEALS DECISION DATED AND FILED June 17, 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. Gary Martin Lohman, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 CURLEY, P.J.[2] Gary M. Lohman appeals the judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (second offense), contrary to Wis. Stat. §§ 346.63(1)(a) and 346.65(2) (2005‑06).[3] He argues that the trial court erred in denying his motion to suppress evidence obtained by the police after the police stopped his car as a result of a citizen 9-1-1 call. Because the 9-1-1 call from a citizen who identified himself and told the police he thought Lohman was drunk gave the police reasonable suspicion to stop Lohman, the trial court properly denied the motion to suppress. Consequently, this court affirms the judgment of conviction.
I. Background.
¶2 On May 4, 2007, John McGivern was driving in downtown
¶3 According to the testimony at the motion hearing, shortly
after McGivern called 9-1-1, a
¶4 Lohman was charged with operating a motor vehicle while under the influence of an intoxicant, second offense, as well as operating a motor vehicle with a prohibited alcohol concentration of 0.08% or more. He brought a motion seeking to suppress any evidence obtained by the police, claiming that the arresting officer did not have reasonable suspicion to temporarily detain him. The trial court denied the motion after a hearing. After the trial court denied Lohman’s request for a date to reconsider the motion, Lohman pled guilty to operating a motor vehicle while under the influence of an intoxicant (second offense), and the other charge was dismissed. The trial court sentenced Lohman to serve thirty days in the House of Correction and fined him $350 plus costs. However, the sentence was stayed pending appeal. Lohman brought a postconviction motion which was denied, and this appeal followed.
II. Analysis.
¶5 Lohman argues that the trial court erroneously exercised its
discretion in denying his motion to suppress. Relying on the seminal case of Terry
v. Ohio, 392 U.S. 1 (1968), he contends that the officer did not have a
reasonable suspicion that some kind of criminal activity had taken or was
taking place prior to effectuating the investigative stop. Lohman acknowledges that, based on the
holding in State v. Richardson, 156
Standard of Review
¶6 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
¶7 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
¶8 Lohman contends that the information the officer received
from McGivern was insufficient to create a reasonable suspicion that Lohman was
operating a motor vehicle while intoxicated.
This court disagrees. “[T]here is
a difference between ‘citizen-informers’ and ‘police contacts or informers who
usually themselves are criminals.’” Doyle,
96
¶9 When McGivern called 9-1-1, he was acting as a citizen
informant, as distinguished from a confidential informant. Thus, the standard is lower. This is so because our courts “recognize[] the
importance of citizen informants, and, accordingly, apply a relaxed test of
reliability, that ‘shifts from a question of personal reliability to one of
observational reliability.’” Williams,
241
¶10 Here, McGivern identified himself by giving his name and telephone number to the 9-1-1 operator. In addition, the information he conveyed came through first-hand observations. He personally witnessed Lohman’s odd behavior, which suggested that Lohman was intoxicated, and he observed Lohman driving a van. He also gave the police a description of the type of vehicle Lohman was driving and the license plate number. The police were entitled to rely on McGivern’s observations and his observations provided reasonable suspicion. The fact that shortly after the call the police observed Lohman driving a vehicle that matched the make and license plate number further established McGivern’s reliability. As a result, the officer had a reasonable suspicion to believe a crime was occurring and the officer could effect a Terry stop.[4]
¶11 While neither McGivern nor the police officer saw Lohman drive
erratically, this absence is not fatal to the reasonable suspicion
determination. Although no
¶12 In State v. Riefenstahl, 779 A.2d 675, 676 (Vt. 2001), an employee
of a gas station called law enforcement, gave his name and reported a male motor
vehicle operator “‘was possibly intoxicated and driving’”; the caller provided
a description of the vehicle and a license plate number. The Vermont Supreme Court held that “[t]he
named informant’s tip contained sufficient indicia of reliability to justify
the stop.”
¶13 Similar Wisconsin cases have upheld searches based upon tips from citizens. In State v. Rutzinski, 2001 WI 22, ¶4-6, 38, 241 Wis. 2d 729, 623 N.W.2d 516, our supreme court found that an anonymous tipster who had followed the suspected drunk driver for some distance before calling the police was sufficient for the officer to stop the erratic driver. In another Wisconsin case, State v. Powers, 2004 WI App 143, ¶¶2, 15, 275 Wis. 2d 456, 685 N.W.2d 869, this court approved the stop of a car as it left a parking lot based upon a drug store clerk’s observation that “‘an intoxicated man had come in to make purchases at the store buying beer, a little outfit, and something else.’” This court finds these cases persuasive, and consequently, finds that the tip from McGivern concerning Lohman’s conduct gave reasonable suspicion to the police to stop Lohman’s car.
¶14 Finally, this court notes that if the argument put forth by Lohman was the law, it would prevent police from ever stopping a car based upon a citizen report of drunk driving until the police personally observed the car being driven in a manner that suggested drunk driving. Such a ruling would place the public in grave danger of a drunk driver and require an officer to wait until the driver actually imperils other drivers and their passengers before a stop could be made. This is an unreasonable proposition.
¶15 For the reasons stated, the trial court’s ruling denying the motion to suppress is affirmed.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] The Honorable John F. Foley presided over the suppression motion and decided the postconviction motion. The Honorable Russell W. Stamper presided over the guilty plea and sentencing.
[2] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2) (2005-06).
[3] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[4] See also Wis. Stat. § 968.24 (codifying the standard for an investigate stop).