COURT OF APPEALS DECISION DATED AND FILED June 26, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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 Nos. |
2007AP2038-CR |
2006CM267 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v.
Defendant-Appellant. |
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APPEAL
from judgments of the circuit court for
¶1 DYKMAN, J.[1] Chad Goretski appeals from judgments convicting him of Operating a Motor Vehicle While Under the Influence of an Intoxicant (Third Offense) in violation of Wis. Stat. § 346.63(1)(a) and Misdemeanor Bail Jumping in violation of Wis. Stat. § 946.49(1)(a). Goretski argues that police did not have reasonable suspicion to stop him based on a tipster’s call. We conclude that the totality of the circumstances did not provide police with reasonable suspicion to conduct an investigative stop and therefore reverse.
Background
¶2 On April 30, 2006, around 1 a.m., a tipster called the
Portage County Sheriff’s Department with a report of a possible drunken driver
leaving from a bar in
¶3 Bayer followed up on the tip by driving to Goretski’s home
address. Goretski’s truck was not there,
but within a short amount of time a truck matching dispatch’s description
appeared in the area. Bayer testified
that the arrival of the truck corresponded with the amount of time it would
take a vehicle to travel from
¶4 During the stop, Bayer identified the driver as Goretski and confirmed that Goretski had been drinking. He arrested Goretski. The trial court denied Goretski’s motion to suppress evidence from the stop, finding that under all the facts and circumstances Bayer had reasonable suspicion to conduct the investigative stop. Goretski pled no contest to Operating a Motor Vehicle While Under the Influence of an Intoxicant (Third Offense) in violation of Wis. Stat. § 346.63(1)(a) and Misdemeanor Bail Jumping in violation of Wis. Stat. § 946.49(1)(a).
Standard
of Review
¶5 When we review the trial court’s findings of fact on a motion
to suppress, we uphold the trial court’s factual findings unless those findings
are clearly erroneous. State
v. Richardson, 156
Discussion
¶6 Goretski argues that police did not have reasonable suspicion to stop him based on a tipster’s call. Goretski contends the tip was unreliable for two reasons: First, the tip was anonymous. Second, even if the tip was not anonymous, the tipster did not state his basis of knowledge or offer specific details showing inside knowledge. Therefore, the tip could not support reasonable suspicion. The State argues that the tip was not anonymous and that the tipster relayed first-hand information, and thus was reliable to support reasonable suspicion. We conclude that the record does not establish the tipster’s basis of knowledge, and thus the tip was not sufficiently reliable to support reasonable suspicion.
¶7 An investigative traffic stop must be supported by reasonable
suspicion to satisfy constitutional reasonableness requirements. State v. Rutzinski, 2001 WI 22, ¶¶12-14,
241
¶8 Courts recognize that tips fall on a spectrum of reliability.
See Rutzinski,
241
¶9 The veracity of tips ranges from high to low. Courts
attribute the highest degree of veracity to a tipster who is personally known
to police and has given police reliable tips in the past. Adams v. Williams, 407
¶10 Without veracity, basis of knowledge, or corroboration of
significant details, a tip is not sufficiently reliable to support reasonable
suspicion for an investigative stop. See Rutzinski, 241
¶11 Conversely, a tip is firmly within the reliability spectrum
when a tipster provides his or her name and relays an eyewitness account. State v. Sisk, 2001 WI App 182, ¶¶3,
8-11, 247 Wis. 2d 443, 634 N.W.2d 877. In
Sisk,
the court held a tipster was reliable because he provided what he said was
his name and reported that he saw two armed men enter a building.
¶12 Here, Goretski argues that the tip was unreliable because it
was anonymous. Although police knew
Lemke’s name, Goretski argues the tip is anonymous because there are no facts
showing Lemke offered his name to dispatch. Goretski instead suggests that dispatch may
have obtained Lemke’s name through a caller identification system.
¶13 We agree that the record
does not establish that Lemke provided his name to dispatch.[4] However, reliability does not turn only on
whether a tipster is anonymous or known. The significance of a known versus anonymous
tip is the degree of veracity courts may assign to the tip. Williams, 407
¶14 The State argues that it has established Lemke’s basis of knowledge because Lemke was an eyewitness. The State asserts that not only did Lemke see Goretski drinking at the bar, but Lemke also provided inside information—including a description of Goretski’s car and license plate number as well as Goretski’s prior driving offenses and bond conditions. We conclude that the record does not establish Lemke as an eyewitness and that the details Lemke provided do not clearly establish that he had inside information.
¶15 In Kolk, we considered a similar situation in which the tip from a
named tipster was void of a basis of knowledge and details that demonstrated
inside knowledge.
¶16 We rejected the State’s argument that the tip provided
reasonable suspicion for Kolk’s continued detention once the traffic stop was
concluded.
¶17 Similarly, we cannot conclude that Lemke was familiar enough
with Goretski’s criminal acts to be trustworthy. We cannot determine Lemke’s basis of knowledge
from Bayer’s testimony.[5] Bayer’s testimony shows only that someone saw
Goretski drinking. Thus, the record does
not reveal how Lemke came to know that Goretski had been drinking at the bar,
and it does not clearly or convincingly establish Lemke as an eyewitness. It follows then that “[t]he tip here might
have been based on first-hand knowledge, but it might also have been the
product of rumor or speculation. We do
not know, either because the informant did not tell the police or because the
police did not tell the circuit court.”
¶18 The record also does not show that Lemke offered any particular
details or predictions that showed inside knowledge. Instead, even if we assume the details
dispatch relayed to Bayer came from Lemke directly, those details offered only insignificant
facts: Goretski’s identity, the kind of
car he drove, his criminal history, and that he might drive home. Those details do not establish inside
knowledge regarding Goretski’s drunk driving in this particular incident. Anyone on the street could know what kind of
car Goretski drove. Knowledge of
Goretski’s criminal history is also not dispositive because it does not
establish that Lemke saw Goretski that night.
Further, while Bayer testified that Goretski arrived in the vicinity of
his home within the estimated time it would take to drive from the bar, Lemke
did not provide contemporaneous updates that would give Bayer the opportunity
for verifiable observations. Therefore,
Bayer acted on “a tip that neither demonstrated a basis of knowledge nor
allowed for much significant corroboration.” Kolk, 298
¶19 Finally, the State argues that Bayer corroborated Lemke’s
allegation that Goretski was intoxicated through Bayer’s observation that
Goretski took an indirect route home. We
disagree. In cases where officers have
based reasonable suspicion on innocent acts, those innocent acts are also supported
by eyewitness accounts or corroborated inside information to support reasonable
suspicion of unlawful conduct. See, e.g.,
Rutzinski,
241
By the Court.—Judgments reversed.
Not
recommended for publication in the official reports. 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 the voice recordings of the tipster’s call were recorded over, it is unclear whether the details given to Bayer, including Lemke’s name, originated from Lemke or were independently obtained by dispatch.
[3] The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment is enforceable against the states by means
of the Due Process clause of the Fourteenth Amendment. Mapp v.
State v. Rutzinski, 2001 WI 22, ¶12 n.3, 241
Article I, Section 11 of the Wisconsin Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
[4] Although the trial court found Lemke identified himself, the record does not support that finding. The transcript of the motion hearing contains the following cross-examination of Bayer:
Q: …. Do you
know one way or the other as to whether or not the person, Drew Lemke,
identified himself when he called or could it have been, as far as you know,
that maybe his identity was anonymous but it was discovered later by staffers
at the 911 center?
A. Are you asking me if I know that?
Q. Yeah.
A. At that time, no, I did not know that.
Q. So you don’t know whether we were dealing with an anonymous tip or someone who actually called in and identified himself?
A. Before I made contact with him, they did tell me the name of the person who called and said it was a Drew Lemke.
Q. But you don’t know how he was identified?
A. No, I don’t.
[5] The transcript of the motion hearing contains the following cross-examination of Bayer:
Q. And just to make sure I am clear, the information then from the caller, as far as we can tell, is just that someone said they saw [Goretski] drinking at a bar?
A. That was part of it.
Q. Okay. But there is nothing in your report and nothing in your testimony that would establish how much he had to drink; is that correct?
A. That’s correct.`
Q. And there is also no detail in this tipster information about whether he seemed impaired; is that correct?
A. The call that I received was that it was an intoxicated driver and that our dispatch center had obtained that from the caller.
Q. But in your report, the only information there is is that somebody said they saw him consume alcohol, correct?
A. Correct.
(Emphasis added.) We have no way of knowing the identity of the “somebody” who saw Goretski drinking.