COURT OF APPEALS DECISION DATED AND FILED September 9, 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 III |
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State of Plaintiff-Respondent, v. Silvia H.
Heugel, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 BRUNNER, J.[1] Silvia Heugel appeals a judgment of conviction for operating a vehicle while intoxicated, second offense. Heugel contends the circuit court erroneously denied her motion to suppress. We disagree and affirm.
BACKGROUND
¶2 On October 23, 2006, officer James VanDusen arrested Heugel for operating while intoxicated. Heugel filed a motion to suppress, claiming VanDusen did not have reasonable suspicion for the stop. At the motion hearing, VanDusen testified he responded to a report of an erratic driver. At about 7:42 p.m., a citizen informant called and reported she was following a maroon Dodge that had crossed the center line several times and had nearly struck another vehicle head on. The informant gave dispatch her name, date of birth, and phone number and continued to update her location as she followed the vehicle. The informant followed the vehicle until it eventually was parked at a shopping center, where a woman exited the vehicle and entered a natural foods store. The informant did not provide any description of the driver beyond her gender.
¶3 VanDusen then arrived and spoke to the informant, who confirmed the information she had provided to dispatch and pointed out the parked vehicle, which matched the description and license number provided to dispatch. VanDusen, who was stopped about 100 feet away, did not notice whether there was anyone else in the vehicle. Additionally, he could not recall if the informant stated whether there had been more than one person in the vehicle.
¶4 About two to four minutes after he arrived and while still conversing with the informant, VanDusen noticed the vehicle backing out of the parking stall. VanDusen could not recall observing the driver re-enter the vehicle or seeing where she came from. However, as the vehicle pulled away, he could see it was driven by a female. VanDusen followed the vehicle out of the parking lot and pulled it over without observing any driving irregularities, at 7:52 p.m.
¶5 The circuit court determined there was reasonable suspicion for the traffic stop and denied Heugel’s motion to suppress. Heugel pled no contest and this appeal follows.
DISCUSSION
¶6 Heugel does not dispute that the informant’s tip would ordinarily provide reasonable suspicion for the stop. Nonetheless, she contends the parking of the vehicle, and the attendant gap in observation, terminated the basis for the stop.
¶7 Whether an officer had reasonable suspicion to conduct an
investigative stop is a question of constitutional fact. State
v. Powers, 2004 WI App
143, ¶6, 275
¶8 Traffic stops are seizures under the Fourth Amendment.
¶9 The
State analogizes this case to Rutzinski,
where a traffic stop was found reasonable even though it was based solely on an
anonymous informant’s tip. There, an
informant reported a truck was being driven erratically.
¶10 We
agree that, ignoring for the moment the gap in observation, Rutzinski requires a determination
of reasonable suspicion in this case. As
there, the informant here gave contemporaneous reports via cell phone as she
followed the erratically driven vehicle.
She provided a detailed description of the vehicle and the officer
confirmed those details upon arrival. Additionally,
the informant provided her name and phone number and stopped and spoke with
officer VanDusen prior to the traffic stop, adding a layer of reliability not
present in Rutzinski. Finally, the erratic driving here, involving
a near head-on collision, was more serious than the weaving and tailgating in Rutzinski. See id., ¶4. Thus, the
exigency weighed more heavily in favor of conducting an immediate stop in this
instance.
¶11 While not disputing that the preceding facts would give rise to reasonable suspicion for a traffic stop, Heugel argues the informant’s observations were interrupted when the driver parked and exited the vehicle. She emphasizes that neither VanDusen nor the informant observed whether the woman who re-entered the vehicle came from the natural foods store, there was no description of the driver beyond her gender, and VanDusen could not recall the informant stating there had been only one person in the vehicle. Since VanDusen did not observe any bad driving prior to stopping Heugel, she contends no evidence connected the driver of the second episode to the earlier erratic driving.
¶12 Thus, we must determine whether it would be reasonable for VanDusen to infer that the woman who drove out of the parking lot that evening was the same woman who had driven into the lot, parked, and entered the natural foods store less than ten minutes earlier. We conclude it would. Indeed, given the typical course of events, this might be the most reasonable inference.
¶13 We first note there is no evidence there was ever more than one
person in the vehicle. We acknowledge
there might be several plausible scenarios whereby the vehicle was driven to
the store by one woman and driven away by another. However, it is well established that police
need not dispel every innocent explanation for behavior before initiating a
traffic stop.
¶14 When assessing whether a stop is constitutionally reasonable, we
must balance the interests of the individual being stopped against the
interests of the State. Rutzinski,
241
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). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.