COURT OF APPEALS DECISION DATED AND FILED March 19, 2009 David
R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT IV |
|||
|
|
|||
|
|
|||
State of
Plaintiff-Respondent, v. Josue M. Cobos,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment of the circuit court for
¶1 HIGGINBOTHAM, P.J.[1] Josue M. Cobos appeals a judgment convicting
him of operating while intoxicated, second offense, upon a guilty plea
following the circuit court’s denial of his motion to suppress evidence
obtained during a traffic stop. We
affirm.
BACKGROUND
¶2 On January 16, 2008, at approximately 2:15 a.m., Officer Thomas
Hansen was patrolling downtown
¶3 As Hansen pulled up in his squad car, he overheard a great
deal of shouting. The three men Hansen
had observed standing near the fight made eye contact with Hansen and started to
walk away. Hansen called out, “Hey, come
over here,” but the men kept walking. Hansen
radioed to dispatch that a fight was in progress, and that three white males
were walking away from the scene northbound on
¶4 Officer Casey Rossman was patrolling approximately half a block
away from the fight when he heard Hansen’s dispatch over his radio. Moments later, Rossman spotted three men
walking northbound on
¶5 Officer Teri Roden was also on patrol in the downtown area when she heard Hansen’s and Rossman’s dispatches. Roden turned into the parking lot moments after receiving Rossman’s dispatch and spotted a black Explorer making a turning maneuver. Roden made a traffic stop of the Explorer. Rossman, who was standing outside of the parking lot, walked to the stopped vehicle and took over the stop. Rossman identified the driver as Cobos and, after administering field sobriety tests, placed him under arrest for operating a motor vehicle while intoxicated, second offense.
DISCUSSION
¶6 When reviewing an appeal from an order by the circuit court
denying a motion to suppress evidence, this court will uphold the trial court’s
findings of fact unless those findings are clearly erroneous. State v. Richardson, 156
¶7 Cobos contends that the stop was unreasonable because the officers lacked “a particularized and objective basis for suspecting him of criminal activity.” Alternatively, Cobos argues that, even if the officers collectively had a sufficient basis to initiate the stop, the facts providing the basis for a stop were not communicated to the officer who made the stop. Finally, Cobos argues that the information used to identify him was inappropriately broad to justify the investigative stop. We address these contentions in turn.
¶8 To make an investigative stop of a person, the police must
have a reasonable suspicion that criminal activity is afoot. State v. Allen, 226
¶9
¶10 Officer Rossman’s observation of Cobos’ unsteady gait immediately before he operated the vehicle around bar time gave rise to a reasonable suspicion that Cobos was driving under the influence, and therefore was sufficient to justify a stop. Other facts observed by Officer Hansen, including Cobos’ proximity to the fight in an abandoned area around bar time, and his refusal to stop for questioning, provided additional justification for the stop.[2]
¶11 Cobos next argues that even if the officers had reasonable suspicion to stop him, the information which led to that suspicion was not properly relayed to the stopping officer, Officer Roden.
¶12 Cobos’ argument relies on State v. Friday, 140
¶13 Cobos argues that the stop was invalid under Friday
because Officer Rossman’s observation that Cobos appeared intoxicated as he got
behind the wheel of the vehicle was not communicated to Officer Roden, the
officer who made the stop. However,
Cobos misinterprets Friday to require that all
of the information constituting reasonable suspicion must be imputed to the
detaining officer for the collective knowledge rule to apply. The court imposed no such requirement in Friday. Rather, the Friday court cited with
approval Salter v. State, 163 Ind. App. 35, 321 N.E.2d 760 (1975),
wherein the Indiana Supreme Court invalidated a search in which there was “no
evidence” that the arresting officers had “any communication” with department
officers who were in possession of the facts constituting probable cause. Friday, 140
¶14 In discussing the collective knowledge rule in State
v. Mabra, 61
¶15 Here, Officer Roden was patrolling in the area and had her radio on when information from Officers Rossman and Hansen was relayed to the dispatcher. While Rossman did not relay all information supporting an investigative stop of Cobos to dispatch, Roden was in police-channel communication with the other officers and the dispatcher, and this made her aware of much of the information justifying the stop, and she acted in good faith upon that information in making the stop. This situation is distinguishable from Friday, where officers, who were not in communication with those in the department having information justifying Friday’s detention, acted upon unreliable information that was separate from the facts known to others in the department.
¶16 Finally, Cobos argues that even if there was reasonable suspicion to stop Cobos, the stop was illegal because it was based on a description of Cobos that was insufficiently broad. Cobos asserts that Hansen’s initial description of Cobos as one of a group of three “male whites” and later as “short with a stocking cap” was insufficient to provide Roden with enough information to stop Cobos. This argument leaves out crucial elements of the circumstances surrounding Roden’s stop of Cobos.
¶17 As noted by the trial court, key to Roden’s identification of Cobos was the proximity of time and space between the initial observation of the fight and the stop. Cobos was not just a short, white male in a stocking cap; he was a person more or less fitting that description[3] in that time and place. Moreover, only he and his two companions were observed in the area at the time of the fight. Rossman’s communication that Cobos got into a black Explorer in the parking lot, and the near immediate observation by Roden of a black Explorer moving in the parking lot with a driver that fit earlier descriptions of Cobos, provided more than adequate identifying information to support the stop.
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)(d) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Cobos contends that he had a right to walk away when asked to stop by police, citing Florida v. Royer, 460 U.S. 491 (1983), and Illinois v. Wardlow, 528 U.S. 119 (2000), and argues that his refusal to stop did not give officers reasonable suspicion for the stop. However, as explained above, his refusal to stop when asked was but one building block in the totality of the circumstances test. More relevant to the basis for the stop was the fact that he was seen operating a motor vehicle after walking unsteadily, and his proximity to the fight in an abandoned area around bar time.
[3] The traffic citation issued to Cobos lists his race as Hispanic.