COURT OF APPEALS DECISION DATED AND FILED May 27, 2009 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Appellant, v. Christopher S. Bilke,
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
¶1 BROWN, C.J.[1] This appeal by the State involves an
application of the facts of this case to the law announced in State
v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W. 2d 923. There, we held that a police officer can make
a common sense assumption that the registered owner of a vehicle is likely to
also be its driver and, if the owner’s license is revoked, the officer has
reasonable suspicion for a traffic stop so long as there are no facts which
would call into question the nexus between the owner of the vehicle and the
driver.
¶2 The facts are very simple to relate. At about 2:00 a.m. on June 4, 2008, an officer
observed a vehicle travelling on a street, checked the vehicle’s license plate
on the mobile data computer, and learned that the vehicle was registered to two
individuals, one sixty-four years old and the other twenty-five years old. The
younger of the two was identified as Christopher S. Bilke and his driving
privileges were revoked. Acting on his
belief that it would be more likely for a twenty-five year old man to be
driving at two in the morning than a sixty-four year old man, the officer
stopped the vehicle. Before stopping Bilke, the officer
observed the vehicle at a local McDonald’s and simply pulled over down the road
and waited for the vehicle to be on the move again. After several minutes, the officer decided to
drive back towards McDonald’s and, in doing so, saw the vehicle on the road. A stop resulted in an arrest. In their briefs the parties allege that Bilke
was arrested for operating a motor vehicle while intoxicated, second offense
and the corollary charge of operating with a prohibited alcohol concentration,
second offense.[2]
¶3 Bilke moved to suppress the evidence on grounds that there
was no reasonable suspicion to stop him.
As we interpret it, he argued that because there were two registered
drivers of the car rather than one, this fact destroyed the common sense
assumption a reasonable police officer may make that the driver of the vehicle
was also its registered owner. As such,
Bilke argued that the officer was obliged to obtain more information before
making the stop. The State responded
that it is enough that the officer suspected Bilke to be the driver rather than
the older man, presumably because of the early morning hours.
¶4 The trial court agreed with Bilke. The trial court called the officer’s
assumption that Bilke was the driver due to the time in the morning a “guess”
or a “hunch” rather than a reasonable inference based on articulable facts. The
trial court mused that the officer could easily have discerned if it was a
younger man driving or an older man driving simply by going into the McDonald’s
lot and eyeballing the driver before making the stop. That would have provided the missing link
that the officer needed. The trial court granted the motion to suppress and the
State appeals.
¶5 The State takes issue with the trial court’s conclusion that the officer’s stop was based on a hunch. The State claims instead that the stop was based on specific, articulable facts and reasonable inferences drawn from those facts. The State points to the fact that the vehicle was being driven at 2:00 a.m. in the morning and then submits that the officer made a reasonable inference from this fact—a twenty-five year old is more likely to be driving at that time in the morning than a sixty-four year old. The State then reasons that because the officer arrived at a reasonable inference based on this articulable fact, the officer did not have to seek further information before making the stop. The State dismisses the possibility of the driver being the sixty-four year old man rather than Bilke as simply “an innocent explanation” that officers are not required to rule out before making the stop.
¶6 The State is just plain wrong. We look at the actions of a police officer
based on the common sense notion of what a reasonable police officer would reasonably
be able to infer from the situation given his or her training and experience. State v. Waldner, 206
By the Court.—Order affirmed and cause remanded.
This opinion will not be published 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) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] We
searched the record for any reference to the charges of operating a motor
vehicle while intoxicated, second offense, and operating with a prohibited
alcohol concentration, second offense, but found none. The only charge in the record is for
operating while revoked. However, a
search on the Wisconsin Circuit Court Access website turned up another circuit
court case in which the State charged Bilke with these two offenses on the same
day as the operating while revoked offense. There is no appeal relating to that
case. The appellant (in this
case, the State) has the responsibility of providing a complete record.