COURT OF APPEALS DECISION DATED AND FILED July 29, 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. |
Cir. Ct. Nos. 2007TR4725 2007TR4726 |
|||
STATE OF |
IN COURT OF APPEALS |
|||
|
DISTRICT II |
|||
|
|
|||
|
|
|||
Plaintiff-Respondent, v. Donald W. Welch,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment of the circuit court for
¶1 SNYDER, J.[1] Donald W. Welch appeals from a judgment adjudicating him guilty of a first offense of operating a motor vehicle while under the influence of an intoxicant (OWI). He contends that the circuit court erred when it denied his motion to suppress evidence obtained during the investigatory stop of his vehicle. Welch asserts that the stop was not supported by reasonable suspicion. We disagree and affirm the judgment.
BACKGROUND
¶2 On November 10, 2007, at approximately 2:19 a.m., Officer Brian Forsyth of the Village of Slinger Police Department overheard the Washington County Sheriff’s Department dispatch concerning a possible drunk driver. Dispatch stated that the tip had come in from an off-duty police officer. The tipster described a red vehicle with license plate number 909 GCZ traveling east on Highway 60, which meant the vehicle was traveling toward Forsyth. Dispatch also indicated that the tipster was driving behind the vehicle and had it in sight.
¶3 Forsyth saw the red vehicle pass by and observed a second
vehicle, which he believed was the tipster, slow substantially and allow
Forsyth to pull in behind the red vehicle.
Forsyth confirmed the license plate matched that reported by the tipster
and proceeded to follow at about twenty-five miles per hour, the posted speed
limit. Forsyth observed the vehicle turn
right onto
¶4 Welch filed a motion to suppress and argued that Forsyth did not have reasonable suspicion to conduct a traffic stop. The circuit court denied the motion. Welch was convicted of OWI and now appeals.
DISCUSSION
¶5 When we review the denial of a motion to suppress evidence
for lack of reasonable suspicion, we apply a two-step standard of review. See State v. Williams, 2001 WI 21, ¶18,
241
¶6 Investigatory stops are subject to the constitutional
imperative that all searches and seizures be objectively reasonable under the
circumstances existing at the time of the search or seizure. State v. Rutzinski, 2001 WI 22, ¶13,
241
¶7 Here, Forsyth articulated two grounds for his decision to
make an investigatory stop. First, he
points to the information in the tip from the off-duty police officer. An informant’s tip may justify an
investigative stop in some circumstances. Rutzinski, 241
¶8 In Rutzinski, the officer received a
tip from dispatch that an unidentified motorist called to report a black pickup
truck weaving within its lane, varying its speed, and tailgating. Rutzinski, 241
¶9 We agree with Welch that the tip here lacks some of the
qualities that enhanced the reliability of the Rutzinski tip. Specifically, Forsyth’s tipster did not give
updates on Welch’s location or verbally confirm that Forsyth was following the
right vehicle when he pulled in behind Welch.
Also, the tipster here reported possible drunk driving, but did not
describe the particular behaviors that led to that conclusion. On the other hand, it is reasonable for an
officer to attach greater credibility to an off-duty officer. Also, the tip did include specific facts about
the vehicle that Forsyth could confirm such as the color, license plate number,
and direction of travel. Finally,
Forsyth did observe that a vehicle following Welch slowed down when Forsyth
pulled in behind Welch, thus suggesting that the tipster had been in the
vehicle behind Welch as reported. We
conclude that the tip, although not as reliable as that in Rutzinski, was
sufficiently reliable to contribute to the totality of circumstances leading to
the investigatory stop. Unlike the
officer in Rutzinski, Forsyth proceeded to independently observe Welch’s
driving before making the stop. That is
when he saw Welch fail to use his blinker before turning onto
¶10 Welch argues that Forsyth’s reference to his turn onto
¶11 Welch argues that the County has not shown that his failure to
use his blinker affected any other traffic and therefore no violation
occurred. He emphasizes that Forsyth
never testified that he was affected by Welch’s failure to signal. However, Forsyth was following Welch at a
distance of two to three car lengths. He
was sufficiently close that the operation of his squad car may have been
affected by the unsignaled turn of the vehicle in front of him. Nothing more is
required to violate Wis. Stat. § 346.34(1)(b). A driver preceding another has the duty to
use the roadway in the usual manner with proper regard for all others using the
road. Burlison v. Janssen, 30
CONCLUSION
¶12 Reasonable suspicion is measured in light of the totality of
circumstances. Williams, 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)(g) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.