COURT OF APPEALS DECISION DATED AND FILED December 9, 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. |
2009AP1441-CR |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Paul A. Streekstra,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 NEUBAUER, P.J.[1] Paul Streekstra appeals from a judgment of conviction for operating with a prohibited blood alcohol concentration (PAC), fourth offense. Streekstra contends that the trial court erred in denying his motion to suppress evidence on grounds that the officer lacked reasonable suspicion to stop his vehicle. We conclude that the totality of the circumstances, including the indicia of reliability surrounding the anonymous cell-phone tip and the officer’s independent observations, gave rise to reasonable suspicion to conduct an investigative stop. We affirm the judgment.
FACTS
¶2 Streekstra was cited for both operating while intoxicated
(OWI) and PAC on September 8, 2008. The
facts underlying Streekstra’s arrest were set forth at the hearing on his
motion to suppress. Deputy Sheriff Eric
Halbach of the
¶3 Heading south on Highway 26 from Rosendale, Halbach located a silver Saturn Vue with a license plate of 842BLP.[2] While following the vehicle for approximately a mile to a mile and one-quarter, Halbach observed it “weaving within its own lane several times.” Based on the initial complaint, the matching vehicle description and license plate, and his own observations, Halbach formed the belief that the driver was possibly impaired or having some sort of medical issue. Halbach initiated a stop of the vehicle, identified Streekstra, and observed an odor of intoxicants emanating from his breath. Streekstra was later cited for OWI and PAC, third offense. The trial court denied his motion to suppress evidence based on lack of reasonable suspicion to initiate the stop, namely that the information from the anonymous tip was not sufficiently reliable to give rise to a reasonable suspicion.
¶4 After a thorough examination of the facts and relevant law, the trial court concluded, based on the totality of circumstances, that the stop was reasonable. Streekstra filed a motion for reconsideration, which the trial court denied, and subsequently entered a no contest plea to the PAC, fourth offense.[3]
DISCUSSION
¶5 The sole issue on appeal is whether the anonymous tip combined
with the officer’s independent observations and corroboration provided the
officer with reasonable suspicion to initiate a stop of Streekstra’s
vehicle. A police officer may, in the
appropriate circumstances, approach an individual for purposes of investigating
possible criminal behavior even though there is no probable cause to make an
arrest. See Terry v.
¶6 For an investigatory stop to be constitutionally valid, the
officer’s suspicion must be based upon “specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant
the intrusion” on a citizen’s liberty. See Terry, 392
¶7 Streekstra argues that in light of the United States Supreme Court’s decision in Florida v. J.L., 529 U.S. 266 (2000), and our supreme court’s decision in State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, the trial court erred in its determination that the anonymous tip provided Halbach with reasonable suspicion. However, the State contends, and we agree, that the anonymous tip in this case contained sufficient indicia of reliability, including corroboration by Halbach, so as to provide Halbach with reasonable suspicion.
¶8 Both J.L. and Rutzinski addressed,
under differing circumstances, the issue of whether and when an anonymous tip
gives rise to reasonable suspicion. In J.L.,
the United States Supreme Court addressed whether an uncorroborated anonymous
tip could create the necessary reasonable suspicion to justify a Terry
stop. J.L., 529
¶9 The J.L. court noted that the anonymous
call (1) provided no predictive information and, therefore, no way for the
police to test the informant’s knowledge or credibility and (2) was made by an
“unaccountable informant” who had not explained the source of his knowledge or provided
any basis for believing he had “inside information”about the suspect’s alleged
illegal activity.
¶10 In Rutzinski, the Wisconsin Supreme Court examined the Court’s
holding in J.L. when it considered whether an anonymous cell-phone call
from an unidentified motorist provided sufficient justification for an
investigative stop. Rutzinski, 241
¶11 While the Rutzinski court recognized that in
some circumstances the information contained in an informant’s tip could
justify an investigative stop, it determined that the police must consider the
reliability of the tip before it could give rise to grounds for an
investigative stop.
¶12 The Rutzinski court then examined cases that create the boundaries
for the spectrum of reliable anonymous tips, including J.L. The court found that the anonymous cell-phone
tip in Rutzinski differed significantly from the tip in J.L.,
namely: (1) by providing information
that he or she was in the car immediately in front of Rutzinski, the informant
exposed himself or herself to being identified and to possible arrest if the
tip proved false; (2) the informant provided verifiable information and
contemporaneous observations indicating his or her basis of knowledge; and (3)
the tip suggested that Rutzinski was an imminent threat to the public’s safety.
¶13 Also informing our discussion is State v. Williams, 2001
WI 21, 241
¶14 With the rationales of J.L., Rutzinski, and Williams as guidance, we now turn to whether the anonymous tip in this case provided sufficient indicia of reliability. Here, the anonymous tip provided to dispatch informed Halbach that the tipster was following a silver Saturn Vue, license plate 842BLD, heading southbound on Highway 26, and that there was “erratic driving”—the vehicle “almost hit a semi [truck] head on.” Therefore, the tipster provided a description of the vehicle, the current location (north of Rosendale) and direction of travel, and the conduct which led him or her to believe that the operator of the vehicle was intoxicated. The tipster stayed on the line with dispatch until he or she informed dispatch that they were pulling over into a gas station in Rosendale because they were too afraid to stay on the road.
¶15 The tip in this case is much more akin to that found reliable
in Rutzinski
and Williams
than the “bare-boned” tip in J.L.
See J.L., 579
¶16 Streekstra responds that all of the information provided by the
caller would have been available to anyone in the vicinity of his vehicle and,
therefore, like the tip in J.L., must be deemed unreliable. However, Streekstra’s application of J.L.
on this issue is misplaced. The alleged
criminal activity in J.L. was concealed; the tip or call
was made from an unknown location by an unknown caller who never explained how
he knew about the gun. J.L.,
529
¶17 Here, the alleged criminal activity was not concealed and therefore Streekstra is correct that anybody could have observed it. However, we reject Streekstra’s contention that this somehow decreases the reliability of the tip. Unlike the caller in J.L., the caller provided his or her location (traveling behind the reported vehicle) and the basis for his or her knowledge (contemporaneous observations of erratic driving). Nor does Streekstra’s suggestion that the tip could have been called in from another county decrease its reliability. Although it is possible that someone could attempt to report a fabricated event, in this case the caller’s ability to provide Halbach with sufficient detail so as to enable him to immediately pinpoint the location of the vehicle described lends to the reliability of the tip. Indeed, Halbach subsequently verified the identifying information of the vehicle and its location and direction of travel. While there may be some doubt as to whether the caller could have been identified, we are satisfied that there was enough likelihood of identification so as to weigh in favor of reliability under the first consideration set forth in J.L.[5]
¶18 Further, unlike the officer in Rutzinski who did not
independently observe any signs of erratic driving, Halbach observed Streekstra
weaving within his lane prior to initiating an investigative stop. While Streekstra correctly argues that
weaving within one’s lane in and of itself is not sufficient evidence of
intoxication, it is something to be
considered in light of the totality of the circumstances. See
State
v. Post, 2007 WI 60, ¶¶26-27, 301
¶19 Finally, the allegations in the caller’s tip suggested an
imminent threat to the public safety warranting immediate police
investigation. Not only had the tipster
informed dispatch of a near head-on collision and “erratic driving,” but the
anonymous caller had pulled over so as not to share the road with Streekstra. While Halbach was able to make an independent
observation of weaving, even absent that observation, he was not required to
stand idly by in hopes that his surveillance would “reveal suspicious behavior
before the imminent threat comes to its fruition.” See
Rutzinski,
241
CONCLUSION
¶20 We conclude that the anonymous cell-phone tip, when coupled with Halbach’s independent observations and corroboration, contained sufficient indicia of reliability to give rise to reasonable suspicion warranting the investigative stop of Streekstra’s vehicle.[6] For the reasons set forth above, we affirm the judgment.
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)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] While the reported license plate differed by one letter from that observed by Halbach, he testified that it happens sometimes that letters such as P and D are confused when reported over the telephone to dispatch.
[3] The citations were issued for OWI and PAC, both as a third offense; however, the judgment reflects a conviction of PAC, fourth offense. At the plea hearing, the court noted that the charge had been amended to a fourth offense, and Streekstra subsequently admitted to having three prior OWI convictions.
[4] Pursuant to Wis. Stat. § 902.01(3), we take judicial notice of the 2000 census, which indicates a village population of 924. See http://factfinder.census.gov (last visited Oct. 28, 2009).
[5] There is no evidence in the record that dispatch made any attempt to obtain the name of, or contact information for, the caller. We join the suggestion made in the concurrence in State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, that law enforcement units adopt policies, if they have not already, regarding tips of drunk or erratic driving, such as obtaining the caller’s name or verifying that the call was susceptible to instant caller identification. See id., ¶41 (Abrahamson, C.J., concurring); see also Florida v. J.L., 529 U.S. 266, 275 (2000) (Kennedy, J., concurring) (observing that instant caller identification is widely available to the police and police ability to trace the identity of anonymous caller may be a factor which lends reliability to what previously might have been considered an unreliable anonymous tip).
[6] The
State raises, but does not develop, a community caretaker justification for
Halbach’s investigatory stop of Streekstra’s vehicle. Given our conclusion that Halbach had the
requisite reasonable suspicion to stop Streekstra’s vehicle, we need not
address whether Halbach was engaged in justified community caretaker activity
at the time of the stop.