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COURT OF APPEALS
DECISION
DATED AND FILED
September 15, 2010
A.
John Voelker
Acting 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
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IN COURT OF
APPEALS
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DISTRICT II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Norman P. Roberts,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Kenosha County: bruce
e. schroeder, Judge. Affirmed.
Before
Brown, C.J., Neubauer, P.J., and Anderson,
J.
¶1 PER CURIAM. Norman P.
Roberts appeals from a judgment of conviction and an order denying his motion
for postconviction relief. Roberts
argues on appeal that the circuit court erred when it denied his postconviction
motion to suppress evidence. The basis
for Roberts’ motion was that the evidence was fruit of a stop that an Illinois court had
previously found to be illegal.
¶2 Specifically, Roberts argues: that the State waived the issue of the
validity of the initial stop and that waiver was legally binding on the circuit
court, the circuit court switched the burden of proof on the constitutional
validity of the stop from the State to the defendant, the circuit court
prejudged the facts before the hearing on the motion, the circuit court’s
findings of fact were clearly erroneous, the police officer did not have a
legally valid reason for the stop, the Illinois police officer admitted that
the information on which he acted to stop Roberts was unreliable and hence his
reason for the stop was invalidated, the search of Roberts’ home was not
sufficiently attenuated from the illegal stop, and the court should have
suppressed the evidence. We conclude
that the Wisconsin circuit court had the
authority to independently decide the suppression issue, and that the court
properly determined that the police officer had a reasonable suspicion to stop
Roberts’ car. We affirm the judgment and
order.
¶3 On January 24, 2005, a police officer in Illinois stopped a car driven by
Roberts. The police officer testified
that he was on duty in a marked police car when he saw Roberts’ car travelling
towards him. The officer said that he
looked at the license plate and memorized the number. He also saw that there was tint in the front
window. The officer entered the car’s license
plate number into his on-board computer, and learned that the registration for
the car was suspended. The officer made
a u-turn to follow the car, and stopped it.
¶4 The parties stipulated to the following facts. In the car were also Roberts’ son and Joseph
Franklin. After approaching the car, the
police officer noticed a strong odor of what he believed to be cannabis coming
from the car. He asked for and received
permission from Roberts to search the car.
The officer found marijuana, money, and rolling papers in the car and in
Roberts’ pockets. The police arrested and questioned all three of the occupants
of the car. After being given his Miranda
rights, Franklin told the police that he had
marijuana in his bedroom in Kenosha,
Wisconsin. The police searched and found marijuana in Franklin’s home. The police continued to question Franklin and
Franklin eventually told them that he had seen Roberts with a duffel bag
containing at least a pound of cannabis at Roberts’ home earlier that day. Based on this information, the police
obtained a search warrant to search Roberts’ home, where they seized a
large-amount of marijuana and prescription drugs, as well as scales and other
drug-related items. An Illinois court later determined that the
police did not have probable cause or a reasonable suspicion to make the
initial stop, and granted a motion to suppress the evidence.
¶5 Roberts moved the Kenosha county
circuit court to suppress the evidence found at his home pursuant to the search
warrant as fruits of the poisonous tree from the illegal Illinois stop. The trial court held hearings and ultimately
denied the motion. Roberts pled
guilty. Roberts then filed a
postconviction motion alleging that the trial court applied the wrong legal
standard when it denied his suppression motion.
Prior to this motion, the State had conceded that the Wisconsin courts
were bound by the Illinois’
court’s determination on the validity of the stop. In the briefing on the postconviction motion,
however, the State argued that the stop was legal. The circuit court held a hearing and heard
the testimony of the Illinois
officer. The circuit court agreed with
the State that the stop was legal, and denied the motion.
¶6 Whether
there is probable cause or reasonable suspicion to stop a vehicle is a question
of constitutional fact. State
v. Mitchell, 167 Wis. 2d 672,
684, 482 N.W.2d 364 (1992); State v. Williams, 2001 WI 21, ¶18,
241 Wis. 2d
631, 623 N.W.2d 106. A finding of
constitutional fact consists of the circuit court’s findings of historical
fact, which we review under the “clearly erroneous standard,” and the
application of these historical facts to constitutional principles, which we
review de novo. Id., ¶¶18-19.
State v. Popke, 2009 WI
37, ¶10, 317 Wis. 2d
118, 765 N.W.2d 569.
¶7 “Investigative stops are subject to the constitutional
reasonableness requirement.” State
v. Post, 2007 WI 60, ¶12, 301 Wis. 2d
1, 733 N.W.2d 634. The determination of reasonableness is a common sense test,
based on the totality of the facts and circumstances. Id.,
¶13. A traffic stop is generally
reasonable if the officers have probable cause to believe a violation has
occurred or reasonably suspect that a violation has been or will be
committed. Popke, 317 Wis. 2d 118, ¶11.
¶8 Roberts first argues that the State waived the issue of the
validity of the initial stop by conceding that the Illinois court had found the stop was
constitutionally invalid. Roberts argues
that the State made a strategic decision to waive this issue, and that this waiver
is binding on the State as well as the court.
The cases on which Roberts relies to support his argument, however, both
involve a strategic waiver of an objection to the admission of evidence. See
Murray v. State, 83 Wis. 2d
621, 628-29, 266 N.W.2d 288 (1978) and State v. McDonald, 50 Wis. 2d 534, 537, 184
N.W.2d 886. Roberts, however, is arguing
that the circuit court, and this court too, are bound by a ruling of law from
another jurisdiction in a case in which the State was not a party, because the
State did not raise the issue early enough in the trial court in this proceeding. The issue presented is a question of law, and
a question of law “cannot be bargained away by counsel nor shielded from ab initio consideration by successive
court reviews.” See Fletcher v. Eagle River
Hosp., 156 Wis.
2d 165, 182, 456 N.W.2d 788 (1990). The
circuit court was not bound by the Illinois
court’s determination on this question of law, and was entitled to review the
issue of whether the stop was constitutionally valid.
¶9 Roberts argues that the circuit court impermissibly prejudged
the question of whether the stop was constitutionally valid. In support of this argument, Roberts quotes a
phrase from the court’s decision: “I
have concluded in the past, and confirm the conclusions now, that the Illinois stop was
lawful, and that suppression of the evidence would be inconsistent with law,
and constitute a miscarriage of justice.”
Roberts has taken this statement out of context to argue that the court
prejudged the facts. When considered in
the proper context, it is clear that the court was not saying that it had
already decided the issue here, but rather that it had been faced with the
question of whether it was bound by an Illinois
determination in the past, and had concluded that it was not. We reject Roberts’ argument that the court
prejudged the facts.
¶10 Roberts argues that the court’s findings of fact were clearly
erroneous. The central issue in the
suppression motion was whether the police officer checked Roberts’ registration
status before he stopped Roberts’ car or afterwards. The circuit court found that the officer
checked the records before he stopped Roberts.
Roberts argues that this finding is clearly erroneous, the court applied
the wrong burden of proof, and that the officer changed his Wisconsin testimony
to overcome the deficiencies found by the Illinois court.
¶11 The circuit court found that the evidence established that
prior to the stop the officer had a reasonable suspicion that Roberts’
registration was suspended, and consequently, the officer had sufficient reason
to stop the car. In support of this
finding, the court relied on the officer’s testimony and an affidavit in which
Roberts stated that the officer said he had stopped Roberts for an “expired”
registration. Roberts argues that this
shows that the officer was not being truthful because the officer said
“expired” and not “suspended.” We are
not convinced that the use of different words is enough to render the officer’s
testimony incredible and the court’s finding clearly erroneous. Whichever word the officer used when he
stopped Roberts, both the officer’s testimony and Roberts’ affidavit show that
the police officer stopped Roberts because of a problem with Roberts’
registration.
This finding was not clearly erroneous.
¶12 Roberts argues that the officer knew that information received
from the Wisconsin Department of Transportation was not reliable, and therefore
he could not have a reasonable suspicion based on information received from the
DOT. Roberts, however, overstates the officer’s
testimony. The officer said that prior
to that date he had heard that “there were some issues with the Wisconsin registrations.”
He later explained that based on his training, he believed on the date
of the stop that the Wisconsin DOT information
could be relied on to make traffic decisions.
We reject Roberts’ argument that the officer unreasonably relied on the
DOT information to determine the status of his registration.
¶13 Roberts argues that the officer’s testimony that he stopped the
car because the windows were tinted “was totally irrational” because the Illinois ban on cars with tinted windows applied only to
cars with Illinois
registrations. Because we conclude that
the officer properly stopped the car for a suspended registration, we need not
address this issue.
¶14 Roberts also argues that the court improperly placed the burden
of proof on him rather than on the State.
The circuit court stated: “The
burden was on the People in Illinois; because
in Wisconsin
there was a search warrant, the burden is on the defendant.” The issue presented to the court in this case
was whether the stop in Illinois
was reasonable, and the State bears the burden of proof in that case. See Post,
301 Wis. 2d
1, ¶12. While Roberts is correct that
the court addressed the issue of burden of proof in the wrong context, we
nonetheless affirm. See Vanstone v. Town of Delafield,
191 Wis. 2d
586, 595, 530 N.W.2d 16 (Ct. App. 1995) (we may affirm on grounds different
than those relied on by the trial court).
The record shows that there was sufficient evidence to establish that
the stop by the Illinois
officer was reasonable, and that the State met its burden of proof. We are not convinced by Roberts’ arguments
that the circuit court’s misstatement in its opinion about the burden of proof
makes its findings of fact clearly erroneous.
¶15 We conclude that the circuit court’s findings of fact were not
clearly erroneous, and that these facts establish that the Illinois police officer had a reasonable
suspicion to stop Roberts’ car. Because
we have concluded that the circuit court properly determined that the stop was
constitutionally valid on these grounds, we need not address the other
arguments Roberts raises. For the
reasons stated, we affirm the judgment and order of the circuit court.
By the Court.—Judgment and order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.