|
COURT OF APPEALS DECISION DATED AND FILED February 1, 2005 Cornelia G. Clark 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 from a judgment of the circuit court for Oneida County:� MARK A. MANGERSON, Judge.� Affirmed.�
����������� Before Cane, C.J., Hoover, P.J., and Peterson, J.
�1����������������������� PER CURIAM. Dean Schaefer appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, fifth offense.� He argues the arresting officer did not have reasonable suspicion to support the stop of his vehicle.� We conclude the officer reasonably believed Schaefer was driving with a revoked license and that the stop was a minimal intrusion.� We therefore affirm the judgment.
BACKGROUND
�2����������������������� On May 22, 2002, officer James Adams of the Oneida County Sheriff�s Department, who was on patrol with another officer, received a dispatch regarding a possible health and welfare check at a residence.� Adams had been to the residence on previous occasions and knew that Schaefer lived there with his girlfriend.� Approximately a month earlier and possibly as recently as ten days earlier, Adams had been at the residence.� He had checked Schaefer�s license status at that time and learned it was revoked.
�3����������������������� Adams drove to the residence and decided to park just down the street to wait for medical personnel to arrive.� While he was waiting and watching the residence, he observed Schaefer get into a vehicle and drive away.� Adams stopped Schaefer, believing he was driving with a revoked license.� He informed dispatch of the stop and learned Schaefer�s license was still revoked.� Adams arrested Schaefer for operating a motor vehicle after revocation.� He later determined that Schaefer was intoxicated.
�4����������������������� Schaefer was charged with operating a motor vehicle while intoxicated, fifth offense.� Schaefer filed a motion to suppress evidence resulting from the stop, alleging the stop was not supported by reasonable suspicion.� The trial court denied the motion.� It determined the stop was a minimal intrusion, that there was concern due to the 911 call and that, contemporaneous to the stop, Adams confirmed Schaefer�s license was revoked.� Schaefer was subsequently convicted on the OWI charge.�
DISCUSSION
�5����������������������� In reviewing a circuit court�s order denying a motion to suppress evidence, the court�s findings of evidentiary or historical fact will be upheld unless they are clearly erroneous.� State v. Matejka, 2001 WI 5, �16, 241 Wis. 2d 52, 621 N.W.2d 891.� However, whether the court�s findings of fact pass statutory or constitutional muster is a question of law this court reviews independently.� Id.
�6����������������������� The Fourth Amendment to the United States Constitution protects �[t]he right of the people ... against unreasonable searches and seizures.�� While an investigative stop is technically a �seizure� under the Fourth Amendment, a police officer may, under appropriate circumstances, detain a person for purposes of investigating possible criminal behavior even though there is no probable cause for arrest.� See Terry v. Ohio, 392 U.S. 1, 22 (1968).� Wisconsin has adopted the Terry rule, see State v. Chambers, 55 Wis. 2d 289, 294 n.2, 198 N.W.2d 377 (1972), and Wis. Stat. � 968.24.[1]
�7����������������������� An officer must be able to point to specific and articulable facts, that, taken together with rational inferences from those facts, reasonably warrant the intrusion.� Terry, 392 U.S. at 21.� The question of what constitutes reasonable suspicion is a common sense test:� given the facts and circumstances, �what would a reasonable police officer reasonably suspect in light of his or her training and experience?�� State v. Jackson, 147 Wis. 2d 824, 834, 434 N.W.2d 386 (1989).
�8����������������������� Schaefer argues that, while Adams knew a month earlier that Schaefer�s license was revoked, the information was stale at the time of the stop.� Schaefer points to our decision in State v. Kassube, 2003 WI App 64, 260 Wis. 2d 876, 659 N.W.2d 499.� There, the officer had known the defendant for between nine and twelve years and had never known him to have a driver�s license.� Therefore, it was reasonable for the officer to believe the defendant was driving without a license.� Id., �3.�
�9����������������������� Schaefer argues his situation is distinguishable because Adams�s information was based on information obtained only a month earlier, as opposed to the years of information the officer had in Kassube.� Further, while the defendant in Kassube never had a license, Schaefer had a license before it was revoked.� Schaefer maintains that, because license revocations are temporary, he could have had his license reinstated in the time since he last had contact with Adams.� Therefore, Schaefer contends it was unreasonable for Adams to assume Schaefer�s license was still revoked.
�10����������������������� We look to the circumstances of each case when determining whether information is stale.� State v. Ehnert, 160 Wis. 2d 464, 469, 466 N.W.2d 237 (Ct. App. 1991).� Here, Adams knew that Schaefer�s license was revoked as much as a month and as few as ten days before the stop.� This information was not so stale as to render unreasonable the suspicion that his license was still revoked.� Furthermore, we agree with the circuit court that the stop was a minimal intrusion.� See State v. Swanson, 164 Wis. 2d 437, 446-47, 475 N.W.2d 148, 152 (1991) (a traffic stop, like a Terry stop, is typically brief and public in nature) (citing Berkemer v. McCarty, 468 U.S. 420 (1984)).� The fact that Schaefer�s license could possibly have been reinstated since Adams�s last contact with him does not make this minimal intrusion unreasonable.[2]� Adams was not required to rule out the possibility of innocent behavior before stopping Schaefer�s vehicle.� See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).
����������� By the Court.�Judgment affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.
[1]� All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[2]� The State also argues the stop was reasonable because Adams was investigating a possible domestic disturbance.� Because we conclude the stop was reasonable due to Adams�s belief Schaefer was driving after revocation, we need not address the domestic disturbance issue.��