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COURT OF APPEALS DECISION DATED AND RELEASED JULY 5, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0380
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GEORGE A. HARPER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Eau Claire County:
BENJAMIN D. PROCTOR, Judge. Affirmed.
MYSE, J. George Harper appeals a
judgment of conviction for second offense operating a vehicle while
intoxicated, contrary to § 346.63(1)(a), Stats. Harper contends that the trial court erred
by finding that the arresting officer had probable cause to arrest him for
driving while intoxicated. Although
Harper concedes that the arresting officer had probable cause to believe he was
intoxicated, he argues that the officer had no probable cause to believe he had
been operating a motor vehicle.
Therefore, Harper claims that the physical evidence of his intoxication,
including his breath alcohol test, should be suppressed. Because this court concludes that the trial
court properly employed the collective knowledge rule to find that the
arresting officer had probable cause, the judgment of conviction is affirmed.
On January 27, 1994, Eau
Claire County Deputy Sheriff Scott Kuehn, and Officer Paul White and Sergeant
John Modl from the Altoona Police Department were dispatched to the Happy
Hollow Tavern in Altoona, Wisconsin.
The initial dispatch reported that there was an unruly patron at the
tavern who refused to leave. After
receiving the dispatch, Kuehn radioed White and Modl to determine if they would
like his assistance. White and Modl
responded in the affirmative. When
Kuehn arrived on the scene, he found Harper sitting in his pickup truck with
the motor running. After parking his
vehicle behind Harper's truck to prevent Harper from leaving, Kuehn exited his
vehicle and walked to the side of Harper's truck. Kuehn advised Harper that there was a report of a disturbance at
the tavern and asked Harper to stay on the scene until officers from the
Altoona Police Department arrived.
Kuehn stated that during his conversation with Harper, he detected a
slight smell of alcohol emanating from Harper and noticed that Harper appeared
to be tired. Based on these
observations, Kuehn concluded that Harper was possibly under the influence of
an intoxicant.
Shortly after Kuehn
arrived, Officer Paul White and Sergeant Modl arrived on the scene. Kuehn advised White that Harper was possibly
intoxicated, but stated that he had no recollection of specifically advising
White that Harper was operating his truck.
Kuehn did, however, acknowledge that he had a radio conversation with
the Altoona officers in which he told them that he believed he had the subject
in a brown pickup and that the subject might be intoxicated. White, however, stated that he did not see
Harper operate his vehicle and that he did not receive any specific information
to that effect.
After informing White
and Modl that Harper was possibly intoxicated, Kuehn left the scene. White then requested Harper to perform a
series of field sobriety tests. Harper
failed to perform the tests in a satisfactory fashion. White then gave Harper a preliminary breath
test, which indicated a breath alcohol concentration of .12%, and placed Harper
under arrest.
Harper subsequently
filed a motion to suppress, arguing that the officers did not have probable
cause to arrest him. Specifically,
Harper argued that White did not have probable cause to believe Harper was or
had been operating a vehicle. The trial
court, however, found that White did receive knowledge both of Harper's
intoxication and his operation of the vehicle.
Accordingly, the trial court concluded that there was probable cause for
Harper's arrest and denied the motion.
Harper appeals.
The sole issue on appeal
is whether White had probable cause to believe Harper was operating his vehicle
at the time of the arrest. Whether the
evidence is sufficient to constitute probable cause is a question of law that
this court reviews without deference to the trial court. State v. Drogsvold, 104 Wis.2d
247, 262, 311 N.W.2d 243, 250 (Ct. App. 1981).
To determine whether probable cause exists, this court must look to the
totality of the circumstances to determine whether the "arresting
officer's knowledge at the time of the arrest would lead a reasonable police
officer to believe ... that the defendant was operating a motor vehicle while
under the influence of an intoxicant."
State v. Nordness, 128 Wis.2d 15, 35, 381 N.W.2d 300, 308
(1986). Probable cause to arrest does
not require "proof beyond a reasonable doubt or even that guilt is more
likely than not." State v.
Welsh, 108 Wis.2d 319, 329, 321 N.W.2d 245, 251 (1982). It is sufficient that a reasonable officer
would conclude, based upon the information in the officer's possession, that
the "defendant probably committed [the offense]." State v. Koch, 175 Wis.2d 684,
701, 499 N.W.2d 152, 161 (1993).
Finally, we note that the probable cause assessment is not to be made
solely on the knowledge possessed by the arresting officer, but on the
collective knowledge of the police department.
State v. Mabra, 61 Wis.2d 613, 625‑26, 213 N.W.2d
545, 551 (1974).
In this case, the trial
court concluded that the collective knowledge of Kuehn and White was sufficient
to provide White with probable cause to believe Harper was operating his
vehicle. Harper concedes that Kuehn had
probable cause to arrest him for driving while under the influence of an
intoxicant. However, Harper contends
that the trial court improperly relied on the collective knowledge rule to
impute Kuehn's knowledge to White.
Harper contends that the collective knowledge rule is only applicable
where the knowledge in question is communicated to the arresting officer. As support for this proposition, Harper
cites 2 Wayne LaFave, Search and Seizure
(2d ed. 1987). In his learned treatise,
LaFave states that communication should be a prerequisite to the application of
the collective knowledge rule "where the officer who did possess the
probable cause was not in a close time-space proximity to the questioned arrest
or search." Id. at §
3.5(c). Thus, relying on White's
statement that he did not receive any specific information that Harper was
operating his vehicle, Harper contends that the trial court erroneously relied
on the collective knowledge rule to find that White had probable cause.
It is true that the
collective knowledge rule is generally applicable only where the knowledge
possessed by other members of the police department is communicated to the
arresting officer. See generally
State v. Cheers, 102 Wis.2d 367, 388-89, 306 N.W.2d 676, 685
(1981); Mabra, 61 Wis.2d at 625-26, 213 N.W.2d at 551. However, this general rule is not without
its exceptions. As the above quote from
LaFave demonstrates, communication is only a necessary prerequisite to the
application of the collective knowledge rule where the officer possessing
probable cause is not in "close time-space proximity to the questioned
arrest or search." LaFave, supra § 3.5(c). Thus, if Kuehn and White were working in
close proximity to one another, Kuehn's knowledge could be imputed to White
under the collective knowledge rule, regardless of whether Kuehn actually
communicated that knowledge to him. See
id.
In this case, both officers
responded to a dispatch indicating that there was a disturbance at the Happy
Hollow Tavern. Upon receiving the
dispatch, Kuehn offered his assistance, which White and Modl accepted. When Kuehn arrived on the scene, he found
Harper sitting in his brown pickup with the motor running. Kuehn parked his vehicle behind Harper's and
requested Harper to remain on the scene until White and Modl arrived. Kuehn then radioed White and Modl a second
time to apprise them of the situation.
When White and Modl subsequently reached the scene, Kuehn remained with
Harper while White spoke to the bartender outside the tavern. After speaking with the bartender, White
spoke with Kuehn, at which time Kuehn advised him that Harper could be
intoxicated.
These facts thoroughly
demonstrate that Kuehn and White were working in close proximity on the evening
that Harper was arrested. Kuehn and
White were on the scene together, they cooperated in the initial investigation
of the disorderly conduct incident and they had communications regarding
Harper's status. Accordingly,
regardless whether Kuehn actually communicated his knowledge that Harper was
operating a vehicle to White, this court concludes that the trial court
properly considered the collective knowledge of White and Kuehn in determining
that probable cause existed for Harper's arrest.[1]
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.