COURT OF APPEALS DECISION DATED AND RELEASED August 24, 1995 |
NOTICE |
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.
95-1008-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
MICHAEL G. EHLERS,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Dodge County:
ANDREW P. BISSONNETTE, Judge. Affirmed.
GARTZKE, P.J. The State appeals from an order suppressing
evidence obtained by the State as a result of a traffic stop leading to the
arrest of Michael Ehlers for operating a motor vehicle while under the
influence, § 346.63(1)(a), Stats.,
and operating a motor vehicle with a prohibited blood alcohol concentration,
§ 346.63(1)(b). Each charge
alleges that it is Ehlers' third offense.
He is therefore charged with two misdemeanors. Section 346.65(2)(c), Stats.[1]
We deem the issue to be
whether the trial court erred when it suppressed the evidence on grounds that
because the testimony of the witnesses was equally credible, the State had not
met its burden of proof by the preponderance of the evidence.
The arresting officer
testified that he followed two vehicles traveling the same direction. He saw several traffic violations by the
vehicle directly in front of him. He
saw no violations by the lead vehicle.
He stopped the vehicle immediately ahead of him. At the suppression hearing, Keith Resop
testified that he, rather than Ehlers, drove the vehicle immediately ahead of
the officer, and that the officer did not stop Resop's vehicle but pulled over
the lead vehicle which Ehlers was driving.
Thus, the officer's testimony and Resop's testimony is in direct
conflict.
The trial court found
Resop's and the officer's testimony equally credible. The court said that in assessing credibility it could consider
motive to fabricate or falsify testimony, but there appeared to be no such
motive on the part of the officer.
Resop had some reason to give a false statement because of his apparent
friendship with Ehlers but Resop testified against his own penal interest. The court declared itself unable to find who
drove the rear and lead vehicles. In
light of that circumstance, the court concluded that the State had not met its
burden of proof to a preponderance of the evidence and granted Ehlers' motion
to suppress.
On appeal, the State
asserts on the basis of State v. Wille, 185 Wis.2d 673, 518
N.W.2d 325 (Ct. App. 1994), that the court was required to determine the
credibility of the officer and the other witnesses, and to make a factual
finding regarding the identity of the driver who committed the alleged traffic
violation. The State argues that it is
impossible that the testimony of the officer and Resop is equally
credible. As the State puts it, the
court cannot claim an inability to make a necessary factual determination and
then penalize the State by granting the relief sought by Ehlers. The State asks that we remand for a finding
as to the identity of the driver who committed the alleged traffic violations.
The State cites State
v. Prober, 98 Wis.2d 345, 358-59, 297 N.W.2d 1, 8 (1980), for authority
that an appellate court may remand for findings a judge should have made but
failed to do so. Prober
is not on point. The Prober
trial court judge chose not to make a finding when sufficient evidence existed
to make it. Here the evidence was
insufficient to make a finding.
In Prober,
the trial court denied a motion to suppress evidence an officer obtained from a
purse found in an inventory search of an automobile. The court believed it unnecessary to find whether the officer
opened the purse to determine its contents or whether its contents spilled
out. Id. at 349, 357-59,
297 N.W.2d at 4, 8-9. The court
believed a search of the purse's contents was permissible in either event. During the Prober appeal, Arkansas
v. Sanders, 442 U.S. 753 (1979), held that police require a warrant to
open luggage found in an automobile.
The Prober court therefore remanded to the trial court for
the factual determination the trial court had believed was unnecessary. On remand the trial court made the finding
on the already existing record. Id.
In State v. Wille,
185 Wis.2d at 682, 518 N.W.2d at 328-29, we said, "The trial court takes
evidence in support of suppression and against it, and chooses between
conflicting versions of the facts. It
necessarily determines the credibility of the officers and other
witnesses." We did not say that
the court must choose between equally credible witnesses. At times the court cannot decide that one
witness is more credible than another.
Compelling a choice between those witnesses would be tantamount to
flipping a coin. The burden of proof
rescues a trial court from that dilemma.
A similar circumstance
arose in United States v. Starr, 434 F.Supp. 214 (1977). In that case the suppression court found
that the defendant and an officer were equally credible witnesses even though
they each had a different version of the events. The court relied on the burden of proof to resolve the
dilemma. It granted the motion to
suppress. Starr, 434
F.Supp. at 216.
By the Court.--Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.