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COURT OF APPEALS DECISION DATED AND RELEASED December 12, 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. 95-1637-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CAMARA TYLER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DENNIS P. MORONEY, Judge. Affirmed.
SCHUDSON, J.[1] Camara Tyler appeals from the judgment of
conviction, following a jury trial, for carrying a concealed weapon. He argues that the trial court erred in
denying his motion to suppress the handgun found in the glove box of his
car. He contends that the police had no
lawful basis to stop him. This court
affirms.
The essential facts are
undisputed. According to Milwaukee
Police Officer Richard Aztlan, the only witness who testified at the
suppression hearing, Tyler was driving a car with its high beams on at about
the 1300 block of North Sixth Street in the City of Milwaukee, just after 10:00
p.m. on December 31, 1993. Aztlan and
his partner decided to stop Tyler for what they believed to be the traffic
violation of driving with the high beams on.
Tyler immediately made a U-turn, turned down a dead-end street, and stopped. The police then found that Tyler was driving
without a license and that he had an outstanding municipal warrant. They arrested him and recovered a gun from
the glove box. Tyler challenges only
the stop. He argues that the stop was
unlawful because it was based solely on having the high beams on and, he
contends, nothing in the record established that driving with the high beams on
was unlawful.
Police may stop a driver
if they reasonably suspect that he or she has committed a traffic violation. See § 968.24, Stats.; State v. Krier,
165 Wis.2d 673, 678, 478 N.W.2d 63, 65-66 (Ct. App. 1991). Whether undisputed facts satisfy the
constitutional requirement of reasonableness for a stop presents a question of
law that this court decides de novo.
State v. Griffin, 183 Wis.2d 327, 331, 515 N.W.2d 535, 537
(Ct. App. 1994), cert. denied, 115 S. Ct. 363 (1994). A stop is permissible if the police possess
specific and articulable facts that, taken together with rational inferences
from those facts, support a reasonable belief that a person has committed, is
committing, or is about to commit an offense.
Terry v. Ohio, 392 U.S. 1, 21-22 (1968). The facts necessary to support a stop must
be judged by an objective standard:
would the facts available to the police at the time of the stop warrant
a person of reasonable caution to believe that a stop was appropriate. Id.
Tyler points to
§ 347.12(1), Stats., which
provides:
Use
of multiple-beam headlamps.
(1) Whenever a motor vehicle is being operated on a highway
during hours of darkness, the operator shall use a distribution of light or
composite beam directed high enough and of sufficient intensity to reveal a
person or vehicle at a safe distance in advance of the vehicle, subject to the
following requirements and limitations:
(a) Whenever the operator of a vehicle equipped
with multiple-beam headlamps approaches an oncoming vehicle within 500 feet,
the operator shall dim, depress or tilt the vehicle's headlights so that the
glaring rays are not directed into the eyes of the operator of the other
vehicle.
(b)
Whenever the operator of a vehicle equipped with multiple-beam headlamps
approaches or follows another vehicle within 500 feet to the rear, the operator
shall dim, depress, or tilt the vehicle's headlights so that the glaring rays
are not reflected into the eyes of the operator of the other vehicle.
Tyler
argues that because Officer Aztlan offered no testimony at the suppression
hearing to establish that other vehicles were within five-hundred feet, there
was no evidence to establish any headlamp violation. The State counters that at Tyler's subsequent trial, Officer
Aztlan did testify that “there was other traffic flowing both ways.” In reply, Tyler maintains that this court
shall not consider trial testimony to support a decision that was based only on
the evidence at the suppression hearing.
When evaluating a
challenge to whether evidence satisfies the constitutional standard of
reasonableness, this court may consider evidence adduced at the subsequent
trial in support of the trial court's decision at a suppression hearing. See State v. Truax, 151 Wis.2d
354, 360, 444 N.W.2d 432, 435 (Ct. App. 1989).
When Officer Aztlan's trial testimony that “there was other traffic
flowing both ways” is added to his suppression hearing testimony, Tyler's
challenge evaporates.
Moreover, even Aztlan's
testimony at the suppression hearing, standing alone, was sufficient to form
the basis for the trial court's denial of Tyler's motion to suppress. It is revealing that Tyler, in both his
brief-in-chief and reply brief to this court, contends that Aztlan's testimony
was inadequate to establish “probable cause” for the stop. That is not the standard; only reasonable
suspicion is required. Aztlan testified
that he observed Tyler driving with the high beams on at a downtown location
shortly after 10:00 p.m. He also testified
that he and his partner decided to pull over Tyler for this “violation.” It is logical to infer that the police
reasonably suspected that Tyler was driving in violation of § 347.12(1), Stats.
Even if the police suspicion had ultimately proved to be incorrect or
perhaps based on lack of knowledge of the five-hundred foot requirement, there
was nothing unreasonable about the suspicion that driving with high beams on is
a traffic violation at the time and location present in this case.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.