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COURT OF
APPEALS DECISION DATED AND
RELEASED April
4, 1996 |
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. 95-2308
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CRAIG
C. HILL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Marquette County: DONN H. DAHLKE, Judge. Affirmed.
SUNDBY,
J. Defendant-Appellant Craig C. Hill appeals from a judgment
convicting him of operating a motor vehicle while under the influence. The trial court refused to suppress evidence
given by an officer of the State Patrol who stopped Hill's vehicle on the basis
of information given him by Unit 109 of REACT, a citizens' group who travels
the highways and notifies the police of any activity that does not appear to be
normal. Hill presents one issue:
Did the State
Trooper possess a reasonably articulable suspicion for an investigatory stop of
the defendant when that trooper relied upon information given by an anonymous
informant?
We[1]
conclude that the State Trooper possessed sufficient information to form a
reasonable suspicion that Hill was operating while under the influence. We therefore affirm the judgment.
On
November 20, 1992, at approximately 6:20 p.m., State Trooper Joseph Gajdosik
received a dispatch from the Marquette County Sheriff's Department that a red
van with "Hill" painted on its side was traveling north on Highway 51
at mile marker 92 and that the driver was possibly intoxicated. The Trooper went to mile marker 103 and
waited in the crossover for such a van.
When he saw the van, he waited for traffic to clear and pursued. He observed it from approximately two
vehicle lengths and subsequently testified:
The vehicle would
almost touch the center dotted line of the highway, and then it would jerk back
to the right or back into its lane of traffic, and go all the way across the
lane and almost touch the white fog line on the right-hand side of the
highway. Then, it would jerk back to
the left, travel through the driving lane, again almost touching the
centerline, and then jerk back to the right and proceed back almost touching
the fog line.
The
Trooper believed that the van was traveling below the speed limit; he estimated
that he observed the vehicle for almost one-quarter of a mile before turning on
his emergency lights.
Hill
argues that the Trooper could not have observed his operation of the vehicle
for more than fifteen seconds and that he did not see Hill's vehicle
"weaving" out of its lane of traffic.
The
Trooper testified that he received a dispatch that an unknown citizen informant
had reported the movement of Hill's van and that according to the informant, a
red/white van had almost struck a bridge and the informant believed that the
driver was intoxicated.
Whether
a traffic stop satisfies statutory and constitutional standards is a question
of law that we decide without deference to the trial court. State v. Krier, 165 Wis.2d
673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991).
To make an investigatory stop, a police officer must have a
"reasonable articulable suspicion" that the person stopped has
violated or is violating a law. State
v. Richardson, 156 Wis.2d 128, 138-39, 456 N.W.2d 830, 834 (1990). In Richardson, the
investigating officer had received information from his shift commander that an
anonymous telephone call had been received from an individual who stated that,
at that moment, the defendant and another specifically identified man were en
route from Viroqua to La Crosse with about one-quarter ounce of
cocaine. The caller said he had been
with the two men and had personally seen the cocaine. Id. at 133, 456 N.W.2d at 831-32. The caller described the vehicle and gave
the license plate number. He also
described both men. He told the
officer's shift commander the time at which the men had left Viroqua and when
they would be expected to arrive in La Crosse.
Acting on this information, the police set up a road block and stopped
the vehicle operated by the defendant.
The officers were able to corroborate much of the information given them
by the informant. The court concluded
that the information provided the police was sufficiently corroborated that
they could rely on it. Id.
at 142, 456 N.W.2d at 835.
Whether
information from an anonymous informant gives rise to probable cause for a
search warrant is to be determined under a totality of the circumstances
test. Illinois v. Gates,
462 U.S. 213, 238 (1983). In Richardson,
the court said that the "totality of the circumstances test" applied
equally to a review of whether the details of an anonymous tip provide police
officers with a reasonable suspicion necessary to make a valid investigatory
stop. 156 Wis.2d at 142, 456 N.W.2d at
835.
The
determination of reasonableness of a investigatory stop is "a common sense
question, which strikes a balance between the interests of society in solving
crime and the members of that society to be free from unreasonable intrusions. The essential question is whether the action
of the law enforcement officer was reasonable under all the facts and
circumstances present." Id.
at 139-40, 456 N.W.2d at 834 (quoting State v. Jackson, 147
Wis.2d 824, 831, 434 N.W.2d 386, 389 (1989) (citing State v. Guzy,
139 Wis.2d 663, 679, 407 N.W.2d 548, 555 (1987))).
Hill
does not argue that an anonymous informant's tip is per se unreliable or
that it can never rise to the level of reasonable suspicion for a Terry[2]
stop. Hill argues, however, that the
Trooper did not know anything about the reliability of the informant, nor was
there any indicia of reliability to provide reasonable suspicion to make
an investigatory stop. We
disagree. The informant described
Hill's van and told the dispatcher the direction in which Hill's van was
proceeding. The Trooper observed the
van and followed it for a sufficient length of time to observe highly unusual
movements of Hill's vehicle. While the
Trooper did not described Hill's movements as "weaving," certainly
jerking back and forth within a lane of traffic is out of the ordinary. Further, the informant's observation of
Hill's operation was relatively contemporaneous with the Trooper's observation. The time elapsed between the informant's report
and the Trooper's observation of the van was thirteen minutes.
The
State suggests that because the informant was REACT Unit No. 109, the informant
should be treated as a citizen witness rather than an anonymous informant. We would agree with the State's position if
it had introduced evidence that the police routinely received anonymous tips
from such organizations and had found them to be reliable. However, without such evidence, reliance on
self-designated crime stoppers is not sufficient to satisfy the constitutional
requirements of investigatory stops.
Such evidence of previous reliance was not, however, necessary in this
case because the information relayed to the Trooper was sufficient, combined
with the Trooper's observation of Hill's movements, to justify an investigatory
stop.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.