City of Watertown v. Busshardt
| Decision Date | 25 April 1996 |
| Docket Number | No. 95-1492,95-1492 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. CITY OF WATERTOWN, Plaintiff-Respondent, v. Jeffrey BUSSHARDT, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Jefferson County: Arnold Schumann, Judge. Affirmed.
Before EICH, C.J., and DYKMAN and VERGERONT, JJ.
Jeffrey Busshardt appeals from a judgment imposing a $145 forfeiture for resisting an officer in violation of a City of Watertown municipal ordinance. He argues: (1) that the circuit court had no jurisdiction to try his case because he never had a trial in municipal court; and (2) that the evidence was insufficient to support the circuit court's finding that he violated the ordinance. We reject both arguments and affirm the judgment.
The basic facts are not in dispute. Busshardt was arrested after repeatedly refusing to respond to an officer's request to stop and identify himself after being observed in an alley opposite the door to a church school late at night. He was issued two citations: one for obstructing an officer and one for resisting an officer. The municipal judge dismissed the obstructing charge, concluding that failure to respond to an officer's questions does not constitute obstruction as a matter of law. After receiving briefs on the resisting charge, the municipal judge dismissed that citation as well.
The City of Watertown appealed the dismissal of the resisting charge to circuit court where, over Busshardt's objections, he was tried on the charge. He was found to have violated the ordinance and ordered to pay a $145 forfeiture. Other facts will be discussed in the body of the opinion.
Busshardt first challenges the circuit court's authority to try him on the city's appeal from the dismissal of the resisting charge in municipal court. Section 800.14, Stats., governs appeals from municipal court decisions. Section 800.14(1) provides that "[a]ppeals from judgments of municipal courts may be taken by either party to the circuit court...." Section 800.14(4) states:
Upon the request of either party ... after notice of appeal under sub. (1), or on its own motion, the circuit court shall order that a new trial be held in circuit court. The new trial shall be conducted by the court without a jury unless the appellant requests a jury trial....
Section 800.14(5), Stats., provides that "[i]f there is no request or motion under sub. (4), an appeal shall be based upon a review of a transcript of the proceedings [in municipal court]...."
There is no question that the city appealed the municipal court's dismissal of the resisting charge and asked for a de novo hearing under § 800.14(4), Stats. Busshardt argues, however, that because there had been no "trial" in municipal court--the resisting citation was dismissed as a matter of law--there can be no "new trial" in circuit court under the statute. He asks us to either reverse and dismiss the charge or reverse and direct that the case be remanded to the municipal court for another trial. In so arguing, he places principal reliance on Village of Williams Bay v. Metzl, 124 Wis.2d 356, 369 N.W.2d 186 (Ct.App.1985), although he does not explain the application of the case other than to suggest that it stands for the proposition that in cases such as this the circuit court's review of the municipal court decision is limited to a review of the record--that "the circuit court should have been bound by the findings of fact made by the municipal judge and should have upheld them, unless they constituted an abuse of discretion and were 'clearly erroneous.' " We think the case is inapposite.
The issue in Williams Bay was the appropriate standard of review to be applied in appeals taken under § 800.14(5), Stats., and we held that the proper standard "is similar to that which applies to appellate review of a trial to the court under sec. 805.17(2), Stats." Id. at 357, 369 N.W.2d at 187. As may be seen, Williams Bay had nothing to do with the statute under which the appeal was taken in this case--the "new trial" provisions of § 800.14(4).
Absent Williams Bay, Busshardt's argument is limited to the proposition that because § 800.14(4), Stats., uses the term "new trial," it cannot apply to a situation, like that presented here, where the case was determined in municipal court on pretrial motions and no "trial" was ever held. Even if we were to accept that argument--which we do not--we fail to see how Busshardt can claim to have been prejudiced by the manner in which the circuit court proceeded. If, as he requests, the case were to be sent back to municipal court for trial, and he were to prevail, the city would again have the right to secure a "new trial" in circuit court under § 800.14(4). He has already had that trial, and even if we were to accept Busshardt's position, it would make little sense to open the door to a second--and possibly a third--trial of these limited factual issues. It would advance neither Busshardt's interests nor the public's interest in the efficient administration of justice for us to pave the way to such a succession of trials.
Turning to the resisting charge, the Watertown ordinance, tracking § 946.41, Stats., states that no person may "knowingly resist[ ] ... an officer while such officer is doing any act in an official capacity and with lawful authority...."
There is no question that an officer may stop and detain an individual for a reasonable period of time for purposes of investigating possible criminal behavior under facts and circumstances that would fall short of probable cause to support an arrest. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, ---, 20 L.Ed.2d 889 (1968). Under Terry, such detention is constitutionally permissible if the officer may be said to have an "articulable suspicion that the person has committed or is about to commit a crime." State v. Goyer, 157 Wis.2d 532, 536, 460 N.W.2d 424, 425-26 (Ct.App.1990). 1 If such a suspicion may be said to exist, the person may be temporarily stopped and detained to allow the officer to "investigate the circumstances that provoke suspicion," as long as " '[t]he stop and inquiry [are] "reasonably related in scope to the justification for their initiation" ' "--which in this case was to verify or dispel the suspicion that Busshardt's presence in the alley under the circumstances may have been for a criminal purpose. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, ---, 82 L.Ed.2d 317 (1984) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, ---, 45 L.Ed.2d 607 (1975)) (internal quoted source omitted).
The focus of a Terry stop is reasonableness.
It 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. 2
State v. Jackson, 147 Wis.2d 824, 831, 434 N.W.2d 386, 389 (1989) (citation omitted). The Jackson court also noted that the same conduct may carry inferences of innocent, as well as illegal, activity.
Doubtless, many innocent explanations for Jackson's conduct could be hypothesized, but suspicious activity by its very nature is ambiguous. Indeed, the principal function of the investigative stop is to quickly resolve the ambiguity and establish whether the suspect's activity is legal or illegal. In this regard, LaFave points out that the suspects in Terry 'might have been casing the store for a robbery, or they might have been window-shopping or impatiently waiting for a friend in the store.' We conclude that if any reasonable suspicion of past, present, or future criminal conduct can be drawn from the circumstances, notwithstanding the existence of other inferences that can be drawn, officers have the right to temporarily freeze the situation in order to investigate further.
Id. at 835, 434 N.W.2d at 391 (quoted source omitted). 3
The evidence in this case establishes that Officer Ruder, who was aware of a rash of burglaries in Watertown in recent weeks--including the burglary of a church--was on patrol at 1:30 a.m. when, driving past an alley, he saw Busshardt, dressed in dark clothing, standing in a dimly lit area in a church compound comprised of a church, school and two clerical residences. According to Ruder, Busshardt was facing the school's rear door. Ruder stopped his car and approached Busshardt, who had by then moved into a parking lot in the midst of the church properties. When he was about seventy-five feet away, Ruder, in a loud voice, identified himself as a police officer and asked Busshardt to stop. According to Ruder, Busshardt did not respond, but kept walking away, "increas[ing] his speed" as he did so.
Ruder ran up to Busshardt, placed his hand on his shoulder and again identified himself as an officer and asked him what he was doing in the area. Busshardt said "fuck you" and, according to Ruder, "jerked away" and continued walking. Ruder caught up to him and when he grabbed him a second time (and again asked for a response) Busshardt again "jerked free" of Ruder's grasp and, saying continued to walk away. When Ruder attempted to restrain him a third time he again broke free of his grasp, this time assuming what Ruder described as a "fighting stance," balanced on the balls of his feet with his fists clenched in front of him. At this point Ruder noticed a leather knife sheath on Busshardt's belt and told him he was under arrest.
Making still another "fuck you" reply, Busshardt "went down to the ground" when Ruder attempted to handcuff him. According to Ruder, Busshardt was "struggl[ing]...
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