State v. Coley

• Decision Date: 09 May 2001
• Docket Number: 00-2057
• Citation: 630 N.W.2d 276,246 Wis. 2d 669
• Court: Wisconsin Court of Appeals
• Parties: This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Damiyen S. Coley, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62

State of Wisconsin, Plaintiff-Respondent v Damiyen S. Coley, Defendant-Appellant

No. 00-2057-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

May 9, 2001

APPEAL from a judgment and an order of the circuit court for Waukesha County: ROBERT G. MAWDSLEY, Judge. Reversed.

¶1. ANDERSON, J.

1 In this appeal, we are required to analyze whether a totally anonymous tip has sufficient indicia of reliability to provide reasonable suspicion to conduct an investigative stop. While the tip does contain an assertion of criminal activity, it lacks any verifiable information that would permit the testing of the informant's basis of knowledge or credibility. Therefore, we reverse.

¶2. Damiyen S. Coley was charged with one count of receiving stolen property with a value of less than $1,000 in violation of Wis. Stat.

§ 943.34(1)(a). She was arrested by a Village of Butler police officer responding to an anonymous complaint that two people were having sex in a parked vehicle. The officer arrested the passenger in Coley's car after conducting an identification check and being informed that the passenger had two outstanding warrants for his arrest. In a search incident to the arrest, the officer found three credit cards in Coley's purse that were not in her name. Coley's motion to suppress the physical evidence was denied by the trial court. The State and Coley subsequently entered into a plea agreement where, in exchange for an Alford² plea to the charge, the State would recommend a $50 fine plus costs. The circuit court found Coley guilty and imposed a fine of $75.50 plus costs.

¶3. Coley now appeals from the denial of her motion to suppress physical evidence seized as the result of an investigative stop by the Village of Butler police and the denial of her postconviction motion seeking reconsideration of the circuit court's decision not to suppress the physical evidence. Coley contends that under Florida v. J.L., 529 U.S. 266 (2000), and State v. Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106, the anonymous tip that led the police to her car lacked sufficient indicia of reliability to establish a reasonable suspicion for aTerry³investigative stop.⁴

¶4. This appeal involves the application of constitutional standards to undisputed facts, a question of law which we review de novo. State v. Foust, 214 Wis. 2d 568, 571-72, 570 N.W.2d 905 (Ct. App. 1997).

¶5. Officer James Komar testified at the suppression hearing that at 10:48 a.m. on February 27, 1998, he was dispatched to the 12800 block of Hampton Avenue in the Village of Butler. Komar related that a police department dispatcher told him that an anonymous caller had complained about two people having sex in a parked vehicle. He was told that the anonymous caller had described the vehicle as being maroon in color; however, the caller had not related the make, model, year of manufacture or license plate number of the vehicle.

¶6. When Komar arrived at the location, he saw a maroon vehicle legally parked and there were no other vehicles within one hundred yards. He saw two fully clothed individuals in the front seat; Coley was in the driver's seat with her feet on the passenger's seat and a male was lying down with his head in Coley's lap and feet on the passenger's side window. Nothing about the vehicle or the passengers aroused Komar's suspicions. He did not see any sexual activity, the windows of the car were not fogged over and the car was not rocking or swaying. The car had a current registration plate, it was legally parked and Komar did not notice any other violations of traffic regulations.

¶7. Komar asked Coley to step out of the car, after making certain that she was not being held against her will and, being told that Coley and the male were "just goofing around," Komar asked both individuals for identification. Komar arrested the male passenger after finding out that there were outstanding warrants for his arrest. During a search incident to the male's arrest, Komar found three credit cards in Coley's purse that were in other people's names.

¶8. Both Coley and the State agree that whether the physical evidence should be suppressed depends upon the application of J.L. andWilliams to the undisputed facts. Predictably, they disagree on the result.

¶9. The temporary detention of a citizen constitutes a seizure within the meaning of the Fourth Amendment and triggers Fourth Amendment protections. State v. Harris, 206 Wis. 2d 243, 253, 557 N.W.2d 245 (1996). A police officer may, in the appropriate circumstances, detain a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. See Terry v. Ohio, 392 U.S. 1, 22 (1968). When police make an investigative stop of a person, it is not an arrest, and the standard for the stop is less than probable cause. State v. Allen, 226 Wis. 2d 66, 70-71, 593 N.W.2d 504 (Ct. App. 1999),review denied, 228 Wis. 2d 168, 599 N.W.2d 409 (Wis.

June 7, 1999) (No. 98-1690-CR). The standard is reasonable suspicion, "a particularized and objective basis" for suspecting the person stopped of criminal activity. Ornelas v. United States, 517 U.S. 690, 696 (1996). When determining if the standard of reasonable suspicion was met, those facts known to the officer must be considered together as a totality of circumstances. State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990). Here, part of the circumstances we must evaluate includes an anonymous tip. Both J.L.and Williams address the examination of the reliability of the anonymous tip and whether the police are justified in acting on the anonymous tip.

¶10. In J.L., the Miami-Dade Police Department received an anonymous call stating "that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." J.L., 529 U.S. at 268. Police officers arrived at the bus stop and saw fifteen-year-old J.L. wearing a plaid shirt and standing with two other males. Id. One officer immediately frisked J.L. and found a concealed firearm. Id. The United States Supreme Court granted certiorari to review the decision by the Florida Supreme Court which held the search invalid.

¶11. A unanimous United States Supreme Court affirmed the decision of the Florida Supreme Court. Writing for the court, Justice Ruth Ginsburg was skeptical that an anonymous tip could create the necessary reasonable suspicion to support aTerry stop, noting that "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity." J.L., 529 U.S. at 270 (quoting Alabama v. White, 496 U.S. 325, 329 (1999)). Justice Ginsburg subsequently recognized that "there are situations in which an anonymous tip, suitably corroborated, exhibits `sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Id. (quotingWhite, 496 U.S. at 327). The Court concluded that the anonymous tip lacked any indicia of reliability. "The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility." Id. at 271.

¶12. The concurring opinion of Justice Arthur Kennedy explains that whether an anonymous tip meets the "reasonable suspicion" standard depends upon the reliability of the tip. Justice Kennedy described why anonymous tips pose a unique reliability problem: "If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity. The reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable." Id. at 275.

¶13. The Wisconsin Supreme Court applied J.L. inWilliams. Williams was before the court for a second time. The first decision of the court was vacated by the United States Supreme Court and remanded for further consideration in light of J.L. Williams, 2001 WI 21 at ¶1. The issue inWilliams was "whether an anonymous tip containing a contemporaneous report of drug trafficking, combined with independent observations and corroboration of details from the tip justified the investigatory stop." Id. at ¶2. In Williams, the Milwaukee police department received a 911 telephone call from an anonymous caller. The caller stated that she did not want to get involved, but there was drug activity going on in the back alley of her residence. Id. at ¶4. The caller described the vehicle involved as a "blue and burgundy Bronco" in the driveway of the caller's residence at 4261 North Teutonia. Id.

¶14. The officers dispatched to the scene saw a vehicle matching the general description of the vehicle reported by the anonymous caller, although the vehicle was a Chevy Blazer rather than a Ford Bronco and was parked at the rear of the apartment building instead of the side. Id. at ¶6. The officers turned into the alley and observed that the vehicle had no license plates and saw Williams, seated in the driver's seat, reach down and behind the front passenger seat. Id. at ¶¶7-8. At this time, the officers ordered Williams and his passenger out of the vehicle. Id. at ¶8.

¶15. Writing for the majority, Justice N. Patrick Crooks applied a "totality of the circumstances" approach and found that the anonymous tip contained a number of components indicating its reliability. Id. at ¶22. The court found "myriad distinctions" between the anonymous tip before it and the tip in J.L. Williams, 2001 WI 21 at ¶31. Included among the facts distinguishing Williams fromJ.L. are:

(1) The anonymous tipster described the criminal activity as she was observing it. Williams, 2001 WI 21 at ¶33.

(2) The anonymous tipster identified her location...