State v. Gordon
| Decision Date | 31 March 1998 |
| Docket Number | No. 97-3095-CR,97-3095-CR |
| Citation | 218 Wis.2d 168,578 N.W.2d 210 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Sylvester GORDON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Milwaukee County: WILLIAM R. MOSER, 1 Reserve Judge. Affirmed.
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Sylvester Gordon appeals from the judgment of conviction entered after he pleaded guilty to operating a motor vehicle under the influence of an intoxicant, contrary to §§ 346.63(1)(a) and 346.65(2), STATS. Prior to pleading guilty, Gordon filed a motion to suppress, contending that Milwaukee Police Officer Jeanette Roycraft lacked reasonable suspicion to stop his car, which the trial court denied. Gordon claims that the trial court erred by denying his suppression motion. Although the tip which Officer Roycraft relied upon failed to predict future behavior on Gordon's part, and although Officer Roycraft did not independently investigate whether Gordon was intoxicated, we conclude that, under the totality of the circumstances, Officer Roycraft's stop of Gordon's car was based on reasonable suspicion. Therefore, the trial court properly denied Gordon's motion to suppress, and we affirm.
On October 27, 1996, Officer Roycraft was in her squad car heading southbound on North 35th Street in the City of Milwaukee. Officer Roycraft stopped for a red light at the intersection of 35th and Michigan Streets. When the light turned green, a man riding a motorcycle who was stopped for the stop light in the northbound lane flagged her down. Officer Roycraft stopped her vehicle and rolled down her window to find out what the man wanted. The man then informed Officer Roycraft that the car directly behind him had almost hit him a little earlier, and that it was his opinion that the driver might be intoxicated. As the man told Officer Roycraft this information, he pointed to a white station wagon that was approximately ten yards behind his motorcycle. After giving Officer Roycraft the information, the motorcyclist immediately drove away, and Officer Roycraft did not obtain either his name or his motorcycle's license plate number.
After speaking to the motorcyclist, Officer Roycraft immediately made a U-turn and pulled into traffic directly behind the white station wagon. Officer Roycraft then activated her red emergency lights and pulled the driver over, who was identified as Gordon. Before stopping Gordon's car, Officer Roycraft did not observe any erratic driving, weaving, excessive speed, or other signs of drunk driving.
Gordon was eventually arrested for, and charged with, operating under the influence of an intoxicant and refusal to comply with Wisconsin's implied consent law. In the trial court, Gordon filed a motion to suppress, contending that Officer Roycraft lacked reasonable suspicion to stop his car. The trial court denied Gordon's motion following a hearing at which Officer Roycraft was the only witness. Gordon subsequently pleaded guilty, was sentenced, and now appeals.
When reviewing a trial court's denial of a motion to suppress, this court "will uphold a trial court's findings of fact unless they are against the great weight and clear preponderance of the evidence." State v. Richardson, 156 Wis.2d 128, 137, 456 N.W.2d 830, 833 (1990) (citation omitted). However, whether a search or seizure occurred, and, if so, whether it passes statutory and constitutional muster, are questions of law which we review de novo. Id.
The United States Supreme Court held in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that police officers may "in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22. To execute a valid investigatory stop, a law enforcement officer must reasonably suspect, in light of his or her experience, that criminal activity has, is, or is about to take place. See Richardson, 156 Wis.2d at 139, 456 N.W.2d at 834. Such reasonable suspicion must be based on specific and articulable facts which, taken together with rational inferences from those facts, and judged against an objective standard, would warrant a person of reasonable caution to believe that the action taken was appropriate. See id. This test applies to an investigatory stop of a vehicle and the detention of its occupants. Id. An officer's ability to execute an investigatory stop based on reasonable suspicion has also been codified in Wisconsin, at § 968.24, STATS. As the Wisconsin Supreme Court has stated:
The focus of an investigatory stop is on reasonableness, and the determination of reasonableness depends on the totality of the circumstances:
It is a common sense question, which strikes the 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.
Richardson, 156 Wis.2d at 139-40, 456 N.W.2d at 834 (citations omitted).
In the instant case, Officer Roycraft based her decision to stop Gordon's vehicle on information gained from an unknown man on a motorcycle, who left the scene before Officer Roycraft was able to determine his identity. Thus, although this case involves a face-to-face encounter, rather than an anonymous telephone call, the motorcyclist's information amounted to an anonymous tip. Therefore, the validity of this investigatory stop must be analyzed in light of the relevant case law concerning Terry stops based on anonymous tips.
In Richardson, the Wisconsin Supreme Court reviewed the principles for analyzing an anonymous tip which the United States Supreme Court had established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and confirmed in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Richardson, 156 Wis.2d at 138-43, 456 N.W.2d at 834-36. Our supreme court noted that the United States Supreme Court, in Gates, had stated that 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. Id. at 140, 456 N.W.2d 830, 456 N.W.2d at 834. By doing so, the Gates court abandoned the "overly rigid" Aguilar-Spinelli test, but stated that an informant's "veracity," "reliability," and "basis of knowledge" remained highly relevant when examining the totality of the circumstances. Id. at 140, 456 N.W.2d 830, 456 N.W.2d 834-35.
Our supreme court also noted that White was the definitive decision by the United States Supreme Court dealing with anonymous tips in a Terry stop context. See id. at 141, 456 N.W.2d at 835. In White, the court dealt with an anonymous telephone tip that the defendant would leave an apartment building at a particular time, and drive in a particular car to a particular motel carrying an attache case containing cocaine. White, 496 U.S. at 327. The Court held that the tip, like that in Gates, provided "virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller's] predictions ." Id. at 329 (). Thus, the Court stated that the tip, standing alone, would not justify a Terry stop. See id. The Court, however, concluded that "it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations of the caller." Id. at 331-32. Most importantly, however, the court explained:
We think it also important that, as in Gates, "the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." The fact that the officers found a car precisely matching the caller's description in front of the 235 building is an example of the former. Anyone could have "predicted" that fact because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information--a special familiarity with respondent's affairs. When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest, but also that he was well informed, at least well enough to justify the stop.
Id. at 332 ().
In Richardson, the Wisconsin Supreme Court held that "the reasoning in White is reasonable and appropriate not only for the Fourth Amendment of the United States Constitution but also Article I, sec. 11 of the Wisconsin Constitution." Richardson, 156 Wis.2d at 141-42, 456 N.W.2d at 835 (citation omitted). In so doing, the supreme court noted that:
When attempting to define the nature of the verified details of the tip necessary, the White court placed special emphasis on the police verification of the caller's prediction of the third party/suspect's future actions. The court referred to this as a verification of significant aspects of the tip.
Id. at 142, 456 N.W.2d at 835-36 (citation omitted). The court then stated: "We adopt this aspect of verification of the anonymous tip which serves to avoid investigative stops based on minimal facts that any passerby or resident on the street could enunciate." Id. at 142, 456 N.W.2d at 836.
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