State v. Mays
| Citation | 2019 WI App 1,385 Wis.2d 212,923 N.W.2d 180 (Table) |
| Decision Date | 07 November 2018 |
| Docket Number | Appeal No. 2018AP571-CR |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Emily J. MAYS, Defendant-Respondent. |
| Court | Court of Appeals of Wisconsin |
¶ 1 The State of Wisconsin appeals from the circuit court’s grant of Emily Mays’ motion to suppress evidence. Following an officer’s investigatory stop, Mays was arrested and subsequently charged with operating a motor vehicle while intoxicated and operating with a prohibited alcohol concentration, both as second offenses and with a minor child in the vehicle, and operating while revoked. We conclude the court erred in determining that the officer’s suspicion that Mays was operating her vehicle while intoxicated and with her children in the vehicle was not reasonable and thus erred in granting Mays’ suppression motion. We reverse and remand for further proceedings.
¶ 2 The arresting officer was the only witness to testify at the evidentiary hearing on Mays’ suppression motion. His relevant testimony is as follows.
¶ 3 Around 2:53 a.m. on July 19, 2017, the officer observed a "reckless driver call" near his location "pop up" on his squad computer. The note said there was "a possible intoxicated driver." When the officer told dispatch he would be en route to the call, dispatch further informed him it had received a call from a woman ("the 911 caller") who explained she had received a call from an employee of hers, a teenage girl named Stephanie, and the girl informed the 911 caller that her mother, who the 911 caller reported as being named "Emily," was driving drunk with the girl and her siblings in the vehicle. The 911 caller indicated they were in a "blue truck" "in the area of Frank School." Shortly thereafter, the officer located a vehicle matching the description in the area of Frank School and followed it for approximately ten blocks.
¶ 4 The officer observed the vehicle "slowly kind of ... g[et] close" to the center line and then switch lanes without using a directional signal. The officer stopped the vehicle and learned there were four children in it and Mays was driving. Following additional investigation, the officer arrested Mays for operating while intoxicated, second offense, with a minor child in the vehicle. After she was criminally charged with the same offense as well as operating with a prohibited alcohol concentration, second offense, with a minor child in the vehicle, and operating while revoked, Mays moved to suppress the evidence, challenging the constitutionality of the stop.
¶ 5 At the suppression hearing, a videotape from the officer’s squad car was played, as were audiotapes from the 911 caller’s call to dispatch and dispatch’s subsequent call to the officer. In granting the motion to suppress, the court found there was a 911 call The court found that when the officer followed Mays’ vehicle for numerous blocks, Mays "didn’t commit any traffic violations" or driving movements of significant concern but did "ma[k]e a slight deviation towards the center line before staying in the left lane and then turned from the left lane into the right lane without a traffic signal." The court concluded the evidence was insufficient to justify the officer’s investigatory stop and granted Mays’ suppression motion. The State appeals.
¶ 6 Reviewing a circuit court’s ruling on a motion to suppress evidence, we apply the clearly erroneous standard to the court’s factual findings. State v. Smiter , 2011 WI App 15, ¶ 9, 331 Wis. 2d 431, 793 N.W.2d 920 (2010). However, our review of whether the facts satisfy the required constitutional standard—here, reasonable suspicion—is de novo. State v. Powers , 2004 WI App 143, ¶ 6, 275 Wis. 2d 456, 685 N.W.2d 869.
¶ 7 In granting the suppression motion, the circuit court focused largely on the fact that the officer’s testimony and the squad car video indicated that during the approximately ten blocks the officer followed Mays’ vehicle, he did not observe any traffic violations or driving of sufficient concern to give him a reasonable suspicion Mays was intoxicated. We, however, focus more heavily on the information the police had received from the 911 caller.
State v. Rutzinski , 2001 WI 22, ¶ 15, 241 Wis. 2d 729, 623 N.W.2d 516 (citations omitted).
¶ 9 Reasonable suspicion necessary for an investigative stop requires "more than an officer’s inchoate and unparticularized suspicion or ‘hunch.’ " State v. Post , 2007 WI 60, ¶ 10, 301 Wis. 2d 1, 733 N.W.2d 634 (citation omitted). "Rather, the officer ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ the intrusion of the stop." Id . (citations omitted). The "crucial question" in determining whether the stop was reasonable is "whether the facts of the case would warrant a reasonable police officer, in light of his or her training and experience, to suspect that the individual has committed, was committing, or is about to commit a crime." Id ., ¶ 13. In determining whether a stop was reasonable, we consider "the totality of the facts and circumstances." Id .
¶ 10 In this case, the information of significance the police possessed prior to stopping Mays came largely from the 911 caller. "[B]efore an informant’s tip can give rise to grounds for an investigative stop, the police must consider its reliability and content." See Rutzinski , 241 Wis. 2d 729, ¶ 17. In Rutzinski , our supreme court expressed that "[t]ips should exhibit reasonable indicia of reliability ." Id ., ¶ 18 (emphasis added).
In assessing the reliability of a tip, due weight must be given to: (1) the informant’s veracity; and (2) the informant’s basis of knowledge. These considerations should be viewed in light of the "totality of the circumstances," and not as discrete elements of a more rigid test: "[A] deficiency in one [consideration] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability."
Id. (alterations in original; citations omitted).
¶ 11 In this case, there were two "tipsters": the teenage girl who purportedly informed the 911 caller of her predicament and the 911 caller who informed the police of the same. In such a case, consideration must be given to the reliability of both the girl’s report to the 911 caller and the 911 caller’s report to the police. See State v. Romero , 2009 WI 32, ¶ 29, 317 Wis. 2d 12, 765 N.W.2d 756 (). Thus, we consider whether the report of both the teenage girl and the 911 caller exhibited "reasonable indicia of reliability." See Rutzinski , 241 Wis. 2d 729, ¶ 18.
¶ 12 In considering an informant’s veracity, a court evaluates "either the credibility of the declarant or the reliability of the particular information furnished." Romero , 317 Wis. 2d 12, ¶ 21. "Even if a declarant’s credibility cannot be established, the facts still may permit [a reasonable police officer] to infer that the declarant has supplied reliable information on a particular occasion." See id . The reliability of the information may be shown by the totality of the circumstances, including "the presence of detail in the information, and corroboration of details of an informant’s tip by independent police work." State v. Hillary , 2017 WI App 67, ¶ 9, 378 Wis. 2d 267, 903 N.W.2d 311. "In considering the basis of an informant’s knowledge," a reasonable police officer should consider "whether the declarant had a basis for his or her allegations that evidence of a crime would be found at a certain place." Id . "The basis of the informant’s knowledge ‘is most directly shown by an explanation of how the declarant came by his or her information.’ " Id . (citation omitted). The basis also may be shown indirectly. For example, "the wealth of detail" provided by the informant "may be sufficient to permit an inference that the basis of the declarant’s knowledge is sound." Id . (citation omitted).
¶ 13 In this case, the circuit court summarized the 911 call as a call "indicating that a particular individual may be in a vehicle being driven by the mom who may be intoxicated." The call provided most of the relevant information the police possessed prior to making the investigative stop and was played for the court during the suppression hearing, so we will consider it as well. Under the "collective knowledge" doctrine, information within the knowledge of the police department, such as all the details reported directly to dispatch by the 911 caller here, is considered to be within the knowledge of the police and thus imputed to the officer on the scene for purposes of determining whether the investigatory stop of Mays was constitutionally justified. See State v. Rissley , 2012 WI App 112, ¶ 19, 344 Wis. 2d 422, 824 N.W.2d 853 (...
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