State v. Newer, 2006AP2388-CR.
| Decision Date | 10 October 2007 |
| Docket Number | No. 2006AP2388-CR.,2006AP2388-CR. |
| Citation | 2007 WI App 236,742 N.W.2d 923 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Frank C. NEWER, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of J.B. Van Hollen, Attorney General, and Stephen W. Kleinmaier, Assistant Attorney General.
On behalf of the defendant-respondent, the cause was submitted on the brief of Frank R. Lettenberger of Law Offices of Lettenberger & Glasbrenner, S.C. of Delavan.
Before BROWN, C.J., ANDERSON, P.J., and NETTESHEIM, J.
This is the State's appeal of a circuit court order suppressing evidence gathered during a traffic stop.1 Frank Newer argued, and the circuit court agreed, that the police officer who made the stop lacked reasonable suspicion to do so when he knew that the stopped vehicle's owner had a revoked license but had no information about who was actually driving the vehicle. We certified this case to our supreme court and requested that they resolve whether the officer's knowledge of the vehicle's owner's revocation alone could support reasonable suspicion or, alternatively, whether the stop could be justified on the explicitly pretextual basis that the officer had observed the vehicle going three miles per hour over the speed limit. See State v. Newer, No.2006AP2388-CR, 2007 WL 2258276 (WI App. Aug. 8, 2007). The supreme court denied our certification.
¶ 2 We now reverse the circuit court's suppression of the evidence and remand for further proceedings. We adopt the view articulated by the supreme court of Minnesota in State v. Pike, 551 N.W.2d 919, 922 (Minn.1996): that an officer's knowledge that a vehicle's owner's license is revoked will support reasonable suspicion for a traffic stop so long as the officer remains unaware of any facts that would suggest that the owner is not driving. Because we uphold the stop on these grounds, we do not address the alternative grounds proffered by the State.
¶ 3 The undisputed facts come from the officer's suppression hearing testimony. On December 20, 2005, in the early morning, the officer was driving his squad car when he encountered a vehicle traveling in the opposite direction. The officer activated his radar and found that the oncoming vehicle was traveling at twenty-eight miles per hour, while the posted speed limit was twenty-five miles per hour. The officer continued past the vehicle, but ran the license plate and found that the vehicle was registered to Newer. He then contacted the sheriff's department and learned that Newer's license was revoked. The officer turned his squad around, caught up with the vehicle and activated his lights and stopped the vehicle. The officer contacted the driver, Newer, and eventually arrested him for operating while intoxicated.
¶ 4 At the time the officer stopped the vehicle, he did not know whether Newer was driving the car; he also did not know the gender of the driver. He testified that he did not stop the vehicle for the three-mile-per-hour speeding violation, but that the speed violation "would give me the pretextual stop." The circuit court suppressed the evidence, holding that the officer lacked grounds to reasonably suspect driving on a revoked license because he did not know who was driving the vehicle.2
¶ 5 The State appeals, contending that the officer had reasonable suspicion to stop Newer's vehicle because the officer knew that, if Newer were driving, he would be in violation of WIS. STAT. § 343.44(1)(b) (). The State argues that it is a common-sense assumption that the owner of a vehicle is also the driver, and thus the officer was reasonable in believing that Newer was driving his vehicle illegally. The State also points to eleven foreign cases in support. Pike, 551 N.W.2d 919, and Village of Lake in the Hills v. Lloyd, 227 Ill.App.3d 351, 169 Ill.Dec. 351, 591 N.E.2d 524 (1992), are representative. In Pike, the Minnesota court, facing a stop much like this one,3 held that
[w]hen an officer observes a vehicle being driven, it is rational for him or her to infer that the owner of the vehicle is the current operator. . . . Thus, we hold that the knowledge that the owner of a vehicle has a revoked license is enough to form the basis of a "reasonable suspicion of criminal activity" when an officer observes the vehicle being driven.
Pike, 551 N.W.2d at 922. However, the court went on to limit its holding, stating that it
applies only while the officer remains unaware of any facts which would render unreasonable the assumption that the owner is driving the vehicle. Thus, for example, if the officer knows that the owner of a vehicle has a revoked license and further, that the owner is a 22-year-old male, and the officer observes that the person driving the vehicle is a 50- or 60-year-old woman, any reasonable suspicion of criminal activity evaporates.
¶ 6 In Lake in the Hills, the Illinois court confronted the same question and held that based on "common sense . . . an officer may reasonably presume that the owner of a vehicle is also the driver." Lake in the Hills, 169 Ill.Dec. 351, 591 N.E.2d at 526. The Illinois court did not limit its holding as the Minnesota court did.
¶ 7 We conclude that the Pike opinion correctly described the inquiry a court should make in a situation involving a vehicle whose owner's license is suspended and we therefore adopt it as our own. It is indeed a reasonable assumption that the person driving a particular vehicle is that vehicle's owner. It is not, of course, an infallibly true assumption, but that is not what is required for reasonable suspicion. "[T]he requirement of reasonable suspicion is not a requirement of absolute certainty: `sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. . . .'" New Jersey v. T.L.O., 469 U.S. 325, 346, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (citation omitted).
¶ 8 However, the reasonable suspicion inquiry considers the totality of the circumstances. State v. Williams, 2001 WI 21, ¶ 22, 241 Wis.2d 631, 623 N.W.2d 106. If an officer comes upon information suggesting that the assumption is not valid in a particular case, for example that the vehicle's driver appears to be much older, much younger, or of a different gender than the vehicle's registered owner, reasonable suspicion would, of course, dissipate. There would simply be no reason to think that the nonowner driver had a revoked license.
¶ 9 Here, the officer did not observe the driver of the vehicle and had no reason to think...
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