State v. Rutzinski

Decision Date20 March 2001
Docket NumberNo. 98-3541-CR.,98-3541-CR.
Citation2001 WI 22,623 N.W.2d 516,241 Wis.2d 729
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Paul RUTZINSKI, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs by Craig A. Mastantuono, Maureen B. Fitzgerald and Fitzgerald & Mastantuono, S.C., Milwaukee, and oral argument by Craig A. Mastantuono.

For the plaintiff-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

¶ 1. JON P. WILCOX, J.

This case requires us to decide under what circumstances a cell-phone call from an unidentified motorist provides sufficient justification for an investigative traffic stop. Relying on information obtained from such a call, a Greendale police officer, Jerome Sardina (Officer Sardina), made an investigative traffic stop of the petitioner, Paul Rutzinski (Rutzinski). During this stop, Officer Sardina obtained evidence that Rutzinski was operating his motor vehicle while intoxicated.

¶ 2. Rutzinski subsequently moved to suppress the evidence obtained during the traffic stop, arguing that the information in the motorist's call was not sufficiently reliable to justify the stop and, therefore, the stop was unreasonable under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. The Circuit Court for Milwaukee County, Jeffery A. Kremers, Judge, denied Rutzinski's motion and entered a judgment of conviction, finding Rutzinski guilty of illegally operating a motor vehicle while intoxicated. The court of appeals, in State v. Rutzinski, No. 98-3541-CR, unpublished slip op. (Wis. Ct. App. May 11, 1999), affirmed the circuit court judgment.

¶ 3. For the reasons set forth below, we hold that under the circumstances of this case, the information in the motorist's call provided sufficient justification for an investigative stop of Rutzinski. Accordingly, we affirm the decision of the court of appeals.

I

¶ 4. The relevant facts are undisputed. On February 12, 1998, at approximately 10:00 p.m., Officer Sardina was on patrol in Greenfield near 68th Street and Grange Avenue when he overheard a police dispatch requesting a squad to respond to the area of 51st Street and Grange Avenue. According to the dispatch, an unidentified motorist calling from a cell phone reported that he or she was observing a black pickup truck weaving within its lane, varying its speed from too fast to too slow, and "tailgating." Officer Sardina responded to the dispatch.

¶ 5. The dispatcher then issued a second dispatch, indicating that the motorist was still on the phone, and he or she and the black pickup had traveled to 60th Street and Grange Avenue. In light of this information, Officer Sardina determined that the vehicles were heading toward him. Hence, he positioned his squad car in the median and waited.

¶ 6. Shortly thereafter, Officer Sardina saw the vehicles pass his location. He then pulled his squad car behind the black pickup. Upon doing so, the dispatcher stated that the motorist had indicated that he or she was in the vehicle ahead of the truck and saw Officer Sardina's squad car, and that Officer Sardina was following the correct truck.

¶ 7. Although Officer Sardina did not independently observe any signs of erratic driving, he then activated his emergency lights and conducted a traffic stop of the black pickup. During this stop, Officer Sardina observed that Rutzinski, the driver of the pickup, had glassy, bloodshot eyes, smelled like alcohol, and was slurring his speech. A subsequent Intoxilyzer test revealed that Rutzinski had a .21 blood-alcohol concentration. The motorist who had reported Rutzinski's erratic driving also pulled over when Officer Sardina initiated the stop. Although the motorist did not speak with Officer Sardina, he or she did speak at that time with Officer Sardina's supervisor. However, there is no record of the motorist's name or other identification, or any indication of what was said between Officer Sardina's supervisor and the motorist.

¶ 8. In light of the evidence obtained as a result of Officer Sardina's stop, the State charged Rutzinski with one count of operating a motor vehicle while under the influence of an intoxicant, fourth offense, and one count of operating a motor vehicle with a prohibited alcohol concentration, fourth offense. In response, Rutzinski filed a motion to suppress the evidence obtained as a result of the stop. Rutzinski argued that the unidentified motorist's call did not present reliable and credible grounds upon which to justify the stop. And because the call provided Officer Sardina's sole basis for the stop, Rutzinski contended, the stop was unreasonable under the Fourth Amendment and Article I, Section 11. ¶ 9. The trial court denied Rutzinski's motion. Thereafter, Rutzinski pled "no contest" to one count of operating a motor vehicle while under the influence of an intoxicant, fourth offense.1 The circuit court accepted Rutzinski's plea and entered judgment accordingly.

¶ 10. Rutzinski then appealed the circuit court's judgment of conviction, again arguing that the traffic stop violated the Fourth Amendment and Article I, Section 11.2 On May 11, 1999, the court of appeals rejected Rutzinski's argument and affirmed the circuit court judgment. Rutzinski, unpublished slip op. at 3.

¶ 11. Rutzinski thus petitioned this court for review, which we granted.

II

[1]

¶ 12. Rutzinski asks this court to determine whether Officer Sardina's stop violated the Fourth Amendment of the United States Constitution3 and Article I, Section 11 of the Wisconsin Constitution.4 This requires us to apply the undisputed facts to constitutional standards. As such, this case presents a question of law, which we review de novo. State v. Jackson, 147 Wis. 2d 824, 829, 434 N.W.2d 386 (1989).

[2, 3]

¶ 13. To date, we consistently have conformed our interpretation of Article I, Section 11 and its attendant protections with the law developed by the United States Supreme Court under the Fourth Amendment. State v. Secrist, 224 Wis. 2d 201, 208, 589 N.W.2d 387 (1999). Under both provisions, the constitutional imperative is that all searches and seizures be objectively reasonable under the circumstances existing at the time of the search or seizure. Whren v. United States, 517 U.S. 806, 810 (1996); State v. Waldner, 206 Wis. 2d 51, 55-56, 556 N.W.2d 681 (1996).

[4-8]

¶ 14. Investigative traffic stops, regardless of how brief in duration, are governed by this constitutional reasonableness requirement. Whren, 517 U.S. at 809-10; State v. Guzy, 139 Wis. 2d 663, 674-75, 407 N.W.2d 548 (1987). In accordance with this requirement, a police officer may temporarily stop a suspicious vehicle to maintain the status quo while determining the identity of the driver or obtaining other relevant information. United States v. Hensley, 469 U.S. 221, 226 (1985); Guzy, 139 Wis. 2d at 675. However, to pass muster under the Fourth Amendment and Article I, Section 11, an officer initiating an investigative stop must have, at a minimum, a reasonable suspicion that the driver or occupants of the vehicle have committed an offense. Hensley, 469 U.S. at 228; Guzy, 139 Wis. 2d at 675. As the United States Supreme Court first articulated in Terry v. Ohio, 392 U.S. 1, 27 (1968), this requires that the stop be based on something more than the officer's "inchoate and unparticularized suspicion or `hunch.'" At the time of the stop, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, objectively warrant a reasonable person with the knowledge and experience of the officer to believe that criminal activity is afoot.5Id. at 21-22, 27; Hensley, 469 U.S. at 226; Waldner, 206 Wis. 2d at 55.

[9, 10]

¶ 15. When reviewing a set of facts to determine whether those facts could give rise to a reasonable suspicion, courts should apply a commonsense approach to strike a balance between the interests of the individual being stopped to be free from unnecessary or unduly intrusive searches and seizures, and the interests of the State to effectively prevent, detect, and investigate crimes. Hensley, 469 U.S. at 228; Waldner, 206 Wis. 2d at 56. In every case, a reviewing court must undertake an independent objective analysis of the facts surrounding the particular search or seizure and determine whether the government's need to conduct the search or seizure outweighs the searched or seized individual's interests in being secure from such police intrusion. Hensley, 469 U.S. at 228; State v. McGill, 2000 WI 38, ¶ 18, 234 Wis. 2d 560, 609 N.W.2d 795; Waldner, 206 Wis. 2d at 56.

III

¶ 16. In the present case, Rutzinski does not dispute that Officer Sardina could have initiated an investigative traffic stop if he personally had observed Rutzinski's alleged erratic driving. However, as Rutzinski correctly indicates, Officer Sardina did not personally observe any suspicious driving; rather, he relied upon the motorist's tip to form a reasonable suspicion. This tip, Rutzinski argues, did not provide sufficient information to justify the stop.

¶ 17. In some circumstances, information contained in an informant's tip may justify an investigative stop. See Adams v. Williams, 407 U.S. 143, 147 (1972)

(rejecting the argument "that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person"). However, informants' tips vary greatly in reliability. Thus, before an informant's tip can give rise to grounds for an investigative stop, the police must consider its reliability and content.

¶ 18. Tips should exhibit reasonable indicia of reliability. Cf. Illinois v. Gates, 462 U.S. 213, 233 (1983)

(applying same standard to...

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