State v. Waldner

• Decision Date: 13 December 1996
• Docket Number: No. 95-1291-CR,95-1291-CR
• Citation: 556 N.W.2d 681,206 Wis.2d 51
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Johnny J. WALDNER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 681

556 N.W.2d 681

206 Wis.2d 51

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Johnny J. WALDNER, Defendant-Appellant.

No. 95-1291-CR.

Supreme Court of Wisconsin.

Argued Oct. 18, 1996.

Decided Dec. 13, 1996.

For the plaintiff-respondent-petitioner there were briefs and oral argument by William Andrew Sharp, District Attorney.

For the defendant-appellant there was a brief by Ralph A. Kalal and Kalal & Associates, Madison and oral argument by Ralph A. Kalal.

WILLIAM A. BABLITCH, Justice.

The State of Wisconsin seeks review of a court of appeals' decision concluding that police officer Sergeant John Annear (Sgt. Annear) did not have a reasonable suspicion justifying the investigative stop of the defendant Johnny J. Waldner (Waldner) which led to his arrest for operating a vehicle while under the influence of an intoxicant. We conclude that the totality of the circumstances, including Waldner's unusual driving at a late hour and his dumping of liquid and ice from a plastic cup, coalesced to form the basis for a reasonable suspicion grounded in specific, articulable facts and reasonable inferences from those facts. Sergeant Annear was therefore justified in temporarily stopping Waldner, thereby freezing the situation in order to further investigate. Accordingly, we reverse.

As summarized by the court of appeals, the facts developed in the record are as follows:

[At 12:30 a.m., Sgt. Annear] of the Richland Center Police Department ... saw Waldner's car traveling on a main street in Richland Center at a slow rate of speed. The car stopped briefly at an intersection where there was no stop sign or light and then turned onto a cross-street, where, according to Annear, it then accelerated "at a high rate of speed"--which he described as reaching 20 to 25 miles per hour in "several seconds." He acknowledged that no laws had been broken.

Following the car, Annear saw it pull into a legal streetside parking space. The driver's-side door opened and Annear saw Waldner, in the driver's seat, pour some liquid--which he described as looking like "a mixture of liquid and ice"--out of a plastic glass onto the roadway.

Annear pulled up behind the car, noticing that Waldner had gotten out of the car. He described what happened next:

He [Waldner] began walking around the front of [his car], and when I pulled up and identified myself, he began to walk away from the squad car.

At that point Annear asked Waldner to stop, which he did.

State v. Waldner, No. 95-1291-CR, unpublished slip op. at 1-2, 1995 WL 556269 (Wis.Ct.App. Sept. 21, 1995). Sergeant Annear did not activate his flashing lights nor his siren.

After a hearing in the circuit court of Richland County, Circuit Judge Kent C. Houck denied Waldner's pretrial motion to suppress, concluding that reasonable inferences from the facts supported Sgt. Annear's suspicion that Waldner had committed a crime and, therefore, the investigative stop was lawful. Subsequently, Waldner pleaded no contest and was convicted of operating a motor vehicle while under the influence of intoxicants pursuant to Wis.Stat. § 346.63(1)(a)(1991-92).

The court of appeals reversed Waldner's conviction, finding that neither the facts nor reasonable inferences drawn from the facts raised Sgt. Annear's inchoate hunch to the level of a reasonable suspicion. We in turn reverse the court of appeals.

In reviewing a denial of a motion to suppress, we will uphold the circuit court's findings of fact unless they are against the great weight and clear preponderance of the evidence. Whether those facts satisfy the constitutional requirement of reasonableness is a question of law and therefore we are not bound by the lower court's decisions on that issue. State v. Guzy, 139 Wis.2d 663, 671, 407 N.W.2d 548 (1987), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492.

The Fourth Amendment protects "the right of the people ... against unreasonable searches and seizures...." U.S. Const. amend. IV. In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880-81, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized that although an investigative stop is technically a "seizure" under the Fourth Amendment, a police officer may, under the appropriate circumstances, detain a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.

In State v. Chambers, 55 Wis.2d 298, 294, 198 N.W.2d 377 (1972), we adopted the position of the United States Supreme Court that a police officer may in appropriate circumstances temporarily stop an individual when, at the time of the stop, he or she possesses specific and articulable facts which would warrant a reasonable belief that criminal activity was afoot. Our legislature codified the constitutional standard established in Terry in Wis.Stat. § 968.24 (1993-94), cited in full below. ¹ Section 968.24 is the "statutory expression" of the Terry requirements, and in interpreting the scope of the statute, resort must be made to Terry and the cases following it. State v. Jackson, 147 Wis.2d 824, 830, 434 N.W.2d 386 (1989).

The fundamental focus of the Fourth Amendment, and Wis.Stat. § 968.24 is reasonableness. State v. Anderson, 155 Wis.2d 77, 83, 454 N.W.2d 763 (1990). The court of appeals accurately stated the test to be used for determining whether an investigatory stop was reasonable:

The test is an objective one, focusing on the reasonableness of the officer's intrusion into the defendant's freedom of movement: "Law enforcement officers may only infringe on the individual's interest to be free of a stop and detention if they have a suspicion grounded in specific, articulable facts and reasonable inferences from those facts, that the individual has committed [or was committing or is about to commit] a crime. An 'inchoate and unparticularized suspicion or "hunch" ... will not suffice.' "

Waldner, No. 95-1291-CR, unpublished slip op. (quoting Guzy, 139 Wis.2d at 675, 407 N.W.2d 548), quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883.

The question of what constitutes reasonableness is a common sense test. State v. Anderson, 155 Wis.2d 77, 83, 454 N.W.2d 763 (1990). What would a reasonable police officer reasonably suspect in light of his or her training and experience. Id. at 83-84, 454 N.W.2d 763. This common sense approach strikes a balance between individual privacy and the societal interest in allowing the police a reasonable scope of action in discharging their responsibility.

The societal interest involved is, of course, that of effective crime prevention and detection consistent with constitutional means. It is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.

Waldner contends that the investigatory stop was unlawful for two reasons: (1) the stop was based merely on Sgt. Annear's inchoate "hunch" that Waldner was engaged in criminal activity; and (2) since the conduct observed by Sgt. Annear was not unlawful, there was no basis for the stop. We conclude that Waldner misinterprets the totality of the facts and misunderstands the law of investigatory stops. The record reveals that Sgt. Annear's decision to stop Waldner was based on more than a "hunch." The law allows a police officer to make an investigatory stop based on observations of lawful conduct so long as the reasonable inferences drawn from the lawful conduct are that criminal activity is afoot.

We first address Waldner's argument that the stop was based merely on a hunch, not a reasonable suspicion. A central concern of the Supreme Court is to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasion at the unfettered discretion of officers in the field. Brown v. Texas, 443 U.S. 47, 99 S.Ct 2637, 61 L.Ed.2d 357 (1979). Waldner argues that the investigatory stop which led to his arrest was based on Sgt. Annear's "hunch" and that a police officer's hunch can never justify an investigatory stop because it would lead to unfettered discretion of police officers in the field. While we agree with Waldner and the court of appeals that an inchoate and unparticularized suspicion will not support an investigatory stop, Guzy, 139 Wis.2d at 675, 407 N.W.2d 548, Sgt. Annear had much more than a "hunch" when he stopped Waldner. His suspicion was based on specific, articulable facts and the reasonable inferences drawn from those facts.

As the circuit court explained:

Normally, a person drives at a rate of speed, comes to a corner, they want to turn and they turn the corner. They may slow down, but they don't drive in this manner. So I think at that point the officer had a reasonable grounds for a reasonable suspicion that there was something wrong with the person's driving. Could have been a person that was overtired; could have been a person that was suffering from carbon monoxide poisoning, something like that. Also could have been a person who had been drinking. It was also, I believe, 12:30 in the morning where it is more likely where a person who has been drinking might be on the road. [The drink poured from the cup] could have been ginger ale, it could have been water, but when coupled with the kind of driving, it could also have been an alcoholic beverage.... But when you put all of them together, I think the officer did have a...