State v. Walli

• Decision Date: 11 May 2011
• Docket Number: 2010AP1257.,Nos. 2010AP1256–CR,s. 2010AP1256–CR
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Jeffrey D. WALLI, Defendant–Appellant.†City of Sheboygan, Plaintiff–Respondent,v.Jeffrey D. Walli, Defendant–Appellant.†
• Court: Wisconsin Court of Appeals

334 Wis.2d 402

799 N.W.2d 898

2011 WI App 86

STATE of Wisconsin, Plaintiff–Respondent,

v.Jeffrey D. WALLI, Defendant–Appellant.†City of Sheboygan, Plaintiff–Respondent,

v.Jeffrey D. Walli, Defendant–Appellant.†

Nos. 2010AP1256–CR

2010AP1257.

Court of Appeals of Wisconsin.

Submitted on Briefs March 16, 2011.Opinion Filed May 11, 2011.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Chad A. Lanning of Lanning Law Offices, LLC, West Bend.On behalf of the plaintiff-respondent, the cause was submitted on the brief of Warren D. Weinstein, assistant attorney general, and J.B. Van Hollen, attorney general; Joseph DeCecco, district attorney, and Christopher W. Stock, assistant district attorney, Sheboygan; and Charles C. Adams, assistant city attorney, Sheboygan.Before NEUBAUER, P.J., ANDERSON and REILLY, JJ.

ANDERSON, J.

[334 Wis.2d 405] ¶ 1 Jeffrey D. Walli appeals from a conviction for first offense operating a motor vehicle while intoxicated and resisting an officer. This case presents the opportunity to decide that we will apply the “clearly erroneous” standard of review to factual findings made from a combination of live testimony and evidence preserved on a video recording. Because the trial court's finding that Walli crossed the center line is based on testimony of the arresting officer and video from a squad car camera is not clearly erroneous, we affirm his convictions.

¶ 2 Walli was charged in the trial court with one count of resisting an officer in violation of Wis. Stat. § 946.41(1) (2009–10),¹ and he was charged in municipal court with one count of operating a motor vehicle while intoxicated and one count of first offense operating with a prohibited blood alcohol content both in violation of City of Sheboygan, Wis., Municipal Code § 118–1 (2003).² Walli filed a motion to suppress, contending that there was a lack of reasonable suspicion to support the investigative stop that led to his arrest.

¶ 3 At the suppression hearing, City of Sheboygan Police Officer Brandon Munnik testified that he was on patrol at 11:22 p.m., traveling westbound, when a vehicle coming from the other direction crossed the center line and nearly sideswiped his squad car, startling him. Munnik turned around and activated his emergency lights, which also activated the video camera mounted in his squad car. Once activated, the camera records all events beginning thirty seconds before the lights were activated. Munnik stopped the vehicle and identified the driver as Walli and, in due course, attempted to arrest him for drunk driving. Walli resisted the officer and had to be forcibly taken to the ground and tasered before he could be placed in handcuffs.

[334 Wis.2d 407] ¶ 4 Munnik also provided foundation testimony to support the introduction of a video recording from his squad car's camera and then the recording was played for the trial court. He described the video as a “fair and accurate representation” of what he had observed. The prosecutor argued, “ Judge, in looking at the video I can certainly see there's a dashed line, I can see the vehicle is on the center line, and I think that's a traffic violation.” Defense counsel disputed this argument, “I think [the video] shows two vehicles coming toward each other, um, both on their side of the center line, they're both close to the center line, and that there is no showing of Mr. Walli's vehicle crossing the center line.” Defense counsel also pointed out that the video did not show the officer taking any evasive action. He commented that the officer testified that Walli startled him and advanced the hypothesis that Munnik's attention was distracted just before Walli passed him. The trial court denied the motion to suppress, holding:

Well in looking at that, obviously we did look at it several times and we can see certainly throughout the time the defendant's vehicle was very close to the centerline, but I believe at one point where I saw it was where the dashed line was there and just as he's coming with one of those dashed lines there's the crossing of and over that particular area.

And at this point, um, I will would have to deny the motion. I believe at this point that the officer did see the vehicle cross the centerline, and that that's a violation of the motor vehicle code, and would give reasonable suspicion to stop, so the Court would deny the motion.

¶ 5 Walli entered a no contest plea to the count of resisting an officer and was found guilty. After a court trial, he was also found guilty of first offense operating a motor vehicle while intoxicated. He now appeals the trial court's denial of his motion to suppress.

[334 Wis.2d 408] ¶ 6 On appeal, Walli insists that “the video recording does not depict a traffic violation occurring. Moreover, the officer did not testify that the stop was based upon a totality of circumstances that led him to suspect that Mr. Walli was impaired or otherwise in need of community caretaker help.”

¶ 7 Investigative traffic stops are subject to the constitutional reasonableness requirement. State v. Post, 2007 WI 60, ¶ 12, 301 Wis.2d 1, 733 N.W.2d 634. The question we must answer is whether the State has shown that there were “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion of the stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The burden of establishing that an investigative stop is reasonable falls on the State. Post, 301 Wis.2d 1, ¶ 12, 733 N.W.2d 634. The determination of reasonableness is a commonsense test. Id., ¶ 13.

¶ 8 The crucial question 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. This commonsense approach balances the interests of the State in detecting, preventing, and investigating crime and the rights of individuals to be free from unreasonable intrusions. Id. The reasonableness of a stop is determined based on the totality of the facts and circumstances. Id.

¶ 9 The law of reasonable suspicion and investigative stops was summarized in State v. Washington, 2005 WI App 123, ¶ 16, 284 Wis.2d 456, 700 N.W.2d 305:

Thus, the standard for a valid investigatory stop is less than that for an arrest; an investigatory stop requires only “reasonable suspicion.” The reasonable suspicion standard requires the officer to have “ ‘a particularized and objective basis' for suspecting the person stopped of criminal activity [,]”; reasonable suspicion cannot be based merely on an “ inchoate and unparticularized suspicion or ‘hunch[,]’ ” When determining if the standard of reasonable suspicion was met, those facts known to the officer at the time of the stop must be taken together with any rational inferences, and considered under the totality of the circumstances. Stated otherwise, to justify an investigatory stop, “[t]he police must have a reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts, that an individual is [or was] violating the law.” However, an officer is not required to rule out the possibility of innocent behavior before initiating a brief investigatory stop. (Citations omitted.)

¶ 10 Whether reasonable suspicion exists is a question of constitutional fact. State v. Powers, 2004 WI App 143, ¶ 6, 275 Wis.2d 456, 685 N.W.2d 869. When reviewing questions of constitutional fact, we apply a two-step standard of review. Id. First, we will uphold a trial court's findings of historical fact unless they are clearly erroneous. Id. Second, based on the historical facts, we review de novo whether a reasonable suspicion justified the stop. Id.

¶ 11 Because the first step in this analysis requires us to review the trial court's findings of historical facts and, in this case, those findings are based in part on a video recording of the event, this court, sua sponte, issued an order converting this appeal from a one-judge appeal to a three-judge appeal and requested the attorney general to file a supplemental brief on the appropriate standard of review.³ With the near ubiquitousness ⁴ of squad car video cameras, surveillance cameras and traffic cameras, appellate courts will be deciding more and more cases where some of the evidence is preserved on recordings.

¶ 12 In a supplementary brief, the State urges us to use the clearly erroneous standard of review when reviewing a video recording. First, it points out that Wis. Stat. § 805.17(2) provides, “In all actions tried upon the facts without a jury.... [The trial court's] [f]indings of fact shall not be set aside unless clearly erroneous.” Second, the State reminds us that the Wisconsin Constitution limits our jurisdiction to appellate jurisdiction, blocking our ability to engage in fact finding. Third, it collects decisions from other states that use the clearly erroneous standard of review when considering recorded evidence.

¶ 13 In his initial brief, Walli advocated for the clearly erroneous standard of review, citing to State v. Popke, 2009 WI 37, ¶ 20, 317 Wis.2d 118, 765 N.W.2d 569. He abandons that argument in his supplemental brief and now contends that the “documentary evidence exception” to the clearly erroneous standard of review should be applied to our review of the video recording. We disagree.

¶ 14 Here, whether Walli crossed the center line was disputed. While the officer testified that the video was a fair and accurate representation, he also testified that he witnessed Walli crossing the center line. The parties disagreed as to what the video in fact showed. Where the underlying facts are in dispute, the trial court resolves that dispute by exercising its fact-finding function, and its findings are subject to the clearly erroneous standard of review. See Phelps v. Physicians Ins. Co. of Wis., Inc.,...