COURT OF APPEALS
DATED AND FILED
January 14, 2010
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
John D. Tischer, Sr.,
from a judgment of the circuit court for
¶1 DYKMAN, P.J. John Tischer appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol content, third offense. See Wis. Stat. § 346.63(1)(b). Tischer argues that an anonymous tip to police together with subsequent police observations did not amount to reasonable suspicion to support the traffic stop of his vehicle. We agree. Accordingly, we reverse.
¶2 The following undisputed facts are taken from the motion
hearing transcript and the trial court’s factual findings. On September 7, 2007, at 8:17 p.m., Officer
Christopher Berg was on duty in
¶3 Berg then stopped the Escort. Based on information obtained during the stop, the State charged Tischer with operating a motor vehicle while intoxicated, third offense, under Wis. Stat. §§ 346.63(1)(a) and 346.65(2)(am)3., and operating a motor vehicle with a prohibited alcohol concentration, third offense, under §§ 346.63(1)(b) and 346.65(2)(am)3.
¶4 Tischer moved to suppress the evidence obtained during the stop, arguing that the stop was not supported by reasonable suspicion and therefore violated his right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. At the motion hearing, Berg testified for the State and the court viewed the video taken from a camera mounted on Berg’s squad car that captured Tischer’s driving while Berg followed him. The trial court found that there was reasonable suspicion supporting the stop and denied Tischer’s motion to suppress evidence obtained during the stop. Tischer then pled guilty to operating a motor vehicle with a prohibited alcohol concentration, third offense, and the court entered a judgment of conviction. Tischer appeals.
Standard of Review
¶5 We review a court’s ruling on a motion to suppress evidence
in two steps. State v. Robinson, 2009
WI App 97, ¶9, _Wis. 2d_, 770 N.W.2d 721.
“First, we will uphold the court’s factual findings unless they are
¶6 Tischer argues that the traffic stop of his vehicle violated the Fourth Amendment to the United States Constitution and Article I, § 11 of the Wisconsin Constitution because it was not supported by reasonable suspicion that he had an open intoxicant on a public highway under Wis. Stat. § 346.935 or that he was driving while intoxicated under Wis. Stat. § 346.63. First, he argues that the tip was insufficiently reliable to support reasonable suspicion because the tipster was unknown and unidentifiable and provided only a bare conclusion that beer was poured from Tischer’s vehicle. Next, he argues that even if the tip were sufficiently reliable, the tipster alleged only that beer was poured from Tischer’s car in an Arby’s drive-through, which is not in and of itself contrary to statute. See § 346.935 (prohibiting consuming or possessing alcohol in a motor vehicle upon a highway). He argues that Arby’s is privately owned and therefore not a “highway,” and thus the tip did not allege violation of a traffic regulation. See Wis. Stat. §§ 340.01(22) (“‘Highway’ means all public ways and thoroughfares and bridges on the same …. but does not include private roads or driveways as defined in sub. (46).”) and 340.01(46) (“’Private road or driveway’ is every way or place in private ownership and used for vehicular travel only by the owner and those having express or implied permission from the owner ….”). Finally, he argues that the information known to police did not provide reasonable suspicion that he was driving while intoxicated, because Berg observed only common non-suspicious driving behaviors, which did not corroborate any information contained in the anonymous tip.
¶7 The State responds that the totality of the circumstances—the anonymous tip that someone was pouring beer out of Tischer’s car in the Arby’s drive-through, and Berg’s observation that Tischer was driving twenty miles per hour in a twenty-five-mile-per-hour zone and rode the dividing line to his left, causing the truck on his left to brake and move over slightly—provided reasonable suspicion that Berg was driving while intoxicated and a traffic violation had occurred. It cites Wis. Stat. § 346.13(1), which requires drivers to “drive as nearly as practicable entirely within a single lane,” and argues that there was reasonable suspicion that Tischer was having difficulty maintaining control of his vehicle, thus supporting the stop. We conclude that the totality of the circumstances did not amount to reasonable suspicion supporting the stop, and therefore reverse.
¶8 Under the Fourth Amendment to the United States Constitution
and article I, section 11 of the Wisconsin Constitution, “all searches and
seizures [must] be objectively reasonable under the circumstances existing at
the time of the search or seizure.
Investigative traffic stops, regardless of how brief in duration, are
governed by this constitutional reasonableness requirement.” State v. Rutzinski, 2001 WI 22,
¶9 Information in a tip to police may support an investigative stop
under appropriate circumstances. Rutzinski,
¶10 First, “[t]ips should exhibit reasonable indicia of
¶11 When “the police receive a tip from an unidentifiable
informant, the tip nonetheless may be deemed reliable if it contains ‘inside
information’ or a similar verifiable explanation of how the informant came to
know of the information in the tip, which the police in turn independently
¶12 In Alabama v. White, 496 U.S. 325, 326-27 (1990), the United
States Supreme Court analyzed whether an anonymous tip stating that White would
leave a particular apartment complex at a particular time in a particular
vehicle, and would go to a particular hotel with an ounce of cocaine in a brown
case, supported reasonable suspicion to stop White’s vehicle. The Court concluded that the tip, together
with police corroboration of several of the details provided in the tip,
amounted to reasonable suspicion for the stop.
¶13 Ten years later, the Court distinguished White in Florida
v. J.L., 529
¶14 Here, the tip was from an unknown informant calling from an
unknown location. While Berg testified
that dispatch informed him of “what the anonymous complainer observed,” there
is no indication in the record that the caller provided simultaneous
observations or even why Berg believed that the caller was an eyewitness. See
¶15 Finally, the supreme court has “recognize[d] that there may be
circumstances where an informant’s tip does not exhibit indicia of reliability
that fit neatly within the bounds of [case law], but where the allegations in
the tip suggest an imminent threat to the public safety or other exigency that
warrants immediate police investigation.”
¶16 The State argues, however, that the totality of the circumstances provided reasonable suspicion that Tischer was intoxicated. Without the tip, which we have deemed lacking in reliability, we are left only with Berg’s observation that Tischer drove five miles per hour under the speed limit and drove on the dividing line to his left, causing the truck on his left to brake and move over slightly. While we recognize that even driving that is not erratic, unsafe, or illegal may give rise to reasonable suspicion under the totality of the circumstances, see State v. Post, 2007 WI 60, ¶¶24-25, 301 Wis. 2d 1, 733 N.W.2d 634, we agree with Tischer that the observations by Berg in this case were too common to support reasonable suspicion of criminal activity. Berg stated that Tischer “rode” the dividing line on his left but did not cross it, and that there was a parking lane to his right. Tischer was driving five miles per hour below the speed limit. These facts do not amount to reasonable suspicion of intoxicated driving.
By the Court.—Judgment reversed and cause remanded for proceedings consistent with this opinion.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2007-08).
State does not respond to Tischer’s argument that the allegations in the tip do
not allege that he violated Wis. Stat. § 346.935
for having an open intoxicant in a motor vehicle on the highway. The State also does not respond to Tischer’s
argument that the tip lacked sufficient reliability to justify the stop. Rather, the State argues that the totality of
the circumstances provided reasonable suspicion that Tischer was driving while
intoxicated. We therefore deem these arguments
 The trial court found that the caller had “seen” Tischer’s vehicle at Arby’s, and that the caller “reported” that the driver was dumping beer out of the car.
its oral ruling, the trial court made findings of fact adopting Berg’s
testimony. It also found that the
tipster stated that Tischer was “heading down