|
COURT OF APPEALS DECISION DATED AND FILED January 27, 2010 David
R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
|
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. |
|
|
Appeal No. |
|
|||
|
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
|
DISTRICT II |
|||
|
|
|
|||
|
|
|
|||
|
State of
Plaintiff-Respondent, v. Ronald M. Lanser,
Defendant-Appellant. |
||||
|
|
|
|||
APPEAL
from a judgment of the circuit court for
¶1 BROWN, C.J.[1] Ronald M. Lanser pled no contest to and was convicted of operating a vehicle while intoxicated (2nd offense). He did so after his motion to suppress, arguing that the sheriff’s deputy lacked reasonable suspicion to stop him, was denied. He contends on appeal that the stop occurred after an unreliable, anonymous tip and any information the deputy obtained thereafter cannot be considered. But we agree with the State that information the deputy gained from a voluntary encounter in a grocery store, coupled with the information he had obtained from the tipster and a store clerk, formed the basis for the ultimate seizure. We affirm.
¶2 On Tuesday, May 13, 2008, an unidentified woman came into a
grocery store and told a clerk that she had followed a truck to the store and
that the driver of that vehicle was weaving all over the road. The unidentified person told the clerk that she
thought the driver was drunk. The clerk
informed the manager and the manager called the Ozaukee County Sheriff’s
Department. The manager informed the
dispatch operator what the unidentified person had told the clerk, added her
own observations that the driver of the truck was sitting in his truck which
was parked “all crooked” and was possibly talking on a phone, and described the
truck as a blue F250 (a Ford) with a license number of 463750. A sheriff’s deputy responded and went to the
store.
¶3 Upon arriving, the sheriff’s deputy observed a blue Ford
pickup truck parked in the lot, which fit the description that had been
provided. The deputy noticed that the
truck was parked across two parallel stalls, divided by yellow paint markers. The deputy then did a registration check and
obtained the name of Ronald Lanser. The
deputy went into the store and talked to the manager, who indicated that a
woman had followed this vehicle which appeared to be weaving and that the man
driving the pickup was inside and acting unusual. The manager told the deputy that the man was
now in aisle two. The deputy went to aisle
two and met with the only subject who was in that aisle. The deputy identified himself, and asked the
man if he was Lanser and if he was the owner of the blue Ford pickup that was
parked outside. Lanser replied that he
was. The deputy observed that his stance
was uneasy, he swayed back and forth, he was holding onto the cart in a manner
suggesting that he was using it to help maintain his balance, his eyes were red
and glassy, his speech was slurred, and he had a strong odor of intoxicants on
his breath. The deputy then asked Lanser
if the two of them could speak outside, and Lanser agreed. They then went outside to the rear of Lanser’s
truck. The deputy asked how much he had
been drinking, and Lanser said three or four beers. It was at that time that the deputy decided to
have field sobriety tests performed.
¶4 Lanser casts this as a “stop” case. But there was no stop until the deputy decided to have field sobriety tests. Up until then, we agree with the State that the encounter in the grocery store was nothing more than the situation described in United States v. Mendenhall, 446 U.S. 544, 553 (1980), as follows:
“[T]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” Police officers enjoy “the liberty (again, possessed by every citizen) to address questions to other persons,” although “ordinarily the person addressed has an equal right to ignore his interrogator and walk away.” (Plurality opinion) (citations omitted).
As cogently articulated by the State, “[t]here is no legal barrier to a police officer simply making contact with someone in a public place, regardless of what other thoughts may be in the back of the officer’s mind.”
¶5 While in the store, Lanser was never told that he was not free to leave, that he had to identify himself, that he was under arrest, or even that he was being detained for questioning. The deputy had a right to be in the store, had a right to go into aisle two and had a right to walk up to Lanser, identify himself, and ask if he was Lanser.
¶6 As such, the deputy had a right to be where he was when he saw that Lanser was unsteady, looked as though he was using the shopping cart for support, had alcohol on his breath, slurred his words and had glassy eyes. He had a right to ask Lanser how much he had been drinking after Lanser voluntary accompanied the deputy to the parking lot. In addition, the deputy had earlier corroborated that there was indeed a blue Ford pickup, and it was parked across two parallel stalls with yellow lines separating them. And he already had information that an anonymous person had followed Lanser to the store, had observed Lanser weaving all over the road, and saw that Lanser looked drunk when he was parked at the grocery store. All of this information, added together, gave the deputy plenty of reasonable suspicion that Lanser was driving while intoxicated. The stop was effectuated after the deputy obtained all of that information. That is why this is not really a “stop” case. The stop was anti-climatic.
¶7 We acknowledge, as Lanser argues, that we must look at the
totality of the circumstances to determine whether a reasonable person in his
position would have believed he was under arrest.
By the Court.—Judgment affirmed.
This opinion will not be published in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This
appeal is decided by one judge pursuant to Wis.