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COURT OF APPEALS DECISION DATED AND RELEASED May 8, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3358-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK ANDERSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
MARIANNE E. BECKER, Judge. Affirmed.
NETTESHEIM, J. The
issue on appeal is whether the police had probable cause to arrest the
appellant, Mark Anderson, for operating a motor vehicle while
intoxicated. The trial court ruled that
probable cause supported the arrest.
Following a jury trial, Anderson was convicted. He appeals the ensuing judgment of
conviction, specifically challenging the trial court's probable cause ruling.
Anderson's specific
contention is that the arresting officer did not have probable cause to believe
that Anderson had driven or operated a motor vehicle. The facts pertaining to Anderson's arrest are not disputed. On January 15, 1995, at approximately 12:20
a.m., Officer Scott Smith[1]
of the City of Brookfield Police Department was awaiting the arrival of a
person to pick up a prisoner whom Smith had just completed processing. Smith asked Corporal Ronald LaGosh to assist
in locating this person.
As Smith and LaGosh were
standing in front of the police department, LaGosh noticed a car parked in the
parking lot with its lights on. LaGosh
observed a single occupant in the car seated behind the steering wheel. The lights on the vehicle then went out, and
the occupant exited the vehicle and approached the officers. LaGosh noticed that the person staggered as
he walked across the parking lot and into the police department.
LaGosh approached the
person at the area of the front desk.
LaGosh noticed that the person had bloodshot eyes and gave off an odor
of intoxicants. In response to LaGosh's
inquiry, the person identified himself to LaGosh as Mark Anderson. Based on his suspicion that Anderson was
intoxicated, LaGosh administered a field sobriety test known as horizontal gaze
nystagmus. This test requires the
subject to follow the track of a pen light with his or her eyes. LaGosh observed that Anderson had difficulty
focusing and following the track of the pen light. Based on his training and experience, LaGosh concluded that Anderson
was intoxicated and he arrested Anderson.
LaGosh conceded that he
did not ever: (1) see Anderson operate
the vehicle in the parking lot, (2) see the vehicle arrive at the police
parking lot, (3) hear the vehicle's engine running, or (4) see the vehicle
move.
The question of whether
probable cause exists to support an arrest requires that we apply a
constitutional standard to a given set of facts. See State v. Riddle, 192 Wis.2d 470, 475,
531 N.W.2d 408, 410 (Ct. App. 1995).
When the facts are undisputed, we review this question de novo. Id. “Probable cause to justify an arrest means facts and
circumstances within the officer's knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about
to commit an offense.” Henes v.
Morrissey, 194 Wis.2d 338, 351, 533 N.W.2d 802, 807 (1995) (quoted
source omitted). Probable cause does
not require proof beyond a reasonable doubt or even that guilt is more likely
than not. State v. Babbitt,
188 Wis.2d 349, 357, 525 N.W.2d 102, 104 (Ct. App. 1994). Moreover, when a police officer is
confronted with two reasonable competing inferences, one justifying arrest and
the other not, the officer is entitled to rely on the reasonable inference
justifying the arrest. Cf. State
v. Tompkins, 144 Wis.2d 116, 125, 423 N.W.2d 823, 827 (1988).[2]
Here, although LaGosh
did not actually see Anderson operate or drive the vehicle, such is not always
required to ultimately establish such activity. See, e.g., Village of Elkhart Lake v. Borzyskowski,
123 Wis.2d 185, 188-89, 366 N.W.2d 506, 508 (Ct. App. 1985). Evidence that a person is the sole occupant
of a vehicle can, in appropriate circumstances, reasonably suggest that the
person operated the vehicle. See
State v. Dunn, 158 Wis.2d 138, 146, 462 N.W.2d 538, 541 (Ct. App.
1990).
Here, despite LaGosh's
failure to directly observe Anderson operate the vehicle, the circumstantial
facts established abundant probable cause of such fact. The vehicle was observed in the police
parking lot, clearly supporting a reasonable inference that it had been driven
to that location. LaGosh observed but
one occupant of the vehicle who was seated behind the steering wheel. In addition, LaGosh observed no person in
the area, other than Anderson, who might have operated the vehicle. In some situations, circumstantial evidence
can be as strong or stronger than direct evidence. Wis J I—Criminal
170. This, we conclude, is such a case.
We uphold the trial
court's probable cause ruling. We
therefore affirm the judgment of conviction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.