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COURT OF APPEALS DECISION DATED AND FILED August 10, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Glenn L. Earhart,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1
BACKGROUND
¶2 Bayfield County Sheriff’s Deputy Jeffrey Kistner responded to a dispatch concerning Bonnie Hitchon. Hitchon, who was at work, reported she received a phone call from her former boyfriend, Glenn Earhart. According to Hitchon, Earhart stated, “I know where you are, I know where you live, bitch,” and then hung up the phone. Hitchon told Kistner the caller ID displayed the call as “unavailable,” but she recognized his voice.
¶3 Hitchon further informed Kistner she had a restraining order
against Earhart. Kistner did not locate
a restraining order, but did find a
¶4 Kistner and the other deputy decided to question Earhart about the alleged phone call. They proceeded to Earhart’s residence, but nobody was home. As the deputies were leaving in their vehicles, however, a truck entered the driveway, proceeded past them, and stopped in the driveway. After the driver, later identified as Earhart, exited, the deputies walked up and spoke with him outside his vehicle. While conversing with Earhart, Kistner smelled the odor of an intoxicant from Earhart and noticed his speech was slightly slurred. Kistner administered field sobriety tests and a preliminary breath test, and arrested Earhart for operating while intoxicated.
¶5 Earhart moved to suppress the evidentiary fruits of the encounter, arguing the police lacked reasonable suspicion to temporarily detain him. Following an evidentiary hearing, the circuit court denied the motion. Earhart pled no contest and now appeals.
DISCUSSION
¶6 For an investigatory stop to be constitutional, a law enforcement
officer must reasonably suspect “that a crime has been committed, is being
committed, or is about to be committed.” State
v. Young, 2006 WI 98, ¶20, 294
¶7 As an initial matter, we observe the facts of this case suggest Earhart was not the subject of an investigatory stop so as to require reasonable suspicion in the first place. Nonetheless, because the State does not address this issue, we will assume for the sake of argument that reasonable suspicion was required.
¶8 Earhart concedes that all of the facts known to the deputies
would constitute reasonable suspicion if the officers could reasonably rely
upon the information Hitchon provided. He
argues, however, the deputies should have sought further corroboration because
she was an unreliable witness. Earhart argues
there were “special circumstances” indicating Earhart was unreliable, citing
the following language: “When an average
citizen tenders information to the police, the police should be permitted to
assume that they are dealing with a credible person in the absence of special
circumstances suggesting that such might not be the case.” State v. Sisk, 2001 WI App 182, ¶9, 247
¶9 Earhart argues Kistner unreasonably relied on Hitchon’s report because she was a known criminal. Earhart’s argument flows entirely from the following testimony by Kistner when asked whether he knew Hitchon had pending cases against her: “I may have been aware that she was stopped for driving after revocation. But, I was unaware of how many, or – you know, with certainty, no.” Earhart contends that, based on this knowledge, Kistner should have inquired into Hitchon’s criminal record, which, in turn, would have revealed she had a single misdemeanor conviction and several pending criminal traffic cases. According to Earhart, this would have significantly undermined Hitchon’s credibility. Thus, Earhart insists Kistner should have further corroborated Hitchon’s allegation, suggesting Kistner should have reviewed phone records.
¶10 We reject Earhart’s absurd argument. Police need not conduct a criminal record
search on a victim as a prerequisite to questioning the alleged actor,
regardless of whether the investigating officer knows the victim has been
arrested in the past. “In considering
the totality of the circumstances, ... our focus is upon the reasonableness of
the officers’ actions in the situation facing them. ‘The essential question is whether the action
of the law enforcement officer was reasonable under all the facts and
circumstances present.’” Williams, 241
¶11 Here, Kistner set out to investigate Hitchon’s complaint further, seeking Earhart for voluntary questioning. This was eminently reasonable. At worst, Earhart was inadvertently temporarily detained due to the timing of his return home. Hitchon’s minor criminal record and pending operating after revocation charges do not constitute special circumstances that would appreciably undermine her credibility as a victim witness. In any event, those circumstances were unknown to Kistner at the time and, therefore, are not part of the totality of the circumstances bearing on reasonable suspicion.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.