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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 12, 1995 |
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. 95-1461-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DENNIS W. TUSHOSKI,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Oneida County:
MARK A. MANGERSON, Judge. Affirmed.
LaROCQUE, J. Dennis Tushoski appeals a judgment of
conviction for operating a vehicle while intoxicated (OWI) in violation of §
346.63(1)(a), Stats., and
possession of cocaine in violation of § 161.41(3m), Stats. Tushoski
argues that evidence discovered after a Terry[1]
stop should be suppressed because the arresting officer did not adequately
corroborate an anonymous tip before making the stop. Tushoski also challenges the seizure of evidence found when the
officer frisked him. This court rejects
Tushoski's arguments and affirms the judgment.
An anonymous tipster
called the Oneida County Sheriff's Department and stated that an individual
named Dennis had been drinking and doing drugs at a bar west of Rhinelander and
was now leaving the bar and heading toward Rhinelander. The tipster stated that Tushoski was leaving
in a white Toyota pickup with multi-colored stripes and a plate number of
AD12222.
About two miles from the
bar, deputy Bryan Wege of the Oneida County Sheriff's Department observed a
pickup truck heading east toward Rhinelander.
The truck was white with multicolored stripes, and Wege observed a
partial license plate number of AD122.
Wege started to follow
the truck, but the truck immediately turned into a private driveway. Wege knew the driveway was that of the
Marquardts and that the owner of the truck, Tushoski, did not live there. Wege pulled into the driveway and turned on
his red and blue emergency lights.
Wege noticed the odor of
alcoholic beverages on Tushoski's breath as he was questioning him. Wege inquired if he could frisk Tushoski for
weapons. Tushoski replied, "go ahead." While frisking Tushoski, Wege felt a hard
object in Tushoski's pocket, which he thought may have been a knife. Wege reached into the pocket and found a
marijuana pipe and plastic bag containing marijuana. Wege then conducted field sobriety tests and, based on these
tests, arrested Tushoski for OWI.
Thereafter, incident to the OWI arrest, Wege searched Tushoski's truck
and discovered cocaine.
Tushoski moved to
suppress the evidence obtained at the stop, claiming the stop and search were
illegal. After the circuit court denied
the motions, Tushoski pled guilty to possession of cocaine and operating a
vehicle while intoxicated. The State
dismissed other charges. Tushoski was
sentenced and now appeals the judgment based on the Fourth Amendment issues.
In reviewing a circuit
court order regarding suppression of evidence, this court will uphold findings
of fact unless they are clearly erroneous.
See State v. Moley, 171 Wis.2d 207, 214, 490 N.W.2d 764,
767 (Ct. App. 1992); § 805.17(2), Stats. However, whether a stop complies with
statutory and constitutional standards is a question of law this court reviews
de novo. State v. Richardson,
156 Wis.2d 128, 137-38, 456 N.W.2d 830, 833 (1990).
Not all contact between
police officers and citizens is a stop for Fourth Amendment purposes. "Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of
a citizen may we conclude a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 19
n.16 (1968). A stop occurs when a
reasonable person believes he or she is not free to leave in view of all the
circumstances surrounding the contact with police. Michigan v. Chesternut, 486 U.S. 567, 573
(1988). The stop occurred when the
officer activated his flashing lights.
The Fourth Amendment
requires some minimal level of justification for an officer to stop a
subject. Terry. The officer must be able to "articulate
something more than an 'inchoate and unparticularized suspicion or
"hunch".'" United
States v. Sokolow, 490 U.S. 1, 7 (1990) (quoting Terry,
392 U.S. at 27). In Alabama v.
White, 496 U.S. 325 (1990), the United States Supreme Court established
factors for determining whether an anonymous tip justifies an officer to stop a
subject. The Supreme Court concluded
that when the officer can corroborate details of the anonymous informant's
predictions, the officer has reason to believe the caller is honest and
well-informed about the illegal activity.
Id. at 332. The
Court noted the special importance of the caller's ability to predict the
defendant's future behavior because this ability demonstrated a familiarity
with the defendant's affairs. Id.
Tushoski contends that
at the time of the stop, Wege had not corroborated the tip because the caller
did not predict any future behavior.
This court concludes to the contrary.
In State v. Krier, 165 Wis.2d 673, 478 N.W.2d 63 (Ct. App.
1991), an anonymous caller alleged to police that Krier did not possess a
driver's license and was getting into a blue station wagon, and then called
again, stating that Krier had left and was driving northbound on a particular
street. Krier was stopped driving his
vehicle at the time and place specified and cited for driving without a
license.
In Krier,
we held that the officer adequately corroborated the call. Krier reasoned that "A
man was driving the vehicle on the very street and in the direction stated by
the informant. This meant that the
anonymous caller had accurately predicted future behavior
...." Id. at 676-77,
478 N.W.2d at 65 (emphasis in original).
In this case, as in Krier,
the tipster accurately stated the route and direction in which the defendant
traveled. Wege verified the informant's
detailed description of the vehicle and the direction the vehicle was
traveling, i.e., toward Rhinelander.
Tushoski argues that the
tipster did not indicate that he was committing a crime, so Wege had no reason
to be suspicious. He argues that a
police officer could not infer from the call that he was under the influence of
intoxicants while driving or that he possessed drugs.
This court
disagrees. If any reasonable inference
of wrongful conduct can be objectively discerned, notwithstanding the existence
of other innocent inferences that could be drawn, police officers have the
right to temporarily detain the individual for purposes of inquiry. State v. Anderson, 155 Wis.2d
77, 84, 454 N.W.2d 763, 766 (1990).
Wege could draw
reasonable inferences that Tushoski both possessed drugs and was driving while
intoxicated. Because the tipster
alleged that Tushoski was doing drugs shortly before, a police officer could
reasonably infer that he possessed drugs or drug paraphernalia in violation of
ch. 161, Stats.
Driving under the
influence of intoxicants in § 346.63(1)(a), Stats.,
does not require proof of substantial impairment of the defendant's ability to
drive. State v. Waalen,
130 Wis.2d 18, 386 N.W.2d 47 (1986).
This court concludes that Wege could reasonably suspect, under the Terry
standard, that Tushoski was either under the influence or in possession of
drugs, or both, so as to justify a brief stop in a public place to inquire
further.
Next, Tushoski argues
that Wege's frisk violated the Fourth Amendment because Wege did not have a
reasonable suspicion that Tushoski was armed.
We agree that a frisk is a search, thus an officer normally must have a
reasonable suspicion before frisking. State
v. Guy, 172 Wis.2d 86, 93, 492 N.W.2d 311, 313-14 (1992). However, a search may be conducted without
reasonable suspicion if the officer obtains consent. See State v. Rogers, 148 Wis.2d 243, 248,
435 N.W.2d 275, 277 (Ct. App. 1988).
The burden is on the State to prove that Tushoski consented to the
search. See State v.
Schwegler, 170 Wis.2d 487, 498, 490 N.W.2d 292, 296 (Ct. App. 1992).
The trial court found
that Tushoski consented to the frisk based on his "verbal agreement"
to the search. This finding is not
clearly erroneous. Section 805.17(2), Stats.
Consent is voluntary if given in the "absence of actual coercive,
improper police practices designed to overcome the resistance of a
defendant." State v. Xiong,
178 Wis.2d 525, 532, 504 N.W.2d 428, 430 (Ct. App. 1993) (quoting State
v. Clappes, 136 Wis.2d 222, 245, 401 N.W.2d 759, 769 (1987)).
There is no evidence
that Wege used any improper tactics to coerce Tushoski's consent. Wege had minimal contact with Tushoski
before the consent. Wege was under no
duty to inform Tushoski of his right to refuse consent. See id. at 533, 504 N.W.2d at
428.
Wege did not go beyond
the scope of his search for weapons when he reached into Tushoski's pocket and
found the marijuana pipe and marijuana.[2] A consent search is constitutional only if
the search remains within the scope of the actual consent. Rogers, 148 Wis.2d at 248, 435
N.W.2d at 277. Tushoski gave Wege
consent to frisk him for weapons.
During the frisk, Wege felt a hard object in Tushoski's pocket, which he
testified he thought may have been a knife.
Wege's removal of the object to discern its nature was reasonable.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.