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Douglas County v. Leinweber7/18/2000
Cornelia G. Clark Clerk, Court of Appeals of Wisconsin
APPEAL from a judgment of the circuit court for Douglas County: MICHAEL T. LUCCI, Judge. Affirmed in part; reversed in part and cause remanded.
. Douglas County appeals a judgment dismissing the charges against Steven Leinweber for operating a motor vehicle while intoxicated, operating a motor vehicle with a prohibited blood alcohol content and possessing open intoxicants in a motor vehicle on a public highway, contrary to Wis. Stat. §§ 346.63(1)(a), (1)(b), 346.935. The trial court concluded that the arresting officer conducted an unlawful traffic stop of Leinweber and dismissed the charges. The court's credibility determinations control the legality of the stop. Suppression, however, was the appropriate remedy, not dismissal of the charges. Therefore the matter is remanded for further proceedings.
Background
. On the evening of October 20, 1999, Douglas County Sheriff Deputy William Webber was on routine patrol in the Village of Oliver when his dispatch service notified him of a possible intoxicated driver traveling in his direction. An anonymous tipster had relayed the following information by telephone: a dark-colored pickup truck with no topper was traveling westbound at a high rate of speed from South Superior toward Oliver on Highway 105, a distance of approximately five miles. Webber decided to watch for the vehicle.
. From this point the evidence presented at the motion hearing conflicted. Webber testified that while he was parked he saw a vehicle matching the tipster's description approach the village. The vehicle was being driven between two others. Webber continued to watch as the vehicle jerked in and out of its traffic lane in an apparent effort to pass the vehicle in front. Although Webber was unsure how fast any of the vehicles was traveling, he thought that Leinweber was traveling faster than the posted speed limit because he had to brake several times when approaching the front vehicle. Webber continued to observe Leinweber turn and roll through a stop sign without stopping completely. At that point, Webber pulled Leinweber over.
. Leinweber testified to a different scenario. He claimed that Webber could not have seen him driving into the village. Leinweber explained that Webber was actually parked and observing from a different location, and that photographs he presented showed Webber could not have observed his driving at all because a hump in the road and trees fully blocked the view. The trial court found Leinweber's testimony more credible and concluded that Webber's observations were insufficient to corroborate the anonymous tip.
Analysis
. Whether evidence should be suppressed because it was obtained in violation of the Fourth Amendment is a question of constitutional fact that this court reviews under a two-step standard. See State v. Phillips, 218 Wis. 2d 180, 189-90, 577 N.W.2d 794 (1998). First, this court will accept the trial court's findings of evidentiary or historical fact unless they are contrary to the great weight and clear preponderance of the evidence. See id. at 190 (citation omitted). Second, this court independently applies constitutional principles to the facts as found by the trial court. See id.
. Under Terry v. Ohio, 392 U.S. 1, 27 (1968), the police must possess sufficient information to form a reasonable suspicion of illegal activity to justify an investigative stop. Reasonable suspicion must be based on "`specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.
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