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City of Mequon v. Peacock12/11/2002
. This appeal requires us to address whether a totally anonymous tip provides sufficient justification for an investigative traffic stop. The tip contains an assertion of criminal activity-a possible intoxicated driver traveling along a main thoroughfare-and nothing more. It lacks any verifiable information that could lead to the identification of the tipster or would permit the testing of the informant's basis of knowledge or credibility. Accordingly, we reverse the order denying Sarah J. Peacock's motion to suppress and the judgment of conviction.
. Officer Anthony R. Restivo was the only witness called to testify by either party at the motion hearing held on October 4, 2001. Restivo testified that while on duty on May 26, 2001, he was dispatched to a report of a possible intoxicated driver traveling northbound on Port Washington Road. Dispatch informed Restivo that the driver had just left the area of the East Towne Veterinary Clinic, described the driver's vehicle as a silver-gray Chrysler four-door, and provided the license plate number for the car. The dispatcher further advised Restivo that the license plate number was registered to an individual whose address was 1908 West Bonniwell Road.
. When Restivo turned onto Bonniwell Road, he observed a silver vehicle approximately one-half mile in front of him. By the time Restivo caught up to the vehicle, it had just turned into, and stopped at the end of, the driveway at 1908 West Bonniwell Road. Restivo confirmed that the license plate on the vehicle was the one the dispatcher had provided. As he pulled up, the driver and only occupant of the vehicle exited the car and went to the mailbox adjacent to the driveway. After parking the squad car and greeting the driver through the passenger side window, Restivo exited his vehicle and approached the driver, meeting her at her mailbox. The driver identified herself as Peacock. As he approached her, Restivo advised Peacock that someone had reported to the police department that she was possibly intoxicated and driving a vehicle. Peacock explained that she had just returned from picking up her dog at the East Towne Veterinary Clinic. Peacock denied that she had been drinking alcohol that morning. However, while conversing with Peacock, Restivo smelled an odor of an alcoholic beverage on her breath and observed that her eyes were glossy and her cheeks and nose were red.
. Based upon these observations, the results of a preliminary breath test he eventually administered and Peacock's subsequent performance on field sobriety tests, Restivo placed Peacock under arrest for operating a motor vehicle while intoxicated. Peacock entered a not guilty plea and filed a motion to suppress this evidence, arguing that the informant's tip was not sufficiently reliable to justify the investigative stop. The trial court denied the motion. Peacock was subsequently found guilty of operating a motor vehicle while intoxicated pursuant to Wis. Stat. § 346.63(1)(a). Peacock appeals from the order denying her motion to suppress and the judgment of conviction.
. The sole question we must address in this case is whether Restivo had the requisite reasonable suspicion to justify his stop of Peacock. The determination of reasonable suspicion for an investigatory stop is a question of constitutional fact. State v. Williams, 2001 WI 21, , 241 Wis. 2d 631, 623 N.W.2d 106, cert. denied, Williams v. Wisconsin, 122 S. Ct. 343 (U.S. Oct. 9, 2001) (No. 00-10530). We apply a two-step standard of review to questions of constitutional fact. Id. First, we review the trial court's findings of historical fact and uphold them unless they are clearly erroneous. Id. Second, we review the determination of reasonab
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