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Judge’s factual findings weren’t clearly erroneous, despite officer’s equivocal testimony

City of Antigo v. M.K., 2013AP2627, District 3, 7/8/14 (1-judge; ineligible for publication); case activity

The circuit court held there was reasonable suspicion to stop the vehicle M.K. was driving because the court found the officer knew the vehicle’s registration was expired before he made the stop. The court’s finding of fact was not clearly erroneous, even though the officer’s testimony was equivocal as to whether he learned that fact as part of the original dispatch or after he spotted the vehicle and called in the license plate.

10      A circuit court’s factual finding is clearly erroneous if “it is against the great weight and clear preponderance of the evidence.” State v. Sykes2005 WI 48, ¶21 n.7, 279 Wis. 2d 742, 695 N.W.2d 277 (quoted source omitted). Further, credibility determinations are for the circuit court. See State v. Thiel, 2003 WI 111, ¶23, 264 Wis. 2d 571, 665 N.W.2d 305. In this case, the record supports the circuit court’s determination that [Officer] Reichl knew [M.K.’s] vehicle registration was expired before the stop. Reichl’s testimony on cross-examination regarding at what point before the stop he learned the registration was expired (whether he learned through the initial dispatch or whether he learned after he called in the license plate) was somewhat equivocal. However, Reichl repeatedly testified that he knew the registration was expired before the stop and he stopped the vehicle on that basis. Accordingly, the circuit court’s determination that Reichl knew the registration was expired prior to the stop is not against the great weight and clear preponderance of the evidence and is therefore not clearly erroneous. See Sykes, 279 Wis. 2d 742, ¶21 n.7.

Practice note: M.K. was charged with OWI 1st and pleaded no contest. A plea of guilty or no contest to a civil forfeiture offense waives the right to appeal the denial of a suppression motion because § 971.31(10) applies only in criminal cases. County of Racine v. Smith, 122 Wis. 2d 431, 437-38, 362 N.W.2d 439 (Ct. App. 1984). But the guilty-plea waiver rule is a rule of judicial administration, not jurisdiction, so the court can decline to apply it. That is what the court does here because “both parties urge us to consider the merits of M.K.’s appeal, noting M.K.’s plea was based on a specific stipulation that he would be appealing the court’s denial of his suppression motion.” (¶6).

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