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Sleeping while clutching taco = reasonable suspicion of OWI

State v. Tracy Dean Martin, 2017AP296, 7/25/17, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

An anonymous tipster told West Allis police that a man was asleep in a car parked across 4 spots at a Taco Bell. The lot was otherwise fairly empty. A check on the car’s registration revealed that its owner, Martin, had 3 prior OWIs and a .02 alcohol restriction. The officer approached the car, saw the headlights on, the keys in the ignition, and Martin asleep holding a taco in one of his hands.

The officer roused Martin, opened the car door, smelled a strong odor of alcohol, observed Martin’s red, glassy eyes and lethargic movements, and removed the keys from the ignition. Martin admitted to drinking and then driving to Taco Bell. He also performed poorly on field sobriety tests. The officer arrested Martin. The State charged him with OWI fourth, and he moved to suppress arguing that (1) the anonymous tip was not reliable under State v. Rutzinger, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, which set a standard for the reliability of anonymous tips, and Florida v. J.L., 529 U.S. 266 (2000), which found an anonymous tip unreliable. The court of appeals distinguished both cases.

¶21 The Rutzinski case is indeed quite similar to the present case, but in a manner that does not support Martin’s argument. In the present case, the anonymous tipster, the Taco Bell manager, had exposed herself to being identified by directing the police to a particular Taco Bell where she was employed. She also stated that Martin had come through the drive-thru, slurred his words, and appeared lethargic, leading her to believe he was intoxicated. She then described how he had parked askew across four spaces in the parking lot and had fallen asleep for over half an hour. This was a very detailed description of Martin’s conduct that further identified the tipster as an employee of that Taco Bell, bolstering her reliability. Moreover, the probability that Martin was intoxicated and behind the wheel of his vehicle made him an imminent threat to public safety. See id., ¶34.

¶23 The facts of J.L. are distinguishable from this case because responding officers here were not acting solely on the tip they received. Instead, the trial court found that the officers had made their own independent observations upon which to base their reasonable suspicions. Accordingly, the trial court did not evaluate the reliability of the tip from the Taco Bell employees, but rather denied Martin’s suppression motion based the sufficiency of the officers’ independent observations

Specifically, the court of appeals found that the police did have reasonable suspicion of OWI when they took his keys (i.e. the point when they seized him) based on these facts:

¶26 Upon arriving at the Taco Bell, Officer Foy observed the man asleep in his car while parked askew across four spaces. The next logical step in an investigation of this sort is to run the license plates of the vehicle; the resulting information the officers received here included Martin’s prior convictions for OWI, which included the .02 alcohol restriction. Furthermore, although the engine of Martin’s car was not running, the officers observed that his keys were still in the ignition, which is indicative of his having recently driven the vehicle. This, of course, is an illegal activity when the driver is intoxicated.

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