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Reasonable Suspicion – Traffic Stop, OWI – Informant’s Tip

State v. Michael P. Green, 2011AP2137-CR, District 2, 8/8/12

court of appeals decision (1-judge, not for publication); case activity

Traffic stop, based on report by gas station attendant of suspected drunk driver, was sufficiently reliable to support investigatory stop.

¶10      This court has previously held that a tip shows sufficient indicia of reliability to justify an investigative stop when the informant identifies himself or herself to the dispatcher, and police independently verify the information provided by the informant before conducting the stop.  State v. Sisk, 2001 WI App 182, ¶¶10-11, 247 Wis. 2d 443, 634 N.W.2d 877.  Here, the citizen informant provided her name (Kelley) and her place of employment (PDQ).  Kohler was familiar with Kelley and knew that she had provided reliable information in the past.  Kelley also provided detailed information about the suspect individual and the vehicle, as well as contemporaneous observations as to what direction the vehicle was traveling.  Further, the information provided by Kelley would suggest to a reasonable officer that Green was operating a motor vehicle while intoxicated.  Guided by Rutzinski, 241 Wis. 2d 729, ¶38, we conclude that the tip provided sufficient justification for the investigative stop of Green.

The court rejects Green’s argument that the tip didn’t adequately detail his behavior, ¶¶11-13: under State v. Powers, 2004 WI App 143, ¶13, 275 Wis. 2d 456, 685 N.W.2d 869, “a layperson can give an opinion that he or she believes another person is intoxicated”. And, that opinion may support a stop, so long as it is based on firsthand observations, details of which the police independently verify (description of the person and vehicle).

Resisting, § 946.41 – Sufficiency of Evidence

By refusing to put his hands behind his back so that he could be handcuffed upon arrest, Green committed the crime of resisting.

¶17      Green argues that “[a]t no point throughout the struggle between Green and the Officers did Green ever make a move that was directed towards any of them as required in the elements of Resisting.”  Green’s argument misses the mark.  It is the resistance, not the physical movement, that must be directed toward the officer.  Here, a jury could reasonably find that by pulling his hand away, Green was exerting force and that the exertion of force was directed toward the officer attempting to handcuff him.  This court has noted that conduct that is “resisting” includes “pulling one’s arm forcefully away from a warden’s hold in an attempt to prevent handcuffing.”  State v. Dearborn, 2008 WI App 131, ¶27, 313 Wis. 2d 767, 758 N.W.2d 463.  We are satisfied that the officers’ testimony in this case provided sufficient evidence to support a jury finding that Green resisted an officer.  We therefore uphold the jury’s verdict and the trial court’s denial of Green’s postconviction motion to dismiss the charge or order a new trial.

Dearborn was affirmed, 2010 WI 84, 313 Wis.2d 767, 758 N.W.2d 463.

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