City of Sheboygan v. Herbert Binkowsky, 2012AP974, District 2, 10/17/12
court of appeals decision (1-judge, ineligible for publication); case activity
An anonymous call to the police, reporting the commission of domestic violence by a suspect who drove away in a red Cadillac with an identified plate number, was sufficiently corroborated to support a stop of a car matching the description.
¶13 “[I]f a tip contains strong indicia of an informant’s basis of knowledge, there need not necessarily be any indicia of the informant’s veracity.” Rutzinski, 241 Wis. 2d 729, ¶25. For example, in Alabama v. White, 496 U.S. 325, 327 (1990), police received an anonymous tip that the defendant, White, would be leaving a particular apartment at a particular time in a particular vehicle, that she would be going to a particular motel, and that she would be in possession of cocaine. The police then relied on that tip, went to the apartment, followed the suspect, stopped her on her way to the motel, and found cocaine in the vehicle. Id. The Court reasoned that though the tip may have lacked the necessary indicia of reliability on its own, “[w]hen significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed.” Id. at 332. Moreover, the fact that the caller was able to predict White’s future behavior demonstrated a special familiarity with, or knowledge of, White’s affairs. See id. Thus, the corroboration by the police bolstered the tip’s reliability “well enough to justify the stop.” See id.
¶14 We assume, without deciding, that the anonymous tip lacked the necessary indicia of reliability. This is notwithstanding the trial court’s belief that any anonymous tipster would know the police could trace back a call despite the caller’s attempt at complete anonymity. Regardless of the assumption, this is a White case. Significant aspects of the informant’s story were corroborated by the police. First, the informant stated that the suspect was driving a red Cadillac, which is the exact vehicle that the officer stopped. Second, the informant stated that the suspect was heading home and gave the current location of the suspect—the north side of Sheboygan—and the most probable route from the north side of Sheboygan to the suspect’s home in Sheboygan Falls, as determined by the officer, is where the officer spotted the suspect driving. Third, the informant stated that the suspect had just left the scene of the incident, and the officer saw the suspect only a few minutes later. Lastly, the license plate number matched the exact license plate number given by the informant. The corroboration is there.
The court pauses to note that, because domestic abuse is a crime, § 968.075, the officer could temporarily freeze the situation to investigate possible criminal activity, ¶10. No problem there, but the court’s discussion of unpublished authority advanced by Binkowsky as “persuasive,” ¶11, citing State v. Hoffman, Nos. 2010AP1949/2220-CR, unpublished slip op. (WI App Sept. 27, 2011), deserves a bit of mention. Certain types of unpublished opinions (post-7/1/09 “authored” decisions, in a word) may be cited as persuasive if non-binding authority, of course, § 809.23(3)(b) – however, Hoffman isn’t authored, but is instead a per curiam and therefore off-limits, id. (“A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection.”). This isn’t to criticize the court for giving counsel a pass, but simply to stress that the court has authority to impose a sanction for this sort of rule violation and the appellate practitioner is well-advised not to think the court won’t exercise it. That is, just because the court turned a blind eye to a clear violation in this instance doesn’t mean that a future transgression will be met with similar indifference.
