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Reasonable Suspicion – OWI Stop; Guilty Plea Waiver Rule – Suppression Rule; Briefing Rules

City of West Allis v. Susan Schneidler, 2010AP2531, District 1, 4/5/11

court of appeals decision (1-judge, not for publication); for Schneidler: Thomas C. Simon; case activity

Tip from an identified citizen informant – that she had seen Schneidler drinking alcohol before driving off – supported stop of Schneidler’s car, without requiring independent corroboration.

¶18      In short, Parr was a reliable witness who told police that she personally observed Schneidler drink alcohol and then drive and who made herself available to the police for questioning.  Her knowledge of Schneidler drinking alcohol and then driving, provided specific articulable facts upon which Officer Tuschl was entitled to make an investigative stop of Schneidler’s vehicle.

Argument that State v. Powers, 2004 WI App 143 requires independent verification of citizen-witness tip rejected:

¶21      Here, however, Parr’s observations were more concrete than those of the citizen witness in Powers:  Parr knew Schneidler, saw her drinking alcohol, and saw her drive away in her car.  Based on those observations, we conclude that Officer Tuschl did not need to independently observe Schneidler’s intoxicated state to establish reasonable suspicion.[6]

The statutory exception to the guilty plea waiver rule, § 971.31(10), doesn’t apply to civil forfeiture cases, ¶9, citing County of Racine v. Smith, 122 Wis. 2d 431, 436, 362 N.W.2d 439 (Ct. App. 1984). Although the present case, OWI-1st, is a forfeiture the court declines to impose a waiver bar.

¶10      Waiver, however, is not a jurisdictional bar to an appeal, but rather a principle of judicial administration.  When determining whether a defendant has waived his or her right to appeal by pleading no contest in a traffic forfeiture matter, this court may consider:  (1) the administrative efficiencies resulting from the plea; (2) whether an adequate record has been developed on which to decide issues raised on appeal; (3) whether the appeal appears motivated by the severity of the sentence; and (4) the nature of the potential appellate issue.  County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196 (Ct. App. 1995), abrogated on other grounds by Washburn Cnty. v. Smith, 2008 WI 23, ¶64, 308 Wis. 2d 65, 746 N.W.2d 243.

¶11      Having contemplated those considerations, we decide not to apply waiver here.  First, Schneidler’s no contest plea saved the circuit court from having to proceed to trial, conserving judicial time and resources.  See id. at 275.  Second, because the circuit court addressed the issue of whether the traffic stop was based upon reasonable suspicion, we have an adequate record on which to decide the issue.  See id.  Third, it does not appear from the record that Schneidler took a chance on a more lenient sentence and then brought this appeal when the sentence was higher than she hoped. [5]  See id. at 276.  Consequently, we turn to the merits of Schneidler’s appeal.

[3]  We note with some displeasure that Schneidler’s statement of facts and statement of the case contain no citations to the record and only two citations to the attached appendix, despite Wis. Stat. Rule 809.19’s requirement that the appellant include appropriate citations to the record.  The fact that this is an appeal from a traffic forfeiture and that the record is not voluminous does not exempt the parties from our rules of appellate procedure.  Furthermore, one of the citations to the appendix is to a May 21, 2010 motion hearing transcript that is not included in the record.  Because that transcript is not included in the record, we do not consider it.  See Suburban State Bank v. Squires, 145 Wis. 2d 445, 451, 427 N.W.2d 393 (Ct. App. 1988).

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