State v. Joseph Donald Peacock, 2010AP954-CR, District 3, 9/21/10
court of appeals decision (1-judge, not for publication); for Peacock: James R. Phelan; BiC; Resp.; Reply
Because the officer knew from previous contacts, including one a mere 6 days prior, that Peacock’s driver’s license was suspended, he had reasonable suspicion to stop Peacock’s vehicle even though there were multiple occupants and the officer couldn’t see the driver. State v. Newer, 2007 WI App 236, deemed controlling.
¶8 Wellens was not, however, aware of any facts inconsistent with Peacock being the driver. Just because it might also be reasonable to suspect Wellens was not the driver, this does not mean there was not reasonable suspicion that he was the driver; i.e., the standard is not reasonable doubt. “[T]he requirement of reasonable suspicion is not a requirement of absolute certainty: ‘sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment ….’” Id., ¶7 (quoting New Jersey v. T.L.O., 469 U.S. 325, 346 (1985)). Further, that Wellen was revealed disclosing to dispatch that he could not tell who was driving merely demonstrates the facts here are comparable to those in Newer.
¶9 Peacock also argues Wellens lacked reasonable suspicion because he was unable to confirm Peacock’s license status prior to the stop and had no knowledge of the length of Peacock’s license suspension. We disagree. Wellen’s six-day-old knowledge was sufficiently fresh that it was reasonable to assume Peacock’s license was still suspended. And while Wellen’s credibility was certainly called into question, the circuit court’s acceptance of Peacock’s testimony that he held such knowledge was not clearly erroneous. Therefore, under the totality of the circumstances, we conclude it was reasonable to suspect Wellen was driving his vehicle with suspended operating privileges.
The essence of Newer is that an officer’s knowledge that the owner’s license is suspended provides reasonable suspicion to stop the vehicle as long as there are no other facts that suggest the owner is not the driver. 2007 WI App 236, ¶¶7-9. Thus, that court added a critical qualification, ¶2 – “We adopt the view articulated by the supreme court of Minnesota in State v. Pike, 551 N.W.2d 919, 922 (Minn.1996): that an officer’s knowledge that a vehicle’s owner’s license is revoked will support reasonable suspicion for a traffic stop so long as the officer remains unaware of any facts that would suggest that the owner is not driving.”