State v. Joshua J. Hysell, 2010AP1817-CR, District 4, 1/27/11
court of appeals decision (1-judge, not for publication); for Hysell: John Smerlinski; case activity; Hysell BiC; State Resp.
Phoned tip by driver who gave his name and described the subject vehicle as “all over the road” held sufficiently reliable to support reasonable suspicion for stop.
Because the informant gave his name, he wasn’t anonymous, therefore his “veracity was high,” ¶12. And, given that the informant was following the vehicle and provided an accurate description of same, the basis for his knowledge was apparent, ¶13. The only odd facet of the case is that, once the trooper spotted it, “(h)e then followed the truck for several miles and did not observe the truck swerving or veering,” ¶4 (emphasis supplied). Granted that the tip was sufficiently reliable to have supported a stop when the trooper first spied it, the plain fact is that that didn’t happen. So the question becomes, would reasonable suspicion have been dissipated by prolonged, demonstrably non-erratic driving? The briefs don’t discuss the point (arguing, instead, whether Hysell broke traffic law by changing lanes without signaling); the court of appeals handles the problem this way:
¶14 Finally, based on the information provided in the tip, a reasonable officer could infer that, if permitted to continue driving, the driver of the truck posed an imminent threat to public safety. See Rutzinski, 241 Wis. 2d 729, ¶34. Erratic driving such as that reported by the informant is one possible sign of intoxicated use of a motor vehicle. Id. Though Trooper Noah did not observe the erratic driving the informant reported, he could reasonably rely on the observation provided by the informant. See id., ¶¶ 34-36.
¶15 Under the totality of the circumstances, the information provided by the identified informant and the trooper’s confirmation of some of those details through his own observations were sufficient to lead a reasonable officer to suspect that the driver of the truck was operating the vehicle while under the influence of an intoxicant.
This analysis, however, is self-defeating – absent embellishment, at least. The driver either posed an “imminent threat,” such that he needed to be stopped because of the immediacy of harm to the public or himself, or he didn’t. Allowing an “imminent threat” to roll merrily down the road at freeway speeds would be a dereliction of duty. Yet, the trooper did permit the vehicle, in the court’s words, “to continue driving.” It is true that Rutzinski allows a stop purely on the basis of an informant’s report of erratic driving, absent confirmatory police observations. But that is only because that court likened a drunk driver to a “mobile bomb.” If so, then to the extent Hysell’s driving appeared quite normal, he was a dud, and the result might be subject to serious questioning. As it turns out, though, there was indeed a bit more to the stop: the trooper observed the truck’s wheels cross over the fog line and make two lane changes without signaling, ¶5. Add those factors to the informant’s, and reasonable suspicion is more imaginable. The trooper, one might surmise, didn’t think he had enough to stop the truck until he saw some sort of improper driving – and when he did, he pulled the truck over.