State v. Randy L. TeStroette, 2011AP290-CR, District 2, 7/6/11
court of appeals decision (1-judge, not for publication); for TeStroete: Kirk B. Obear, Casey J. Hoff; case activity
Report from named (therefore non-anonymous) citizen of “possible intoxicated driver,” describing the vehicle’s location, plate number and color, supplied reasonable suspicion to stop TeStroete’s car, even though the officer himself observed neither erratic driving nor traffic violations.
¶11 TeStroete relies on State v. Kolk, 2006 WI App 261, ¶¶16-18, 298 Wis. 2d 99, 726 N.W.2d 337, in support of his contention that the corroboration of a suspect’s identity, make of vehicle and general route of travel is insufficient to conduct a stop of the vehicle without independent police observations of suspicious conduct. TeStroete’s reliance is misplaced. Kolk involved a tip from a citizen informant regarding a future drug pick up; it did not involve alleged intoxicated driving. Id., ¶¶2-3, 12. In Rutzinski, our supreme court addressed and rejected the argument that an officer, who is relying on an informant’s tip regarding erratic driving, should wait until he or she personally observes signs of intoxication before initiating a traffic stop. Rutzinski, 241 Wis. 2d 729, ¶¶34-35. The Rutzinski court observed that this argument “ignores the tremendous potential danger presented by drunk drivers.” Id., ¶35. The court concluded, “In light of the potential for imminent danger that drunk drivers present, the informant’s allegations suggesting that [the defendant] may have been intoxicated supplemented the reliability of the tip, and further justified [the officer’s] investigative stop.” Id., ¶35. Thus, when an informant’s tip contains sufficient indicia of reliability and alleges a potential imminent danger to public safety, these factors substantially outweigh the minimal intrusion that a stop would present if the individual proves not to be intoxicated. Id., ¶37.
¶12 According to the factors set forth in Rutzinski, the tip provided by the citizen informant was reasonably reliable. Id., ¶18. Further, Lor knew that the Sheboygan Police Department had information regarding TeStroete’s driving behaviors that pointed to TeStroete being a “possible intoxicated driver.” Under the totality of circumstances, the information possessed by Lor at the time of the stop provided him with the requisite reasonable suspicion, even absent independent observations of suspicious behavior. We therefore uphold the circuit court’s ruling denying TeStroete’s motion to suppress. We affirm the judgment.
Granted, reliability of a (named, or known) citizen informant is subjected to relaxed testing, Kolk, 2006 WI App 261, ¶13 (“Our courts recognize the importance of citizen informants and accordingly apply a relaxed test of reliability that shifts from a question of ‘personal reliability’ to one of ‘observational reliability.'”) Granted further, Wisconsin caselaw doesn’t require independent corroboration of a reliable report of drunk driving, Rutzinski, 2001 WI 22, ¶37. But, assuming Rutzinski correctly decided on this point, the level of detail provided in that case (the informant “reported that he or she was observing a black pickup truck weaving within its lane, varying its speed from too fast to too slow, and ‘tailgating'”) was much more specific than the very cryptic information relied on here (“possible intoxicated driver”; that’s it, in its totality). Shouldn’t something more than a mere conclusory assertion have to be shown? It’s impossible to say just why the informant thought the driver “possibl[y] intoxicated.” Doesn’t a complaint that vague make the “observational reliability” test not simply relaxed, but toothless?