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Trial court properly reopened case to take additional evidence regarding tip that led to stop of intoxicated driver

City of Bloomer v. James S. Frank, 2013AP2597, District 3, 8/5/14 (1-judge; ineligible for publication); case activity

The circuit court didn’t erroneously exercise its discretion in reopening suppression hearing to take additional evidence in the form of dispatch recordings which the city tried, but failed, to obtain before the suppression hearing in the case.

Frank was stopped based on an anonymous tip about an intoxicated driver, and the court initially granted suppression because there was no evidence the arresting officer knew about the informant’s veracity or basis of knowledge. The city had tried to get dispatch recordings before the suppression hearing, but the sheriff wouldn’t release them without a court order because they might identify the informant. (¶¶3-6). After losing the suppression hearing the city asked again for the recordings, which this time were provided.The city then moved to reopen the evidence, a motion the court granted. And, based on the recordings, the court reconsidered the suppression motion, concluded the informant was reliable and knowledgeable, and held the stop was reasonable. (¶¶7-12).

The trial court has the discretion to reopen the evidence, State v. Vodnik, 35 Wis. 2d 741, 745, 151 N.W.2d 721 (1967), and the trial court properly exercised that discretion here. It explicitly found that the city was diligent in trying to obtain the dispatch recordings before the motion hearing and that the sheriff would not release the recordings to the city. These factual determinations are supported by the record and therefore not clearly erroneous. (¶¶18-19).

Further, under State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, the trial court properly concluded that in light of the additional evidence from the dispatch tapes the informant’s tip provided a reasonable basis for the stop. The informant provided dispatch with identifying information and exposed herself to possible arrest if the tip proved to be false; she gave dispatch a description of the vehicle, the vehicle’s license plate number, and the vehicle’s location; her contemporaneous observations were corroborated by the officer and so demonstrate sufficient indicia of her basis of knowledge; and the content of the tip—that a driver at a fast-food drive-through smelled of alcohol, had slurred speech, and had an open intoxicant in the vehicle—alleged a potential imminent danger to public safety. (¶¶21-23).

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