State v. Chad Allen Nelson, 2013Ap1926-CR, District 3, 1/22/14; court of appeals decision (1-judge; ineligible for publication); case activity
Scene: The parking lot of Frosty’s Outpost, on County Road H in rural Bayfield County, 2:00 a.m. Police get a dispatch: Someone’s damaging a patron’s vehicle in the parking lot. Before an officer can respond dispatch sends an update: The suspects are bear hunters, and they left in a blue Dodge pickup with a hound box heading toward the bear camp west of Ino on Highway 2. (¶3). An officer heading east on Highway 2 knows the bear camp, and figures the truck will be heading his way because it is taking the obvious route: County H from Frosty’s to County E, north on County E, then west on Highway 2 toward the bear camp. Sure enough, he sees a truck with a hound box turn onto Highway 2 from County Road E. He stops the truck–a black Ford, not a blue Dodge–and Nelson, the driver, is eventually arrested for OWI. (¶¶4-5). The stop is based on reasonable suspicion, applying State v. Guzy, 139 Wis. 2d 663, 675, 407 N.W.2d 548 (1987):
¶24 …. Nelson’s vehicle was traveling north on County Road E from the direction of Frosty’s; Nelson’s vehicle then turned west on Highway 2, which was the direction the suspect vehicle was reportedly headed; Nelson’s vehicle was a pickup truck with a hound box, which matched the general description of the suspect vehicle; Kurtz observed no other vehicles on the road at that late hour; and Kurtz observed Nelson’s vehicle turn on Highway 2 at a time consistent with a vehicle fleeing from Frosty’s and heading toward the bear camp. Based on these specific and articulable facts, Kurtz had reasonable suspicion from which to conclude Nelson’s vehicle was the one involved in the situation at Frosty’s.
The court also rejects Nelson’s claim that the trial court improperly reconsidered the state’s request to reconsider its decision granting the suppression motion by listening to the original dispatch tape concerning the vehicle’s direction of travel and its intended destination. Nelson argued the dispatch tape was available at the original suppression hearing but the state failed to present it, so it was not newly discovered evidence on which reconsideration could be based, Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853, and State v. Vodnik, 35 Wis. 2d 741, 746, 151 N.W.2d 721 (1967); see also § 805.15(3). (¶14). The state said it wasn’t seeking reconsideration, only a reopening of the evidence, which is within the court’s discretion. (¶15). The court of appeals doesn’t resolve the issue because it is clear from the record that the officer had already testified at the original suppression hearing that dispatch told him the suspect vehicle’s direction of travel and its intended destination; therefore, the dispatch recordings provided no new evidence and any error by the court in considering the dispatch recordings was harmless. (¶¶17-19).
