State v. Jeffrey P. Powers, 2004 WI App 143
For Powers: Walter Arthur Piel, Jr.
Issue/Holding:
¶10. Powers insists that the clerk’s tip is unreliable because the clerk did not observe Powers drive his truck “in a manner consistent with someone who was under the influence of an intoxicant.” We conclude that the tip was reliable for several reasons.
¶11. First, the tip was based on first-hand observations. The undisputed evidence is that the clerk called the police, gave his or her name as Corona, and reported an intoxicated man was in the Osco store purchasing a case of beer, a small outfit and something else. Corona informed law enforcement that the individual’s credit card had been rejected and he had left to get money to pay for his purchases. Corona also provided a description of the truck and a license plate number. From this undisputed evidence, several reasonable inferences arise: (1) Corona had face-to-face contact with Powers and observed one or more indicia of intoxication-odor of alcohol, slurred speech, glassy eyes, etc., and (2) Corona had an unobstructed view of the parking lot that permitted Corona to observe Powers enter or exit the truck.
¶12. Second, while other cases have involved tips from informants who have observed erratic driving, the informant’s failure to see the driver actually drive the vehicle is not fatal.1 …
¶13. Third, the officer can rely upon the clerk’s assessment that Powers was drunk; in Wisconsin, a layperson can give an opinion that he or she believes another person is intoxicated. …
¶14. Finally, Bethia independently verified the clerk’s tip. The officer parked his squad so he would have a clear view of Powers’ truck. A short time later, he saw Powers, carrying a case of beer and a bib or other small object, matching the clerk’s description of what Powers purchased in the store, walking unsteadily to the truck, matching the description given by the clerk. Where a tip has a high degree of reliability because the informant identified himself or herself and the police independently verify the information before conducting a stop, the resulting stop is supported by reasonable suspicion. …
1 It is not essential that the clerk actually saw Powers operate his truck in an erratic manner; improper driving is not an element of an OWI offense. “Although erratic driving may be evidence that the defendant is under the influence of an intoxicant, the statute `does not require proof of an appreciable interference in the management of a motor vehicle.'” State v. Gaudesi, 112 Wis. 2d 213, 221, 332 N.W.2d 302 (1983). Because an OWI conviction does not require proof of erratic driving, proof of erratic driving is obviously not required for purposes of a reasonable suspicion
