State v. Sherri A. Wittrock, 2011AP1538-CR, District 2, 2/15/12
court of appeals decision (1-judge, not for publication); for Wittrock: Steven D. Grunder, SPD, Madison Appellate; case activity
¶7 Where, as here, an officer relies on information provided by dispatch, “reasonable suspicion is assessed by looking at the collective knowledge of police officers.” See State v. Pickens, 2010 WI App 5, ¶11, 323 Wis. 2d 226, 779 N.W.2d 1 (WI App 2009). If a defendant moves to suppress, the prosecutor must prove the collective knowledge that supports the stop. Id., ¶13. When an officer relies on an ATL or bulletin in making a stop, the inquiry is whether the officer that initiated the ATL or communication, not the responding officer, had knowledge of specific and articulable facts supporting reasonable suspicion at the time of the stop. See United States v. Hensley, 469 U.S. 221, 231-32, 233 (1985) (evidence uncovered in the course of a Terry stop “is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop”).
“ATL” is an acronym for “attempt to locate.” You might be wondering, how’s that different from “BOLO” (“be on the lookout for”), but you’re on your own answering that one. And if you do happen to know the answer, feel free to share it through the comment box.
Staff members at the Drug Abuse Correctional Center reported to an Oshkosh police officer that Wittrock had caused a disturbance there, and was extremely belligerent, exhibited slurred speech, and had difficulty standing – and that she drove off in her car. The Oshkosh police officer issued an ATL, describing the car and license plate number, on the basis of which a Neenah officer stopped Wittrock’s car. The court of appeals holds that the issuer of the bulletin, the Oshkosh police department, possessed facts sufficient to establish reasonable suspicion for an OWI stop, ¶¶9-10.
Routine stuff – except that the facts were adduced after the appeal commenced, ¶8 (“Because the suppression hearing was limited to Moe’s knowledge at the time of the stop[2] and the State was not able to elicit testimony regarding the knowledge possessed by the Oshkosh police department prior to initiating the ATL, this court remanded to the circuit court for further findings.”) The ensuing evidentiary hearing brought out those facts, ¶9. Tough not commonplace, expansion of the factual record on appeal does happen, e.g., State v. Prober, 98 Wis.2d 345, 358-59, 297 N.W.2d 1 (1980), (albeit stressing, in that instance, remand was limited to articulation of a finding, not taking evidence; but citing authority which did order further hearing); State v. Washington, 134 Wis. 2d 108, 114-115, 396 N.W.2d 156 (1986) (“After oral arguments and deliberations, this court found the testimony relating to the actual seizure ambiguous and therefore remanded the matter to the trial court … to reopen the hearing on defendant’s motion to suppress evidence”). Just something to keep in mind.
