State v. Andrew W. Bunn

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 9, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP2127-CR Cir. Ct. No. 2017CM1652

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANDREW W. BUNN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
HANNAH C. DUGAN, Judge. Affirmed.

¶1 DONALD, J.1 Andrew W. Bunn, pro se, appeals the judgment of
conviction, following guilty pleas, to two counts of carrying a concealed weapon.

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP2127-CR

As best as we can tell, Bunn contends that police lacked reasonable suspicion to
stop his vehicle. We affirm.

BACKGROUND

¶2 On May 13, 2017, Bunn was charged with three counts of carrying a
concealed weapon. According to the criminal complaint, police were dispatched to
the area of South 24th Street, Milwaukee, after a citizen witness complained that
she witnessed two individuals engaging in oral sex in a parked car. When police
made contact with the driver—Bunn—they recovered three firearms from his
vehicle.

¶3 Bunn filed a motion to suppress the evidence, arguing that he “was
seized and detained in the absence of an arrest warrant” and that police lacked
reasonable suspicion to stop his vehicle because there was no evidence that he had
committed or was committing an offense. Bunn argued that none of the information
provided by the citizen witness was actually verified by police observation.

¶4 At a hearing on the motion, Sergeant Kieran Sawyer testified that on
May 11, 2017, he was working on patrol with other officers in a marked squad.
They were parked in a church parking lot, near a playground. At about 6:20 p.m.,
while it was still light out, a woman approached the squad car and pointed to a blue
pick-up truck on the other side of a nearby chain link fence, and told the officers
that two adults in that pickup truck were engaging in oral sex in sight of her and
children playing in the area. Sawyer saw the truck, but could not see any activity
inside the truck from his location. When the truck began to drive away, the officers
followed.

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No. 2019AP2127-CR

¶5 Sawyer caught up with the truck and conducted a traffic stop, which
ultimately led to Bunn’s arrest. Following the arrest, Sawyer went back to the
parking lot, but the woman who had made the complaint was gone. Sawyer testified
that he had no further contact with her.

¶6 The circuit court denied Bunn’s motion, finding that based on
Sawyer’s long-standing experience and familiarity with the neighborhood, Sawyer
testified credibly. The circuit court noted that Sawyer was able to “observe exactly
what [the citizen witness] was … referring to, the proximity of this truck to the
playground, and of course the reasonableness of her being on the playground or
being in the location and that … she did report to the police and the totality of the
circumstances makes that much more reliable report of a citizen.” The circuit court
also noted that Sawyer did not act on a “hunch,” rather, he only pursued Bunn after
being approached by the citizen witness. The circuit court found that Sawyer simply
investigated a complaint.

¶7 Bunn pled guilty to two counts of carrying a concealed weapon. The
remaining count was dismissed and read in at sentencing. The circuit court
sentenced Bunn to pay fines on both counts and to serve, in aggregate, three days in
the House of Correction. This appeal follows.

DISCUSSION

¶8 On appeal, Bunn provides a rambling, incoherent brief. As best as we
can tell, the crux of his argument is that the circuit court erred in denying his motion
to suppress because there was no reasonable suspicion to stop his vehicle based on
the complaint of a citizen witness. We disagree.

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No. 2019AP2127-CR

¶9 A circuit court’s decision on a motion to suppress evidence presents a
mixed question of fact and law. State v. Casarez, 2008 WI App 166, ¶9, 314 Wis. 2d
661, 762 N.W.2d 385. The reviewing court will uphold the circuit court’s findings
of fact unless they are clearly erroneous. Id.; WIS. STAT. § 805.17(2) (made
applicable to criminal proceedings by WIS. STAT. § 972.11(1)). We review the
circuit court’s application of constitutional principles de novo. See Casarez, 314
Wis. 2d 661, ¶9.

¶10 An officer may perform an investigatory stop of a vehicle for a
noncriminal traffic violation if the officer has reasonable suspicion that a violation
occurred. State v. Colstad, 2003 WI App 25, ¶11, 260 Wis. 2d 406, 659 N.W.2d
394. To decide whether circumstances demonstrate reasonable suspicion, we look
at all of the information available to the officer at the time the stop was made. See
State v. Guzy, 139 Wis. 2d 663, 679, 407 N.W.2d 548 (1987).

¶11 Whether there is reasonable suspicion to conduct a traffic stop is a
question of constitutional fact. State v. Popke, 2009 WI 37, ¶10, 317 Wis. 2d 118,
765 N.W.2d 569. We apply a two-step standard of review to questions of
constitutional fact. See State v. Williams, 2001 WI 21, ¶18, 241 Wis. 2d 631, 623
N.W.2d 106. First, we review the circuit court’s findings of fact and uphold them
unless they are clearly erroneous. See id. Second, we review the determination of
reasonable suspicion de novo. See id. Reasonable suspicion should be analyzed in
light of the totality of the circumstances. See Popke, 317 Wis. 2d 118, ¶27.

¶12 Bunn essentially argues that the traffic stop was not supported by
reasonable suspicion because it was based on an unreliable complainant’s tip.
“[T]here is no per se rule of reliability” when assessing a tip from a complainant.
State v. Rutzinski, 2001 WI 22, ¶18, 241 Wis. 2d 729, 623 N.W.2d 516. Instead,

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No. 2019AP2127-CR

reliability considerations “should be viewed in light of the ‘totality of the
circumstances,’ and not as discrete elements of a more rigid test.” Id. Rutzinski
gave great weight to indicia of reliability when an informant “expose[s] him- or
herself to being identified.” See id., ¶32.

¶13 Here, the circuit court found that Sawyer’s experience and familiarity
with the neighborhood made him a credible witness and an appropriate assessor of
the weight to give to the citizen witness’s tip. The circuit court noted that Sawyer
explained why he was in the neighborhood, why he found the citizen’s concern
credible, and why he chose to pursue the truck. The witness personally approached
the officers, potentially exposing her identity, and expressed concern for the
presence of her own child and other children playing on a nearby playground. It
was reasonable for Sawyer to conclude that the witness acted out of concern for
public welfare—specifically the children in the immediate area. The witness
pointed to a specific vehicle, which contained both a male and female passenger.
Given all of the information known to Sawyer at the time of the stop, we conclude
that Sawyer had reasonable suspicion to stop Bunn’s vehicle.

¶14 For the foregoing reasons, we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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