author: HIGGINBOTHAM, J. DYKMAN, J.

text:
    Kristy Haferman, Toby Haferman, Sr. and Toby Haferman, Jr., a minor, by his Guardian ad Litem, Richard H. Schulz, Plaintiffs-Respondents, v. St. Clare Healthcare Foundation, Inc. d/b/a St. Clare Hospital, Wisconsin Hospital Association and Wisconsin Patients Compensation Fund, Defendants, Donald W. Vangor, M.D., and Physicians Insurance Company of Wisconsin, Defendants-Appellants.
    Court of Appeals

      No. 03-1307.

      Submitted on briefs February 11, 2004.

    Decided September 2, 2004.

      2004 WI App 206
    (Also reported in 689 N.W.2d 636.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Curt Swanson and David J. Pliner of Corneille Law Group, Madison.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Jeremi K. Young of The Law Offices of Jeffrey H. Rasansky, PC., Dallas, Texas, and Richard Schulz of Schulz, Duffey & O'Brien, S.C., Milwaukee.
    A nonparty brief was filed by David E. McFarlane and Sheila M. Sullivan of Bell, Gierhart & Moore, S.C., Madison, for Wisconsin Patients Compensation Fund.
    Before Deininger, PJ., Dykman and Higginbotham, JJ.

       Petition to review granted 12-15-2004.

   HIGGINBOTHAM, J.

¶ 1. Dr. Donald W Vangor and his insurance carrier, Physicians Insurance Company of Wisconsin (collectively Vangor), appeal a non-final order denying Vangor's motion for summary judgment in this medical malpractice action. Vangor argues the circuit court erred by concluding that Wis. Stat. § 893.16 (2001-02) was the applicable statute of limitation, thereby finding that Toby Haferman, Jr.'s claim was filed timely. Vangor argues that the applicable statute of limitation is Wis. Stat. § 893.55(l)(a) and under that statute Toby Jr.'s lawsuit is time-barred. We conclude the circuit court erred by determining that § 893.16 was the applicable statute of limitation; we further conclude that the applicable statute of limitation is § 893.55(l)(a), which provides that medical malpractice suits must be filed within three years of the date from which the action accrued. Since Toby Jr.'s medical malpractice claim allegedly accrued more than three years prior to the filing of this suit, this action is time-barred. Therefore, we reverse the circuit court's order denying Vangor's motion for summary judgment and remand with directions to grant summary judgment in Vangor's favor and dismiss the complaint against him.

FACTS

¶ 2. The facts necessary to this appeal are few and undisputed. Toby Jr. was born on February 10, 1991, and is developmentally disabled. Vangor concedes, for the purpose of this appeal, that Toby Jr. suffers from cerebral palsy; the Hafermans allege that Toby Jr.'s disability was the result of the negligence of Vangor and St. Clare Healthcare Foundation d/b/a St. Clare Hospital (St. Clare).

¶ 3. On September 4, 2002, the Hafermans sued Vangor, St. Clare, the Wisconsin Hospital Association and the Wisconsin Patients Compensation Fund for negligence. Vangor moved for summary judgment, arguing that the Hafermans' claim was barred by the statute of limitations; St. Clare filed a similar motion.

¶ 4. The circuit court denied Vangor's summary judgment motion. The circuit court concluded the Ha-fermans' claims were governed by Wis. Stat. § 893.16 and the lawsuit was timely filed pursuant to that statute. Vangor filed a petition for leave to appeal this nonfinal order, which we granted.

DISCUSSION

¶ 5. We review a circuit court's grant or denial of summary judgment de novo, owing no deference to the circuit court's decision. Selzer v. Brunsell Bros., Ltd., 2002 WI App 232, ¶ 10, 257 Wis. 2d 809, 652 N.W.2d 806. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; see also Wis. Stat. § 802.08(2). We will reverse a decision granting summary judgment if either (1) the circuit court incorrectly decided legal issues or (2) material facts are in dispute. Selzer, 257 Wis. 2d 809, ¶ 10.

¶ 6. The sole issue before us is which statute of limitation applies to Toby Jr.'s medical malpractice claim. This issue raises a question of statutory interpretation we also review de novo. State v. Sveum, 2002 WI App 105, ¶ 5, 254 Wis. 2d 868, 648 N.W.2d 496. Statutory construction has the purpose of assisting the court to discern and apply legislative intent. Fox v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶ 19, 263 Wis. 2d 207, 665 N.W.2d 181. If statutory language is unambiguous, we apply the statute using the common and generally accepted meanings of the terms and may refer to a recognized dictionary to determine the common meaning of terms. Id. The rules of statutory construction preclude us from using legislative history to uncover ambiguity where otherwise none exists. Id. When a statute unambiguously expresses the intent of the legislature, we apply that meaning without resorting to any extrinsic sources. State v. Peters, 2003 WI 88, ¶ 14, 263 Wis. 2d 475, 665 N.W.2d 171.

¶ 7. Here, the circuit court concluded the Hafer-mans' claims were governed by Wis. Stat. § 893.16, applying the rationale expressed by a federal district court construing Wis. Stat. § 893.18 in Zielke v. Wausau Memorial Hospital, 529 F. Supp. 571 (W.D. Wis. 1982). The Zielke court determined that § 893.18 was the applicable statute of limitation to a claim filed involving virtually identical factual circumstances. We are not bound by decisions of lower federal courts in interpreting Wisconsin law. Johnson v. County of Crawford, 195 Wis. 2d 374, 383, 536 N.W.2d 167 (Ct. App. 1995). We may rely on the analysis by a federal court's interpretation of Wisconsin law if that analysis proves instructive. See The Baldewein Co. v. Tri-Clover, Inc., 2000 WI 20, ¶ 10, 233 Wis. 2d 57, 606 N.W.2d 145. We reject the Zielke court's construction of § 893.16 because it failed to consider the clear and unambiguous language of that statute.

¶ 8. Vangor argues that Wis. Stat. § 893.16 does not apply to a minor's action against a health care provider, § 893.16 does not apply to a minor with developmental disabilities and § 893.16 does not apply where a plaintiff alleges a disability caused by the defendant's negligence. We conclude that a plain reading of the unambiguous language of § 893.16 establishes that § 893.16 does not apply to the Hafermans' claim.

¶ 9. Wisconsin Stat. § 893.16 generally tolls statutes of limitation for persons under a disability:

(1) If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may he commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.
(2) Subsection (1) does not shorten a period of limitation otherwise prescribed.
(3) A disability does not exist, for the purposes of this section, unless it existed when the cause of action accrues.
(4) When 2 or more disabilities coexist at the time the cause of action accrues, the 2-year period specified in sub. (1) does not begin until they all are removed.
(5) This section applies only to statutes in this chapter limiting the time for commencement of an action or assertion of a defense or counterclaim except it does not apply to:
(a) Actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for escape;
(b) Extend the time limited by s. 893.33,893.41,893.59, 893.62, 893.73 to 893.76, 893.77 (3), 893.86 or 893.91 or subch. VIII for commencement of an action or assertion of a defense or counterclaim; or
(c) A cause of action which accrues prior to July 1,1980.

(Emphasis added.)

¶ 10. The unambiguous language of this tolling statute plainly precludes the Hafermans' claim. Toby Jr. was under the age of 18 when his cause of action allegedly accrued and his claims are against health care providers. Section 893.16(1) plainly provides that its tolling limitation period does not apply to those under the age of 18 who sue health care providers.

¶ 11. In addition, Wis. Stat. § 893.16(3) states "A disability does not exist, for the purposes of this section, unless it existed when the cause of action accrues." We have previously concluded that the legislature intended this subsection to apply where the disability existed at the time of the plaintiffs injury, not where the disability resulted from the incident causing the plaintiffs injury. Carlson v. Pepin County, 167 Wis. 2d 345, 352, 481 N.W.2d 498 (Ct. App. 1992). Accordingly, we further conclude that § 893.16 does not apply to the Hafermans' claim because Toby Jr.'s disability resulted from Vangor's alleged negligence. See id.

¶ 12. The parties further agree that the statute of limitation in Wis. Stat. § 893.56 is equally inapplicable here. Section 893.56 addresses minors' actions against health care providers and reads

Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.

It is undisputed that Toby Jr. was more than ten years of age and under disability by reason of a developmental disability when this action was commenced. We agree with the parties that the Hafermans' claims are not saved by § 893.56.

¶ 13. The question then remains: if Wis. Stat. §§ 893.16 and 893.56 are inapplicable, what statute of limitation applies? We turn to Wis. Stat. § 893.55, which states, in relevant part,

(1) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

We conclude that the three-year statute of limitation in § 893.55(l)(a) is the only statute of limitation applicable to this case. The Hafermans seek to recover damages for injury caused to Toby Jr. arising from Vangor's negligent handling of Toby Jr.'s birth. The Hafermans' cause of action accrued, according to their complaint, on the day of Toby Jr.'s birth, February 10, 1991. This action was filed on September 4, 2002, long past the three-year expiration of the statute of limitations of § 893.55(l)(a), and thus is time-barred. In the absence of any other applicable tolling statute, § 893.55(l)(a) applies to the facts of this case.

¶ 14. Dr. Vangor is entitled to summary judgment dismissing the complaint on the ground that this action was not timely filed under § 893.55(1)(a). We reverse the order denying the motion for summary judgment and remand for the court to enter an order consistent with this opinion.

By the Court. — Order reversed and cause remanded with directions.

DYKMAN, J.

¶ 15. (dissenting). There is one thing upon which all three judges on this panel agree: The result the majority reaches is absurd. Majority at ¶ 13. Where we differ is on what to do about it.

¶ 16. Wisconsin Courts have been declaring the meaning of statutes for some time. See Kensler v. Brunett, 1 Pin. 112, Bur. 5 (Wis. Terr. 1841) (stating that fees of justice of the peace and not all costs before the justice are embraced in statute). See also State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 53, 271 Wis. 2d 633, 681 N.W.2d 110 (determining that the statute providing remedies for refusal to prosecute was unambiguous because the word refusal had a common and accepted meaning). Over the years, Wisconsin courts have developed various rules for ascertaining the meaning of statutes. One of these rules is that we are to search for the legislature's intent in enacting a statute. See School Directors of Pelican v. School Directors of Rock Falls, 81 Wis. 428, 51 N.W 871 (1892) (holding that when courts know the mischief the legislature intended to remedy, it is their duty to construe a statute to suppress the mischief); see also State v. Jackson, 2004 WI 29, ¶ 12, 270 Wis. 2d 113, 676 N.W.2d 872 (averring that a court's goal in interpreting a statute is to discern its legislative intent).

¶ 17. A long-standing and well-accepted corollary to the requirement that we search for legislative intent is that we apply statutes as they were written, unless to do so would lead to an absurd result that did not reflect the legislature's intent. State v. Carchidi, 187 Wis. 438, 443, 204 N.W 473 (1925); see also, State v. Young, 180 Wis. 2d 700, 704, 511 N.W.2d 309 (1993). Since the majority agrees that its result is absurd, it would seem that we all should have searched for a meaning that did not reach an absurd result. Unfortunately, the majority has not done so.

¶ 18. Were I writing for the majority, I would analyze Wis. Stat. §§ 893.55 and 893.56 (2001-02) to find all of their possible meanings. I agree with the majority that in suits against health care providers, the statute of limitations is three years from the date of injury or one year from the date the injury is discovered, with a maximum time of five years from the date of the injury. That is the unambiguous rule of § 893.55.

¶ 19. There is an exception to the rule of Wis. Stat. § 893.55 in Wis. Stat. § 893.56. The exception is that the statute of limitations for children under the age of ten is either (1) the limitation of § 893.55; or (2) the date on which they reach ten years of age, whichever is longer. I conclude that this exception is unambiguous. The legislative intent behind this exception is obvious: Children under the age of ten cannot be expected to recognize concepts of duty, breach, causation and damages that are the foundation of Wisconsin's negligence law. They should therefore be given extra time to begin suits against health care providers who injure them.

¶ 20. But there is an exception to the exception. It provides that the only children who are within the exception to the rule of Wis. Stat. § 893.55 are those who are not under disability caused by insanity, developmental disability or imprisonment. That's where the trouble starts. The majority concludes that the only interpretation of this exception is that children who are insane, developmentally disabled or imprisoned are not entitled to the ten-year statute of limitations. Instead, they must bring their negligence actions within a maximum of five years from the date of injury.

¶ 21. The majority doesn't explain why the legislature would choose to penalize children who fall within these three categories. The rational result would be to give those children more time to seek redress for their injuries. Having given the matter considerable thought, I cannot discover a reason why insane, developmentally disabled or imprisoned children would be required to bring their negligence suits in half the time allotted to children not under those disabilities. This interpretation assumes a punitive and irrational legislature, an explanation I do not accept.

¶ 22. But there is another way to interpret Wis. Stat. § 893.56. A rational legislature could have concluded that while most children might need a longer limitations period than adults to bring negligence lawsuits, some children might need even more time due to a disability other than age. It is irrational and absurd to conclude that the legislature intended to benefit all children except those who are insane, developmentally disabled or imprisoned. The "stitch" dropped by the legislature was to specifically provide an extended statute of limitations for those excepted in § 893.56, though it is obvious that this provision was intended. The solution from reading the two statutes I have discussed together with Wis. Stat. § 893.16 is that the legislature intended to benefit children under the three categories of disability more than other children, but that even those children must bring negligence suits by no later than their eighteenth birthday or within the limits of Wis. Stat. § 893.55, whichever is longer.

¶ 23. The problem with the majority's interpretations of the various statutes it examines is that it adopts a rigid rule which it imports from cases such as Kalal: If a statute is unambiguous, we will follow it. Period. But where the majority goes astray is by ending its analysis there. We have noted that "[i]f the language of the statute is clear and unambiguous, we normally apply it to the facts at hand without further analysis." Gasper v. Parbs, 2001 WI App 259 ¶ 8, 249 Wis. 2d 106, 637 N.W.2d 399 (emphasis added).

¶ 24. "However, the plain language of a statute should not be construed in a manner that leads to absurd or unreasonable results." Gasper, 249 Wis. 2d 106, ¶ 8. If a statute leads to an absurd result, "[t]he court may insert or reject words necessary or reasonably inferable." State v. Gould, 56 Wis. 2d 808, 812, 202 N.W.2d 903 (1973). Accord, Pfingsten v. Pfingsten, 164 Wis. 308, 313, 159 N.W. 21 (1916); State v. Williams, 198 Wis. 2d 516, 534, 544 N.W.2d 406 (1996); State v. Berndt, 161 Wis. 2d 116, 123, 467 N.W.2d 205 (Ct. App. 1991); State v. Cole, 2003 WI 59, ¶ 32, n.33, 262 Wis. 2d 167, 663 N.W.2d 700. "Obeisance to legislative intent is so important that we may even insert words in a statute when that is necessary to avoid conflicting provisions and an absurd result that the legislature did not intend." U.S. Bank National Assn. v. City of Milwaukee, 2003 WI App 220, ¶ 8, 267 Wis. 2d 718, 672 N.W.2d 492. That is what I would do. From the statutes examined here, I conclude that the legislature intended children who are insane, developmentally disabled or imprisoned to have until age eighteen or a later time permitted by Wis. Stat. § 893.55 to bring negligence action against health care providers.

¶ 25. I do not think it necessary to recommend that the legislature address , something it has already addressed, albeit imperfectly. The legislative intent to benefit persons under a disability is obvious; it is only the imperfect drafting of the statute that led to the result the majority chooses. Courts have remedied problems like the one before us on many occasions in the past, and I would do so here. Because the majority does not, I respectfully dissent.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The Hafermans argue that a factual dispute exists regarding whether Toby Jr. suffers from a mental illness as opposed to being developmentally disabled. This argument is undeveloped and is without merit. The Hafermans concede Toby Jr. is developmentally disabled. There are no facts of record establishing Toby Jr. is mentally ill. We therefore do not address this argument.

       WISCONSIN Stat. §893.18 applies to a cause of action accruing prior to July 1, 1980. This statute is the duplicate of Wis. Stat. § 893.16, except that § 893.16 applies to actions accruing July 1, 1980 and thereafter.

       Actually, Wis. Stat. § 893.55 is considered to be both a statute of limitation and a statute of repose.
      Statutes of repose operate differently from statutes of limitations. A statute of limitations usually establishes the time frame within which a claim must he initiated after a cause of action actually accrues. A statute of repose, by contrast, limits the time period within which an action may be brought based on the date of an act or omission. A statute of repose does not relate to the accrual of a cause of action. In fact, it may cut off litigation before a cause of action arises.

        Wenke v. Gehl Co., 2004 WI 103, ¶ 50, 274 Wis. 2d 220, 682 N.W.2d 405 (citation omitted). Section 893.55(1)(b), a statute of repose, requires a medical malpractice action be brought no later than five years from the date the injury was discovered or should have been discovered. Here, § 893.55(l)(a), a statute of limitation, requires a plaintiff injured due to medical malpractice to commence an action within three years from the date of the injury. In this case, § 893.55(1)(a) governs the time within which the Hafermans' claim was to be filed.

       The result in this case is troubling given that the legislature has, through Wis. Stat. § 893.56, provided more time for young children to file medical malpractice suits than the three years provided in Wis. Stat. § 893.55(l)(a). In creating Wis. Stat. § 893.56, the legislature decided that the interests of very young children would be fully protected by extending the time limit for filing medical malpractice claims to age ten. See ch. 390, Laws of 1977 at § 1(e); Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶¶ 22-23, 237 Wis. 2d 99, 613 N.W.2d 849. The legislature, however, excepted minors who are developmentally disabled from the extended statute of limitations without protecting their interests in any other statute, thereby, by default, bringing these children under the "adult" statute of limitations of three years. Wis. Stat. § 893.55(l)(a). We recommend the legislature address what we perceive to be an illogical gap in the statute of limitations scheme for protecting young children with developmental disabilities caused by medical malpractice.

       A LOIS search for the words "absurd result" yielded 276 cases in which this term was used. An analysis of the first forty of these cases revealed that that phrase was used in the context of statutory interpretation seventeen times.

       All. references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Henry W. Aufderhaar, Defendant-Appellant.

    Court of Appeals

      No. 03-2820-CR.

      Submitted on briefs August 30, 2004.

      Decided October 6, 2004.

    2004 WI App 208
    (Also reported in 689 N.W.2d 674.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of J. Paul Neumeier, Jr. of Krek & Brantmeier, S.C. of Jefferson.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general.
    Before Anderson, EJ., Brown and Snyder, JJ.

       Petition to review granted 1-11-2005.

   BROWN, J.

¶ 1. The major holding here is that when this court accepts an interlocutory appeal, the appellant is limited to briefing only those issues presented in the petition for leave to appeal and may not raise additional issues without the prior consent of the court. In this case, Henry W. Aufderhaar raises five issues on appeal, two of which were not presented in his petition. We refuse to address them because interlocutory appeals are disfavored and when we do take them, it is to address a specific issue or issues that need resolution prior to finality. As to the three issues we do consider, we hold that the court did not lack personal jurisdiction over Aufderhaar because he had sufficient notice of the delinquency petition when he received notice of the waiver hearing, that the 502-day delay from the filing of the delinquency petition to the filing of the waiver petition was not an attempt by the State to manipulate the system so that he could be tried as an adult, and that Wisconsin law does not recognize a due process violation if the delay was due to the State's negligence. We affirm.

¶ 2. Aufderhaar was fifteen years old and living with his parents in Jefferson county on June 4, 2001, when he was interviewed by a police officer about five counts of second-degree sexual assault of a child and two counts of fourth-degree sexual assault of a child. Later that month, on June 29, he moved with his parents. The family lived with Aufderhaar's grandfather for approximately two weeks and then moved to the state of Montana. On August 21, the district attorney for Jefferson county filed a delinquency petition, but when authorities learned that Aufderhaar had moved with his family to Montana, the file was transferred to Walworth county, where the incidents were alleged to have occurred.

¶ 3. On October 8, the Walworth county intake worker attempted to mail documents containing the pending charges to Aufderhaar and his parents in Montana, but the mail was returned as "Attempted-Not Known." On October 26, a delinquency petition was filed in Walworth county with a return date of November 8. On that date, Aufderhaar did not appear for his initial plea hearing and a capias was ordered. Thereafter, the case sat dormant for about a year and a half.

¶ 4. On March 6, 2003, the Walworth County Juvenile Court Clerk received a telephone call from Montand authorities that Aufderhaar was involved in a juvenile matter in that state relating to sexual behavior. The clerk forwarded this information to the district attorney's office and shortly thereafter received a petition for waiver of juvenile jurisdiction into adult court. The waiver petition was filed on March 12. At this point in time, Aufderhaar was over seventeen years old. The Montana authorities had given the Walworth clerk a new address for Aufderhaar, so she sent the necessary papers to that new address. The papers were not returned. On April 23, the court agreed at the waiver hearing to waive Aufderhaar in absentia into adult court and subsequently issued an order to that effect. A criminal complaint was filed, and a warrant was issued.

¶ 5. On October 2, Aufderhaar appeared in Wal-worth county and challenged the adult court's personal jurisdiction over him. He pointed out that Wis. Stat. § 938.27(3)(a)l (2001-02) mandates the juvenile court to notify the child and parents of all hearings, that Wis. Stat. § 938.273 provides for a continuance and personal service if there is no appearance at a proceeding, and that the same statute allows for service by certified mail in the event personal service is deemed to be impracticable. Aufderhaar alleged that because the statute was not followed as regards to him, the juvenile court had no authority to waive him into adult court, presumably for lack of personal jurisdiction. In the alternative, Aufderhaar argued that the waiver in absentia violated due process.

¶ 6. The trial court rejected these two theories. It found that Aufderhaar had absconded with his family in order to avoid prosecution. The trial court noted that although the juvenile court did not expressly say at the waiver hearing that any attempt at service would have been ineffectual because the Aufderhaars were intent on avoiding service, such an assumption was implicit in its mention of the fact that there was a warrant out for Aufderhaar's father, who was "on the run." The trial court concluded that it was correct to assume service would have been ineffectual. Alternatively, the trial court ruled that Aufderhaar had notice of the waiver hearing because the mail about that hearing is presumed to have reached him since it was not returned as undeliverable. In the trial court's view, this notice was sufficient to defeat the claim of lack of personal jurisdiction.

¶ 7. Aufderhaar also claimed that the 502-day delay in the filing of the juvenile waiver petition was unreasonable and prejudiced him; despite the fact that the State knew or should have known how to reach him in Montana if it really wanted to proceed with the delinquency petition in a timely manner, it sat on its hands allowing him to get older. The trial court held that while the State may have been negligent in not acting in a timely manner, it did not do so with the intent to manipulate the system so as to be able to try Aufderhaar as an adult.

¶ 8. Aufderhaar then filed a petition for leave to appeal a nonfinal order. Three issues were raised. We set them forth verbatim in the footnote. While the statement of issues in the petition was confusing as to the exact legal basis justifying relief, the body of the petition sufficiently set forth his arguments. He contended that there was an unreasonable delay in the filing of the waiver petition (502 days), that he was not given proper notice of the waiver hearing and that waiver granted in absentia denied him due process. The State opposed the petition for leave to appeal but did not do so on the merits of any of the issues raised. Rather, it simply repeated the generalization that interlocutory appeals are not favored in criminal cases.

¶ 9. Faced with what we had, we had serious questions. We wondered how the State could explain its 502-day delay, why Wis. Stat. § 938.273 had not been followed, and how a juvenile could "abscond" when he moved with his parents to another state. We granted the petition for leave to appeal the nonfinal order.

¶ 10. In his brief-in-chief, Aufderhaar has raised and discussed the same three issues he assembled for his petition, albeit with different and more concise wording. While the State appears to criticize this rewording, we do not. The rewording of the original issues is more narrowly focused and concise. It also avoids nonessential facts and better connects the essential, critical facts with the precise legal issues in a way that allows this court to anticipate the arguments. We set forth the rewording of the issues in a footnote for those who wish to compare the statement of issues.

¶ 11. However, two other issues are raised in the brief that were not raised in the petition. Aufderhaar alleges that the waiver petition was insufficient as a matter of law and that the delinquency petition should be dismissed because it was not timely filed. For the following reasons, we will not consider these two issues.

¶ 12. As the State observes, interlocutory appeals are not appeals of right and one must obtain permission to pursue such an appeal by filing a petition. See Wxs. Stat. Rule 809.50(1). As the State also observes, the right to appeal is very narrowly construed even once a petition is granted, as shown by the requirement to sep¡arately file a petition for cross-appeal from the same interlocutory order in which a petition has already been granted. Fedders v. American Family Mut. Ins. Co., 230 Wis. 2d 577, 580-82, 601 N.W.2d 861 (Ct. App. 1999). As the State posits, the logical conclusion is that a person who is granted leave to appeal a nonfinal order is limited solely to those issues outlined in the petition to the court of appeals.

¶ 13. More to the point, however, is the reason behind this limitation. We do not lightly grant a petition for leave to appeal. See, e.g., State ex rel. A.E. v. Circuit Court for Green Lake County, 94 Wis. 2d 98, 102 (interlocutory appeals undesirable), 288 N.W.2d 125, modified per curiam, 94 Wis. 2d 105a, 292 N.W.2d 114 (1980), The general policy of this court is to avoid piecemeal disposal of litigation. See, e.g., id. at 101. Moreover, as Michael S. Heffernan cogently stated in the State Bar CLE book, Appellate Practice and Procedure in Wisconsin § 9.5 (3d ed. 2003), it is also in recognition of our heavy case load. Heffernan further points out that the policy against granting interlocutory appeals is particularly strong in criminal prosecutions. See id. Delays in that area are "inimical to an effective criminal justice system." Id. (citing A.E., 94 Wis. 2d at 102).

¶ 14. Against this backdrop, Wis. Stat. § 808.03(2) details the circumstances where we will grant a petition for leave to appeal a nonfinal order: (1) if the issue or issues will materially advance termination of the litigation or materially clarify further proceedings, (2) will protect the petitioner from irreparable injury, or (3) will clarify an issue of general importance in the administration of justice. As Heffernan explains, implicit in our consideration of each factor is the question of whether the petition shows a substantial likelihood of success on the merits. See Heffernan, supra, at § 9.4. "Only in this context can the general criteria listed in section 808.03(2) be given much significance." Heffernan, supra, at § 9.4. It therefore stands to reason that we are only interested in determining issues that have a likelihood of success. For a party to add issues after a petition is granted where we have not had the opportunity to assess the likelihood of success of that issue is counterproductive to the process and undermines the rationale for our approach to nonfinal orders.

¶ 15. We are cognizant that this is an appeal from a juvenile waiver into adult court and that the supreme court in A.E. has urged careful consideration to the merits presented by these petitions. See A.E., 94 Wis. 2d at 105d, 292 N.W.2d 114 ("Given the significance of a waiver of juvenile jurisdiction orders, we urge that the court of appeals, in the exercise of its discretion, give careful consideration to the merits presented by appeals from such orders." (Emphasis added.)). This entreaty does not mean we no longer have the discretion to accept or reject juvenile waiver appeals and must accept all such orders regardless of the merits of the issue or issues raised. To the contrary, the A.E. court expressly recognized that we still have the discretion to accept or reject the petitions. It only urged that we carefully consider the merits presented. Moreover, A.E. specifically held that juvenile waiver orders are not appealable as of right. Id. at 105a.

¶ 16. Therefore, we -will only grant petitions for leave to appeal where the issue or issues raised in the petition meet one or more of the criteria in Wis. Stat. § 808.03(2). In fact, even if there are several issues raised in the petition, but not all meet the criteria, we may well order that the briefing be limited to only those issues we feel have merit under the statute.

¶ 17. We are not interested in spending our valuable time addressing issues that do not meet the criteria just because the case is already in limbo pending our review and we have the record and the parties before us. The mere fact that proceedings have ground to a halt pending review of a nonfinal order is not sufficient reason for us to reach any and all issues an appellant can conjure up. To do so would cause further delay in the trial court because we would be spending extra time reading, researching, and writing on these extra issues. We will not allow our time to be used unwisely.

¶ 18. We now reach the merits. It is undisputed that the juvenile court erred when, following Aufderhaar's nonappearance at his initial hearing to respond to the delinquency petition, it failed to comply with Wis. Stat. § 938.273, which requires the court to continue the matter and to order either personal service or service by certified mail unless it finds that such service would be ineffectual. The question to be decided is the legal ramifications of such a failure.

¶ 19. The State first argues that regardless of the trial court's failure to say so, a continuance would have been useless because personal service or service by certified mail would have been ineffectual. The State submits that it did not know where Aufderhaar was, other than that he was somewhere in Montana. We reject this argument. Based on the factual record before us, the State could easily have found Aufderhaar. It knew Aufderhaar was attending school in Hot Springs, Montana. It would have taken little effort to obtain the address. Instead, the State simply sat on its hands and did nothing.

¶ 20. Alternatively, the State appears to argue that if a mailing comes back as undeliverable, the State has no obligation to find the new address or otherwise look for the juvenile. By this blanket statement, we assume the State means this to be the case even if there is information from which there is a reasonable expectation that service could eventually be accomplished. The State cites absolutely no authority for this proposition but simply argues that, because Aufderhaar has not submitted any authority to negate the State's position, we must accept the State's argument.

¶ 21. We will not do so. A district attorney, like all attorneys, is an officer of the court. See Wis. Stat. § 946.65(2). As an officer of the court, a district attorney must exercise "reasonable diligence" in attempting to locate victims and witnesses prior to asking for adjournments. See Scarbrough v. State, 76 Wis. 2d 87, 96, 250 N.W.2d 354 (1977) (missing witness as a valid reason to adjourn a trial); State v. Williams, 2004 WI App 56, ¶ 37, 270 Wis. 2d 761, 677 N.W.2d 691 (citing Scarbrough for proposition that locating the missing victim was a valid reason to delay trial and noting that the prosecutor had exercised "reasonable diligence" in finding her), review denied, 2004 WI 50, 271 Wis. 2d 110, 679 N.W.2d 546 (Wis. Apr. 20, 2004) (Nos. 03-0603-CR, 03-0604-CR). It is not too much to require that a district attorney also exercise due diligence in attempting to notify a juvenile that the force of government has caused a petition to be filed against him or her. If our system of justice requires due diligence on the part of plaintiffs in civil cases to serve a defendant personally where they have information concerning the possible whereabouts of the defendant, requiring them to inquire further when they possess information that could reasonably be expected to lead to the discovery of the party sought, see, e.g., West v. West, 82 Wis. 2d 158, 166-67, 262 N.W.2d 87 (1978); Welty v. Heggy, 124 Wis. 2d 318, 325, 369 N.W.2d 763 (Ct. App. 1985), then we conclude district attorneys have an equivalent obligation to locate the subject of a juvenile proceeding, whose liberty interests are at stake.

¶ 22. Perhaps the State thought since Aufderhaar was now out of state, he was no longer a threat to the citizens of this state and decided to let him be. The State may have taken solace in the fact that, if Aufder-haar came back to Wisconsin, there would be a capias waiting for him. We do not know the precise reason why the State did not proceed to notify him, but the fact is that the statute was not followed and the error is real. The question is what to do about it. This question was not addressed by the State in its response to Aufderhaar's petition for leave to appeal and the non-response helped fuel our granting of the petition.

¶ 23. The State now posits that, assuming it erred in failing to follow the statute regarding notification to Aufderhaar when the juvenile proceeding commenced, this error was nonjurisdictional. For this proposition, the State relies on State v. Jermaine T.J., 181 Wis. 2d 82, 85-88, 510 N.W.2d 735 (Ct. App. 1993). Just as was the case here, Jermaine failed to appear for a hearing and the court did not thereafter continue the case for the purpose of securing personal service or, failing that, service by certified mail. See id. at 86-87. Instead, the juvenile court, like the juvenile court here, issued a capias. See id. at 87-88. We held that failure to comply with the mandatory language of Wis. Stat. §§ 48.273(1) and 48.28 (now Wrs. Stat. §§ 938.273(1) and 938.28) did not deprive the court of personal jurisdiction. Jermaine T.J., 181 Wis. 2d at 85, 88.

¶ 24. Aufderhaar attempts to distinguish Jermaine T.J. on its facts. There, Jermaine had already been placed in secure detention following the commission of a crime, delinquency and waiver petitions had been filed the same day he was picked up, and he had his first hearing before the juvenile court within three days thereafter. Id. at 85. It was only after he was released following his secure detention hearing and then failed to attend the next hearing a few weeks later that the problem of proper notification of that hearing cropped up. Id. Aufderhaar argues that the juvenile court in Jermaine T.J. gained personal jurisdiction over Jermaine when he personally appeared at both the plea and waiver hearings, and therefore, failure by the court to adhere to the notification procedures in a future hearing had no bearing on personal jurisdiction. Aufderhaar points out that, in his case, however, the notification problems existed at the outset and he never submitted himself to the jurisdiction of the juvenile court until after waiver had already occurred. In Aufderhaar's view, the facts make all the difference.

¶ 25. Aufderhaar's argument is unavailing. Personal jurisdiction over Jermaine was not decided on the fact that Jermaine had previously subjected himself to the jurisdiction of the court before the notification snafu appeared. Rather, the Jermaine T.J. court decided that, regardless of the mandatory procedural requirements of how to notify a juvenile, the failure to follow the statute did not go to personal jurisdiction. See id. at 85, 88. Instead, it was the petition itself that gave the court personal jurisdiction over the juvenile. See id. at 90-91. We compared the juvenile petition with the criminal complaint, id., which the supreme court had explained in State v. Smith, 131 Wis. 2d 220, 238-40, 388 N.W.2d 601 (1986), is the vehicle by which a court gains personal jurisdiction over the person named in the complaint. We held, "As the supreme court concluded in Smith, we conclude that it is the delinquency petition that is the critical procedure for acquiring personal jurisdiction over the juvenile." Jermaine T.J., 181 Wis. 2d at 91 (citation omitted). In Smith, the court wrote:

The critical relationship between the complaint and personal jurisdiction is indicated by the constitutional purpose for personal jurisdiction. Personal jurisdiction assures that the defendant has a sufficient relationship to the jurisdiction exercising authority and that the defendant has notice of the charges. The notice function is accomplished by requiring a complaint to include the essential facts constituting the offense charged....

Smith, 131 Wis. 2d at 239 (emphasis added).

¶ 26. Therefore, when a complaint is prepared, it assures a sufficient relationship between the government and its power to bring the named person before the court. When that person receives the complaint, that person is thereby notified that the force of government has caused an action concerning him or her to be filed in court and that the court has personal jurisdiction over him or her.

¶ 27. Here, it is true that the delinquency petition, though filed in court, was never in Aufderhaar's hands before the waiver hearing took place. However, at the time of the hearing, Aufderhaar is presumed to have had notice that such a petition existed because the notice of waiver hearing was sent to his correct Montana address before the waiver hearing and that notice was never returned as undeliverable. The law in this state is that when notice is sent by mail and it is not returned, the presumption is that it was delivered. See State ex rel. Flores v. State, 183 Wis. 2d 587, 612, 516 N.W.2d 362 (1994). Moreover, the record shows that this same post office address was used by Aufderhaar on his bail slip regarding this case.

¶ 28. When Aufderhaar received the waiver petition in the mail, that petition notified him that the power of the government had called him to account for an allegation in the criminal law and put him on constructive notice that the allegation had been reduced to a legal document filed in the Wisconsin circuit court and that a delinquency petition existed that spelled out the probable cause that the government had before acting. Therefore, the court had jurisdiction over his person. The issue is therefore decided in the same way our appellate courts have decided Jermaine T.J. and Smith. In all three cases, there was a formal document filed with the court, and in all three cases, the defendant had notice of the invocation of the court's jurisdiction and the grounds for such invocation before the court took the action complained of by the defendant. Jermaine T.J. and Smith control here.

¶ 29. The second issue regards the 502-day delay. Again, we point out that the State did not really defend this delay in its response to the petition, and based on the meager information before us at the time, we believed there was substantial merit to this issue. Now that we háve the full record, we are convinced otherwise. As Aufderhaar admits, only an intentional delay by the State to avoid juvenile jurisdiction would constitute a due process violation requiring dismissal. See State v. Montgomery, 148 Wis. 2d 593, 595, 436 N.W.2d 303 (1989). If the State deliberately attempts to delay a juvenile delinquency petition until the juvenile is older, thus making it more likely that waiver will be ordered, it is a due process violation. See S.N. v. State, 139 Wis. 2d 270, 277, 407 N.W.2d 562 (Ct. App. 1987). The juvenile court found that the delay was not intentional and that finding is not clearly erroneous. There is no evidence that the State was sitting on the case, waiting for Aufderhaar to turn seventeen. Had this been the case, the State would have acted when he actually turned seventeen or soon thereafter, around August 3, 2002. Instead, it is clear that the State filed its waiver petition and began pursuing Aufderhaar in earnest after the Montana authorities called on March 6, 2003, explaining that Aufderhaar was involved in sexual activity in Montana and providing a current address for Aufderhaar. Thus, it is quite apparent that Aufderhaar was himself the catalyst for the State's renewed interest in him. While the State certainly could have located Aufderhaar at the petition stage, and was negligent in not doing so, the resultant delay was probably due to a decision to leave Aufderhaar alone, not to wait until he was older. That is the only inference that we can arrive at, and therefore, we conclude the delay was not an intentional attempt by the State to manipulate the system.

¶ 30. Finally, Aufderhaar argues that we should change the law in Wisconsin so as to allow relief from delays due to the State's negligence. In Montgomery, the supreme court expressly rejected the argument he raises. See Montgomery, 148 Wis. 2d at 595. This court has no authority to change law established by the supreme court. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

By the Court. — Order affirmed.

       The record lists a Whitewater street address for Aufder-haar. Whitewater is located in Walworth county; however, neither party disputes that Aufderhaar's county of residence at the time of these alleged incidents was Jefferson county.

       Judge James L. Carlson conducted this hearing and waived Aufderhaar into adult court.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       At the October 2, 2003 motion hearing, Aufderhaar mentioned a 540-day delay. This figure was merely an approximation, based on the fact that roughly eighteen months had passed.

       The petition for leave to appeal presented the three issues in the following manner:
      A. When the juvenile court did not provide the juvenile proper notice of a waiver hearing pursuant to [Wis. Stat. §§ 938.27 and 938.273] did the trial court err in placing the burden on the juvenile to prove that he did not get notice of the hearing in order to have the matter returned to juvenile court after being waived in absentia into adult court.
      B. When the juvenile court failed to grant a continuance and order service of the notice of the waiver hearing either personally or by certified mail upon the juvenile's failure to appear, as required by sec. 938.273, Stats., did the trial court err in failing to return the matter to juvenile court?

        C. When the State delayed the filing of a waiver petition for 502 days after the filing of the delinquency petition, during which time the State knew where the juvenile was but took no action to have him returned to Wisconsin — a delay that the trial court acknowledged as negligence — did the trial court err in determining that the delay did not warrant dismissal of the charges?

       In his brief, Aufderhaar words the issues as: (1) "Did the failure of the juvenile court to ensure proper service of process under [Wis. Stat. § 938.273] deprive the court of personal jurisdiction over the defendant?" (2) "Did the State intentionally delay the filing of the waiver petition... for the purpose of manipulating the system?" And (3) "Did the State's negligence in filing the waiver petition 502 days after the filing of the delinquency petition in this matter constitute a due process violation requiring dismissal?"

       The trial court commented that the juvenile court made an implied finding that service would have been ineffectual because the father was "on the run." The State does not defend the trial court's order on this ground. We briefly address the issue, however, because it arguably is, after all, one of the reasons why the trial court denied the motion for dismissal or transfer to juvenile court. We reject this rationale. First, the record shows no factual basis for finding that the father had moved to avoid the law other than that he had two pending misdemeanors. Second, even had the father moved to avoid the law and would work to avoid personal service, we fail to see how sending certified mail to the correct mailing address in Montana would somehow have been a useless exercise. And third, we do not understand how a juvenile can be held to he vicariously liable for the actions of a parent in moving out of state such that the State is relieved from even trying to get the correct address and mailing a document to that address by certified mail.


author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Tabitha A. Sherry, Defendant-Appellant.

    Court of Appeals

      No. 03-1531-CR.

      Submitted on briefs December 5, 2003.

      Decided October 7, 2004.

    2004 WI App 207
    (Also reported in 690 N.W.2d 435.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Craig R. Day of the Law Office of Craig R. Day, Lancaster.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, PJ., Lundsten and Higginbotham, JJ.

       Petition to review denied 12-15-2004.

   LUNDSTEN, J.

¶ 1. This is a search and seizure case involving a temporary investigative traffic stop and a subsequent warrantless search of the stopped car. The stop and search led to the discovery of marijuana. Tabitha Sherry moved to suppress the marijuana, arguing that both the stop and the search were illegal. After the circuit court declined to suppress the marijuana evidence, Sherry entered a no contest plea to the charge of possessing marijuana with intent to deliver. She now appeals the suppression rulings.

¶ 2. We first address whether information, including predictions, supplied by an anonymous tipster, and police corroboration of some of that information, constitute reasonable suspicion supporting the traffic stop. We then determine whether the warrantless vehicle search was permissible. The circuit court concluded that the temporary investigative stop was supported by reasonable suspicion and that the automobile search was supported by probable cause. We agree and affirm.

Background

¶ 3. The Crawford County Sheriffs Department received an anonymous "Crime Stoppers tip" predicting that a vehicle carrying a large amount of marijuana would be traveling from Readstown, in Vernon County, to a trailer court in Soldiers Grove, in neighboring Crawford County. The caller provided information about the car, its occupants, and its route. An officer took up a surveillance position near Soldiers Grove and, after about forty-five minutes, spotted a vehicle matching the description given by the caller. The officer pulled out, made additional observations, and stopped the suspect car. After obtaining ownership information and the identity of the driver and the passenger, the officer searched the car without consent and found about 170 grams of marijuana under the front passenger seat. We will supply more details below after discussing the applicable legal standards.

Discussion

Standard of Review

¶ 4. Whether facts constitute reasonable suspicion justifying a temporary investigatory stop is a question of law that we review de novo. State v. Williams, 2001 WI 21, ¶ 18, 241 Wis. 2d 631, 623 N.W.2d 106. Whether facts constitute probable cause justifying the warrantless search of an automobile is likewise a question of law that we review de novo. State v. Miller, 2002 WI App 150, ¶ 12, 256 Wis. 2d 80, 647 N.W.2d 348.

Whether Reasonable Suspicion Supported the Stop of Sherry's Car

¶ 5. Sherry first argues that the stop of her car was not supported by reasonable suspicion. Sherry focuses on the fact that much of the information supporting reasonable suspicion was provided by an anonymous caller. The test we must apply asks whether the anonymous tip, combined with other information known to the police, supplied "sufficient indicia of reliability to provide reasonable suspicion." See Alabama v. White, 496 U.S. 325, 326-27 (1990).

¶ 6. The parties suggest, and we agree, that the most apt guidance on this topic is found in two decisions of the United States Supreme Court: White and Florida v. J.L., 529 U.S. 266 (2000). Further, we agree with the State that the primary difference between the information found sufficient in White and the information found insufficient in J.L. is that the anonymous caller in White demonstrated familiarity with the suspect, whereas the anonymous caller in J.L. did not. We conclude that police in this case possessed reasonable suspicion justifying the stop because, as in White, the anonymous caller demonstrated a familiarity with Sherry and her activities. We begin by comparing White and J.L.

¶ 7. In White, police received a telephone call from an anonymous person saying that Vanessa White would be leaving a specified apartment in a specified apartment complex at a particular time in a brown Plymouth station wagon with a broken right taillight. White, 496 U.S. at 327. The caller said White would possess cocaine in a brown attaché case and would go to a certain motel. Id. Based, on this information, police set up surveillance of the identified apartment complex. Id. The officers saw a brown Plymouth station wagon with a broken right taillight in front of the building the caller had identified. Id. The officers also saw a woman, later identified as White, leave the apartment building, carrying nothing, and enter the station wagon. Id. The officers followed White, and she drove the most direct route toward the motel identified by the anonymous caller. Id. The officers stopped White "just short" of the motel. Id. A subsequent search of White's car revealed an attaché case containing marijuana. Id.

¶ 8. The issue in White was "whether the [anonymous] tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Id. at 326-27. The White Court acknowledged that various details predicted by the caller had not been verified by police prior to the stop. Id. at 331. For example, police did not corroborate White's identity, the specific apartment from which she left, or the presence of the attaché case. Id. at 327, 331. Also, by stopping White short of the predicted destination, police could not know whether White would have pulled into the motel or driven past. Id. at 331. Nonetheless, the Court concluded that reasonable suspicion was present because police observed that a woman left the apartment building described by the caller at the approximate time predicted, got into the specified station wagon, and took the most direct route possible to the motel. Id. The Supreme Court explained that the anonymous caller provided predictive information and the police verified significant aspects of that predictive information:

What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information — a special familiarity with respondent's affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to [the specified motel]. Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.

Id. at 332 (citation omitted).

¶ 9. In contrast, the anonymous caller in J.L. did not provide predictive information. The anonymous caller in J.L. told police that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." J.L., 529 U.S. at 268. Based on this information only, officers proceeded to the bus stop, located a black male wearing a plaid shirt, and initiated an investigative stop. Id. A search following the stop revealed that the suspect was carrying a concealed weapon without a license, in violation of Florida law. Id. at 268-69. The J.L. Court concluded that the stop was illegal, explaining:

The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility.

Id. at 271.

¶ 10. With this guidance in mind, we turn to the facts in this case.

¶ 11. Sometime between 8:00 and 8:30 p.m., on an evening in April 2002, a Crawford County Sheriffs Department officer received a call from the sheriffs department dispatcher. The dispatcher informed the officer that the department had gotten an anonymous "Crime Stoppers tip of a vehicle that would be travelling from the Readstown area to the Soldiers Grove area . . . with a large amount of marijuana in the vehicle." Readstown is in the southern end of Vernon County, and Soldiers Grove is in the northern end of Crawford County about four miles apart. The caller said the marijuana "would be either in the center console or under the seat." The caller also gave the following information: the make of the car; the color of the car; the license plate number of the car; that the car was Tabitha Sherry's; that Sherry would be in the car; and that the car was going to "a trailer court in Soldiers Grove." The caller said that a person named Ryan Saint might be in the car and, if he was, he would be driving.

¶ 12. The officer took up a surveillance position about two miles north of Soldiers Grove on Highway 61. Highway 61 is "the only highway between the two towns without going several miles north." At approximately 9:30 p.m., the officer saw a car, matching the description given by the anonymous caller, heading toward Soldiers Grove. Because it was dark out and the vehicle was a dark color, the officer "couldn't tell for sure" whether the car's color matched the description given by the caller, but the make of the car did match the caller's description. The officer pulled out in his unmarked vehicle and followed the suspect car. The officer verified that the car had the license plate number provided by the anonymous caller. The officer observed two people in the vehicle: "what appeared to be a male driver and a female passenger." He thought the driver was a male because of the driver's "short" haircut. Based on this information, the officer stopped the car. The stop occurred in Soldiers Grove.

¶ 13. The anonymous caller in this case provided predictive information which, if true, demonstrated "a special familiarity with [Sherry's] affairs." White, 496 U.S. at 332. The general public would have had no way of knowing that Sherry would soon be leaving the Readstown area in a particular car, no way of knowing that a man might accompany Sherry on that trip, and no way of knowing that if the man did accompany Sherry he would be driving her car. When the Crawford County officer verified this predictive information, it was reasonable for the officer to believe that a person with access to such information also had access to reliable information about Sherry's illegal activities.

¶ 14. There are differences between this case and the investigatory stop found to be legal in White. But those differences amount to a wash. In White, the police more specifically verified starting and ending points of the car's predicted route. But this case involves a prediction not present in White. Here, the anonymous caller predicted that Sherry might be accompanied by a man and, if so, that man would be driving Sherry's car. Thus, the information provided by the caller and the police corroboration of that information compare favorably with the information and corroboration found to be sufficient in White. We conclude that the police in this case possessed reasonable suspicion to justify the temporary investigative stop.

Whether Probable Cause Supported the Search of Sherry's Car

¶ 15. Sherry next argues that, regardless whether the officer legally stopped her car, the subsequent warrantless non-consent search of her car was illegal. An automobile may be searched without a warrant if there is probable cause to search the vehicle and the vehicle is readily mobile. State v. Marquardt, 2001 WI App 219, ¶¶ 31-32, 247 Wis. 2d 765, 635 N.W.2d 188. Sherry does not dispute that her car was readily mobile. Rather, she contends the officer lacked probable cause. We disagree.

¶ 16. The applicable probable cause standard is well established: "A finding of probable cause is a common sense test. 'The task... is simply to make a practical, commonsense decision whether, given all the circumstances . . ., including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Ward, 2000 WI 3, ¶ 23, 231 Wis. 2d 723, 604 N.W.2d 517 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

¶ 17. As in Gates, here we address the existence of probable cause in the context of information provided by an anonymous tipster. Thus, we look to Gates for guidance.

¶ 18. In Gates, the Supreme Court rejected the proposition that, to supply probable cause, information provided by an anonymous tipster had to pass a "two-pronged test," derived from its decision in Spinelli v. United States, 393 U.S. 410 (1969), under which the anonymous information and any other facts known to the police would have to (1) reveal the informant's "basis of knowledge" and (2) establish either the "veracity" of the informant or the "reliability" of the informant's information. Gates, 462 U.S. at 228, 237-38. The Supreme Court recognized that it would be virtually impossible for information from an anonymous informant to pass such a test:

[T]he veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs.

Id. at 237. Instead, as the Gates Court explained, the two Spinelli prongs are more accurately described as "relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations." Id. at 233. Thus, as applied to assessing the reliability of an anonymous tip, a deficiency in one factor may be compensated for by "some other indicia of reliability" when considered in the context of the totality of the circumstances. Id.

¶ 19. A recognized "indicia of reliability" of an anonymous tip is police corroboration of details, particularly details involving predicted behavior. See id. at 241. The Gates Court explained:

The [anonymous] letterwriter's accurate information as to the travel plans of each of the Gateses was of a character likely obtained only from the Gateses themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could properly conclude that it was not unlikely that he also had access to rehable information of the Gateses' alleged illegal activities. Of course, the Gateses' travel plans might have been learned from [some other source].... But,... probable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gateses or someone they trusted. And corroboration of major portions of the letter's predictions provides just this probability.

Id. at 245-46 (footnote omitted).

¶ 20. Finally, probable cause may exist even if the predicted behavior corroborated by the police is, when viewed in isolation, innocent behavior. Police themselves need not observe suspicious behavior. See United States v. Martinez, 764 F.2d 744, 746 (10th Cir. 1985) ("It is all right that these corroborations were only of 'innocent' details.").

¶ 21. We now apply these principles to the facts in this case to determine whether there was probable cause to believe Sherry's car contained marijuana. The anonymous caller said that Sherry would be traveling from Readstown to Soldiers Grove with "a large amount of marijuana." Prior to the stop, the officer had verified the following details: the make of the car, the license plate number of the car, the approximate time of travel, the direction of travel, the car's likely general starting point (Readstown), its apparent destination (Soldiers Grove), the number of occupants, and, since there were two occupants, that a male appeared to be driving. See ¶¶ 11-12, supra.

¶ 22. After the stop, but before the search, the officer corroborated additional details of the anonymous tip. The passenger was identified as Tabitha Sherry, and the driver as Ryan Saint. The car was Sherry's car; Sherry told the officer that the owner was her mother's boyfriend and that he had given her the car as a present. Thus, the officer corroborated these additional details: Sherry was the female passenger, the car was her car, a man named Ryan Saint was in the car, and Saint was driving.

¶ 23. We conclude that the information provided by the anonymous caller, and corroboration of several details by the police officer, demonstrate that a reasonable police officer could believe that the anonymous caller was a person familiar with Sherry's activities. The caller accurately predicted that Sherry would soon be traveling in her car with a man named Ryan Saint from Readstown toward Soldiers Grove. The caller not only predicted that Ryan Saint might be present in the car, but that, if he was, he would be driving Sherry's car. This predictive information indicates that the caller was a person with knowledge of Sherry, her activities, and her plans. The information was sufficient for an officer, applying the common-sense probable cause standard, to believe there was a fair probability that Sherry was transporting marijuana in her car.

¶ 24. Therefore, we affirm the circuit court's conclusion that the warrantless search of Sherry's car was supported by probable cause.

By the Court. — Judgment affirmed.

       The record does not specify that the caller indicated that Sherry would be leaving shortly. However, similar to the situation in Alabama v. White, 496 U.S. 325 (1990), we may infer that the caller provided this information because the police responded to the call by immediately setting up surveillance. See id. at 331 ("Given the fact that the officers proceeded to the indicated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent's departure from the building was within the timeframe predicted by the caller.").