author: PER CURIAM.

text:
    State of Wisconsin ex rel. William E. Marberry, Petitioner-Appellant, v. Phillip G. Macht, Superintendent, Wisconsin Resource Center, and Joseph S. Leean, Secretary, Department of Health and Family Services, Respondents-Respondents.
    Supreme Court

      No. 99-2446.

      Oral argument January 4, 2001.

    Decided March 13, 2001.

    2001 WI 19
    (Also reported in 623 N.W.2d 135.)

      For the petitioner-appellant there were briefs and oral argument by Donald T. Lang, assistant state public defender.
    For the respondents-respondents the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   PER CURIAM.

¶ 1. The court is equally divided on the resolution of this appeal. Justice Prosser did not participate. Justice Wilcox, Justice Crooks, and Justice Sykes would affirm the order of the circuit court for Winnebago County. Chief Justice. Abraham-son, Justice Bablitch, and Justice Bradley would issue the following order seeking additional briefing in this court:

This court, having reviewed the record, having considered the briefs submitted by the parties, and having heard oral argument and, specifically, having heard the Assistant Attorney General advise the court that committees have not timely received statutorily required six-month evaluations and that the Department will not have completed timely examinations until May 1, 2001, concludes that additional information and additional briefs would be helpful.
Therefore, IT IS ORDERED that Petitioner-Appellant William E. Marberry, and Respondents-Respondents, Phillip G. Macht, Superintendent, Wisconsin Resources Center, and Joseph S. Leean, Secretary, Department of Health and Family Services, address the following questions in additional briefs:
1. What facts exist to explain Respondents' failure to examine committee Marberry until more than eighteen months after the time period specified in Wis. Stat. § 980.07(1) and more than ten months after the circuit court ordered Respondents to conduct a prompt examination? What facts existed in the past regarding the Respondents' inability to periodically examine Chapter 980, Wis. Stats., committees in accordance with the statutory requirements in Wis. Stat. § 980.07(1)? What are the projections of future expanded or new facilities and additional staffing that will enable the Respondents to comply with the statute in the future? Is it necessary to remand the cause to the circuit court to determine these facts?
2. Does the Respondents' explanation for the failure to perform the periodic examinations on committee Marberry required under Wis. Stat. § 980.07(1) provide a valid excuse under the law for the failure to comply therewith? Does the Respondents' explanation for the failure to perform the prompt periodic examination on Marberry required by the circuit court order provide a valid excuse under the law for the failure to comply therewith?
3. If Respondents have failed to follow Wis. Stat. § 980.07(1) in regard to timely periodic examinations on Marberry and other committees or if Respondents in the future fail to follow the statute, should the court hold that the statute is facially unconstitutional on equal protection or due process grounds or as applied?
4. What effect, if any, does the decision in Seling v. Young, 121 S.Ct. 727 (2001), have on this case?
5. If compliance with the periodic examination provision set forth in Wis. Stat. § 980.07(1) is required, but the statute nonetheless allows a reasonable deviation from the six-month time limit therein, what would be a reasonable amount of time for the examination after the six-month period has expired?
6. If compliance with the periodic examination provision set forth in Wis. Stat. § 980.07(1) is required but the statute nonetheless allows a reasonable deviation from the six-month time limit set forth therein, what remedies are available to Marberry or other Chapter 980 committees if the Respondents' failure to examine the committee within a reasonable amount of time after the six-month time period set forth therein? Address the availability, advisability, and effectiveness of each remedy for Marberry and other committees who have not been timely examined, including but not limited to the following: release; remedial contempt; punitive contempt; damages and attorneys' fees under Wis. Stat. § 51.61(7); damages and attorneys' fees under 42 U.S.C. § 1983; writ of habeas corpus; writ of mandamus; supervised release under Wis. Stat. § 980.08; and the appointment of an independent expert by the court to examine and report to the court on the committee.
7. If the Respondents' violation of Wis. Stat. § 980.07(1) requires release of Marberry or any Chapter 980 committee, may the Respondents pursue commitment proceedings against a released committee under Chapter 51, Wis. Stats.?
8. In deciding the remedies available to Marberry, should this court apply its holding prospectively only ("sunbursting"), that is, only to committees who in the future are not examined timely in accordance with the statute? If the court were to "sunburst," may this court's holding about remedies apply prospectively from the date the opinion is mandated or may a future date be used? If a future date is used, what date should that be? If the court applies its holding prospectively only, should the court apply the holding about remedies to Marberry? Must it?

¶ 2. Because the court is equally divided as to the resolution of this appeal, we vacate our decision to certify and remand to the court of appeals. State v. Knutson, 191 Wis. 2d 395, 528 N.W.2d 430 (1995).

By the Court. — Decision to certify vacated and cause remanded.


source: Caselaw Access Project

author: JON P. WILCOX, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

license: Public Domain

text:
    Jerold J. Mackenzie, Plaintiff-Respondent-Cross-Appellant-Petitioner, v. Miller Brewing Company and Robert L. Smith, Defendants-Appellants-Cross-Respondents, Patricia G. Best, Defendant-Cross-Respondent.
    Supreme Court

      No. 97-3542.

      Oral argument November 28, 2000.

    Decided March 20, 2001.

    2001 WI 23
    (Also reported in 623 N.W.2d 739.)

      For the plaintiff-respondent-cross appellant-petitioner there were briefs by Michael A. Whitcomb and Michael A.I. Whitcomb, S.C., Milwaukee, and Gerald P. Boyle and Boyle, Boyle & Smith, S.C., Milwaukee, and oral argument by Michael A. Whitcomb and Gerald P. Boyle.

    For the defendants-appellants-cross respondents and for the defendant-cross respondent there was a brief by Mary Pat Ninneman, John A. Casey, Frank J. Daily and Quarles & Brady LLP, Milwaukee, and oral argument by John A. Casey and Frank J. Daily.

    An amicus curiae brief was filed by C. Gregory Stewart, Philip B. Sklover, Lorraine C. Davis and Robert J. Gregory, Washington, D.C.,. and Dennis R. McBride, Milwaukee, on behalf of the Equal Employment Opportunity Commission.
    An amicus curiae brief was filed by Patrick O. Dunphy, Mark L. Thomsen and Cannon & Dunphy, S. C., Brookfield, on behalf of the Wisconsin Academy of Trial Lawyers.
    An amicus curiae brief was filed by Lisa M. Berger-sen, Bethany C. McCurdy and Lindner & Marsack, S. C., Milwaukee, on behalf of the Human Resources Management Association (HRMA).
    An amicus curiae brief was filed by Donald L. Heaney, Kenneth B. Axe and Lathrop & Clark, Madison, on behalf of Wisconsin Manufacturers and Commerce.
   JON P. WILCOX, J.

¶ 1. The question in this case is whether an at-will contract employee can maintain an action against his or her employer in tort for intentional misrepresentation to induce continued employment. Because we believe that it would be imprudent for this court to recognize such a cause of action at this time, we conclude, that those who are party to an at-will contract must seek recourse in contract rather than tort law.

¶ 2. The plaintiff in this case, Jerold J. Mackenzie (Mackenzie), sued Miller Brewing Company (Miller) in tort for intentional misrepresentation and wrongful termination. Mackenzie also sued his supervisor, Robert L. Smith (Smith), in tort for intentional misrepresentation and tortious interference with prospective contract. Finally, Mackenzie sued a coworker, Patricia G. Best (Best), for tortious interference with contract. After a jury trial in the Circuit Court for Milwaukee County, Louise M. Tesmer, Judge, Mackenzie was awarded $24,703,000 against Smith and Miller. The court of appeals overturned the circuit court decision. For the reasons set forth below, we now affirm the court of appeals ruling.

¶ 3. Mackenzie was hired by Miller in 1974 as an area manager of Miller distributors with a salary grade level of 7. In 1982 he had progressed to grade level 14, and he attained the position of Sales Services and Development Manager reporting to Smith in 1987. In late 1987 Miller undertook a corporate reorganization, which led to a transfer of many of Mackenzie's responsibilities. Concerned, Mackenzie asked Smith whether the reorganization affected his grade level. Smith responded that it did not. In 1989 Miller reevaluated the grade levels of 716 positions, including Mackenzie's. As a result, Mackenzie's position was downgraded to grade level 13. The reevaluation, however, was prospective and applied to the position, not the employee. Therefore, Mackenzie was grandfathered as a grade level 14, even though his position was a grade level 13. That same year, Mackenzie's secretary, Linda Braun, made a sexual harassment complaint against him. She made another sexual harassment complaint against him in 1990.

¶4. In August of 1992 Miller sent a memo to employees whose positions had been downgraded but who had been grandfathered to their current grade level informing them that they would be downgraded to their position grade level. Therefore, as of January 1, 1993, Mackenzie would be at grade level 13. He would receive the same salary and benefits of a grade level 14, but he would not be entitled to any future grants of stock options.

¶ 5. On March 23, 1993, Best, a Miller distributor services manager who had previously reported to Mackenzie, told her supervisor, Dave Goulet, that Mackenzie had told her about a sexually suggestive episode of the "Seinfeld" television show, which made her uncomfortable. Miller immediately investigated the matter and Mackenzie denied sexually harassing Best. After concluding its investigation, Miller discharged Mackenzie for "exercising poor judgment."

¶ 6. Mackenzie subsequently commenced this suit on September 29, 1994. He alleged four causes of action in tort against Miller, Smith, and Best: (1) intentional misrepresentation against Smith and Miller; (2) tortious interference with prospective contract against Smith; (3) tortious interference with contract against Best; and (4) wrongful termination against Miller. His theory supporting the intentional misrepresentation torts against Smith and Miller was that Miller had a duty to disclose after the 1987 reorganization that his position had been grandfathered and that Smith misrepresented to Mackenzie that he would not be affected by the reorganization. In support of the tortious interference claim against Best, he contended that she improperly induced Miller to terminate Mackenzie by fraudulently 'misrepresenting to Miller that she felt harassed by his discussion of the Seinfeld program. The circuit court denied the defendants' motion to dismiss.

¶ 7. However, the circuit court did grant Miller's motion for summary judgment as to the wrongful termination claim, but allowed Mackenzie's three remaining claims to survive. On June 23, 1997, a jury trial began and resulted in a verdict three weeks later. The jury awarded $6,501,500 in compensatory damages and $18,000,000 in punitive damages against Miller on the intentional misrepresentation claim. The jury also awarded $1,500 in compensatory damages and $500,000 in punitive damages against Smith on the same tort. The jury found Smith liable for tortious interference with Mackenzie's promotion and awarded him compensatory damages of $100,000. Finally, the jury failed to award Mackenzie any compensatory damages for tortious interference with contract against Best, but did award him $1,500,000 in punitive damages. The circuit court reduced the punitive damages against Smith to $100,000 — giving Mackenzie the option to take the reduction or risk a new trial on the issue of damages — and dismissed Mackenzie's claim against Best because the jury failed to award compensatory damages. Miller and Smith appealed.

¶ 8. In an exhaustive opinion, the court of appeals reversed the judgment of the circuit court. Mackenzie v. Miller Brewing Co., 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331. The majority found that this court's recent ruling in Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998), foreclosed the tort of intentional misrepresentation in the employment at-will context. Mackenzie, 2000 WI App 48 at ¶ 25. The court proceeded to examine whether Miller had a duty to disclose information to Mackenzie that potentially affected his decision to continue employment at Miller and determined that the creation of such a duty "would undermine sound public policy." Id. at ¶ 43.

¶ 9. Then Judge Charles Schudson, writing for the majority, examined Mackenzie's evidence to determine whether even if the court were to recognize such a tort, Mackenzie had met the elements. Id. at ¶¶ 44-61. In the court's view, Mackenzie failed to present any credible evidence upon which the jury's verdict could be based. Id. at ¶¶ 46, 48. Therefore, the court rejected his claim and reversed the circuit court decision. Id. at ¶ 102.

¶ 10. Although Mackenzie s claim is fraught with problems, we need only examine the first issue. For Mackenzie, the insurmountable obstacle is that Wisconsin does not recognize a cause of action for the tort for intentional misrepresentation to induce continued employment in the at-will employment context. Nor do we now recognize such a cause of action. Because Mackenzie does not state a cause of action, Miller's motion to dismiss should have been granted by the circuit court.

A

¶ 11. This case requires us to revisit the question of whether there is a cause of action for the tort of misrepresentation in the employment context. Whether or not a plaintiff has a cause of action in tort is a question of law subject to de novo review. Slawek v. Stroh, 62 Wis. 2d 295, 317, 215 N.W.2d 9 (1974).

¶ 12. Although it is unclear when employment at-will became an embedded fixture of Wisconsin employment relations, we first implicitly recognized the doctrine in 1871. See Prentiss v. Ledyard, 28 Wis. 131, 133 (1871). Recent scholarship on at-will employment has indicated that the doctrine was the default rule for employment contracts in this country because of a severe labor shortage in the late eighteenth and throughout the nineteenth centuries. This scholarship calls into question the view that employment at-will was created at the end of the nineteenth century to benefit employers. Regardless, we recently acknowledged the centrality of employment at-will in Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 663, 571 N.W.2d 393 (1997), by asserting that "[t]he employment-at-will doctrine is an established general tenet of workplace relations in this jurisdiction." This is because the employment-at-will rule serves the interests of employees as well as employers. It works to the employees' advantage to have an at-will contract that allows them to leave their employers at any time for any reason. An employment contract with a specific term could lock an employee into a disadvantageous relationship. The at-will doctrine provides employees and employers with much needed flexibility to fashion their own relations in a vibrant economy. It is a practical manifestation of our nation's values such as freedom of movement and entrepreneurial spirit. And it provides employees with the means to take control of their livelihoods. Therefore, it is the matrix of employee-employer contracts in Wisconsin.

B

¶ 13. " Given the flexibility that employment at-will affords employees, this court has been reluctant to interpose the judicial branch between employees and employers. See Strozinsky v. District of Brown Deer, 2000 WI 97, ¶ 33, 237 Wis. 2d 19, 614 N.W.2d 443 ("Courts will not second guess employment or business decisions, even when those decisions appear ill-advised or unfortunate."). In Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 572, 569, 335 N.W.2d 834 (1983), we recognized a narrow "public policy" exception to the doctrine of employment at-will and expressly rejected imposing a much broader "implied duty to terminate in good faith." Instead, this court adopted the "public policy exception" to the employment at-will doctrine by holding "that an employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law." Id. at 573. Several of our subsequent decisions have confronted this narrow exception. None of our decisions, however, has abrogated the at-will doctrine by recognizing the tort of misrepresentation in the employment context. In fact, our recent decision in Tatge expressly forecloses such a cause of action.

¶ 14. In Tatge, an employee was dismissed for refusing to sign a non-compete agreement, despite being told that "nothing" would happen to him if he refused to sign. 219 Wis. 2d at 102-03. The employee sued his employer for breach of contract and three forms of fraudulent misrepresentation, including negligent, strict liability, and intentional misrepresentation. Id. at 104. The circuit judge allowed the employee to proceed on his negligent misrepresentation cause of action. This court reversed, emphatically stating that "[t]he breach of an employment contract is not actionable in tort." Id. at 107 (citations omitted).

¶ 15. Mackenzie attempts to evade the force of our opinion in Tatge by first arguing that there we were confronted with negligent misrepresentation, while here the cause of action is intentional misrepresentation. While the only cause of action that reached us in Tatge was negligent misrepresentation, we did not limit the holding in the manner that Mackenzie suggests. In Tatge, we stated unequivocally that "no duty to refrain from misrepresentation exists independently of the performance of the at-will employment contract." Id. at 108. Whether the misrepresentation was negligent or intentional was irrelevant to our holding that Tatge, like Mackenzie, failed to state a cause of action under Wisconsin law.

¶ 16. Mackenzie then argues that his "misrepresentation damages did not result from his termination, but from Miller and Smith's misrepresentations inducing the employment relationship. Absent the misrepresentations, Miller would not have been in a position to terminate Mackenzie because he would not have continued his employment with Miller." Therefore, Mackenzie maintains that his damages arise independently of his employment-at-will contract with Miller. Our Tatge opinion anticipated this argument. Although "Tatge's request for damages in [that] case illustrates that his misrepresentation claim is dependent upon his termination from employment," we confronted Mackenzie's argument. Id. In Tatge, we wrote:

We do not mean to suggest that litigants may circumvent the holding of this court simply by pleading damages which somehow do not arise solely from one's termination of employment. As we have said, a duty must exist independently from the performance of the employment contract in order to maintain a cause of action in tort.

Id. at n.4. Mackenzie is attempting to do exactly what we expressly prohibited in Tatge: circumvent the holding by pleading damages — his speculative loss of opportunity in finding employment elsewhere — that arose independently of the performance of the employment contract. We decline to overrule our decision in Tatge to create a new retroactive cause of action for Mackenzie.

f — l I — I

¶ 17. Although we have recognized a new cause of action in certain compelling instances, we are apprehensive of injecting the judiciary between employees and their employers, thereby altering basic tenets of our labor market and our economy. See Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 691-92, 271 N.W.2d 368 (1978) (recognizing an action for bad faith by an insurance company in denying a claim). First, the cause of action for intentional misrepresentation to induce continued employment that Mackenzie proposes would impose a corollary duty upon employees — that is, if the tort of intentional misrepresentation exists independently of the at-will contract, it could subject employees as well as employers to liability. Second, because such a cause of action would have a profound effect on potentially millions of employees, we believe that the legislature, not the courts, would be a more appropriate forum to address whether the at-will doctrine should be so altered. See Slawek, 62 Wis. 2d at 317-18. Finally, we decline to blur the essential lines that divide tort from contract. See State Farm Mut. Ins. Co. v. Ford Motor Co., 225 Wis. 2d 305, 316-17, 592 N.W.2d 201 (1999).

A

¶ 18. The cause of action that Mackenzie urges this court to inject into the employment-at-will context would be based on Wisconsin's fraudulent representation tort. See Montreal River Lumber Co. v. Mihills, 80 Wis. 540, 50 N.W. 507 (1891). The elements of a fraud claim are: (1) false representation; (2) intent to defraud; (3) reliance upon the false representation; and (4) damages. According to Mackenzie, "the policy of the State of Wisconsin is founded upon fundamental principles and must provide an employee the remedial right to recover from an employer for intentional misrepresentation to induce continued employment." Mackenzie argues that "fundamental fairness considerations require honest disclosure between employees and employers." But see Brockmeyer, 113 Wis. 2d at 567 (reiterating the rule that "an employer may discharge an employee 'for good cause, for no cause, or even for cause morally wrong'"). In Mackenzie's view, this court should impose a duty of disclosure in the workplace. The parameters of this new tort are difficult for us to fathom. Although Mackenzie frames the cause of action in lofty language, he fails to note the possible effects. Such a cause of action could severely limit the freedom, flexibility, and privacy of employees as well as employers.

¶ 19. Injecting this cause of action into the at-will contract could require an employee to disclose information that an employer may reasonably rely upon to his or her detriment. There are many perfectly good reasons that an employee may wish to keep a personal fact from his or her employer, even though if his or her employer knew the personal fact, the employer might dismiss the employee. See Folely v. Interactive Data Corp., 765 P.2d 373 (Cal. 1988) (acknowledging that an employee has no duty to disclose information when it serves only the employer's private interest). In accordance with the reasons that supported the at-will doctrine at its inception in this country, an employee may not wish to disclose to his or her employer that he or she currently is seeking financing for his or her own venture or looking for employment elsewhere. To allow an employer to pursue a cause of action against that employee could change the employee and employer relationship and conceivably stifle the. free movement of employees. By removing the essential freedom an employee has to leave a firm at any time, we would concentrate power in the hands of a few large established firms that could use their ample resources to bind their employees to their payrolls through this new cause of action. In contrast, small start-ups or family businesses are less likely than large companies to have sophisticated personnel departments, which this new cause of action would require to reduce the risk of litigation. Instead, in a small company that has only a few employees, the employers and employees work with each other in a relatively unstructured relationship that develops and strengthens over time.

¶ 20. Indeed, Mackenzie's proposed broad cause of action fails to recognize the dynamic nature of at-will employment in practice. The employment at-will doctrine derives its vitality from the fact that the future is unknowable. Although the employee may tell his or her employer that he or she will be available for a certain period of time, subsequent events may cause the employee to leave, either to pursue an opportunity elsewhere or for some personal reason. Similarly, an employer may be unable to predict what will happen in the future. As Professor Epstein observed:

The future is not clearly known. More important, employees, like employers, know what they do not know. They are not faced with a bolt from the blue, with an 'unknown unknown.' Rather they face a known unknown for which they can plan. The at-will contract is an essential part of that planning [for the known unknown] because it allows both sides to take a wait-and-see attitude to their relationship so that new and more accurate choices can be made on the strength of improved information.

Richard A. Epstein, In Defense of the Contract At Will, 51 U. Chi. L. Rev. 947, 969 (1984). The at-will employment doctrine creates a subtle contractual relationship between the employee and employer that enables each to deal with this known unknown, which is that the employee and employer both know that something will happen in the future, but neither the employee nor the employer knows what that something is. When a future event occurs, the employee and the employer have the freedom to respond appropriately. Interposing the courts — absent a clearly defined statute — into this subtle relationship could suppress its dynamic nature.

B

¶ 21. These unforeseen effects lead us to stay our hand from creating a new cause of action for intentional misrepresentation to induce continued employment. Over 3,000,000 Wisconsin citizens are currently employed. Of those 3,000,000, approximately 490,000 are labor union members and therefore are presumably covered by a collective bargaining contract. A substantial number of the remaining 2,500,000 undoubtedly have at-will contracts with their employers since it is the default rule in our state. Brockmeyer, 113 Wis. 2d at 572. We believe that this court — in accordance with the principle of judicial restraint — should tread lightly when asked to recognize a new cause of action that could affect so many citizens, particularly since we have only the present record before us. See Doering v. WEA Ins. Group, 193 Wis. 2d 118, 132, 532 N.W.2d 432 (1995) (noting that this court is aware "drawing lines ánd creating distinctions to establish public policy are legislative tasks"); Ollerman v. O'Rourke Co., 94 Wis. 2d 17, 27, 288 N.W.2d 95 (1980) (observing that "when a court resolves a question of legal duty the court is making a policy determination"). As Justice Frankfurter observed in his dissent in Sherrer v. Sherrer, 334 U.S. 343, 366 (1948):

Courts are not equipped to pursue the paths for discovering wise policy. A court is confined within the bounds of a particular record, and it cannot even shape the record. Only fragments of a social problem are seen through the narrow windows of a litigation. Had we innate or acquired understanding of a social problem in its entirety, we would not have at our disposal adequate means for constructive solution.

Such is the case here. The legislature, with all its resources and investigative powers, is the appropriate forum for such a sweeping policy decision, which would affect millions of Wisconsin citizens. See Brockmeyer, 113 Wis. 2d at 573 ("Courts should proceed cautiously when making public policy determinations.").

¶ 22. In other circumstances, we likewise have declined to create a new cause of action that would dramatically alter our social fabric. In Slawek, we considered whether or not to recognize the tort of "wrongful birth" as a cause of action. While we acknowledged that this court has. the power to recognize such a cause of action, we declined because "recognition of a cause of action for wrongful birth would have vast social ramifications and the creation of such a cause of action is the type of public policy decision that should be made by the people of this state or their elected representatives." 62 Wis. 2d at 317-18. A cause of action for intentional misrepresentation to induce continued employment would similarly have profound economic ramifications and cause corresponding social changes. Hence, we believe that it would be inappropriate for us to abrogate the employment at-will doctrine by injecting into it a tort cause of action. See Tatge, 219 Wis. 2d at 107 ("We decline to give our blessing to such an irreverent marriage of tort and contract law.").

C

¶ 23. By asking us to recognize a tort cause of action in a contractual relationship, Mackenzie is essentially asking us to envelop contract law with tort law. It is undisputed that Mackenzie had an at-will contract with Miller. Rather than a breach of contract claim, Mackenzie's action for intentional misrepresentation necessarily sounds in tort.

¶ 24. In another case, the facts may support a remedy in contract law. For example, the employee handbook may form the terms of the employment contract and the employer or the employee may violate those terms. In Ferraro v. Koelsch, 124 Wis. 2d 154, 169, 368 N.W.2d 666 (1985), we held that "the particular personnel manual used by Hyatt. . .containing the conditions it did and which were specifically accepted by Ferraro and under which conditions he agreed to continue work, constituted a contract for something other than an employment contract terminable at will." We further noted that "we do not hold that all personnel manuals or employee handbooks will have that effect." Id.; see also Vorwald v. School Dist. of River Falls, 167 Wis. 2d 549, 558, 482 N.W.2d 93 (1992) (holding that a particular personnel policy without evidence that either party agreed to be bound by its terms did not create a contract, implied or otherwise). Thus, while a particular employee handbook could give rise to an action in contract, that is not the case presently before us.

¶ 25. Similarly, there might be a cause of action sounding in contract under promissory estoppel. We first recognized promissory estoppel in Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 698, 133 N.W.2d 267 (1965). There, we asserted that three questions must be answered affirmatively to give rise to an action for promissory estoppel: "(1) Was the promise one which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee? (2) Did the promise induce such action or forbearance? (3) Can injustice be avoided only by enforcement of the promise?" We have previously examined this doctrine in the at-will employment context. See Smith v. Beloit Corp., 40 Wis. 2d 550, 556-57, 162 N.W.2d 585 (1968) (reasserting that justice does not require the application of promissory estoppel where employee left former job based on promise of "permanent employment"); Forrer v. Sears, Roebuck & Co., 36 Wis. 2d 388, 392, 153 N.W.2d 587 (1967) (holding that justice does not require the invocation of promissory estoppel where employee alleges that he gave úp his farming operations at great financial loss in consideration for "full-time permanent employment"). Therefore, in another case, promissory estoppel might be an appropriate cause of action in the employment context. A cause of action for promissory estoppel in the employment context, like a contract cause of action based on an employee handbook, is in accordance with Wisconsin contract law when the particular facts indicate that the parties altered the default relationship of at-will employment.

¶ 26. But here, the record demonstrates that there is no remedy for Mackenzie in contract law. Therefore, he seeks to shoehorn a tort cause of action into his at-will contractual relationship with Miller. Absent an applicable statute, we reject his attempt to create this tort within a contractual relationship and emphasize the need to preserve the boundary between tort law and contract law.

¶ 27. We have noted that "[i]t is important to maintain this distinction [between tort and contract law] because the two theories serve very different purposes." State Farm, 225 Wis. 2d at 315. Tort law "rests on obligations imposed by law." Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 405, 573 N.W.2d 842 (1998). On this score, we said "[t]ort law is rooted in the concept of protecting society as a whole from physical harm to person or property." Id. (citations omitted). Further explicating the foundations of tort law, we wrote that "[t]ort law was designed to protect people from unexpected losses that amount to an overwhelming misfortune that a person may be unprepared to meet." State Farm, 225 Wis. 2d at 316 (citations omitted). Hence, tort law "serves the 'prophylactic' purpose of preventing future harm; payment of damages provides a strong incentive to prevent the occurrence of harm." Merten v. Nathan, 108 Wis. 2d 205, 211-12, 321 N.W.2d 173 (1982). Because tort law protects society as a whole, recovery in appropriate circumstances can include punitive or exemplary damages, which are designed "to punish the wrongdoer and to deter the wrongdoer and others from engaging in similar conduct." Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 389, 577 N.W.2d 23 (1998) (citations omitted).

¶ 28. In contrast, contract law "is based on obligations imposed by bargain, and it allows parties to protect themselves through bargaining." State Farm, 225 Wis. 2d at 316-17 (citations omitted). Contract law does not involve the same broader societal concerns as tort law for "the individual limited duties implicated by the law of contracts arise from the terms of the agreement between the particular parties." Daanen, 216 Wis. 2d at 404 (citations omitted). Thus, the damages allowed in a contract action "[are] limited to the parties to the contract or those for whose benefit the contract was made." State Farm, 225 Wis. 2d at 317. Because the law encourages economic exchanges and seeks to foster predictability, punitive damages are not allowed in a breach of contract action; to allow otherwise would chill the formation of contracts and reduce predictability. Parties who enter into contracts expect courts to enforce the terms, which the law requires unless the contract is for an illegal purpose or a party lacked capacity. See Merten, 108 Wis. 2d at 211 ("The courts protect each party to a contract by ensuring that the promises will be performed. The law protects justifiable expectations and the security of transactions."). Essentially, contract law is based upon the principles of free will and consent, whereas tort law is based upon the principles of risk-sharing and social duties.

¶ 29. In the present case, Mackenzie freely consented to entering into a contractual at-will relationship with Miller in 1974 — there is no allegation that he was fraudulently induced into this relationship. During his tenure at Miller, he was free to leave at any point for opportunities elsewhere, just as Miller was free to dismiss Mackenzie. Under the at-will contract between Miller and Mackenzie, Miller had no obligation to inform Mackenzie of any decisions that it made or intended to make and Mackenzie had no obligation to inform Miller of any decisions he made or intended to make. Now, after Miller exercised its contractual right in dismissing Mackenzie, he asks this court to create a retroactive cause of action in tort that would address his alleged grievance — that Miller had a duty to inform him of his status and failed to do so. We decline to create such an action. Under the law of Wisconsin, individuals can enter into at-will employment contracts and terminate those relationships for good cause, no cause, or morally wrong cause. While we do not condone employers misrepresenting a fact to their employees — just as we do not support employees misrepresenting a fact to their employers — we find that the cause of action must be found in contract rather than tort law. Finally, we reject the notion that either employees or employers have a duty to inform the other of a fact the other conceivably may rely upon absent a statute to the contrary.

> HH

¶ 30. In conclusion, we hold that there is not a cause of action in Wisconsin for intentional misrepresentation to induce continued employment. Thus, Mackenzie failed to state a cause of action against Miller and Smith. We therefore affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

¶ 31. N. PATRICK CROOKS, J., did not participate.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 32. (concurring). The lengthy majority opinion boils down to adopting this rule of law: When an employer deliberately and intentionally lies to an at-will employee to induce the employee to continue employment and the employee continues to work relying on those lies, and then sustains damages as a result of reliance on the lies, the employee cannot sue in a tort action for damages. I cannot join this opinion.

¶ 33. Wisconsin's general rule of law is that everyone is liable for damages for intentional misrepresentation. The majority opinion carves out an exception to this general rule and states that employers are not liable to at-will employees for damages for intentional misrepresentation. It's one thing to say that the elements of the tort of intentional misrepresentation have not been met in the present case. I therefore concur. It's entirely another thing to say, as the majority opinion does in the present case, that the tort of intentional misrepresentation never applies in an employment-at-will relationship.

¶ 34. I join ¶ 25 of the opinion in which the majority opinion recognizes an employee-at-will's cause of action under the doctrine of promissory estop-pel. It is the lack of a contract in at-will employment that allows claims for promissory estoppel.

¶ 35. For the reasons set forth, I write separately.

¶ 36. I am authorized to state that Justice WILLIAM A. BABLITCH joins this concurrence.

       The circuit court dismissed the wrongful termination claim against Miller at summary judgment. Mackenzie does not contest that ruling before this court.

       Mackenzie has not raised the claim of tortious interference with prospective contract before this court.

       The jury awarded Mackenzie $1,500,000 in punitive damages against Best, but the circuit judge dismissed the award because the jury failed to award Mackenzie any compensatory damages against Best.

       Miller utilizes a grade level system that classifies each position according to responsibilities and corresponding salary range and benefits.

       As noted earlier, the court of appeals also affirmed the circuit court's dismissal of Mackenzie's wrongful termination claim at summary judgment. Mackenzie v. Miller Brewing Co., 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331. Mackenzie does not contest that ruling here. The court of appeals also reversed the ruling in favor of Mackenzie on his tortious interference with prospective contract action against Smith based on its review of the evidence. Id. at ¶¶ 62-70. Apparently, Mackenzie does not appeal that ruling either.

       In Prentiss, this court did not use the term "employment at-will." Rather, in a contract dispute between an employee and his employer over the term of a services contract, this court merely stated that "[e]ither party, however, was at liberty to terminate the service at any time, no definite period for which the service was to continue having been agreed upon." Prentiss v. Ledyard, 28 Wis. 131, 133 (1871). Therefore, while Prentiss is the first Wisconsin case where the employment at-will doctrine was applied to an employment dispute, this court did so without acknowledging it as a new doctrine.

         See Deborah A. Ballam, The Development of the Employment At Will Rule Revisited: A Challenge to Its Origins as Based in the Development of Advanced Capitalism, 13 Hofstra Lab. & Emp. L.J. 75 (1995) (observing that employment at-will was prevalent throughout the nineteenth century); Mayer G. Freed & Daniel D. Polsby, The Doubtful Provenance of "Wood's Rule" Revisited, 22 Ariz. St. L.J. 351 (1990) (noting that Wood's statement of the employee at-will rule was based on a well-established understanding of labor relations); Andrew P. Mor-riss, Exploding Myths: An Empirical and Economic Reassessment of the Rise of Employment At-Will, 59 Mo. L. Rev. 679 (1994) (disputing earlier scholarship on the employment at-will rule that had previously formed the basis for courts and commentators to advocate modification to the rule).

       See Jay M. Feinman, The Development of the Employment At Will Rule, 20 Am. J. Legal Hist. 118, 135 (1976). According to Feinman, the employment at-will rule was essentially created by Horace Gray Wood in his 1877 treatise — six years after our own decision implicitly applied the doctrine in Prentiss — with little foundation and adopted by the judiciary throughout the country, which sought to preserve our free enterprise system. Feinman, 126, 135. Thus, he contended that in light of "radical political economics," it is apparent that "[i]n the context of the control of labor and the discharge of employees, [the employment at-will] rule served the purposes of the owners of capital." Id. at 135. According to Feinman, employment at-will was created at the end of the nineteenth century to support "the dominion of the owners of capital over their employees and their enterprises. . .a basic element of the capitalist system." Id. at 133. His interpretation, however, has been questioned in recent years by other scholars who have asserted that employment at-will inured to the benefit of employees in a period of labor shortage. Professor Ballam has observed:
      Employment at will was adopted in colonial times in response to the unique economic conditions in the colonies created by the ready availability of free land, a severe labor shortage, and high labor costs. Laborers who could easily obtain free land wanted to work only long enough to accumulate enough capital to start their own farms and thus did not want to be bound to á long-term employment relationship.
      Ballam, Employment At Will Rule Revisited, 13 Hofstra Lab. & Emp. L.J. at 88 n.86. Professor Ballam buttressed her observation in two subsequent articles that analyzed the law in nine states. See Deborah A. Ballam, The Traditional View on the Origins of the Employment-At-Will Doctrine: Myth or Reality, 33 Am. Bus. L.J. 1 (1995); Exploding the Original Myth Regarding Employment-At-Will: The True Origins of the Doctrine, 17 Berkeley J. Emp. & Lab. L. 91 (1995).

        See Richard A. Epstein, In Defense of the Contract At Will, 51 U. Chi. L. Rev. 947, 982 (1984) (concluding that "[t]he flexibility afforded by the contract at will permits the ceaseless marginal adjustments that are necessary in any ongoing productive activity conducted. . .in conditions of technological and business change"); Mayer G. Freed & Daniel D. Polsby, Just Cause for Termination Rules and Economic Efficiency, 38 Emory L.J. 1097 (1989) (discussing the greater efficiency created by an at-will employment system, which serves both the worker and employer).

       For example, Professor Holt argues that in the nineteenth century employers utilized the courts to hold employees to written employment contracts with specific terms, thereby revealing a bias against workers. Wythe Holt, Recovery by the Worker Who Quits: A Comparison of the Mainstream, Legal Realist, and Critical Legal Studies Approaches to a Problem of Nineteenth Century Contract Law, 1986 Wis. L. Rev. 677, 732 (1986).

       In adopting this exception, we stated that ”[n]o employer should be subject to suit merely because a discharged employee's conduct was praiseworthy or because the public may have derived some benefit from it." Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 573-74, 335 N.W.2d 834 (1983).

      SRee Strozinsky v. District of Brown Deer, 2000 WI 97, 237 Wis. 2d 19, 614 N.W.2d 443 (finding that an employee can raise constructive discharge defense in public policy exception cases where the employer alleges voluntary resignation); Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 668, 571 N.W.2d 393 (1997) (including situations where an employee is fired for his or her compliance with an affirmative obligation under the law); Kempfer v. Automated Finishing, Inc. ,211 Wis. 2d 100, 114, 564 N.W.2d 692 (1997) (holding that an employee cannot be forced to violate highway safety regulations); Bushko v. Miller Brewing Co., 134 Wis. 2d 136, 142-44, 396 N.W.2d 167 (1986) (limiting the scope of the public policy exception to situations where the employee is terminated for refusing a command, instruction, or request of the employer to violate public policy as established by existing law); Wandry v. Bull's Eye Credit Union, 129 Wis. 2d 37, 46-47, 384 N.W.2d 325 (1986) (extending Brockmeyer's public policy exception to include the "spirit" of a statutory provision).

       We recently reiterated the fundamental principle of stare decisis in State v. City of Oak Creek, 2000 WI 9, ¶ 55 n.27, 232 Wis. 2d 612, 605 N.W.2d 526:
      Fidelity to precedent, the doctrine of stare decisis 'stand by things decided', is fundamental to 'a society governed by the rule of law.' When legal standards 'are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.' (citations and quotations omitted).

       Mackenzie argues in his brief to this court that "[allthough the tort [intentional misrepresentation to induce continued employment] is a novel one in Wisconsin, it is a logical and reasonable extension of the law of fraud to the workplace." We agree that the proposed cause of action for intentional misrepresentation to induce continued employment is novel, but we disagree that it is a logical and reasonable extension of the law of fraud. Instead, we believe this cause of action would engender a dramatic change in employee-employer relations, the effects of which cannot be fully comprehended by this court based on the record before us.

       We note, as the court of appeals did below, that there is a distinction between actions involving fraudulent inducements to commence employment and fraudulent inducements to continue employment. See Mackenzie, 2000 WI App 48 at ¶ 30 n.5. The essential difference is that fraudulent inducement to commence employment occurs prior to the formation of the at-will contract. Of course, both employees and employers may be subjected to a fraud action based on conduct that occurred prior to the formation of an at-will contract.

       If the ostensible reason for this new cause of action is to promote honesty in the workplace, employers as well as employees would be able to utilize a fraudulent misrepresentation to induce continued employment cause of action against each other. Under current Wisconsin law, employers do not stand in a fiduciary relationship with their employees. See Lehner v. Crane Co., 448 F. Supp. 1127, 1131 (E.D. Pa. 1978) (asserting that "an employer-employee relationship does not, in and of itself, give rise to a fiduciary relationship from which a duty to disclose could be derived"). Therefore, there is no distinction that would make this new cause of action applicable only to employees, unless this court were to arbitrarily fashion such a dichotomy. Such a dichotomy, however, would lack the clarity and legitimacy of statutory definitions of the key terms, such as "employee" and "employer."

         See Gail L. Heriot, The New Feudalism.: The Unintended Destination of Contemporary Trends in Employment Law, 28 Ga. L. Rev. 167 (1993) (arguing that limiting the at-will doctrine will contribute to the "feudalization" of employment relations and lead employers to become more active in influencing what an employee does off the job).

       We have been unable to find any jurisdiction in this country that recognizes the cause of action advanced by Mackenzie.

       Chicago Regional Economic Analysis and Information Office, Bureau of Labor Statistics (Dec. 15, 2000). There are no definite statistics on how many workers have at-will contracts, but since it is the default rule, most workers, except union members and independent contractors, work on an at-will basis.

       Barry Hirsch & David Macpherson, Union Membership and Earnings Data Book: Compilations from the Current Population Survey, The Bureau of National Affairs, Inc., Washington, D.C. (1999).

       Mackenzie acknowledges his inability to bring a contract action against Miller. In his brief, he states that "Mackenzie had no contract cause of action against Miller or Smith for their intentional misrepresentations. Miller did not break any promise."

       In Merten, we acknowledged the important public policy of the freedom to contract by quoting the Supreme Court in Baltimore & Ohio Sw. Ry. Co. v. Voigt, 176 U.S. 498, 505 (1900): " 'if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice.'" Merten v. Nathan, 108 Wis. 2d 205, 212 n.5, 321 N.W.2d 173 (1982). Mackenzie does not allege that he did not freely enter into his at-will contract with Miller.

       The elements of the tort of intentional misrepresentation are: the defendant made a representation of fact; the representation of fact was untrue; the untrue representation was made by the defendant knowing the representation was untrue or recklessly without caring whether it was true or false; the defendant made the representation with intent to deceive and induce the plaintiff to act upon it to the plaintiffs pecuniary damage; and the plaintiff believed such representation to be true and relied on it. See Wis JI — Civil 2401.

       The majority overlooks persuasive authority from numerous jurisdictions that have allowed this cause of action in the employment-at-will context. See, e.g., Frank J. Cavico, Fraudulent, Negligent, and Innocent Misrepresentation in the Employment Context: The Deceitful, Careless, and Thoughtless Employer, 20 Campbell L. Rev. 1,4-5 (1997) (providing an overview of the case law on employer misrepresentation, including several cases in the at-will employment context).

      Other theories of recovery exist. See, e.g., ¶24 of the majority opinion; Brodsky v. Hercules, Inc., 966 F.Supp. 1337, 1351 (D. Del. 1997) (a cause of action for breach of an implied covenant of good faith and fair dealing exists when the employer misrepresents some important fact, most often the employers' present intention, and the employee relies thereon either to accept a new position or remain in a present one).


text:
    State of Wisconsin, Plaintiff-Respondent, v. Paul Rutzinski, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 98-3541-CR.

      Oral argument November 2, 2000.

    Decided March 20, 2001.

    2001 WI 22
    (Also reported in 623 N.W.2d 516.)

      For the defendant-appellant-petitioner there were briefs by Craig A. Mastantuono, Maureen B. Fitzgerald and Fitzgerald & Mastantuono, S. C., Milwaukee, and oral argument by Craig A. Mastantuono.

    For the plaintiff-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
   JON P. WILCOX, J.

¶ 1. This case requires us to decide under what circumstances a cell-phone call from an unidentified motorist provides sufficient justification for an investigative traffic stop. Relying on information obtained from such a call, a Greendale police officer, Jerome Sardina (Officer Sardina), made an investigative traffic stop of the petitioner, Paul Rutzinski (Rutzinski). During this stop, Officer Sardina obtained evidence that Rutzinski was operating his motor vehicle while intoxicated.

¶ 2. Rutzinski subsequently moved to suppress the evidence obtained during the traffic stop, arguing that the information in the motorist's call was not sufficiently reliable to justify the stop and, therefore, the stop was unreasonable under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. The Circuit Court for Milwaukee County, Jeffery A. Kremers, Judge, denied Rutzinski's motion and entered a judgment of conviction, finding Rutzinski guilty of illegally operating a motor vehicle while intoxicated. The court of appeals, in State v. Rutzinski, No. 98-3541-CR, unpublished slip op. (Wis. Ct. App. May 11, 1999), affirmed the circuit court judgment.

¶ 3. For the reasons set forth below, we hold that under the circumstances of this case, the information in the motorist's call provided sufficient justification for an investigative stop of Rutzinski. Accordingly, we affirm the decision of the court of appeals.

I — I

¶ 4. The relevant facts are undisputed. On February 12, 1998, at approximately 10:00 p.m., Officer Sardina was on patrol in Greenfield near 68th Street and Grange Avenue when he overheard a police dispatch requesting a squad to respond to the area of 51st Street and Grange Avenue. According to the dispatch, an unidentified motorist calling from a cell phone reported that he or she was observing a black pickup truck weaving within its lane, varying its speed from too fast to too slow, and "tailgating." Officer Sardina responded to the dispatch.

¶ 5. The dispatcher then issued a second dispatch, indicating that the motorist was still on the phone, and he or she and the black pickup had traveled to 60th Street and Grange Avenue. In light of this information, Officer Sardina determined that the vehicles were heading toward him. Hence, he positioned his squad car in the median and waited.

¶ 6. Shortly thereafter, Officer Sardina saw the vehicles pass his location. He then pulled his squad car behind the black pickup. Upon doing so, the dispatcher stated that the motorist had indicated that he or she was in the vehicle ahead of the truck and saw Officer Sardina's squad car, and that Officer Sardina was following the correct truck.

¶ 7. Although Officer Sardina did not independently observe any signs of erratic driving, he then activated his emergency lights and conducted a traffic stop of the black pickup. During this stop, Officer Sardina observed that Rutzinski, the driver of the pickup, had glassy, bloodshot eyes, smelled like alcohol, and was slurring his speech. A subsequent Intoxilyzer test revealed that Rutzinski had a .21 blood-alcohol concentration. The motorist who had reported Rutzinski s erratic driving also pulled over when Officer Sardina initiated the stop. Although the motorist did not speak with Officer Sardina, he or she did speak at that time with Officer Sardina's supervisor. However, there is no record of the motorist's name or other identification, or any indication of what was said between Officer Sardina's supervisor and the motorist.

¶ 8. In light of the evidence obtained as a result of Officer Sardina's stop, the State charged Rutzinski with one count of operating a motor vehicle while under the influence of an intoxicant, fourth offense, and one count of operating a motor vehicle with a prohibited alcohol concentration, fourth offense. In response, Rutzinski filed a motion to suppress the evidence obtained as a result of the stop. Rutzinski argued that the unidentified motorist's call did not present reliable and credible grounds upon which to justify the stop. And because the call provided Officer Sardina's sole basis for the stop, Rutzinski contended, the stop was unreasonable under the Fourth Amendment and Article I, Section 11.

¶ 9. The trial court denied Rutzinski's motion. Thereafter, Rutzinski pled "no contest" to one count of operating a motor vehicle while under the influence of an intoxicant, fourth offense. The circuit court accepted Rutzinski's plea and entered judgment accordingly.

¶ 10. Rutzinski then appealed the circuit court's judgment of conviction, again arguing that the traffic stop violated the Fourth Amendment and Article I, Section 11. On May 11,1999, the court of appeals rejected Rutzinski's argument and affirmed the circuit court judgment. Rutzinski, unpublished slip op. at 3.

¶ 11. Rutzinski thus petitioned this court for review, which we granted.

I — I HH

¶ 12. Rutzinski asks this court to determine whether Officer Sardina's stop violated the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. This requires us to apply the undisputed facts to constitutional standards. As such, this case presents a question of law, which we review de novo. State v. Jackson, 147 Wis. 2d 824, 829, 434 N.W.2d 386 (1989).

¶ 13. To date, we consistently have conformed our interpretation of Article I, Section 11 and its attendant protections with the law developed by the United States Supreme Court under the Fourth Amendment. State v. Secrist, 224 Wis. 2d 201, 208, 689 N.W.2d 387 (1999). Under both provisions, the constitutional imperative is that all searches and seizures be objectively reasonable under the circumstances existing at the time of the search or seizure. Whren v. United States, 517 U.S. 806, 810 (1996); State v. Waldner, 206 Wis. 2d 51, 55-56, 556 N.W.2d 681 (1996).

¶ 14. Investigative traffic stops, regardless of how brief in duration, are governed by this constitutional reasonableness requirement. Whren, 517 U.S. at 809-10; State v. Guzy, 139 Wis. 2d 663, 674-75, 407 N.W.2d 548 (1987). In accordance with this requirement, a police officer may temporarily stop a suspicious vehicle to maintain the status quo while determining the identity of the driver or obtaining other relevant information. United States v. Hensley, 469 U.S. 221, 226 (1985); Guzy, 139 Wis. 2d at 675. However, to pass muster under the Fourth Amendment and Article I, Section 11, an officer initiating an investigative stop must have, at a minimum, a reasonable suspicion that the driver or occupants of the vehicle have committed an offense. Hensley, 469 U.S. at 228; Guzy, 139 Wis. 2d at 675. As the United States Supreme Court first articulated in Terry v. Ohio, 392 U.S. 1, 27 (1968), this requires that the stop be based on something more than the officer's "inchoate and unparticularized suspicion or 'hunch.'" At the time of the stop, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, objectively warrant a reasonable person with the knowledge and experience of the officer to believe that criminal activity is afoot. Id. at 21-22, 27; Hensley, 469 U.S. at 226; Waldner, 206 Wis. 2d at 55.

¶ 15. When reviewing a set of facts to determine whether those facts could give rise to a reasonable suspicion, courts should apply a commonsense approach to strike a balance between the interests of the individual being stopped to be free from unnecessary or unduly intrusive searches and seizures, and the interests of the State to effectively prevent, detect, and investigate crimes. Hensley, 469 U.S. at 228; Waldner, 206 Wis. 2d at 56. In every case, a reviewing court must undertake an independent objective analysis of the facts surrounding the particular search or seizure and determine whether the government's need to conduct the search or seizure outweighs the searched or seized individual's interests in being secure from such police intrusion. Hensley, 469 U.S. at 228; State v. McGill, 2000 WI 38, ¶ 18, 234 Wis. 2d 560, 609 N.W.2d 795; Waldner, 206 Wis. 2d at 56.

hH I — I I — I

¶ 16. In the present case, Rutzinski does not dispute that Officer Sardina could have initiated an investigative traffic stop if he personally had observed Rutzinski's alleged erratic driving. However, as Rutzinski correctly indicates, Officer Sardina did not personally observe any suspicious driving; rather, he relied upon the motorist's tip to form a reasonable suspicion. This tip, Rutzinski argues, did not provide sufficient information to justify the stop.

¶ 17. In some circumstances, information contained in an informant's tip may justify an investigative stop. See Adams v. Williams, 407 U.S. 143, 147 (1972) (rejecting the argument "that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person"). However, informants' tips vary greatly in reliability. Thus, before an informant's tip can give rise to grounds for an investigative stop, the police must consider its reliability and content.

¶ 18. Tips should exhibit reasonable indicia of reliability. Cf. Illinois v. Gates, 462 U.S. 213, 233 (1983) (applying same standard to probable cause determination). In assessing the reliability of a tip, due weight must be given to: (1) the informant's veracity; and (2) the informant's basis of knowledge. Id. at 230. These considerations should be viewed in light of the "totality of the circumstances," and not as discrete elements of a more rigid test: "[A] deficiency in one [consideration] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 233. Although there is no per se rule of reliability, these considerations outline a general spectrum of potential types of tips that, under specific circumstances, can give rise to a reasonable suspicion.

¶ 19. On one end of the spectrum are cases in which the police receive a tip from an informant whom they are reasonably justified in believing to be truthful. The United States Supreme Court examined this situation in Adams v. Williams, 407 U.S. 143. In Adams, an informant approached a police officer and indicated that a particular individual in a nearby vehicle was in possession of drugs and a gun. Id. at 144-45. The officer personally knew the informant, and the informant had provided the officer with information in the past. Id. at 144, 146. Thus, based on the informant's tip, but without independently investigating or corroborating any of the facts therein, the officer located the individual identified in the tip and conducted an investigative stop and protective pat-down for weapons. Id. at 145. As a result, the police obtained incriminating evidence. Id. at 145.

¶ 20. Upon review of a motion to suppress the evidence obtained as a result of the stop, the Supreme Court held that the informant's tip was sufficiently reliable to justify the stop. Id. at 149. First, the Court explained that because the informant had provided the officer information in the past and "came forward personally to give information that was immediately verifiable at the scene," the officer had some opportunity to assess informant's veracity. Id. at 146. Second, the Court reasoned that because the tip came from an informant whom the investigating officer personally knew, the officer could have arrested the informant for giving a false tip had the tip proven to be untrue. Id. at 146-47. This threat of potential arrest, the Court explained, could lead a reasonable officer to conclude that the informant would not provide a false tip; in other words, the officer could presume that the informant's tip was reliable. Id. at 147. In light of these considerations, the Court upheld the stop without undertaking any further analysis to determine the informant's basis of knowledge. Id. at 146-47.

¶ 21. Adams illustrates that in some circumstances, an informant's veracity can afford a tip with sufficient reliability to justify an investigative stop. That is, if there are strong indicia of the informant's veracity, there need not necessarily be any indicia of the informant's basis of knowledge.

¶ 22. At the other end of the spectrum are cases where a totally anonymous informant provides the police with a tip which, through independent police investigation or other corroboration, indicates that the informant possesses "inside information." The Supreme Court examined this scenario in Alabama v. White, 496 U.S. 325 (1990). In that case, the police received an anonymous telephone call stating that the defendant would leave a particular address "at a particular time in a brown Plymouth station wagon with the right taillight lens broken," drive to a certain named motel, and be in possession of a brown attach case containing approximately one ounce of cocaine. Id. at 327. Based on this information, the police proceeded to the address indicated by the informant and located a station wagon matching the vehicle described in the tip. Id. At approximately the time indicated by the informant, the officers observed the defendant leave the building and enter the station wagon. Id. The officers then followed the defendant's vehicle as it headed along the most direct route to the motel named in the tip. Id. Just prior to reaching the motel, the officers stopped the defendant and undertook a consensual search of her car. Id. During this search, the officers located the attache case, which they found to contain marijuana and cocaine. Id. The defendant subsequently moved to suppress the evidence obtained as a result of the search, contending that the officers did not have a reasonable suspicion to conduct the initial investigative stop. Id. at 327-28.

¶ 23. On review, the Court held that although this was "a close case," under the circumstances, the anonymous tip, as corroborated by the officers, "exhibited sufficient indicia of reliability to justify the investigatory stop." Id. at 332. The Court explained that "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id. at 330. It then noted that the tip at issue, in itself, provided virtually no indication of the informant's veracity or basis of knowledge. Id. at 329. Accordingly, "something more" than the tip was required. Id. (quoting Gates, 462 U.S. at 227).

¶ 24. However, the Court further noted that the informant’s tip not only contained easily obtainable facts such as the defendant's whereabouts or the type of car she drove, but also predicted the defendant's future behavior — that she would leave at a certain time and drive to a particular motel. Id. at 332. These predictions were important, the Court explained, because once the accuracy of the predictions was verified, the police reasonably could infer that the informant had "inside information." Id. That is, when the police verified the predictions, they had reason to believe that the informant had a firm basis of knowledge. This basis of knowledge, the Court concluded, provided the tip with sufficient indicia of reliability to justify the investigative stop. Id. Hence, although the initial anonymous tip did not, in itself, justify an investigative stop, the corroboration of the informant's predictions did.

¶ 25. White illustrates that in cases where the police receive a tip from an unidentifiable informant, the tip nonetheless may be deemed reliable if it contains "inside information" or a similar verifiable explanation of how the informant came to know of the information in the tip, which the police in turn independently corroborate. Stated another way, if a tip contains strong indicia of an informant's basis of knowledge, there need not necessarily be any indicia of the informant's veracity.

¶ 26. We are mindful, however, that the Adams and White analyses do not create a per se rule by which to judge the objective reasonableness of an investigative stop based on an informant's tip. As stated above, when assessing whether a stop is constitutionally reasonable, a reviewing court must balance the interests of the individual being stopped against the interests of the State to effectively root out crime. Hensley, 469 U.S. at 228; McGill, 2000 WI 38, at ¶ 18; Waldner, 206 Wis. 2d at 56. In light of this balancing test, we recognize that there may be circumstances where an informant's tip does not exhibit indicia of reliability that neatly fit within the bounds of the Adams-White spectrum, but where the allegations in the tip suggest an imminent threat to the public safety or other exigency that warrants immediate police investigation. In such circumstances, the Fourth Amendment and Article I, Section 11 do not require the police to idly stand by in hopes that their observations reveal suspicious behavior before the imminent threat comes to its fruition. Rather, it may be reasonable for an officer in such a situation to conclude that the potential for danger caused by a delay in immediate action justifies stopping the suspect without any further observation. Thus, exigency can in some circumstances supplement the reliability of an informant's tip in order to form the basis for an investigative stop. Cf. City of Indianapolis v. Edmond, 121 S. Ct. 447, 455 (2000) (noting that exigencies of some scenarios likely would outweigh the individual's right to be free from an investigative traffic stop).

IV

¶ 27. The Supreme Court recently examined the limits of the White-Adams reliability spectrum in Florida v. J.L., 529 U.S. 266 (2000). In J.L., the police received an anonymous telephone call reporting "that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." Id. at 268. The police had no audio recording of the call, nor did they know anything about the informant. Id. Nonetheless, based on the allegation and information in the tip, two officers proceeded to the bus stop, located a black male wearing a plaid shirt, and, without independently observing any suspicious behavior, initiated an investigative stop of that person. Id. As a result of the stop, the police discovered that the suspect was carrying a concealed weapon without a license and while under the age of eighteen, thus violating Florida law. Id. at 268-69. The suspect later moved to suppress evidence of the gun, arguing that the police discovered it as a result of an unconstitutional stop based on an unreliable anonymous tip. Id. at 269.

¶ 28. On review, the Supreme Court ruled that the stop was unconstitutional. Id. at 274. The Court explained that this case involved a totally anonymous tip. Id. at 270. Thus, unlike the tip in Adams "from a known informant whose reputation [could] be assessed and who [could] be held responsible if her [or his] allegations turn out to [have been] fabricated," the tip in this case failed to demonstrate the informant's veracity. Id. For this reason, the Court explained, the police were required under White to corroborate the tip. Id. However, to corroborate a tip, the Court further explained, the police must do more than verify easily obtainable information that tends to identify the suspect; they must verify information that tends to indicate the informant's basis of knowledge about the suspect's alleged illegal activity. Id. at 271-72. Hence, a totally anonymous tip must contain not only a bald assertion that the suspect is engaged in illegal activity (e.g., that the suspect illegally possesses a gun), but also verifiable information indicating how the tipster came to know of the alleged illegal activity (i.e., the informant's basis of knowledge). Id. at 272; see also White, 496 U.S. at 331-32. In this case, the Court noted, the anonymous tip did not contain any information such as a prediction regarding the suspect's future behavior which, if corroborated, would indicate the informant's basis of knowledge. J.L., 529 U.S. at 271. Rather, "[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he [or she] knew about the gun nor supplied any basis for believing he [or she] had inside information about [the suspect]." Id. Thus, the Court concluded that the tip failed under White analysis. Id. at 271.

¶ 29. Further, the Court rejected Florida's argument that the content of a tip alleging that a suspect possesses a firearm necessarily entails such exigency that it warrants an exception to the general rule that tips must exhibit indicia of reliability. Id. at 272. The Court noted that "[flirearms are dangerous, and extraordinary dangers sometimes justify unusual precautions." Id. However, it reasoned that a firearms exception would create a rule under which any person seeking to harass another individual could simply allege that the individual possesses a gun. Id. The Court explained: "As we clarified when we made indi-cia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied." Id. at 273. Accordingly, the Court held that the anonymous tip did not give rise to a reasonable suspicion to conduct the stop and, therefore, the stop was constitutionally unreasonable. Id. at 274.

¶ 30. In the present case, Rutzinski analogizes Officer Sardina's investigative traffic stop to the stop in J.L. First, he points out that Officer Sardina, like the officers in J.L., did not independently observe any suspicious behavior. Second, he contends that like the tip in J.L., the tip at issue here came from an unidentified informant who provided no predictions regarding Rutzinski's future conduct. As such, Officer Sardina could neither presume that the informant was being truthful, nor could he conclude that the informant had inside information about whether Rutzinski was intoxicated. And third, Rutzinski asserts that under J.L., this court cannot create a constitutional "drunk driving" exception to the Adams-White reliability requirement. For these reasons, and based on the Supreme Court's holding in J.L., Rutzinski contends that although the informant's tip in this case may have given Officer Sardina grounds to investigate the situation and perhaps form a reasonable suspicion based on facts that he personally may have observed, the tip did not, in itself, provide a reasonable basis for Officer Sardina's investigative stop. Therefore, Rutzinski claims that the stop violated the Fourth Amendment and Article I, Section 11.

¶ 31. We reject Rutzinski's arguments. To be sure, Officer Sardina did not independently observe any suspicious behavior. But the present case involves a very different set of facts than those in J.L.

¶ 32. First, unlike the caller in J.L., the informant in this case exposed him- or herself to being identified. The informant indicated to the police prior to the stop that he or she was in the vehicle in front of Rutzinski's pickup. Officer Sardina thus could infer that by revealing that he or she was in a particular vehicle, the informant understood that the police could discover his or her identity by tracing the vehicle's license plates or directing the vehicle to the side of the road. That is, like the officer in Adams, Officer Sardina could reasonably have concluded that the informant knew that he or she potentially could be arrested if the tip proved to be fabricated. Accord United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir. 1978) (Kennedy, J.) (holding that by "presenting himself to the [police] and doing so while driving a car from which his identity might easily be traced, the [unidentified] informant was in a position to be held accountable for his intervention"); State v. Slater, 986 P.2d 1038, 1043 (Kan. 1999) (holding and providing cites for cases from several jurisdictions which hold that tips from unidentified informants generally are reliable when "the informant gives enough information that his or her identity may be ascertained"). As explained in Adams, this threat of arrest could lead a reasonable police officer to conclude that the informant is being truthful.

¶ 33. Second, unlike the caller in J.L., the informant in this case provided the police with verifiable information indicating his or her basis of knowledge. The informant explained that he or she was making personal observations of Rutzinski's contemporaneous actions. Additionally, the informant provided not only a description of Rutzinski's vehicle and the direction in which it was traveling, but also indicated the time at which Rutzinski's vehicle passed specific locations as it progressed toward Officer Sardina, Officer Sardina's arrival on the scene, and that Officer Sardina was following a black pickup. While many people may have been able to identify Rutzinski's vehicle and the general direction in which it was traveling, only a person contemporaneously observing the vehicle or possessing "inside information" (for example, a person in contact with Rutzinski at the time in question) would have been able to indicate where the vehicle was located and the setting surrounding the vehicle at the given time. Thus, Officer Sardina reasonably could have inferred from this information that the informant had a reliable basis of knowledge.

¶ 34. And third, unlike the tip in J.L., the tip in the present case suggested that Rutzinski posed an imminent threat to the public's safety. The informant in this case alleged that Rutzinski was driving erratically. Erratic driving is one possible sign of intoxicated use of a motor vehicle. State v. Swanson, 164 Wis. 2d 437, 453 n.6, 475 N.W.2d 148 (1991). As such, based on the reliability of and the allegations contained in the informant's tip, Officer Sardina reasonably could have suspected that Rutzinski was intoxicated. Accordingly, Officer Sardina was justified in initiating an investigative traffic stop of Rutzinski.

¶ 35. Rutzinski responds that Officer Sardina nonetheless should have waited until he personally observed signs that Rutzinski may have been intoxicated before initiating the traffic stop. But this argument ignores the tremendous potential danger presented by drunk drivers. As the Vermont Supreme Court recently explained in a case with a strikingly similar fact pattern to the case at hand:

In contrast to the report of an individual in possession of a gun [as in J.L. ], an anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at all unlike a "bomb," and a mobile one at that.

State v. Boyea, 765 A.2d 862, 867 (Vt. 2000); see also State v. Tucker, 878 P.2d 855, 864 (Kan. Ct. App. 1994) ("The risk of danger presented to the public by a drunken driver is so great that we cannot afford to impose strict, verifiable conditions on an anonymous tip before an investigatory stop can be made in response to such a tip."); State v. Melanson, 665 A.2d 338, 340 (N.H. 1995) (considering exigency of situation created by alleged drunk driving in holding traffic stop based on tip by unidentified informant to be constitutional); State v. Stolte, 991 S.W.2d 336, 343 (Tex. Ct. App. 1999) (considering the "immediate threat to public safety" caused by drunk drivers in upholding an investigative stop based on information in an informant's tip); cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451-55 (1990) (holding that "the magnitude of the drunken driving problem or the States' interest in eradicating it" outweighs individuals' rights to be free from traffic stops at sobriety checkpoints). In light of the potential for imminent danger that drunk drivers present, the informant's allegations suggesting that Rutzinski may have been intoxicated supplemented the reliability of the tip, and further justified Officer Sardina's investigative stop.

¶ 36. This is not to suggest that we advocate a blanket rule excepting tips alleging drunk driving from the Adams-White reliability requirement. As the Supreme Court explained in J.L., the Constitution is not so easily satisfied. Rather, we merely acknowledge the Supreme Court's caveat that "extraordinary dangers sometimes justify unusual precautions." J.L., 120 S. Ct. at 1379. Because drunk driving is an extraordinary danger, we cannot adopt Rutzinski's position that the police must dismiss allegations of possible drunk driving when assessing whether an informant's tip justifies a traffic stop. While such allegations cannot form the sole basis for an investigative stop, they certainly must be considered when examining the totality of the circumstances surrounding particular police conduct.

¶ 37. For these reasons, Officer Sardina's investigative stop of Rutzinski does not implicate the same constitutional deficiencies present in the police action in J.L. Unlike the tip in J.L., the informant's tip in this case contained sufficient indicia of reliability and alleged a potential imminent danger to public safety. These factors substantially outweighed the minimal intrusion that the stop would have presented had Rutzinski indeed not been intoxicated. Therefore, we hold that Officer Sardina acted reasonably in conducting the investigative stop.

V

¶ 38. In sum, we hold that the tip in this case provided sufficient justification for an investigative stop of Rutzinski. First, the tip contained sufficient indicia of the informant's reliability: the information in the tip exposed the informant to possible identification and, therefore, to possible arrest if the tip proved false; the tip reported contemporaneous and verifiable observations regarding Rutzinski's alleged erratic driving, location, and vehicle's description; and Officer Sardina verified many of the details in the informant's tip. Second, the allegations in the tip could suggest to a reasonable police officer that Rutzinski was operating his vehicle while intoxicated. This exigency strongly weighs in favor of immediate police investigation. For these reasons, we conclude that the stop did not violate the Fourth Amendment or Article I, Section 11, and we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 39. (concurring). I agree with the majority's conclusion that the tip in this case provided sufficient justification for an investigative traffic stop for driving while intoxicated.

¶ 40. Not all tips, however, will provide sufficient justification to enable law enforcement officers to conduct an investigative traffic stop. See majority op. at ¶ 36.

¶ 41. Case law from other states shows that law enforcement units have adopted policies regarding tips of drunk or erratic driving that help to ensure that resulting traffic stops are lawful. For example, police dispatchers in Texas ask an anonymous caller alleging drunk or erratic driving to pull over at the scene. See, e.g., State v. Stolte, 991 S.W. 2d 336, 340 (Tex. Ct. App. 1999). Law enforcement units in Wisconsin might consider adopting policies to promote the reliability of tips.

      The circuit court dismissed the second count based on Rutzinski's plea and judgment of conviction on count one.

       Pursuant to Wis. Stat. § 971.31(10) (1999-2000), an appellate court may review during an appeal from a judgment of conviction an order denying a motion to suppress evidence, notwithstanding the fact that the trial court entered the judgment of conviction upon the defendant's plea of no contest. See State v. Princess Cinema of Milwaukee, 96 Wis. 2d 646, 648—49, 292 N.W.2d 807 (1980).

       The Fourth Amendment of the United States Constitution provides:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      The Fourth Amendment is enforceable against the states by means of the Due Process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).

       Article I, Section 11 of the Wisconsin Constitution provides:
      The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

       The Wisconsin legislature codified the Terry standard in - Wis. Stat. § 968.24 (1997-98):
      After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.
      As we previously have explained, § 968.24 must be interpreted in light of Terry and the cases following it. State v. Jackson, 147 Wis. 2d 824, 831, 434 N.W.2d 386 (1989).
      All subsequent references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise indicated.

       Although the Court refused to adopt Florida's proposed firearms exception, it carefully limited its holding to the facts of the case:
      The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports. . .and schools. . ., cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.

        Florida v. J.L., 529 U.S. 266, 273-74 (2000) (citations omitted). In doing so, the Court implicitly affirmed that there are circumstances in which exigency can supplement — or, in very extreme circumstances, possibly supplant — the Adams-White reliability analysis.

       The informant did pull to the side of the road when Officer Sardina initiated the stop. However, Officer Sardina did not ask the informant to do so, and we cannot infer from the record that Officer Sardina expected this result. Consequently, we do not consider this fact in assessing the constitutionality of the stop.

       Section 946.41 of the Wisconsin Statutes provides in part that it is a Class A misdemeanor to knowingly give false information to a police officer while the officer is doing any act in an official capacity and with lawful authority. Similarly, Wis. Stat. § 146.70 establishes a.penalty for intentionally dialing "911" to report an emergency while knowing that the alleged fact situation does not exist.

       In 1999 the United States suffered 15,786 fatalities in alcohol-related traffic accidents — an average of one fatality every thirty-three minutes. National Highway Traffic Safety Administration, United States Dept. of Transp., Traffic Safety Facts 1999 1 (2000), available at http://www.nhtsa.dot.gov/people/nesa/pdfiAlcohol99.pdf. These fatalities comprised thirty-eight percent of all traffic fatalities for that year. Id. Further, during 1999 "[a]n estimated 308,000 persons [nationwide] were injured in crashes where police reported that alcohol was present — an average of one person injured approximately every 2 minutes." Id.

      The same year, there were 309 fatalities in Wisconsin as a result of alcohol-related traffic accidents. Id. at 7. This represents forty-one percent of all traffic fatalities in Wisconsin for 1999. Id.

       To be sure, intoxication is not the only possible cause of erratic driving. Erratic driving can be the result of something as innocuous as the driver waving at a bee in the car or something as serious as the driver having a heart attack. But regardless of the cause, erratic driving can be very dangerous and often is symptomatic of intoxication. State v. Swanson, 164 Wis. 2d 437, 453 n.6, 475 N.W.2d 148 (1991). For these reasons, an officer may make a traffic stop to investigate observations or reliable reports of erratic driving.