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COURT OF APPEALS DECISION DATED AND FILED February 11, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from a judgment of the circuit court for Milwaukee County:� MICHAEL J. DWYER, Judge.� Affirmed.
�1������� KESSLER, J.[1] Lamont C. appeals the juvenile delinquency adjudication, following an admission of guilt, to one count of being a party to a crime of robbery. �Lamont C. also appeals the order denying his motion to suppress. �We affirm.
BACKGROUND
�2������� On October 2, 2012, Lamont C. was charged, pursuant to a delinquency petition, with one count of armed robbery with use of force, as a party to a crime.� The charges stemmed from the September 30, 2012 armed robbery of M.R.� According to the delinquency petition, M.R. was robbed at gunpoint while standing at a bus stop at 53rd Street and West Keefe Avenue, Milwaukee, at approximately 11:15 p.m.� M.R. told police officers that while at the bus stop, three individuals wearing black hoodies approached him.� One of the individuals pulled out a handgun, while the other two pushed M.R. to the ground and punched and kicked him.� While M.R. was on the ground, the individuals took M.R.�s wallet and cell phone.� M.R. told police that the individuals noticed a police squad car in their vicinity and ran eastbound towards the 53rd Street Community School.� Officers searched the area and observed Lamont C. coming out from the east side of the school building.� The complaint describes Lamont C. as wearing �a dark, blue hooded sweatshirt,� and noted that his demeanor was consistent with someone who �had just finished running.�� Lamont C. was arrested and charged.
�3������� Lamont C. filed a motion to suppress all evidence resulting from his arrest, alleging that he was illegally and unconstitutionally stopped, searched, and arrested.� The circuit court held a hearing on Lamont C.�s motion.
�4������� At the hearing, the arresting officer, Steve Hoffman, testified that on the night of September 30, 2012, he was on patrol in a marked squad car on West Keefe Avenue. �At approximately 11:15 p.m., Hoffman was flagged down by a man near 53rd Street, who told Hoffman that he (M.R.) �was just robbed by three younger black males wearing dark hooded sweatshirts.�� M.R. told Hoffman that the robbers ran eastbound towards a school following the robbery. �Hoffman stated that M.R. flagged him down within one to two minutes of the robbery.
�5������� Hoffman testified that he and his partner, Officer Michael Smith, immediately checked the area and noticed a �younger black male emerge from the east side of the school building.�� Hoffman stated that the individual (Lamont C.) was dressed in a dark blue hooded sweatshirt and black pants.� Hoffman testified that the school building is approximately two blocks from where M.R. flagged him down.� Hoffman stopped Lamont C. and noticed that Lamont C. was breathing heavily, as though Lamont C. �definitely was running.�
�6������� Hoffman further testified that he asked Lamont C. where he was coming from and why he had been running.� Lamont C. stated that he was coming from his home and denied that he was running.� Hoffman stated that he placed his hand on Lamont C.�s chest to feel his heart rate and noted that Lamont C.�s heartbeat was rapid, consistent with someone that �had just been doing some sort of exercise such as running.�� Immediately thereafter, Hoffman placed Lamont C. in the squad car.
�7������� The circuit court denied Lamont C.�s motion, stating:
To me the key to this is that the robbery, the alleged robbery, happened within one to two minutes of the officer encountering the victim. �In other words, this is almost as it happens. �And under those circumstances obviously if the officers want to have any opportunity of finding the perpetrators in the area, they can�t spend a long time talking to the victim, they got to get a general idea of what�s going on and check the area. �That�s a very reasonable way to proceed in this case.
And so Lamont shows up in the vicinity. �That�s important because it�s immediately adjacent to the time of the alleged incident.
The most important identifier, two identifiers given by the victim in that short term are age, race, and that they�re wearing black hoodies.
Lamont is wearing a black hoodie in the vicinity within minutes of an armed robbery. �I believe that gives the officer reasonable suspicion that criminal activity is afoot.
�8������� The circuit court further found that based on Lamont C.�s �heavy breathing,� �rapid heart rate,� and denial that he was running, the arrest was justified.
�9������� Lamont C. entered an admission to being a party to a crime of robbery with the threat of force.[2] He was adjudicated delinquent and placed under juvenile court supervision.� This appeal follows.
DISCUSSION
�10����� On appeal, Lamont C. argues that the circuit court erroneously denied his motion to suppress because: �(1) Hoffman lacked reasonable suspicion to stop Lamont C.; (2) Hoffman did not have probable cause to search Lamont C. by checking Lamont C.�s heart rate; and (3) Hoffman did not have probable cause to arrest Lamont C.� We disagree.
�11����� When reviewing a circuit court�s denial of a motion to suppress evidence, this court will uphold the circuit court�s findings of fact unless they are clearly erroneous. �State v. Eason, 2001 WI 98, �9, 245 Wis. 2d 206, 629 N.W.2d 625. �Applying the facts to the constitutional standards is a question of a law, which is subject to de novo review. �See State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446 (1992).
�12����� The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution both require that all searches and seizures be reasonable. �State v. Ziedonis, 2005 WI App 249, �13, 287 Wis. 2d 831, 707 N.W.2d 565.� ��The essential question is whether the action of the law enforcement officer was reasonable under all the facts and circumstances present.�� �State v. Richardson, 156 Wis. 2d 128, 139-40, 456 N.W.2d 830 (1990) (citation omitted).
�13����� An investigatory stop is constitutional if a law enforcement officer, in light of his or her training and experience, has a reasonable suspicion that an unlawful activity has been committed, is being committed, or is about to be committed. �See State v. Young, 2006 WI 98, �20, 294 Wis. 2d 1, 717 N.W.2d 729. �The officer must have more than an �inchoate and unparticularized suspicion or �hunch.�� �State v. Post, 2007 WI 60, �10, 301 Wis. 2d 1, 733 N.W.2d 634 (citation and quotation marks omitted). �The standard of reasonable suspicion is met when �those facts known to the officer at the time of the stop [are] taken together with any rational inferences, and considered under the totality of the circumstances.� �State v. Washington, 2005 WI App 123, �16, 284 Wis. 2d 456, 700 N.W.2d 305.
�14����� We conclude under the facts in this case that Hoffman did have reasonable suspicion and probable cause to stop and arrest Lamont C. �Hoffman, relying on information provided to him by a robbery victim, located Lamont C. within minutes of the robbery. �In the limited time Hoffman was able to speak with the victim, Hoffman obtained information about the robbers� ages, race and clothing. �Lamont C.�s age, race and clothing matched that information.� Furthermore, Hoffman found Lamont C. emerging from the east end of the school building within walking distance of the robbery�the same location M.R. gave police when describing the direction in which the robbers ran. �Based on the totality of the circumstances, we conclude that Hoffman put forth �specific articulable facts and [drew] reasonable inferences from those facts, that [Lamont C.] [was] violating the law.� �See State v. Gammons, 2001 WI App 36, �6, 241 Wis. 2d 296, 625 N.W.2d 623.
�15����� We also conclude that Hoffman had sufficient probable cause to arrest Lamont C. �To make a warrantless arrest, a police officer �must have evidence that would lead a reasonable officer to believe that defendant probably committed an offense. �It is only necessary that the information available to the officer leads him or her to conclude that guilt is more than a possibility.� �State v. Wheaton, 114 Wis. 2d 346, 349-50, 338 N.W.2d 322 (Ct. App. 1983) (internal citations omitted), overruled on other grounds by State v. Pham, 137 Wis. 2d 31, 403 N.W.2d 35 (1987). �As stated, Lamont C. fit the description provided by the robbery victim, was found within blocks of the robbery, and was found very shortly after the robbery. �Moreover, Hoffman testified that Lamont C.�s demeanor was consistent with someone who had been running�something Hoffman considered relevant both because the victim stated that the robbers ran after noticing a squad car and because Lamont C. denied running. �Under the totality of the circumstances, we conclude that Hoffman had reasonable suspicion to believe that Lamont C. was one of the three men that robbed M.R.[3]
By the Court.�Judgment affirmed.
This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2) (2011-12).
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] The State amended the armed robbery charge to robbery.
[3] We do not address Lamont C.�s argument that Hoffman lacked probable cause to place his hand on Lamont C.�s chest to check his (Lamont C.�s) heart rate. �In light of the totality of the circumstances, Hoffman had probable cause to place Lamont C. under arrest regardless of whether he checked Lamont C.�s heart rate.