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Case Nos.: |
01-0463-CR, 01-0464-CR |
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Complete Title of Case: |
�Petition for Review filed |
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����������������������� No.� 01-0463-CR
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State of Wisconsin, ����������� �Plaintiff-Appellant, ������������� v. Antwon C. Mathews, ����������� Defendant-Respondent. |
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State of Wisconsin, ����������� �Plaintiff-Appellant, ������������� v. Antwon C. Mathews, ����������� Defendant-Respondent. |
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Opinion Filed: |
September 25, 2001 |
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Submitted on Briefs:� |
August 27, 2001 |
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Oral Argument:� |
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JUDGES: |
Cane, C.J., Hoover, P.J., and Peterson, J. |
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����������� Concurred: |
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����������� Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general.� |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, Lawrence A. Williams, the cause was submitted on the brief of Carl T. Bahnson, Altoona.� On behalf of the defendant-resopndent, Antwon C. Mathews, the cause was submitted on the brief of Peter J. Thompson, Eau Claire.� |
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COURT OF APPEALS DECISION DATED AND FILED September 25, 2001 Cornelia G. Clark Clerk of Court of Appeals |
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2001 WI App 249 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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Nos.� |
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STATE OF WISCONSIN��� |
IN COURT OF APPEALS |
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No.� 01-0463-CR State of Wisconsin, ����������� Plaintiff-Appellant, ������������� v. Lawrence A. Williams, ����������� Defendant-Respondent. __________________________________________________________________ No.� 01-0464-CR State of Wisconsin, ����������� Plaintiff-Appellant, ������������� v. Antwon C. Mathews, ����������� Defendant-Respondent. |
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����������� APPEALS from orders of the circuit court for Eau Claire County:� BENJAMIN D. PROCTOR, Judge.� Affirmed.�
����������� Before Cane, C.J., Hoover, P.J., and Peterson, J.
�1������� PETERSON, J. The State appeals orders suppressing evidence derived from an automobile search.� State trooper James Fetherston stopped Lawrence Williams for speeding and, after issuing a warning ticket, questioned Williams and asked for permission to search the car.� Williams consented.� The issue is whether Williams was seized under the Fourth Amendment when he was questioned and consented to the search.� The trial court held that Williams had been seized and, as a result, his consent to search was invalid.� We agree and affirm.
BACKGROUND
�2������� At approximately 2:30 a.m. on June 7, 2000, Fetherston stopped a car driven by Williams on Interstate 94.[1]� Antwon Mathews was a passenger in the car.� With his squad car�s emergency lights on, Fetherston approached the driver�s window and informed Williams that he had been stopped for speeding.� In response to Fetherston�s questions, Williams stated that he and Mathews were on their way to Chicago from St. Paul.� Williams produced a valid driver�s license and a rental agreement for the car.� He did not know who had rented the car, but Mathews stated that his uncle was the renter.
�3������� Fetherston told Williams to �sit tight.�� Fetherston returned to his squad car and called for back up, stating that he had �a Badger going.�[2]� He then turned off his flashing emergency lights.� Several minutes later, deputy John Staber arrived in his squad car with his emergency lights on.
��4������ Fetherston again approached the driver�s door.� Staber approached the passenger door and stood facing the passenger window with his hands on his belt.� Fetherston told Williams to exit the car, and both he and Williams moved to the rear of the car.� Staber stayed by the passenger side.� Fetherston issued Williams a warning for speeding.�
�5������� Fetherston returned Williams� license and the rental agreement and then shook hands with Williams.� As the two shook hands, Fetherston stated, �We�ll let you get on your way then.� Take care.� We�ll see ya.��
�6������� Williams and Fetherston turned to walk back to their respective vehicles.� Fetherston, barely taking one step, swiveled back toward Williams and, in a civil but commanding tone, asked, �Hey Lawrence, there�s no guns in the car is there?�� Williams turned, walked back toward Fetherston, and stated, �No, sir.�� Fetherston then asked, �Any knives?�� Williams stated, �No, sir.�� Fetherston continued, �How about any drugs?� You guys got any drugs in there?�� Williams again said no.� Fetherston asked, �Any large amounts of money?� You guys not bringing back any big quantities of money?�� Williams said no.� Finally, Fetherston asked, �May I search your car just to be sure any of those items I mentioned are not in there?�� Williams said, �Yes, sir.�� The questioning took fewer than fifteen seconds.���
�7������� During the search, Fetherston found a gun and heroin.� Both Williams and Mathews were arrested and charged with possession of heroin with intent to deliver and carrying a concealed weapon, contrary to Wis. Stat. �� 961.41(1m)(d)3 and 941.23.
�8������� Williams and Mathews moved to suppress the evidence derived from the search of the car.� The circuit court concluded that the basis for the traffic stop ended when Williams was issued the warning ticket.� It further concluded that a reasonable person in Williams� position would have felt compelled to remain and respond to Fetherston�s questions.� As a result, Fetherston needed reasonable suspicion in order to detain Williams for the questioning.� The court held that because Fetherston did not have reasonable suspicion, Williams was illegally detained when he gave permission to search the car.� The court granted the suppression motion.
STANDARD OF REVIEW
�9������� In reviewing a circuit court order concerning the suppression of evidence, we will uphold findings of fact unless they are clearly erroneous.� State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990).� However, whether the circuit court's findings of fact pass statutory or constitutional muster is a question of law that we review independently.� Id. at 137-38.�
DISCUSSION
�10����� The issue on appeal is whether Williams was seized at the time Fetherston asked him if he had guns, knives, drugs or large quantities of cash in the car.� It is undisputed that the initial seizure of Williams ended when Fetherston returned Williams� license.� It is also undisputed that Fetherston did not have reasonable suspicion justifying a seizure of Williams after the traffic stop had ended.� In fact, the State concedes that if Williams was seized after the completion of the traffic stop, then Williams� consent to search the car was invalid.� See State v. Bermudez, 221 Wis. 2d 338, 353-54, 585 N.W.2d 628 (Ct. App. 1998) (citations omitted).
�11����� However, the State argues that Williams was not seized when Fetherston began questioning him.� According to the State, Williams� consent to search the car occurred as a result of a consensual encounter.� Because the encounter was consensual, the State concludes the consent and subsequent search of the car were valid under the Fourth Amendment.
�12����� A consensual encounter occurs when �the person to whom questions are put remains free to disregard the questions and walk away �.�� United States v. Mendenhall, 446 U.S. 544, 553-54 (1980).� A seizure under the Fourth Amendment occurs "when an officer, by means of physical force or a show of authority, restrains a person's liberty."� State v. Harris, 206 Wis. 2d 243, 253, 557 N.W.2d 245 (1996) (citing Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).�
�13����� The totality of the circumstances must be considered to determine whether the police conveyed a message to a citizen that compliance with police questioning was required.� See Florida v. Bostick, 501 U.S. 429, 437 (1991).� �[T]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would �have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.��� Id.� (citation omitted).� Examples of circumstances that might indicate a seizure would be the threatening presence of several officers, the display of a weapon by an officer, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.� Mendenhall, 446 U.S. at 554.�
�14����� We conclude that the trial court properly found that a reasonable person in Williams� position would have believed that he or she was not free to ignore Fetherston�s questioning and to leave.� Admittedly, Fetherston told Williams after issuing the warning, �We�ll let you get on your way then.�� However, almost without missing a beat, this was followed by assertive questioning, nearly in the nature of an accusation: �Hey Lawrence, there�s no guns in the car is there?�� Under the circumstances, the question suggested that a reply was required.�
�15����� In addition to the form of the question, Fetherston changed his tone of voice.� His tone became abrupt and distinct from the friendlier tone that he used previously.� He also spoke in a slightly higher volume.� When Williams turned to deny the question, he was again face-to-face with Fetherston.� In fewer than fifteen seconds, Fetherston asked Williams six questions, ending with, �May I search your car �.��
�16����� Also, during the questioning, deputy Staber�s emergency lights were flashing.� Moreover, while Staber had backed away from the car when Fetherston returned Williams� license, Staber resumed his position just outside of and facing the passenger window when the questioning started.� At all times Staber�s hands were on his belt near his weapon.��
�17����� The questioning occurred after 2:30 in the morning on the shoulder of a rural interstate highway.� Williams was standing outside his vehicle, facing the flashing emergency lights.� These are not the kind of circumstances in which a citizen would feel free to ignore a police officer�s questions.
�18����� Finally, we note that the questioning started almost immediately after the warning ticket was issued.� The State would have us conclude that a reasonable person should be able to tell that the legal detention was concluded and that he or she was now free to disregard the trooper�s questions.� We disagree.� A reasonable person would not have detected the nearly seamless transition from the conclusion of the traffic stop to the questioning.
�19����� Our holding is not based on any one factor.� We are persuaded by the totality of the circumstances: time of night; isolated and rural location; standing outside of the vehicle; flashing emergency lights; initial detention; questions starting almost immediately after the initial detention; tone, volume and nature of the questions; and presence and stance of the second law enforcement officer.� All of these factors lead us to conclude that a reasonable person under the circumstances would not have felt free to disregard the questions and walk away.
�20����� The State concedes that if Williams was seized, his consent to search was invalid and the evidence should have been suppressed.� Because we hold that Williams was seized, we therefore conclude that the circuit court properly granted the suppression motion.
����������� By the Court.�Orders affirmed.
[1] We have viewed Exhibit 3, which is a videotape of the traffic stop recorded from a camera in Fetherston�s squad car.�
[2] Fetherston testified at the suppression hearing that �Badger stop� was a term no longer used by the state patrol, but which denotes an interdiction stop where the trooper attempts to obtain the driver�s consent to search the car for possible criminal activity.