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COURT OF APPEALS DECISION DATED AND RELEASED July 9, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0781-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARVIN L. ANDERSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
THOMAS COOPER, Judge. Reversed.
FINE,
J. This is an appeal from a judgment convicting Marvin L.
Anderson of illegally possessing cocaine in violation of §§ 161.16(2)(b)1 and
161.41(3m), Stats. Following the trial court's order denying
his motion to suppress, Anderson pled guilty.
The sole issue presented on this appeal is whether a Milwaukee police
officer had sufficient reason to stop Anderson on the street and pat him down.[1] The State confesses error. We agree.
The question of whether
an investigatory stop was legally justified presents a question of law that we
decide de novo. State v.
Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991). An investigatory stop is permissible if the
law enforcement officer reasonably suspects, considering the totality of the
circumstances, that some type of criminal activity either is taking place or
has occurred. Alabama v. White,
496 U.S. 325, 328–331 (1990); State v. Richardson, 156 Wis.2d
128, 139–140, 456 N.W.2d 830, 834 (1990).
The seminal case in this
area is Terry v. Ohio, 392 U.S. 1 (1968), which recognized that
“a police officer may in appropriate circumstances and in an appropriate manner
approach a person for purposes of investigating possible criminal behavior even
though there is no probable cause to make an arrest,” id., 392
U.S. at 22, and that officers are potentially at risk whenever they so
investigate suspicious activity, id., 392 U.S. at 23–24. Thus, a pat-down search for weapons is
permitted when the officer is justified in believing that the person he or she
confronts may be armed. Id.,
392 U.S. at 24–27. “The officer need
not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.” Id., 392 U.S. at 27. The test is objective. Florida
v. Royer, 460 U.S. 491, 498 (1983).
Stated another way, the frisk is lawful when “a reasonably prudent
person in the circumstances of the officer would be warranted in the belief
that the action taken was appropriate.”
State v. Anderson, 155 Wis.2d 77, 88, 454 N.W.2d 763, 768
(1990).
The evidence in this
case is totally devoid of anything that would give a reasonable person in the
officer's shoes grounds to suspect that Anderson was involved in criminal
activity or that he was armed.
Essentially, the officer testified at the suppression hearing that he
and other police officers were investigating suspected drug dealing at a house
where, almost a month earlier, they had arrested another person for,
presumably, a drug-related crime. They
were in the process of arresting a suspect when they saw Anderson leave the
house. The officer testified that he
did not know whether Anderson lived in the house and wanted to find out what he
“was doing there.” As the State points
out in its brief, there was nothing to connect Anderson to any suspicious
activity, other than his mere presence.
That is not sufficient to trigger a Terry–type inquiry and
pat-down. See Brown v.
Texas, 443 U.S. 47, 51–52 (1979) (police may not stop a citizen unless
the officers have “a reasonable suspicion, based on objective facts, that the
individual is involved in criminal activity”; “look[ing] suspicious” in area
frequented by drug users not sufficient).
By the Court.—Judgment
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.