|
COURT OF
APPEALS DECISION DATED AND
RELEASED September
26, 1996 |
NOTICE |
|
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. 96-0913-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
OLTON
LEE DUMAS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Rock County: JAMES E. WELKER, Judge. Affirmed.
ROGGENSACK,
J. Olton Lee Dumas appeals a judgment of conviction for
obstructing an officer, possession of drug paraphernalia and carrying a
concealed weapon, on the grounds that the trial court erred by failing to
suppress evidence seized during a warrantless search and that the convictions
were not supported by the evidence.
Because this court concludes that untainted probable cause for the
arrest existed at the time Dumas was taken into custody and searched, and that
the record contains sufficient evidence to prove all elements necessary to his
convictions beyond a reasonable doubt, the judgment is affirmed.[1]
BACKGROUND
On
March 15, 1995 at approximately 11:40 p.m., Officer John Fahrney of the Beloit
Police observed Dumas briefly contact two persons standing on a corner. After the contact, he and the other persons
immediately walked away, in opposite directions. Fahrney stated that the contact aroused his interest because of
its brevity, the immediate leave-taking and the frequency of drug dealing in
the area. He asked Officer Penny Evans,
who was in the area in another squad car, to ask Dumas to identify
himself. Evans found Dumas, and called
out the window of her squad car, asking him his name. When Fahrney drove back to the area where Evans was talking with
Dumas, he heard Dumas tell Evans that his name was Walter Lee Dumas.
Fahrney
asked Dumas whether he had just said that he was Walter Lee Dumas, and Dumas
responded affirmatively. Fahrney
challenged him by asking if he wasn't really Olton Dumas. Dumas began to walk away. Fahrney grabbed Dumas's arm and asked him
whether he was carrying any weapons.
When Dumas failed to respond, Fahrney advised him that he was under
arrest for obstructing. After a brief
period of resistance, Dumas submitted to being handcuffed and searched. The
search revealed a 10-inch folding knife, .25 caliber bullets, a police radio
scanner, and a drug pipe. Returning to
the scene after taking Dumas into custody, officers also found a .25 caliber
gun and a wallet with Dumas' identification in it. Dumas moved to have the evidence suppressed as the fruit of an
illegal stop.
At the suppression hearing, Evans stated
that it was her intention to ask Dumas for identification. Dumas testified that he didn't recall
Officer Evans asking him to stop, only calling after him, asking for his
name. He stated that he came back to
meet her to see what the problem was.
Fahrney confirmed the voluntary nature of the contact, testifying that
Dumas would have been free to leave if he had refused to provide any information.
The
trial court found that the officers had a reasonable and articulable suspicion
that Dumas was involved in drug activity, so a Terry[2]
stop was justified. The trial court
determined that the officers had probable cause to arrest for obstructing an
officer, once Dumas gave them a false name.
Therefore, it denied the suppression motion. A jury convicted Dumas of carrying a concealed weapon, contrary
to § 941.23, Stats.;
possessing drug paraphernalia, contrary to § 161.573, Stats.; and obstructing an officer,
contrary to § 946.41(1), Stats. All three convictions were enhanced under
the habitual criminality statute, § 939.62, Stats. Dumas was
sentenced to three years on each charge, to be served consecutively. This appeal followed.
DISCUSSION
Scope of Review.
When
a suppression motion is reviewed, the trial court's findings of fact will be
sustained unless they are clearly erroneous.
State v. Roberts, 196 Wis.2d 445, 452, 538 N.W.2d 825, 828
(Ct. App. 1995). However, the appellate
court will independently examine the totality of the circumstances at the time
when the complained of conduct occurred, to determine whether the officers'
acts were reasonable. Id.
Whether
a search made incident to an arrest meets Wisconsin's statutory and constitutional
muster, depends on whether there was probable cause to arrest. State v. Koch, 175 Wis.2d 684,
700, 499 N.W.2d 152, 161 (1993).
Probable cause based on disputed facts is a mixed question of law and
fact. This court will not overturn the
trial court's findings of historical fact unless they are clearly
erroneous. State v. Gaines,
Wis.2d , 539
N.W.2d 723, 726 (Ct. App. 1995). Once
the facts have been found, whether probable cause exists is a constitutional
issue we resolve independent of the trial court's ruling. State v. Mitchell, 167 Wis.2d
672, 684, 482 N.W.2d 364, 368 (1992).
The
test to review the sufficiency of the evidence on a criminal appeal is whether
this court can conclude that the trier of fact could reasonably have been
convinced of all elements beyond a reasonable doubt, viewing all facts and
inferences in the light most favorable to the State. Bautista v. State, 53 Wis.2d 218, 223, 191 N.W.2d
725, 726 (1971).
Suppression Motion.
Dumas
asserts a chain reaction theory to support his claim of error in regard to the
suppression motion. He contends that
the officers lacked reasonable suspicion to stop him to ask for his
identification. Therefore, he reasons,
his false statement occurred during a period of illegal detention and cannot be
used to provide probable cause for his arrest.
If the arrest was unlawful, so goes his argument, the search incident to
the arrest was unlawful, and the fruits of that search must be suppressed. However, Dumas' chain reaction theory is
dependent on a determination that a seizure in violation of the Fourth
Amendment occurred before probable cause to arrest was established.
When
officers prevent a person from leaving and require him to identify himself,
they perform a seizure of the person subject to the requirements of the Fourth
Amendment. Brown v. Texas,
443 U.S. 47, 50 (1979). To do so
lawfully, they must have at least a reasonable and articulable suspicion that
the person is or has been engaged in criminal activity. Id. Statements given and items seized during a period of illegal
detention are inadmissible. Florida
v. Royer, 460 U.S. 491, 501 (1983).
However,
there is nothing in the Constitution which prevents police officers from
addressing questions to anyone on the street.
United States v. Mendenhall, 446 U.S. 544, 552 (1980)
(opinion of Stewart, J.). As long as
the person to whom the questions are addressed remains free to disregard the
questions and walk away, there has been no seizure for Fourth Amendment
purposes. The test to determine when a
stop triggers Fourth Amendment scrutiny is whether, in view of all the
circumstances surrounding the incident, a reasonable person would have believed
that she was free to leave. Id.
at 554.
Thus,
in United States v. Mendenhall, the U.S. Supreme Court concluded
that no seizure had occurred when drug enforcement agents approached a woman in
an airport concourse and asked her if she would show them her ticket and
identification, and eventually asked her to accompany them to another room
where she consented to a search. Id.
at 555. The Court reasoned that
Mendenhall's cooperation was completely voluntary, even though she was never
expressly told that she was free to leave.
Here, the question of
whether Dumas felt detained and without the freedom to leave when Evans
requested that he identify himself is clearly answered by Dumas' own
testimony. At the hearing on his
suppression motion when he was asked if Evans told him to stop, Dumas
testified, "No. Someone was hollering,
what was my name. That's what I
remember." Additionally, Fahrney
testified that had Dumas refused to provide any information at all, he would
have been free to leave.
The
factual circumstances under which Dumas answered Evans' question show he
answered of his own accord. There was
no physical contact or attempt to restrain Dumas until after he had
given the officers a false name and tried to walk away. Therefore, his arrest is the point at which
Fourth Amendment concerns arise, i.e., the point at which probable cause must
have existed.[3]
Probable
cause for arrest is required by the Fourth Amendment of the U.S. Constitution,
as well as by the provisions of Article I, section 11 of the Wisconsin
Constitution, and § 968.07(1)(d), Stats. A police officer has probable cause to
arrest when the totality of the circumstances within that officer's knowledge
at the time of the arrest would lead a reasonable police officer to believe
that the defendant probably committed a crime.
State v. Koch, 175 Wis.2d at 701, 499 N.W.2d at 161.
In
United States v. Tipton, the 7th Circuit held that Illinois
police officers had probable cause to arrest a motorist for obstruction of
justice when the motorist gave a false name after the officers had stopped the
motorist's car for failure to display his license in a high car-theft area of
town. United States v. Tipton,
3 F.3d 1119 (7th Cir. 1993). Other
circuits have similarly found that giving a false name to a police officer or
resisting during an investigative stop gave rise to probable cause to
arrest. See United States
v. McCarthy, 77 F.3d 522 (1st Cir. 1996) (holding that a defendant's
presentation of identification during an investigatory stop which the police
officer knew to be false provided probable cause for arrest); United
States v. Dawdy, 46 F.3d 1427 (8th Cir. 1995) (holding that a
defendant's resistance to even an invalid arrest or Terry stop
could provide independent probable cause); and United States v.
Stamps, 430 F.2d 33 (5th Cir. 1970) (holding that the act of giving a
false name to a police officer investigating a burglary supported arrest).
Wisconsin
makes it a crime to knowingly give false information to a police officer with
the intent to mislead the officer in the performance of his or her duty. See § 946.41, Stats.
Fahrney had sufficient reason to believe that Dumas had committed the
crime of obstructing an officer at the time he arrested him because he knew
that the name Dumas gave to Evans was false.
Therefore, Dumas' arrest was supported by probable cause; the evidence
obtained in the search after arrest was admissible; and the suppression motion
was properly denied.
Sufficiency of the Evidence.
Dumas
also argues that his convictions for obstructing an officer and carrying a
concealed weapon were not supported by the evidence. After examining the elements of both crimes and the evidence
produced at trial, this court disagrees.
The
offense of obstructing an officer requires the state to prove: (1) the defendant obstructed an officer; (2)
who was acting within his or her official capacity, with lawful authority; and
(3) the defendant knew or believed that he or she was obstructing the officer
while the officer was acting in his or her official capacity, with lawful
authority. Henes v. Morrissey,
194 Wis.2d 338, 353, 533 N.W.2d 802, 807 (1995); § 946.41, Stats.
Giving
false information to a police officer has been held to constitute obstruction
as a matter of law, obviating any need to prove that the false information made
the officer's performance of duties more difficult. State v. Caldwell, 154 Wis.2d 683, 686, 454 N.W.2d
13, 14-15 (Ct. App. 1990). The lawful
authority question turns on whether the officer's actions are conducted in
accordance with the law. State v.
Barrett, 96 Wis.2d 174, 181, 291 N.W.2d 498, 501 (1980). The defendant's subjective intent must be
determined from the totality of the circumstances, including what the defendant
and officers said or did. State
v. Lossman, 118 Wis.2d 526, 543, 348 N.W.2d 159, 167 (1984).
Dumas
argues that the officers were not acting within their lawful authority because
they had illegally stopped him for questioning. This is a bootstrap argument which requires an initial finding
that Dumas was unlawfully detained by Evans.
Dumas' own testimony refutes this argument, as he said he did not hear
anyone tell him to stop, and he voluntarily walked back to Evans.
He
also argues that there was no evidence from which a jury could determine that
he knew or believed that the officers were acting within their lawful authority
when they asked him who he was.
However, the officers were in squad cars and there was testimony that
Dumas attempted to flee after he was caught giving a false name. Viewing all inferences in the light most
favorable to the State, a jury could reasonably have concluded that Dumas knew
or believed that the officers were acting with lawful authority when he lied to
them.
Section
941.23, Stats., proscribes going
"armed with a concealed and dangerous weapon." "Armed" has been defined as having
the weapon within reach. Mularkey
v. State, 201 Wis. 429, 432, 230 N.W. 76, 77 (1930). A "dangerous weapon" is defined in
§ 939.22(10), Stats., as
"any device designed as a weapon and capable of producing death or great
bodily harm." The jury was
instructed that a "dangerous weapon" is a "device or
instrumentality which, in the manner it is used or intended to be used, is
calculated or likely to produce death or great bodily harm."
Dumas
contends that the State failed to show that he intended[4]
to use the knife in a manner calculated or likely to produce great bodily
harm. The knife he was carrying had a
five-inch blade. Evidence was presented
that the defendant possessed drug paraphernalia, a police radio scanner and
bullets on his person. Also, the
neighborhood had been the site of numerous drug sales, and there is no
opportunity to hunt or fish or to use the knife for some other sporting purpose
in the neighborhood. A jury could
conclude from these facts, and the nature of the knife itself, that Dumas
intended to use the knife as a weapon.
His conviction is supported by the evidence.
CONCLUSION
It
is the conclusion of this court that the evidence obtained during the search of
Dumas was properly admitted because it was obtained incident to a lawful arrest
and that his convictions were supported by the evidence.
By
the Court.--Judgment affirmed.
Not
recommended for publication in the official reports. See RULE § 809.23(1)(b)4, Stats.