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COURT OF APPEALS DECISION DATED AND RELEASED October 15, 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. 96-1286-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Catina A. McCoy,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
THOMAS R. COOPER, Judge. Affirmed.
SCHUDSON, J.[1] Catina A. McCoy appeals from the judgment of
conviction, following her guilty plea, for possession of marijuana. She argues that the trial court erred in
denying her motion to suppress evidence.
This court affirms.
The facts relevant to
resolution of this appeal are not in dispute.
At about 1:00 p.m. on October 24, 1995, City of Milwaukee police
officers arrived at the residence located at 3462 N. Richards Street to execute
a search warrant for cocaine, drug paraphernalia, guns and other weapons. The warrant also authorized the search of a
man nicknamed “T,” described in the search warrant.
Before executing the
search warrant, the officers discussed who “T” might be. Officer John Bryda testified that, based on
his previous contacts, he believed “T” was a man known as “Cigar” who “either
stays at that residence or ... is often in front of that residence.” Bryda testified that when they arrived, he
saw Cigar “standing on the street almost directly across the street [from 3462
N. Richards] with three other subjects.”
Bryda identified McCoy as one of the three others, “[s]tanding within
two or three feet of [Cigar] with the other two subjects.” He said that “[a]ll four subjects appeared
to be in conversation.”
Officer Bryda and
Officer Kenneth Smith testified that they and Officer Susan Becker patted down
all four subjects for weapons.[2] They did so, as Officer Bryda explained,
because they “had been advised that there were possibly weapons involved in the
house at 3462,” and that such pat-down searches were standard procedure in
search warrants of this nature, “for our safety.” Officer Smith confirmed that he had been informed that guns were
“[o]n the premises or with the people involved with this house.” Searching McCoy, Officer Becker recovered a
soda bottle and a “philly blunt” -- a cigar wrapper containing marijuana.
McCoy argues that the
search was unlawful because she was not a named target of the search warrant,
she was not on the premises to be searched, and the police had no information
that she might be carrying a weapon.
The supreme court has
explained:
A frisk is a search. The fourth amendment does not proscribe all
searches, only unreasonable searches.
In order to determine whether a search is reasonable, we balance the need
for the search against the invasion the search entails.
In Terry
[v. Ohio, 392 U.S. 1 (1968)], the Court applied this balancing test to
determine the legality of an on-the-street frisk of a person suspected of
casing a robbery location. The Court
first considered the need for the search, emphasizing the need for police to
protect themselves from violence:
[T]here is the more immediate interest of
the police officer in taking steps to assure himself that the person with whom
he is dealing is not armed with a weapon that could unexpectedly and fatally be
used against him. Certainly it would be
unreasonable to require that police officers take unnecessary risks in the
performance of their duties. American
criminals have a long tradition of armed violence, and every year in this
country many law enforcement officers are killed in the line of duty, and
thousands more are wounded.
The Court then balanced the need for
police protection against the intrusion on individual rights which a frisk
entails. Although the Court viewed a
frisk as “a severe, though brief, intrusion upon cherished personal security”
and an “annoying, frightening, and perhaps humiliating experience[,]” the Court
held that when an officer has a reasonable suspicion that a suspect may be
armed, the officer can frisk the suspect for weapons.
The
facts of each case determine the reasonableness of the frisk, and we judge
those facts against an objective standard.
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.... And in determining whether the officer acted
reasonably in such circumstances, due weight must be given, not to his inchoate
and unparticularized suspicion or ‘hunch,’ but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his
experience.
In the years since the Court decided Terry,
the Court has applied the Terry standard to different facts. The constant refrain in these cases has
been that the need for police to protect themselves can justify a limited frisk
for weapons.
State
v. Guy, 172 Wis.2d 86, 93-95, 492 N.W.2d 311, 313-314 (1992)
(citations omitted; emphasis added), cert. denied, 509 U.S. 914 (1993).
In assessing whether
police reasonably suspected that a person might be armed, this court
must determine, from an objective viewpoint, whether the facts, reasonable
inferences from the facts, and surrounding circumstances confronting the police
justified the frisk. State v.
Richardson, 156 Wis.2d 128, 143-144, 456 N.W.2d 830, 836 (1990). Here, where the facts are undisputed, this
court reviews the trial court's legal conclusion de novo. State v. Goodrum, 152 Wis.2d
540, 546, 449 N.W.2d 41, 44 (Ct. App. 1989).
The parties offer
interesting arguments comparing the instant case to both Guy and State
v. Flynn, 92 Wis.2d 427, 285 N.W.2d 710 (1979), cert denied, 449
U.S. 846 (1980). Although both Guy
and Flynn differ from this case in some important respects, they
do guide the analysis of whether the frisk of McCoy was reasonable.
In Guy, a
divided supreme court concluded that police had reasonable suspicion that the
defendant, an occupant of the residence where police were executing a search
warrant for drugs and weapons, might be armed.
The court explained:
One of the reasons this belief would be
reasonable is that weapons are often “tools of the trade” for drug
dealers. This court has recognized that
“[t]he violence associated with drug trafficking today places law enforcement
officers in extreme danger.”
Guy, 172
Wis.2d at 96, 492 N.W.2d at 315 (citations omitted). The court emphasized that it was not placing “a constitutional
imprimatur on the Milwaukee Police Department's policy of automatically
frisking everyone present for weapons while executing a search warrant for
drugs in a private residence,” and that “[t]he constitutionality of each such
frisk will continue to depend upon its facts.”
Id. at 100, 492 N.W.2d at 316.
McCoy argues that her
circumstances are distinguishable from those in Guy and that her
case is more closely aligned with Ybarra v. Illinois, 444 U.S. 85
(1979), in which the Supreme Court concluded that a search warrant of a bar and
bartender did not provide a proper basis to search others in the bar. The Court explained that the “‘narrow scope'
of the Terry exception does not permit a frisk for weapons on
less than reasonable belief or suspicion directed at the person to be frisked,
even though that person happens to be on premises where an authorized narcotics
search is taking place.” Ybarra,
444 U.S. at 93-94. McCoy emphasizes
that her case, like Ybarra, involves the search of a person in a
public place who was not the target of the search warrant. Moreover, McCoy correctly argues, the public
place where she was searched was not even the targeted premises of the search
warrant.
The State cogently
counters:
Unlike Ybarra, in which
mere propinquity of persons in a bar suggested nothing concerning any knowledge
of or relationship with the individual targeted in the search warrant, here the
fact that [McCoy] was seen on the street talking with the targeted individual
near the dwelling also targeted for the search for weapons gave the officers
reasonable suspicion that [McCoy] knew the targeted individual, might also just
have come from the targeted dwelling and might therefore also be armed.
....
...
People in a bar can arrive as strangers, drink as strangers and leave the bar
still strangers; people on the street generally do not strike up conversations
in small groups with strangers.
The officers were thus aware not only of
McCoy's proximity to the targeted dwelling and ... the targeted individual, but
also that she and the others were in both physical proximity to that individual
and in conversation with him under circumstances suggesting previous
association.
This court agrees with
the State. Although it is possible
that, outside rather than inside a targeted residence, a police officer might
feel somewhat more at ease in the presence of an apparent acquaintance of a
search warrant's targeted individual, the difference, if any, is slight. Under Guy, it is not clear
what circumstances would preclude police from frisking those present at the
execution of a drug search warrant in a private residence. Thus, it appears that under Guy,
McCoy would have been subject to a frisk had she and Cigar been inside the
residence. Only a foolish officer would
not have maintained the same reasonable suspicion of those with Cigar,
merely because they were with him outside the residence.
Flynn
offers a somewhat separate line of analysis.
Flynn holds that under some circumstances a police stop
and frisk of a person in the presence of a criminal suspect may be lawful. Flynn, 92 Wis.2d at 434-436,
285 N.W.2d at 713-714. Significantly
for the instant case, the court, quoting United States v. Berryhill,
445 F.2d 1189, 1193 (9th Cir. 1971), wrote:
“It is inconceivable that a peace officer
effecting a lawful arrest of an occupant of a vehicle must expose himself to a
shot in the back from defendant's associate because he cannot, on the spot,
make the nice distinction between whether the other is a companion in crime or
a social acquaintance. All companions
of the arrestee within the immediate vicinity, capable of accomplishing a
harmful assault on the officer, are constitutionally subjected to the cursory
‘pat-down’ reasonably necessary to give assurance that they are unarmed.”
Flynn, 92
Wis.2d at 436, 285 N.W.2d at 713-714.
The instant case, coming
at the intersection of Guy and Flynn, matches
neither exactly but resembles both in important ways. This court concludes that the evaluation of whether police
suspicion of McCoy was reasonable reduces to a common-sense question: If you were a police officer executing a
search warrant for drugs and guns at a residence, and if you saw the targeted
individual of that search warrant across the street, and if you saw three
persons in conversation with him, and if you had been informed that guns were
on the premises or the people “involved with this house,” would you feel safe
searching only the individual named in the warrant while his three apparent
associates looked on? The answer is
clear and, accordingly, this court affirms the trial court's denial of McCoy's
motion to suppress evidence.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)(4), Stats.
[2] According to Bryda and Smith, Becker frisked McCoy. Officer Becker, however, did not testify at the suppression hearing because she was on vacation. McCoy, however, does not raise any issue regarding the sufficiency of evidence of McCoy's reasonable belief as distinguished from that of the officers who testified.