COURT OF APPEALS DECISION DATED AND RELEASED October 1, 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. 96-1403-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Thadous L. Beard,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DENNIS P. MORONEY, Judge. Affirmed.
WEDEMEYER, P.J.[1] Thadous L. Beard appeals from a judgment of
conviction entered after he pled guilty to one count of carrying a concealed
weapon, contrary to § 941.23, Stats. Beard claims the trial court erred in
denying his motion to suppress because the police officer's reach into his
pocket exceeded the permissible scope of a search pursuant to a Terry
stop.[2] Because the officer's search was
constitutionally permissible, this court affirms.
I. BACKGROUND
On April 8, 1995, at
approximately 9 p.m., City of Milwaukee Police Officers Bradley Kust and Kevin
Porter were on routine patrol in the area of the 2900 block of North Avenue in
Milwaukee. They observed two cars in a
vacant lot and noticed that one of the individuals in the car appeared to be
drinking.
As they approached the
cars, Beard exited one of the vehicles and walked toward Officer Kust. As Beard approached, he repeatedly reached
into his right front jacket pocket. Beard
was ordered to keep his hands where they could be observed. Beard continued to keep his hand in his
pocket.
Officer Kust drew his
service revolver and again ordered Beard to remove his hand from his
pocket. Beard complied. Officer Kust was able to see that Beard had
a heavy object in his right front pocket, which caused the jacket to shift to
the right from the weight. Suspecting
that the heavy object was a gun, Officer Kust reached into Beard's pocket and
removed a loaded semi-automatic pistol.
Beard was charged with
carrying a concealed weapon. He moved
to suppress the evidence, but his motion was denied. He pled guilty and judgment was entered. He now appeals.
II. DISCUSSION
A trial court's findings
regarding the suppression of evidence must be upheld unless they are clearly
erroneous. See State v.
Richardson, 156 Wis.2d 128, 137, 456 N.W.2d 830, 833 (1990). However, whether statutory and
constitutional standards are satisfied are questions of law that this court
reviews de novo. State v.
Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991).
Beard concedes that the
circumstances surrounding this incident were sufficient to satisfy the
requirements justifying a Terry stop. He argues, however, that the reach into his pocket without first
performing a pat-down search was unconstitutional. This court disagrees.
According to Terry,
a search incident to an investigatory stop must be confined to “an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. 1, 29 (1968). This court agrees with Beard that in most
circumstances, the search should begin with a pat-down rather than the more
intrusive reach directly into an individual's pocket. Nevertheless, limited exceptions to the initial pat-down must be
recognized so that an officer may adequately protect himself. See Adams v. Williams,
407 U.S. 143, 147 (1972).
This court concludes
that the search here constitutes one such exception. After examining the totality of the circumstances facing Officer
Kust in this case, this court concludes that the reach into Beard's pocket
without first performing a pat-down was not unconstitutional. The facts supporting this conclusion include
the fact that Beard was approaching the officer and repeatedly reaching into
his pocket, that Beard disregarded the officer's initial order to keep his
hands where they could be seen, that the officer observed a heavy object in
Beard's pocket which the officer suspected was a gun, and that the officer
feared for his own safety. Had Officer
Kust performed a pat-down prior to reaching directly for the gun, Beard may
have had an opportunity to create a much more dangerous situation.
Accordingly, this court
concludes that Officer Kust's action in reaching into Beard's pocket where a
gun was thought to be hidden constituted a limited intrusion designed to insure
the safety of the officers and therefore was reasonable.[3] The trial court properly denied Beard's
motion to suppress and, therefore, this court affirms.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[3] This court does acknowledge that part of the trial court's reasoning in denying the motion to suppress was erroneous. Specifically, it was inappropriate for the trial court to rule that because a gun (rather than other contraband) was actually discovered during the search, the search was constitutionally permissible. Nevertheless, the trial court's conclusion in denying the motion to suppress was the right result and this court therefore affirms the judgment. See State v. Holt, 128 Wis.2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985).