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COURT OF APPEALS DECISION DATED AND RELEASED September 17, 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. 96-1446-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Artie L. Terrell,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
THOMAS R. COOPER, Judge. Affirmed.
WEDEMEYER, P.J.[1] Artie L. Terrell appeals from a judgment
entered after he pled no contest to possession of a controlled substance
(cocaine base), contrary to §§ 161.14(7)(a) and 161.41(3m), Stats.
He claims the trial court erred in denying his motion to suppress
because the search conducted by the police was violative of his Fourth
Amendment right. Because the police
officers' conduct passes constitutional muster, this court affirms.
I. BACKGROUND
During their shift on
July 27, 1993, police officers Steven Rineberg and his partner drove past an
apartment building located on North 29th Street in Milwaukee. They observed a number of people standing in
front of the building. The building had
a posted sign on it that prohibited loitering.
The police officers drove by this building four separate times and
observed a group of people in front of the building. Officer Rineberg knew that there had been prior complaints about
drug dealing at this location and had personally made dozens of arrests for
drug offenses in this area.
At 2:30 a.m., while
making their fourth pass by the building, the officers stopped and decided to
conduct pat-down searches to check the individuals for weapons. Terrell was the only individual seated and
when he was asked to stand, the officers observed two small cartridges, one
containing an illegal substance. As a
result, Terrell was immediately arrested and searched. The officers discovered a baggie with a
white powdery substance in Terrell's pants' pocket. This substance, which turned out to be cocaine, was the basis for
Terrell's conviction.
Terrell moved to
suppress the evidence. The trial court
denied the motion. Terrell entered a no
contest plea. He now appeals.
II. DISCUSSION
Terrell claims the
initial search (i.e., the intended pat-down, which actually only resulted in
Terrell standing up) was unconstitutional because the officers did not have
reasonable grounds for suspicion to conduct a pat-down search. As a result, he argues the resulting arrest
and subsequent search, leading to the discovery of the cocaine were poisonous
fruits. The trial court disagreed,
ruling:
Number one, there is community complaints
about the location, the officer's direct knowledge that he's made over a
hundred drug arrests at that same location, and the apartment building is
posted as a no loitering area. That
gave him three reasons to stop and do a community caretaker function.
And
part of that community caretaker function, the officer tells us his intent is
to search for their own protection, but it never even gets that far. I mean, quite frankly, even if he adopts the
defendant's statement, I think it's a valid search because ... we adopt the defendant's
statement they took him out and patted him down for his own protection or their
own protection, that's probably a good search, but that is not what the
officer's testimony is. He saw the
drugs and did a custodial search.
So based upon either scenario and the fact it's
not a mere hunch, there's very strong indicia and responsibility and reasons
for this officer to stop, I'm satisfied it's a reasonable stop, it's a
reasonable search, and your motion to suppress is denied.
This
court agrees with the trial court's conclusion.
A motion to suppress
evidence raises a constitutional question, which presents a mixed question of
fact and law. To the extent the trial
court's decision involves findings of evidentiary or historical facts, those findings
will not be overturned unless they are clearly erroneous. State v. Krier, 165 Wis.2d
673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991). The application of constitutional and statutory principles to the
facts found by the trial court, however, presents a matter for independent
appellate review. Id.
The search in question
here is the initial intended pat-down, which falls under the category of a Terry
stop. Under Terry v. Ohio,
392 U.S. 1 (1968) a police officer may detain a person for an investigation as
long as the officer has a reasonable suspicion of some past, present or future
wrongdoing. Moreover, an officer may
conduct a pat-down frisk if he believes the individual may be armed or
dangerous. After reviewing the record
in the instant case, this court concludes that the initial intended pat-down
passes constitutional muster.
There is sufficient
evidence in the record to show that the Terry standard was
satisfied. That is, the evidence
demonstrates that the officer in the instant case had a reasonable suspicion
that the crowd outside the apartment building may be engaging in some sort of
illegal activity. State v.
Richardson, 156 Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990). The focus of an investigatory stop is on
reasonableness, and the determination of reasonableness depends on the totality
of the circumstances. Id. Contrary to Terrell's assertion, the fact
that this area was a known high-crime area was not the sole factor upon which
the officer relied. This factor,
together with the time of day that this activity was occurring (2:30 a.m.), the
fact that the individuals were present over a period of time, and the fact that
there were numerous complaints about drug activity in that area—when viewed in
their totality—leads this court to conclude that the initial Terry
pat-down was not unconstitutional.
Accordingly, the trial court did not error in denying Terrell's motion
to suppress.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.