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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. 96-1552-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Lawrence Dean,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DENNIS P. MORONEY, Judge. Affirmed.
WEDEMEYER, P.J.[1] Lawrence Dean appeals from a judgment
entered after he pled guilty to possession of cocaine, contrary to
§§ 161.16(2)(b)(1) and 161.41(3m), Stats. Dean claims the trial court erred in denying
his motion to suppress because the cocaine was discovered pursuant to an
illegal Terry[2]
stop. Because the trial court did not
err in denying Dean's suppression motion, this court affirms.
I. BACKGROUND
On March 1, 1995,
Dean was stopped in the 2400 block of West Wisconsin Avenue because he was
driving a vehicle that did not display any license plate on the front or the
rear of the car.
According to the
arresting officers, Dean got out of the car and refused to provide them with
any information. Based on this conduct,
Dean was arrested for obstruction.
Pursuant to the arrest, the officers conducted a pat-down search and
discovered cocaine in Dean's pocket.
Dean was charged with
possession. He moved to suppress the
evidence, arguing that because he had an Illinois temporary registration permit
affixed to the rear window of his car, that the officers' investigatory stop
was illegal. The trial court found the
police officers' testimony that they did not recall seeing the permit in Dean's
car at the time of the stop to be more credible. As a result, the trial court ruled that the stop was not illegal
and denied the motion to suppress.
Dean pled guilty. Judgment was entered. He now appeals.
II. DISCUSSION
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 trial court ruled in
pertinent part:
In
this case the vehicle in which the defendant was operating was a 1984 Cadillac
that was stopped at 2400 West Wisconsin Avenue. When it was stopped, the driver got out of the car and he stated,
according to the police officer, he didn't have a license. Then he refused to speak to the police
officers. They then placed him under
arrest for obstructing an officer. And
that is a crime. It is a crime. You don't have to be articulate. You don't have to say, I refuse to
cooperate. You just refuse to
cooperate, and that is obstructing.
That's what happened here. That
is the findings of this Court, at least.
And
the automobile he was driving had no front and back plates. The police officers say they cannot recall
this document, [the Illinois permit] ... being on the car. Defendant says it was on the car. That is a credibility issue pure and simple,
as far as this Court is concerned....
But
I don't believe it was there at the time of the arrest. And the issue then becomes what happened
next. What happened next was they got
[the defendant] down, patted him down in a pat-down search for their own
protection. And then when they placed
him under arrest for obstructing, they did a custodial search and found some
items.
Those items will not be suppressed. The officers' conduct was reasonable and
articulable pursuant to Terry v. Ohio and 392 U.S. 1 and
particularly in Sections 968.24 and 968.25 of the Wisconsin Statutes.
The critical findings
made by the trial court are that the automobile Dean was driving had no front
and back plates, and that the temporary Illinois permit was not in the window
of Dean's car at the time of the stop. Based
on a review of the record, this court cannot conclude that the trial court's
findings are clearly erroneous.
The findings are based
on the testimony of two police officers.
Although Dean offers contradicting testimony, the trial court found the
officers' testimony more credible.
Because credibility determinations are matters for the trial court to
decide, see State v. Baudhuin, 141 Wis.2d 642, 647,
416 N.W.2d 60, 62 (1987), this court defers to the trial court's determination.
This court concludes
that the officers' testimony provides a basis to support the trial court's
findings and that based on those findings, the stop was reasonable. In Wisconsin, the absence of license plates
on a vehicle gives an officer reasonable suspicion sufficient to conduct a Terry
stop. State v. Griffin,
183 Wis.2d 327, 515 N.W.2d 535 (Ct. App.), cert denied, 115 S. Ct. 63
(1994).
Dean argues that the
testimony does not support a finding that the permit was not there because the
officer did not affirmatively swear that the permit was not displayed. Rather, the officers stated they did not
“recall” seeing it. This court is not
persuaded by Dean's argument. It is
reasonable to infer from the officers' testimony that the permit was not
affixed to the window on the night in question. See id., 183 Wis.2d at 330, 515 N.W.2d at
537 (trial court permitted to draw reasonable inferences from the facts). When asked whether he saw any temporary
plate on Dean's car, one officer specifically stated that he did not “recall
seeing anything on there.” The second
officer testified that he did not recall seeing the permit before it was shown
to him in court.
It is reasonable to
infer from this testimony that the permit was not affixed to the window. Based on the absence of plates, it was
reasonable for the officers to conduct an investigatory stop. Griffin, 183 Wis.2d at 333-34,
515 N.W.2d at 538. Accordingly, the
trial court did not err in denying Dean's motion to dismiss.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.