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COURT OF APPEALS DECISION DATED AND RELEASED January 14, 1997 |
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. 96-1580-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ELTON L. EATON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: BONNIE L. GORDON, Judge. Judgment affirmed; order reversed and
cause remanded with directions.
CURLEY,
J. Elton L. Eaton appeals from a judgment after a guilty plea
convicting him of carrying a concealed weapon.
He also appeals from an order denying his motion for postconviction
relief. He raises two issues for
review: (1) whether the trial court erred when it concluded he lacked
standing to challenge the search incident to his arrest and seizure of a loaded
handgun located in a car, which he had allegedly been driving and which was
owned by his girlfriend; and (2) whether the trial court erred when it
concluded that the police had probable cause to arrest him for violating a City
of Milwaukee ordinance against prowling.
Because the appellate record currently contains insufficient evidence on
whether Eaton had standing to contest the search, and further because Eaton was
preempted by the trial court’s ruling from presenting evidence to establish his
standing to contest the search, this court must reverse the order denying
Eaton’s motion for postconviction relief and remand the matter for further
evidentiary hearings on this issue.[1]
I. Background
The following facts were
presented at the hearing on Eaton’s suppression motion. City of Milwaukee Police Officers Wilson and
Hess were driving in their patrol car in the early morning hours of February 5,
1995. They observed another car
traveling at “a high rate of speed,” which Officer Wilson estimated was twenty
miles per hour over the posted speed limit.
The officers followed the car, but never initiated the squad car’s siren
or flashing lights. The car increased
its speed and made several turns, eventually pulling to the side of the street
and parking. The officers could not
identify the car's occupants.
Officer Wilson testified
that three black males exited the car, all wearing dark clothing. The officers parked the squad car “less than
a half a block” away from the other car.
The three males fled, the officers chased them on foot. Then, while Officer Hess continued to chase
them, Officer Wilson “circled around” to “make sure” that no one came back to
the parked and locked vehicle.
One to two minutes
later, Officer Wilson spotted a black male, later identified as Eaton, walking
in a yard between two houses and toward the parked car. Officer Wilson testified that he did not
recognize Eaton, but asked him, “What are you guys doing in the yards?” Eaton said that he had been visiting a
friend named Carol. The officers then
walked him over to the squad car, conducted a protective patdown, and
handcuffed Eaton. Officer Hess remained
with Eaton while Officer Wilson went to verify Eaton’s story. Officer Wilson testified that while Eaton
was handcuffed, he was being detained and was not free to leave.
Officer Wilson went to
the closest house and rang the doorbell.
A woman, identified as Carol, talked to him through the upper floor
window. She said that Eaton had not
been at her house that day. Officer
Wilson then returned to the squad and questioned Eaton about the seemingly
conflicting stories. Eaton asked to be
allowed to go to the door where Carol lived, but the officers refused. Officer Wilson then asked him whether the
parked car was his vehicle, and Eaton said it was his girlfriend’s car. Officer Wilson then asked him if he had the
car’s keys. Eaton said, “You’ll
see.” The officers then arrested him
for violating the City of Milwaukee’s ordinance against prowling. See Milwaukee
Code of Ordinances 106-31.[2] They searched him, and found car keys in his
pocket. They ran a record search on the
car and Eaton; the car was not stolen, but Eaton’s automobile operator’s permit
was suspended. The officers then used
the keys to open the parked car and search the inside of the vehicle. They recovered a loaded handgun underneath
the driver’s seat of the car. At that
point, the officers took Eaton’s statement.
He admitted that it was his gun, and that it was the reason the
occupants ran from the vehicle. Eaton
was taken into custody and the State charged him with carrying a concealed
weapon contrary to § 941.23, Stats.
In a pretrial motion,
Eaton moved to suppress both the handgun and his statements to police, arguing
that they were fruits of an illegal search and seizure. He argued that the police lacked probable
cause to arrest him for violating the prowling ordinance and that the search of
the car was an illegal search incident to an arrest. After the hearing, the trial court ruled that the officers did
not have probable cause to arrest Eaton for prowling, but the evidence and
statements need not be suppressed because Eaton did not have the standing to
challenge the search of the automobile.
After his suppression motion was denied, Eaton pleaded guilty to the
carrying a concealed weapon charge. The
trial court sentenced him and the judgment of conviction was entered.
In a postconviction
motion, Eaton moved the trial court to reconsider its earlier ruling on his
suppression motion and offered to present evidence establishing his standing to
challenge the search. The trial court
declined, ruling that even assuming that Eaton had standing, the trial court
had subsequently reviewed the prowling ordinance and now concluded that the
officers did have probable cause to arrest him for prowling. This appeal follows.
II. Analysis
Eaton challenges both
the probable cause determination and the trial court’s conclusion that he
lacked standing to challenge the search.
We address each issue separately.
While this court reviews
a trial court’s findings of historical fact under the “clearly erroneous”
standard, whether police had probable cause is a question that this court
reviews de novo. See Ornelas
v. U.S., 116 S. Ct. 1657, 1651 (1996).
The probable cause standard is defined in
terms of facts and circumstances sufficient to warrant a reasonable police
officer in believing that the defendant committed or was committing a crime¼.
Probable cause to arrest refers to that
quantum of evidence which would lead a reasonable police officer to believe
that the defendant probably committed a crime.
It is not necessary that the evidence giving rise to such probable cause
be sufficient to prove guilt beyond a reasonable doubt, nor must it be
sufficient to prove that guilt is more probable than not. It is only necessary that the information
lead a reasonable officer to believe that guilt is more than a possibility, and
it is well established that the belief may be predicated in part upon hearsay
information. The quantum of information
which constitutes probable cause to arrest must be measured by the facts of the
particular case.
Probable cause exists where the totality
of the circumstances within the arresting 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 684, 701,
499 N.W.2d 152, 161, cert. denied, 510 U.S. 880 (1993). Here, Eaton was not originally arrested for
committing a crime, but for violating a city ordinance. Thus, the probable cause standard is
slightly different; that is, an officer “may make a warrantless arrest of a
person if the officer has ‘probable cause to believe the person was committing ¼ an
ordinance violation.’” City of
Milwaukee v. Nelson, 149 Wis.2d 434, 458, 439 N.W.2d 562, 571, cert.
denied, 493 U.S. 858 (1989) (citation omitted).
Police arrested Eaton
without a warrant for violating the City of Milwaukee’s ordinance against
prowling. In order to violate the
ordinance, a suspect must loiter or prowl “in a place, at a time, or in a
manner not usual for law-abiding individuals under circumstances that warrant
alarm for the safety of persons or property in the vicinity.” See Milwaukee
Code of Ordinances 106-31.
Further, the police must give a suspect the chance to “dispel any alarm
which would otherwise be warranted” prior to any warrantless arrest. Id.
At the suppression
hearing, the trial court originally concluded that the police did not have
probable cause to arrest Eaton for prowling.
The court’s reasoning was primarily premised on the fact the State had
not provided the court with a copy of the municipal ordinance. Thus, the court ruled that although Eaton’s
actions were suspicious enough for an investigatory stop, they did not rise to
the level of probable cause necessary for arrest.
At the postconviction
motion hearing, the trial court reversed this earlier ruling on probable cause
and, after reviewing the ordinance, concluded that the evidence presented at
the suppression hearing supported probable cause to arrest Eaton for
prowling. In reaching this conclusion
the trial court made several findings of fact that this court concludes are
“clearly erroneous.”
First, the court found
that Officer Wilson identified Eaton as the driver of the car when the car’s
occupants fled. The record does not
support such a finding. Officer Wilson
specifically testified that neither of the officers could identify any of the
car's occupants while they were driving, or when they fled after parking the
car. At most, the record shows Officer
Wilson’s in-court, post hoc
identification of Eaton as the car’s driver based on information he had
obtained after Eaton’s arrest. Once
more, the record also shows that, prior to the arrest, the officers only knew
that three black males wearing dark clothing exited the parked car.
Next, the trial court
found that Eaton had fled from the officers.
Again, the record does not support such a finding. Officer Wilson testified that three
unidentified black males fled the car.
There is no evidence in the record that Eaton matched the description of
any of these unidentified males.
Nonetheless, based on
the undisputed evidentiary record and the trial court’s remaining findings of
fact, this court concludes there was sufficient evidence to support probable
cause to arrest Eaton for violating the prowling ordinance. The police saw Eaton walking between houses
in the early morning hours. They
stopped him and asked him what he was doing.
On hearing his response, the officers checked on his explanation with
the woman he stated he was visiting.
She told the police that he had not been at her house. At that point, the officers again asked
Eaton to explain his activities and he had no response other than to say that
he had been at the woman’s residence.
It was at this point that the police arrested Eaton for prowling. Under the totality of the circumstances
known to the officers at the time of Eaton’s arrest, this court concludes that
the above evidence was sufficient for probable cause to arrest Eaton.
Next, we address the
search of the parked car and the seizure of the loaded handgun. The trial court originally ruled that Eaton
did not have standing to challenge the search of the car. Then at the postconviction hearing, the
trial court ruled that even assuming that Eaton had standing, the police had
probable cause to arrest him and thus, the search and seizure was proper. This court is unable to review this issue
based on the present evidentiary record.
Standing to challenge a
search and seizure is “a matter of substantive Fourth Amendment law, framed in
terms of reasonable or legitimate expectation of privacy.” State v. Dixon, 177 Wis.2d
461, 467, 501 N.W.2d 442, 445 (1993).
The determination of whether an accused
has a reasonable or legitimate expectation of privacy in the place invaded
depends on (1) whether the individual has by his or her conduct exhibited an
actual (subjective) expectation of privacy in the area searched and in the
seized item, and (2) whether such an expectation is legitimate or justifiable
in that it is one that society is willing to recognize as reasonable.
Id. at
468, 501 N.W.2d at 445.
The trial court
originally ruled that the only evidence in the record at the suppression
hearing was that Eaton stated the car was owned by his girlfriend and that this
minimal evidence did not support of finding of a legitimate or justifiable
expectation of privacy. At the
postconviction motion hearing, however, the trial court preempted Eaton from
presenting evidence to establish standing, by ruling essentially that it was
irrelevant because the search and seizure was proper.
Because this court
concludes that there are real issues of whether the search of the locked,
parked car, seemingly unconnected to Eaton’s arrest for prowling was proper, see
Thompson v. State, 83 Wis.2d 134, 139, 265 N.W.2d 467, 470-472
(1978) (discussing search of automobiles), the order denying Eaton’s
postconviction motion must be reversed and remanded for further evidentiary
hearings on this issue. Accordingly, on
remand the trial court is directed to conduct further evidentiary hearings on
whether Eaton had an actual expectation of privacy in the parked car and
whether any expectation was reasonable.
See Dixon, 177 Wis.2d at 468, 501 N.W.2d at 445; see
also State v. Harris, Nos. 95‑1595‑CR and 95‑1596‑CR,
slip op. at 14 (Wis. S. Ct., Dec. 27, 1996) (adopting bright line rule for
standing to challenge lawfulness of seizure of occupants of automobile). The trial court shall make specific factual
findings on this issue and then determine whether Eaton had standing to contest
the search. If the trial court
concludes that Eaton had standing, the trial court shall then make specific
findings with respect to the search of the parked car and seizure of the
handgun, and whether the search was under any of the exceptions to the warrant
requirement. See Thompson,
83 Wis.2d at 139, 265 N.W.2d at 469. If
the trial court determines that the search and seizure was not proper, it shall
suppress the evidence and allow Eaton to withdraw his plea.
By the Court.—Judgment
affirmed; order reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Milwaukee Code of Ordinances 106-31
provides in relevant part:
Loitering or Prowling. Whoever does any of the following within the limits of the city
may be fined not more than $500 or, upon default of payment thereof, shall be
imprisoned in the house of correction of Milwaukee county for not more than 90
days.
1. LOITERING. Loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstances makes it impracticable, a peace officer shall prior to any arrest for an offense under this section, afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the peace officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true and, if believed by the officer at the time, would have dispelled the alarm.