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COURT OF APPEALS DECISION DATED AND RELEASED March 25, 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. 96-1907-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Wilfredo Melo,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER CURIAM. Wilfredo Melo appeals from the judgment of
conviction, following his guilty plea, for possession with intent to deliver
cocaine. He argues that the trial court
erred in denying his motion to suppress evidence. We affirm.
I. FACTUAL BACKGROUND
At the trial court
hearing on Melo's motion to suppress the cocaine, City of Milwaukee Police Detective
Lawrence DeValkenaere testified that on the afternoon of August 31, 1995, he
and Detective Willie Brantley saw Julio Rivera, a man they knew to be wanted on
a felony drug warrant from the state of New York, on the stoop of an apartment
building. They followed Rivera into the
restaurant located in the same building and arrested him.
After the arrest, the
detectives entered the adjoining portion of the apartment building to
investigate possible drug trafficking in the building. On the second floor Detective DeValkenaere
knocked on the partially-open door of the first apartment he encountered. His knock caused the door to open more and
allowed him to observe a man, later identified as Roberto Almonte, sitting on a
couch. DeValkenaere testified that he
then identified himself as a police officer, displayed his badge, and announced
that he “would like to talk to you about narcotics problems here in the
building.” He heard Almonte call in
Spanish, using the word “policia,” to someone in the next room. In response to that call, Melo appeared.
Detective DeValkenaere
recognized Melo. He had had contact
with Melo “in the past in regards to ... investigations in the area ... dealing
cocaine base in the City of Milwaukee.”
Specifically, DeValkenaere knew of two occasions when Melo had been
stopped in a car. On one of those
occasions, police seized “a large sum of money from him” and, on the other,
police recovered a sawed-off shotgun from “a hidden electronically locked
magnetic compartment ... usually used for transportation of large quantities of
narcotics or money.”[1] As a result, he believed “[t]hat Mr. Melo
was involved in narcotics trafficking.”
DeValkenaere then, “for
the safety factor,” asked or told Almonte and Melo to step out in the hallway.[2] He explained:
I was
out there by myself in this apartment; unknown threats. Rooms to my right, rooms on the left and I
didn't want to be in there. I already
encountered two people that were possibly involved in narcotics trafficking;
one downstairs, known felon wanted on warrant.
Individual upstairs and now a third person that was seated on the couch
... I felt that for my safety the hallway was a better bet to conduct the
interview and that is where I asked him to go.
When
Detective Brantley then joined him in the hallway, Detective DeValkenaere
patted down Melo for weapons. During
the pat-down, a plastic baggie with seventy-seven individually wrapped packages
of cocaine fell from Melo's left pants leg.
Almonte testified that
on the day Detective DeValkenaere arrested Melo, he (Almonte) was at Melo's
apartment for a haircut. He explained
that Melo was operating a barber shop in the apartment, that “[e]veryone comes
there to get their hair cut,” and that the door was partially open so customers
could enter. Almonte said that
DeValkenaere identified himself as a police officer but did not show his
badge. Almonte confirmed that he called
to Melo telling him the police were there.
Almonte said that DeValkenaere “grabbed us,” handcuffed him and Melo while
they still were in the apartment, and said, “Let's go to the hall.”[3] He said he saw the drugs fall to the floor
when DeValkenaere was searching Melo's waistband area.
II. DISCUSSION
Melo argues that the
stop was improper and that, even if the stop was proper, the search was
not. Melo premises his argument on the
theory that Detective DeValkenaere conducted a Terry[4]
stop that, under § 968.24, Stats.,
he could do only if he reasonably suspected that Melo had committed, was
committing or was about to commit a crime.[5] The State responds, however, that even
absent any reasonable suspicion that Melo had committed, was committing, or was
about to commit a crime, Detective DeValkenaere's conduct was lawful if: (1) he was rightfully in Melo's
presence when he frisked him; and (2) he reasonably suspected that Melo
was armed and dangerous. The State is
correct.
In reviewing a trial
court's order denying a motion to suppress, we will uphold the trial court's
factual findings unless they are clearly erroneous. See State v. Williamson, 113 Wis.2d 389,
401, 335 N.W.2d 814, 820, cert. denied, 464 U.S. 1018 (1983). We will also, however, “independently
examine those facts to determine whether the constitutional requirement of
reasonableness is satisfied.” Id.
Our supreme court has
explained:
In Terry, the majority stated a
two-part test to determine whether the police office acted within permissible,
constitutional grounds for initiating the search: (1) whether the officer was rightfully in the presence of
the party frisked; and (2) whether the officer suspected the party was
armed and dangerous.
State
v. Guy, 172 Wis.2d 86, 104 n.5, 492 N.W.2d 311, 318 n.5 (1992)
(Heffernan, C.J., dissenting on other grounds), cert. denied, 509 U.S.
914 (1993). Here, we apply both tests.
A.
Rightful Presence
Although ordinarily an
officer's “rightful[ ] ... presence” preceding a frisk will result from a Terry
stop, that is not always the case. In State
v. Smith, 119 Wis.2d 361, 351 N.W.2d 752 (Ct. App. 1984), for example,
this court concluded that no stop or seizure of the suspect had occurred
despite the following facts:
[Two
police detectives] went to the defendant's apartment. Defendant answered the door.
The officers told him that his name had come up during a sexual assault
investigation and asked if he was willing to accompany them to the police
station. He agreed to do so. At the station he was taken to an interview
room and advised of his rights. After
he stated that he was with the victim on the night of the assault, he was charged.
Id., at
363, 351 N.W.2d at 753. Here, even more
certainly, where DeValkenaere had not told Melo he was a suspect, and where
Melo had not been taken to the police station but only had stepped from his
apartment/barber shop to the adjoining hallway, Melo would not have reasonably
believed he was not free to leave.
Therefore, at that point, Melo had not been “seized.” See id. at 366, 351
N.W.2d at 755.
Thus, even assuming
Detective DeValkenaere's contact with Melo could not be justified as a Terry
stop, he was rightfully in Melo's presence.
The detectives had lawfully entered the apartment building for
legitimate investigative purposes and Melo's apartment/barber shop door was
open. The trial court, resolving the
only factual dispute at the hearing, made a reasonable credibility call and
found that Melo was not cuffed when he exited the apartment/barber shop. Therefore, whether DeValkenaere asked or
told Melo to accompany him to the hallway, he had not seized Melo at that
point.
B. Reasonable Suspicion—Armed and Dangerous
Melo, quoting Ybarra
v. Illinois, 444 U.S. 85, 91 (1979), argues that “‘mere propinquity to
others independently suspected of criminal activity does not, without more,
give rise to probable cause to search that person.’” We agree. However, in
this case Detective DeValkenaere was not required to meet a “probable cause”
standard and, in any event, much more than Melo's “mere propinquity” to Rivera
justified the frisk.
An officer conducting a
frisk “need not reasonably believe that an individual is armed; rather, the
test is whether the officer ‘has a reasonable suspicion that a suspect may be
armed.’” State v. Morgan,
197 Wis.2d 200, 209, 539 N.W.2d 887, 891 (1995) (quoting State v. Guy,
172 Wis.2d at 94, 492 N.W.2d at 314).
Clearly, Detective
DeValkenaere reasonably suspected that Melo was armed and dangerous, based on
four factors: (1) Melo had
previously been armed; (2) Melo was suspected of past drug dealing based
on previous stops that had produced a large amount of money and a sawed-off
shotgun; (3) the presence of Rivera, a fugitive drug trafficker, in the
doorway of Melo's building; and (4) the frequent possession of weapons by
drug dealers that, as DeValkenaere testified based on his experience with
thousands of narcotics arrests, was “common.”
See State v. Richardson, 156 Wis.2d 128, 144, 456
N.W.2d 830, 836 (1990) (“drug dealers and weapons go hand in hand, thus
warranting a Terry frisk for weapons”).
Accordingly, we conclude
that the police conduct leading to the seizure of the cocaine was
constitutional and, therefore, we affirm the trial court's denial of Melo's
motion to suppress evidence.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Detective DeValkenaere also testified, “There was a car stop and one time there was a magnetic compartment. Another time there was a sawed-off shotgun, if it was the same incident, I'm not sure.”
At
that point I asked Mr. Melo and the other individual, I was by myself in this
apartment. It was rather large
area. For my safety, I was going to
talk to them. I wanted them, asked them
to step into the hallway. I asked them,
Come on. Step out here with me.
He also testified, “I don't remember the exact words, but it was to the effect, Would you step in the hallway? I would like to speak with you regarding narcotics investigation.”
[3] In rebuttal, Detective Brantley testified that when he arrived in the hallway, Melo and Almonte were not handcuffed. Denying Melo's motion, the trial court found that Detective Brantley, who had arrived at the hearing after Detective DeValkenaere had departed, was “more credible than Mr. Almonte ... as to this business of whether or not they were handcuffed.”
[5]
Section 968.24, Stats., in
part, states:
After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime.