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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. 96-2240-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Timothy J. Lee,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
ELSA C. LAMELAS, Judge. Affirmed.
WEDEMEYER, P.J.[1] Timothy J. Lee appeals from a judgment of
conviction for knowingly and unlawfully possessing marijuana contrary to
§§ 161.14(4)(t) and 161.01(14), Stats.
Lee claims the trial court erred in denying his motion seeking to
suppress evidence. He claims the
investigating police officer lacked reasonable suspicion necessary to justify
stopping him and, accordingly, the marijuana discovered during a custodial
search, incident to arrest, should have been inadmissible. Because a basis existed warranting a
reasonable suspicion on the part of the police officer for the stop, the trial
court did not err in refusing to suppress the evidence and this court affirms.
I. BACKGROUND
With some exceptions,
the factual background setting the stage for this appeal is not in
dispute. On January 12, 1996, at
approximately midnight, City of Milwaukee Police Officer Jay M. Jackson was on
routine patrol in the 2100 block of West Mitchell Street. He observed seventeen-year-old Lee standing
in the doorway of a closed television store near a pay phone. The temperature was fourteen degrees
Fahrenheit and it was snowing. Lee was
wearing a knee-length leather coat.
Prior to arriving at the store, Lee had been across the street visiting
a friend. He left his friend’s
apartment and came across the street to use the pay phone to call for a
cab. He had been standing waiting for
the cab for over one-half hour. When
Officer Jackson first saw Lee, Lee had his hands in his coat pockets and was
nervously looking around. Jackson
decided to circle the block several times to see what Lee might do. Finally, Jackson decided to park his squad
twenty-to-thirty feet down the block from where Lee was standing. Lee saw Jackson drive by, park his squad and
then approach him.
It is at this point in
the exchange between Jackson and Lee that versions of what happened vary. Lee states that as Jackson approached him,
he asked Lee to take his hands out of his pockets, which he did
immediately. Lee claims Jackson asked
him only once to remove his hands from his pockets. In answer to the question why he was there, Lee says he explained
that he was waiting for a cab. Lee
claims that the officer then reached into his right coat pocket, found a
three-inch pocket knife, handcuffed him and then patted him down. During the pat-down, the officer discovered
the marijuana and pipe.
Jackson offered a very
different account as to what transpired.
He stated that he decided to ask Lee why he was standing at the store
front because Lee was looking around nervously. Earlier, Jackson had noticed the length of Lee’s coat, which
concerned him because he feared Lee may have a hidden weapon. There had been two or three homicides in the
vicinity. As Jackson approached Lee,
Jackson believed that Lee was nervous about his presence. He noted that Lee had his hands in his coat pockets
and ordered him to remove them. When
Lee did not do so immediately, Jackson repeated the order several times until
Lee finally complied. Jackson observed
that Lee seemed to be holding on to something as he removed his hand from the
right pocket. Jackson became concerned
for his own safety and decided to conduct a pat-down search. During the pat-down, he discovered a three
and one-half inch throwing knife.
Jackson arrested Lee for carrying a concealed weapon and immediately
conducted a custodial search which produced the marijuana and pipe.
II. ANALYSIS
In reviewing an order
denying a motion to suppress evidence, this court will uphold a trial court’s
findings of fact unless they are
clearly erroneous. State v.
Turner, 136 Wis.2d 333, 343-44, 401 N.W.2d 827, 832 (1987);
§ 805.17(2), Stats. Whether, however, a search or seizure
satisfies the constitutional requirement of reasonableness is a question of
law, which this court reviews independently.
Id. at 137-38, 456 N.W.2d at 833.
The validity of an
investigatory stop is governed by Terry v. Ohio, 392 U.S. 1
(1968), as codified by § 968.24, Stats. Terry and its progeny require
that a police officer reasonably suspect, in light of his or her experience,
that some criminal activity has taken or is taking place before stopping an
individual. This reasonable suspicion
must be based on specific articulable facts which, when taken together with
rational inferences from those facts, reasonably warrant any intrusion. State v. King, 175 Wis.2d
146, 150, 499 N.W.2d 190, 191-92 (Ct. App. 1993). The focus of an investigatory stop is on reasonableness, and the
determination of reasonableness depends on the totality of the
circumstances. State v. Chambers,
55 Wis.2d 289, 296-97, 198 N.W.2d 377, 380 (1972). The question of what constitutes reasonableness is a common sense
test, i.e., what a reasonable police officer would reasonably suspect in light
of his or her training and experience considering all the circumstances. State v. Anderson, 155 Wis.2d
77, 83-84, 454 N.W.2d 763, 766 (1990).
Lee asserts that Officer
Jackson had no specific and articulable facts upon which to act and that the
facts that did exist were insufficient to give rise to anything more than a
hunch because all of Lee’s actions were lawful. In sum, Lee argues that the facts do not provide a basis to
reasonably suspect that some criminal activity had taken or was taking
place. This court is not persuaded.
Police officers are not
to turn their backs on their training nor their experience. To act reasonably, they are required to act
just the opposite. Moreover, officers
are not required to rule out the possibility of innocent behavior before
initiating a brief stop. “If a
reasonable inference of unlawful conduct can be objectively discerned,
notwithstanding the existence of other innocent inferences that could be drawn,
the officers have the right to temporarily detain the individual for the
purpose of inquiry.” State v.
Waldner, No. 95-1291, slip op. at 8, (Wis. Dec. 13, 1996) (citing Anderson,
155 Wis.2d at 84, 454 N.W.2d at 766.).
The trial court found
the following facts: (1) that Lee
was standing in front of a closed television store sometime after midnight;
(2) that he had his hands in his pockets; (3) that he was looking
around “nervously”; (4) that there had been two or three homicides in the
neighborhood recently; and (5) that when the “overall circumstances” are
viewed from the officer’s perspective, there was sufficient reasonable
suspicion for the officer to conduct a Terry stop.
The record supports the
trial court’s findings as well as its conclusion that Jackson’s suspicion of
criminal activity was reasonable. Anderson,
155 Wis.2d at 83, 454 N.W.2d at 766.
From Lee’s perspective, each of his actions, i.e., going to the pay
phone, waiting for the cab and looking about for its anticipated arrival, and
keeping his hands in his pockets because of the cold weather, can only be
viewed as entirely innocent. This court
does not agree. Under the totality of
the circumstances present here, both an inference of innocent conduct and an
inference of unlawful conduct could be discerned. Jackson’s training caused him to approach Lee to clear up why he
was where he was when he was. Jackson
was concerned about the length of Lee’s coat, which could easily hide a gun,
because he knew that several homicides had occurred in the vicinity. Even though Lee might innocently have his
hands in his pockets, it is equally reasonable to infer that they might also
contain a gun. Although it is disputed
whether Lee immediately responded to Jackson’s request to remove his hands from
the pockets of his coat, Lee’s response was not satisfactory to Jackson because he noticed hesitancy when removing
his right hand.
From this review of the
record, we conclude there is a sufficient enough basis to remove this incident
from the realm of “hunch.” The record
demonstrates sufficient grounds for a reasonable officer to suspect that
criminal activity was afoot, the record substantiates the desirability for a
pat-down for safety purposes and, therefore, the sequential arrest for carrying
a concealed weapon and incident custodial search was legal.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.