������ COURT OF APPEALS ��������������� DECISION �� DATED AND RELEASED ����������� January 14, 1997 |
����������������� NOTICE |
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.� 96-2610-CR
STATE
OF WISCONSIN�������������� IN COURT OF
APPEALS
�
DISTRICT I�����������
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STATE OF WISCONSIN,
����������������������� ����������������������� ����������� Plaintiff-Respondent,
����������� ����������� v.
STEVEN G. LOVEDAY,
����������������������� ����������������������� ����������� Defendant-Appellant.
����������������������������������������������������������������������������������������������������������������������
����������������������� APPEAL from a judgment
of the circuit court for Milwaukee County:�
KITTY K. BRENNAN, Judge.� Affirmed.
����������������������� FINE,
J. Steven G. Loveday appeals from a judgment, entered on a
guilty plea, convicting him of unlawfully carrying a concealed weapon.� See � 941.23, Stats.�
He claims that the trial court erred in not granting his motion to
suppress evidence.[1]
�������������������� I.
����������������������� This case arises out of
an investigation by Milwaukee police officers of a report that there was
gambling at a tavern.� Five officers
entered the tavern. One of the officers testified at the suppression hearing
that he saw Loveday sitting at the bar, having a drink.� The officer told the trial court that he
went over to Loveday because �I wanted to ask him if he had any information
regarding any gambling that might be going on.�� The officer testified that Loveday was �acting real nervous� so
he asked Loveday �if I could check him for any weapons for both of our safeties
[sic], and he said sure.��
According to the officer, Loveday then �took off his black leather
jacket and handed it to me.�� The
officer told the trial court that he hadn't asked Loveday for the jacket, �but
that's what he had done. [sic]��
The officer found a small semi-automatic, loaded gun in the jacket.
According to the officer, Loveday then blurted out, as phrased by the
officer:� �I live on 7th and Mitchell,
what do you expect.�
����������������������� Subsequently, another
officer interviewed Loveday who told him that he had consented to the search
and that he gave his jacket to the other officer voluntarily because he had
forgotten that the gun was there; according to Loveday's post-arrest statement
he put the gun in his jacket because children were visiting his home and he did
not want them to find the gun.
����������������������� Loveday testified at the
suppression hearing that the officer asked �if he could search me,� and that he
consented because, in essence, he believed that he had no choice.� He also said that he knew that the gun was
in the jacket, but �handed it [the jacket] to him [the officer] because I
didn't want to get my face smashed on the bar.�
����������������������� The trial court credited
the officers' testimony as bolstered by Loveday's post-arrest statement, and
found that Loveday consented to the search.
������������������� II.
����������������������� In reviewing a trial
court's order denying a defendant's motion to suppress evidence, we uphold the
trial court's findings unless they are �clearly erroneous,� see Rule 805.17(2), Stats., made applicable to criminal proceedings by
� 972.11(1), Stats.; State
v. Harris, Nos. 95-1595-CR & 95-1596-CR, slip op. at 5-6 (Wis. Dec.
27, 1996).� The trial court's legal
conclusions are, however, reviewed de novo.� See Harris, at 6.� Certain legal issues are so intertwined with the underlying
facts, however, that the trial court's legal conclusions on those issues are
entitled to weight.� See Ballenger
v. Door County, 131 Wis.2d 422, 427, 388 N.W.2d 624, 628 (Ct. App.
1986).
����������������������� Although people have a
Fourth Amendment right not to be stopped and searched, see Harris,
at 15, consensual interactions between law enforcement officers and the public
do not trigger Fourth Amendment scrutiny, Florida v. Bostick, 501
U.S. 429, 434 (1991).� Thus, police
officers may approach, question, and request to search luggage of persons in
public places��even when officers have no basis for suspecting a particular
individual,� �as long as the police do not convey a message that compliance with
their requests is required.�� Bostick,
501 U.S. at 434�435.� In Bostick
two uniformed and armed law enforcement officers boarded an interstate bus at
one of its stops.� Id.,
501 U.S. at 431.� The issue was whether
the officers' request to search a bus passenger's luggage could be consensual
given the passenger's subjective view that he was not free to either leave the
bus or refuse consent.� Ibid.
The Court held that the test was objective:�
what a reasonable �innocent person� would believe.� Id., 501 U.S. at 438 (emphasis
in original).� This is the same test
employed by United States v. Mendenhall, 446 U.S. 544, 553�554
(1980) (Stewart, J., announcing judgment of Court in an opinion in which,
as relevant here, was joined in by Rehnquist, J.), upon which Loveday relies.
����������������������� We see no principled
distinction between the bus in Bostick and the tavern in this
case.� Indeed, given the differences
between the physical configurations of buses and taverns, a reasonable innocent
person would be more likely to believe that he or she was free to refuse an
officer's search request in a tavern than on an interstate bus that would soon
depart.� In this case, the trial court
found that Loveday handed his jacket to the officers voluntarily.� There was no pre-arrest pat-down or search
of Loveday's person.� The trial court's
finding is supported by not only the police officer's testimony but also by
Loveday's post-arrest statement.� It is
also supported by the evidence that Loveday did not realize the gun was in the
jacket.� As Bostick
recognized, it is less likely that a consciously guilty person would consent to
a search voluntarily than a person who thought that he or she had nothing to
hide. Id., 501 U.S. at 437�438.�
There is nothing in the record before this court that persuades us that
the trial court's finding that Loveday consented to the search of his jacket
voluntarily is �clearly erroneous.�
����������������������� By the Court.�Judgment
affirmed.
����������������������� This opinion will not be
published.� See Rule 809.23(1)(b)4, Stats.