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COURT OF APPEALS DECISION DATED AND RELEASED January 21, 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. 96-2698-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
In the Interest of
Anthony K.,
a person Under the Age
of 18:
State of Wisconsin,
Petitioner-Respondent,
v.
Anthony L.K.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
CHRISTOPHER R. FOLEY, Judge. Affirmed.
SCHUDSON, J.[1] Anthony K. appeals from the dispositional
order and adjudication of delinquency, following his admission, for possession
of marijuana. He argues that the trial
court erred in denying his motion to suppress evidence. This court affirms.
Most of the facts
relevant to resolution of this appeal are not in dispute. As summarized by the trial court in its
written decision denying Anthony K.'s motion:
On
9/21/95, Jack Bleir, a math teacher at Whitefish Bay High School (WFB), smelled
a pungent odor of marijuana while walking through the area of the Memorial Gym
of the school. Investigating the source
of the odor and climbing the stairs to the balcony of the gym, Mr. Bleir
located Anthony [K.], a student at WFB.
[Anthony K.] was alone and the only person in this isolated area of the
school. Mr. Bleir did not observe
[Anthony K.] in possession of or using marijuana. However, [Anthony K.] was not authorized to be in that location
at the time and subsequent investigation revealed that he should have been in a
classroom far-removed from the Memorial Gym.
Mr.
Bleir took [Anthony K.] to the office of Gerald Luecht, an associate principal
at WFB. Ed Davis, [Anthony K.'s]
special education teacher, was asked to come to the office as well, apparently
because of his relationship with [Anthony K.].
Dr.
Luecht immediately noted a strong odor of marijuana on the clothing and hands
of [Anthony K.]. When asked to empty
his pockets, Mr. Luecht noted a similar odor emanating from the cigarette
lighter [Anthony K.] produced; in excess of $200 was also found in his pockets.
School
records, the contents of which were known to Mr. Luecht, indicated that
[Anthony K.] had at least one prior disciplinary referral involving use or
possession of drugs at WFB, together with a longstanding pattern of
truancy. [Anthony K.] had been arrested
recently for possession of a firearm, a fact also known by the associate
principal.
[Anthony
K.] denied the use or possession of marijuana on school premises and school
authorities contacted the police.
Police Officer Tom Hrycyna responded to WFB. While his testimony lacked specificity with respect to how many
of the facts detailed above were told to him when he initially arrived at
school, it is clear from the testimony of Mr. Luecht that all of those facts
were made known to the officer prior to the initial patdown. (Officer Hrycyna had independent knowledge
of [Anthony K.'s] prior arrest for possession of a gun.)
Shortly
after encountering [Anthony K.], the officer conducted a patdown for weapons
due to safety concerns. Initially, he
discovered a pager on [Anthony K.] which he turned over to school authorities
in that pagers are prohibited at WFB.
In [Anthony K.'s] crotch area, the officer felt an object, later
determined to be a leather pouch containing marijuana, which further heightened
Officer Hrycyna's suspicions. It is
clear from the testimony of the officer that he did not believe the object to
be a weapon, nor could he immediately discern that it was contraband.
When
questioned about the object, [Anthony K.] initially refused to acknowledge it
was there and subsequently refused to remove it until the officer threatened to
“go in and get it”. When he was
compelled to remove it and the contents was examined, he was arrested for
possession of marijuana.
No warrant had been issued authorizing the
arrest or search of [Anthony K.].
(Footnote
omitted).[2]
Anthony K. does not
challenge Officer Hrycyna's legal authority to conduct the initial
investigatory stop. He argues, however,
that “Officer Hrycyna did not have a reasonable suspicion that [he] was armed
and dangerous” and, further, that Officer Hrycyna's search could not be
justified as a search incident to arrest.
This court concludes that Officer Hrycyna had a reasonable suspicion
that Anthony K. was armed and, therefore, regardless of whether the search
could have been justified as one incident to an arrest, Officer Hrycyna's
search of Anthony K. and seizure of the marijuana pouch were lawful.
The supreme court has
explained:
A frisk is a search. The fourth amendment does not proscribe all
searches, only unreasonable searches.
In order to determine whether a search is reasonable, we balance the
need for the search against the invasion the search entails.
In Terry
[v. Ohio, 392 U.S. 1 (1968)], the Court applied this balancing test to
determine the legality of an on-the-street frisk of a person suspected of
casing a robbery location. The Court
first considered the need for the search, emphasizing the need for police to
protect themselves from violence:
[T]here is the more immediate interest of
the police officer in taking steps to assure himself that the person with
whom he is dealing is not armed with a weapon that could unexpectedly and
fatally be used against him.
Certainly it would be unreasonable to require that police officers take
unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and
every year in this country many law enforcement officers are killed in the line
of duty, and thousands more are wounded.
The Court then balanced the need for
police protection against the intrusion on individual rights which a frisk
entails. Although the Court viewed a
frisk as “a severe, though brief, intrusion upon cherished personal security”
and an “annoying, frightening, and perhaps humiliating experience[,]” the Court
held that when an officer has a reasonable suspicion that a suspect may be
armed, the officer can frisk the suspect for weapons.
The
facts of each case determine the reasonableness of the frisk, and we judge
those facts against an objective standard.
The
officer need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger.... And in determining whether
the officer acted reasonably in such circumstances, due weight must be given,
not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the
specific reasonable inferences which he is entitled to draw from the facts in
light of his experience.
In the years since the Court decided Terry,
the Court has applied the Terry standard to different facts. The constant refrain in these cases has
been that the need for police to protect themselves can justify a limited frisk
for weapons.
State
v. Guy, 172 Wis.2d 86, 93-95, 492 N.W.2d 311, 313-14 (1992)
(citations omitted; emphasis added), cert. denied, 509 U.S. 914
(1993). See also § 968.25, Stats.
In assessing whether
police reasonably suspected that a person might be armed, this court
must determine, from an objective viewpoint, whether the facts, reasonable
inferences from the facts, and surrounding circumstances confronting the police
justified the frisk. State v.
Richardson, 156 Wis.2d 128, 143-44, 456 N.W.2d 830, 836 (1990). Here, where the essential facts are
undisputed, this court reviews the trial court's legal conclusion de novo. State v. Goodrum, 152 Wis.2d
540, 546, 449 N.W.2d 41, 44 (Ct. App. 1989).
This court concludes
that Officer Hrycyna reasonably suspected that Anthony K. might be armed. Hrycyna testified:
Q:Why did you pat him down?
A:Okay.
I've known [Anthony K.] for six, seven, eight years. I was aware that a year and a half, year
ago, he was arrested by the City of Milwaukee for a weapons charge.
Q:And based on that information, why were
you patting him down?
A:For my safety and for the safety of
other individuals in the school.
....
Q:Once you decided that you were going to
pat him down ... what happened?
A:I patted him down. I noticed a pouch-like object in his
crotch. I asked him to remove it. He refused to remove it.
Q:When you say he refused to remove it,
what exactly do you mean?
A:I asked him to take whatever it was in his
crotch area out. He said no.
Q:At this point did you think that what
was in his crotch area was a weapon?
A:I don't know what it was. It could have been a weapon. I wasn't sure.
....
Q:You indicated that you thought it could
have been a weapon or anything. What
type of weapon did you think it might have been?
A:I
wasn't sure. It could have been a small
knife, a razor, or any number of different types of items.
Under
cross-examination, Officer Hrycyna reiterated that he conducted the patdown for
weapons because he feared for his safety.
This court concludes
that Officer Hrycyna's fear was understandable and his suspicion that Anthony
K. might be armed was reasonable.
Officer Hrycyna had been informed that Anthony K. had just been found in
a secluded part of a school building under circumstances indicating that he
probably was in possession of marijuana.
He knew of Anthony K.'s prior arrest involving a handgun.
Although Anthony K. argues
that Officer Hrycyna “apparently did not believe [he] was dangerous when he
came into the office, because he did not search him then,” Officer Hrycyna's
“belief” was not required to justify the search. Indeed, Terry and Guy anticipate that
a suspect's use of a weapon often can be “‘unexpected[ ].’” Guy, 172 Wis.2d at 94, 492
N.W.2d at 314. That is, even if Officer
Hrycyna did not “believe” that Anthony K. was armed, he reasonably suspected
that he might be based on specific reasonable inferences drawn from knowledge
of Anthony K.'s prior weapons arrest and Anthony K.'s current suspected
possession of marijuana. Officer
Hrycyna acted as “a reasonably prudent man” would have acted “in the
circumstances,” see id., to assure safety for himself and
others at the school.[3]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)(4), Stats.
[2] Anthony K. disputes
the factual findings in one respect. He
contends that “the trial court's finding that Officer Hrycyna was aware of ‘all
of those facts’ known by Assistant Principal Luecht, is not supported by the
evidence.” Although the testimony at
the evidentiary hearing may leave some slight uncertainty regarding whether
Officer Hrycyna knew every detail known by Assistant Principal Luecht, and
although the trial court's reference to “all of those facts” may leave some
uncertainty about the exact facts the trial court had in mind, the record does
support the trial court's finding.
Luecht testified:
I explained to Officer Hrycyna
our suspicions and where Tony had been found and the smell of marijuana ... and
I explained there was also a strong smell on Tony's breath and hands and coat;
and at that point, I mentioned that Tony voluntarily emptied his pockets and
denied having anything else on him.
Luecht also testified:
I said Tony was in the hallway,
the only one in the hallway. There was
a strong odor of marijuana, strong smell of marijuana on his coat and
hands. At the time those were my
suspicions. He may possibly have other
things, but I wasn't sure.
It is undisputed that Officer Hrycyna knew of Anthony K.'s prior weapons arrest. He also testified that he “had contact with [Anthony K.] for various things,” although he did not have “the specific record” in front of him at the hearing.
[3] Having affirmed the trial court's denial of Anthony K.'s motion to suppress on this basis, this court need not address the parties' arguments about whether the search could have been justified, as the trial court concluded, as one incident to an arrest. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).