COURT OF APPEALS DECISION DATED AND FILED August 19, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Petitioner-Respondent, v. O.C. TRIGGS, Respondent-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 KESSLER, J.[1] This is an appeal of a conviction for possession of a controlled substance contrary to Wis. Stat. § 961.41(3g)(c) (2005-06)[2] based on a guilty plea entered after denial of a motion to suppress the seizure of cocaine which was found in Mr. Triggs’ pocket after his admission to possession of drug paraphernalia during an investigative stop. Triggs argues that the police did not have a reasonable suspicion upon which to base the investigative stop, thus the subsequent search was invalid. We disagree and affirm.
¶2 According to the testimony at the suppression hearing, Milwaukee
Police Officers Christopher Chu and David Gabbard were on patrol the morning of
March 3, 2007. The officers stopped
Triggs, who they had observed for one half to three quarters of a block walking
in the roadway against traffic and looking into the parked cars along his
path. Triggs looked into five or six
cars. Triggs was observed “walking to
each car, pausing for a moment, peering in, [and] moving onto the next
one.”
¶3 Triggs’ version of the events was very different. Triggs testified that he was walking in the
street because of ice on the sidewalks and that he had not been looking into
cars but rather at the ground, which was a habit, picked up from his father, of
glancing toward the ground looking for anything that might be laying on the
ground. Triggs described the officers as
having emptied all of his pockets when they first encountered him, then,
apparently finding nothing of interest, returning the contents to him. At that point, Triggs was put in the back of
the squad car and questioned about knowing drug dealers. Triggs denied knowing any drug dealers. Chu then produced from the front seat
something
¶4 The trial court accepted the officers’ version of events. It concluded that the officers properly stopped Triggs to investigate his walking in the street looking into cars, that the officers had a right to do the pat down search for weapons and that Triggs’ admission to possessing drug paraphernalia (the crack pipe), which is a crime, provided separate probable cause to conduct the search. On those bases, the trial court denied the motion to suppress.
¶5 “Review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact.” State v. Hughes, 2000 WI 24, ¶15,
233
¶6 “Where the trial court is the finder of fact and there is
conflicting evidence, the trial court is the ultimate arbiter of the
credibility of witnesses.” Fidelity
& Deposit Co. v. First Nat. Bank, 98
¶7 We have held that certain investigative stops, prompted by an
officer’s suspicion that the individual may have committed a crime, are in
certain circumstances constitutionally permissible even though the officer
lacks probable cause to arrest.
¶8 On appeal, Triggs argues that the trial court erred in
concluding that the officers had a particularized and objective basis upon
which to have reasonable suspicion to stop him. In essence, Triggs argues that the trial court
should have accepted his explanation for walking in the street instead of on
the sidewalk (icy sidewalks) and should have believed his testimony that he
acquired the habit of glancing at the ground to see if anything was there from
his father, thus inferring that his conduct was perfectly innocent and
reasonable. However, if the trial court
believed the testimony of the officers, which it obviously did here, the inference
that Triggs’ conduct was indeed suspicious, and suggested criminal activity was
afoot, is an inference which the trial court was entitled to draw. As we have seen, the trial court, as the
factfinder in a motion to suppress, is the sole arbiter of facts and reasonable
inferences to be drawn therefrom. See Fidelity & Deposit Co., 98
¶9 The testimony of the officers, which the trial court obviously believed, supports the trial court’s conclusion that the facts provide reasonable articulable suspicion for the initial inquiry, and that Triggs’ admission during that inquiry to possession of drug paraphernalia (a crack pipe) and cocaine base or crack cocaine additionally provided probable cause to search for evidence of the crimes to which Triggs admitted, and to search for weapons inimical to officer safety. We conclude that the evidence was properly suppressed.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.