COURT OF APPEALS
DECISION
DATED AND FILED
November 12, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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 WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Ronald Lyons,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Kenosha County: s.
michael wilk, Judge. Affirmed.
Before Brown, C.J., Anderson,
P.J., and Snyder, J.
¶1 PER CURIAM. Ronald Lyons appeals from a
judgment convicting him of crimes arising from a home invasion: kidnapping,
burglary while armed with a dangerous weapon and armed robbery, all as party to
the crime. On appeal, Lyons argues that the circuit court
erroneously denied his motion to suppress his inculpatory statements because
the police officer who stopped him had neither reasonable suspicion for the
stop nor probable cause to arrest. We
affirm because the stop was supported by reasonable suspicion derived from
articulable facts and therefore lawful under Terry v. Ohio, 392 U.S. 1 (1968).
¶2 A
police officer may stop a person on less than probable cause, the standard for
arrest. State v. Waldner, 206 Wis. 2d 51, 59, 556
N.W.2d 681 (1996). To justify an
investigatory seizure, or Terry stop, the officer “must have a
reasonable suspicion, grounded in specific articulable facts and reasonable
inferences from those facts, that an individual is [or was] violating the law.”
State v. Colstad, 2003 WI App 25,
¶8, 260 Wis.
2d 406, 659 N.W.2d 394 (citation omitted).
“The question of what constitutes reasonable suspicion is a common sense
test: under all the facts and
circumstances present, what would a reasonable police officer reasonably
suspect in light of his or her training and experience.” Id. (citing State
v. Young, 212 Wis.
2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997)).
¶3 At the hearing on Lyons’
motion to suppress, Officer Ball testified that on February 20, 2005, at 5:40
a.m., he was on his way to the department to begin his shift when he heard a
police radio transmission about a home invasion and fleeing suspects who were
reportedly armed. Officer Ball made his
way to the department through the area of the reported crime in the hope of
intercepting or observing a suspect. Shortly
after the transmission and when he was approximately five blocks from the crime
scene, Officer Ball observed a subject, later identified as Lyons, running in the area. It was early in the morning, snowing and
slippery with very little traffic and no other pedestrians. Lyons,
a black male, was wearing dark clothing and did not appear to be running for
pleasure.
¶4 Officer Ball, who was in uniform but driving his personal
vehicle, maneuvered his vehicle to get a better look at Lyons, who was now
walking. Officer Ball observed that Lyons was looking around
in all directions as if he was looking for something or as if he was
nervous. Lyons
started walking briskly, and Officer Ball passed Lyons,
notifying squad cars ahead of him of Lyons’
location. Officer Ball believed that Lyons may have been
involved in the home invasion given his proximity to the scene, his
description, and his suspicious actions.
Officer Ball pulled in behind a snow bank while maintaining visual
contact with Lyons
and waiting for the squads to respond. By
the time Lyons walked past Officer Ball’s
location, Officer Ball had exited his vehicle and was positioned on top of a
snow bank watching Lyons.
¶5 When Officer Ball’s police radio sounded, Lyons looked at Officer Ball. Lyons
tensed and started to take a longer stride which, in Officer Ball’s experience,
was a prelude to running. Officer Ball
drew his weapon, yelled “police, stop,” ordered Lyons to the ground and handcuffed him. Officer Ball detained Lyons for approximately two minutes before
other squads responded to assist.
¶6 Officer Ball detained Lyons
to find out what, if any, involvement, he may have had in the home
invasion. Officer Ball believed Lyons was involved in the
home invasion based upon “[h]is leaving the scene of the incident, the fact
after approaching him and ascertaining he was a male black, which was the
description provided by other officers at the scene, his movements of looking
around as if he was looking to see if somebody was following him.” Officer Ball explained that he drew his
weapon because he was alone, in uniform, did not emerge from a police vehicle,
had information that the home invasion suspects were armed, Lyons matched the
description of the suspects in the crime (black male in dark clothing), and he
believed Lyons was one of the suspects.
Therefore, to protect himself, Officer Ball drew his weapon. Officer Ball’s protective pat down did not
locate a weapon.
¶7 In ruling on the motion to suppress, the circuit court
applied the Terry reasonable suspicion standard. The court found that Officer Ball heard the
dispatch about the possible home invasion involving multiple, possibly armed
black men. Officer Ball had this
information when he observed Lyons
within blocks of the crime scene running and then walking while looking
around. There were few people out in the
early morning hours, it was snowing and Lyons
fit the general description of the suspects.
Lyons
engaged in furtive movements that suggested he was about to flee Officer
Ball. Under the totality of the
circumstances, Officer Ball properly suspected Lyons
of involvement in a crime, had the right to handcuff Lyons for his own safety; the handcuffing did
not convert a legal Terry stop into an arrest.
The court was “satisfied that under the totality of the circumstances, there
was a reasonable suspicion that the suspect was armed or dangerous based on
the” facts found and relied upon by the court.
¶8 Lyons
pled guilty and now challenges this ruling on appeal. Wisconsin
Stat. § 971.31(10) (2005-06) (appellate review of a suppression
ruling available even if the defendant pled guilty).
¶9 As a preliminary matter, we clarify the issue on appeal. At the suppression hearing, Lyons argued that he was arrested without
probable cause. However, the circuit
court, in denying Lyons’ suppression motion,
ruled that Lyons was lawfully temporarily
detained under Terry and that Officer Ball’s use of his weapon and handcuffs
to detain Lyons
did not convert the stop into an arrest.
On appeal, Lyons
argues that Officer Ball arrested him and did not merely detain him via a Terry
stop. We disagree and hold that
Officer Ball’s encounter with Lyons
was a Terry stop, not an arrest.
¶10 In
reviewing the circuit court’s ruling on a suppression motion, we will uphold
its findings of fact unless they are clearly erroneous. State v. Roberts, 196 Wis. 2d 445, 452, 538
N.W.2d 825 (Ct. App. 1995). It
was the role of the circuit court, as the fact finder, to weigh the credibility
of the testimony. State
v. Owens, 148 Wis. 2d 922, 930, 436
N.W.2d 869 (1989). The circuit
court’s findings were not clearly erroneous based upon the record before
us.
¶11 We turn to whether the facts found by the circuit court satisfy
the standards for a Terry stop. Whether a stop meets constitutional and
statutory standards is a question of law that we review de novo. State v. Krier, 165 Wis. 2d 673, 676, 478
N.W.2d 63 (Ct. App. 1991).
¶12 The facts found by the circuit court satisfy the Terry
standards of “reasonable
suspicion, grounded in specific articulable facts and reasonable inferences
from those facts, that an individual is [or was] violating the law.” See Colstad, 260 Wis. 2d 406, ¶8 (citation omitted). Officer Ball, relying upon information
received via radio transmissions about a possible crime, its location, and a
description of a suspect or suspects, located Lyons in the vicinity in circumstances that
appeared suspicious. Officer Ball had
specific articulable facts suggesting that Lyons violated the law. Applying the common sense test, see id.,
a reasonable officer in Officer Ball’s position and with his training and
experience would reasonably suspect Lyons. Officer Ball need not have weeded out all
explanations consistent with innocent activity before acting on the specific
articulable facts he possessed. See Waldner,
206 Wis. 2d
at 60.
¶13 Finally, we address the significance of Officer Ball’s use of
his weapon and handcuffs during the stop.
Officer Ball testified that the
circumstances of the encounter with Lyons—an
officer without backup and a possibly armed suspect—led him to draw his weapon
and handcuff Lyons
for his own safety. Based upon this
testimony, the circuit court correctly
concluded that these actions were properly taken in furtherance of Officer
Ball’s safety during the stop. We
agree that Officer Ball’s actions did not convert the Terry stop to an arrest
on less than probable cause.
¶14 The court in United
States v. Tilmon, 19 F.3d 1221, 1225 (7th Cir. 1994), acknowledged that in conducting a Terry stop, “which is
always a stop made at ‘close range,’ police officers must make a quick decision
about how to protect themselves and others from possible danger.” The court observed that “[t]he mere use or
display of force in making a stop does not necessarily transform a stop into an
arrest if the surrounding circumstances give rise to a justifiable fear for
personal safety.” Id. at 1226. Handcuffing does not, “in all circumstances
transform a stop into an arrest. In
fact, handcuffing—once highly problematic—is becoming quite acceptable in the
context of a Terry canalysis.” Id. at
1228 (footnote omitted). As the Tilmon
court noted, “[f]or better or for worse, the trend [in Terry
law] has led to the permitting of the use of handcuffs, the placing of
suspects in police cruisers, the drawing of weapons and other measures of force
more traditionally associated with arrest than with investigatory
detention.” Id. at 1224-25.
¶15 In Tilmon, the officers knew via a radio transmission that the
robbery suspects were armed. Id. at
1227. Once Tilmon’s vehicle was stopped,
the officers, with weapons drawn, ordered him out of the vehicle, and required
him to lie face down on the roadway. Id. at
1223. Tilmon was then handcuffed and
placed in a squad car. Id.
The court held that this was a lawful Terry stop. Id.
at 1227.
¶16 In considering the show of force against Tilmon, the court
considered “whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.” Id. at
1227 (citing Terry, 392 U.S.
at 27). The court held that the police
were justified in making a show of force to protect themselves and passersby in
light of their knowledge that Tilmon was armed.
Tilmon, 19 F.3d at
1228.
¶17 We apply Tilmon and conclude that Officer
Ball’s lawful Terry stop of Lyons
was not transmuted into an arrest by the use of handcuffs and a weapon. See Tilmon, 19 F.3d at 1224-25; Cf. State v. McGill, 2000 WI 38, ¶38, 234 Wis. 2d 560, 609 N.W.2d 795 (frisk
may be performed while a suspect is handcuffed if the officer applies restraint
in order to protect him or herself during a Terry frisk).
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.