COURT OF APPEALS DECISION DATED AND FILED July 23, 2009 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 Nos. |
2008AP438-CR |
2006CM910 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Woodrow H. Garrett,
Defendant-Appellant. |
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APPEAL
from judgments of the circuit court for
Before Higginbotham, P.J., Dykman and Bridge, JJ.
¶1 PER CURIAM. Woodrow Garrett appeals from judgments convicting him of receiving stolen property, theft of movable property, carrying a concealed weapon and burglary, the latter two counts as a repeater. Garrett argues that the circuit court erred by denying his pretrial suppression motion because the officer lacked the requisite reasonable suspicion to initiate a stop of the vehicle in which Garrett was a passenger. We agree. Because the evidence should have been suppressed as the result of an unconstitutional stop, we reverse the judgments of conviction and remand the matter for further proceedings.
Background
¶2 In Rock County Circuit Court Case No. 2006CF906, an information charged Garrett with burglary, misdemeanor theft, possession of cocaine, carrying a concealed weapon and possession of narcotic drugs, all as a repeater. In Rock County Circuit Court Case No. 2006CM910, a complaint charged Garrett with receiving stolen property. The circuit court denied Garrett’s pretrial suppression motion. Upon his no contest plea, Garrett was subsequently convicted of receiving stolen property in Case No. 2006CM910. A jury trial was held in Case No. 2006CF906 and Garrett was acquitted of the drug possession charges, but convicted of burglary, misdemeanor theft and carrying a concealed weapon. The court imposed five years of initial confinement and five years of extended supervision on the burglary conviction, and nine months in jail on each of the remaining three offenses—the sentences to run concurrently with each other but consecutive to a sentence Garrett was already serving. This appeal follows.
Discussion
¶3 Garrett challenges the circuit court’s denial of his pretrial
suppression motion.[1] When reviewing an order on a motion to
suppress, we uphold the circuit court’s factual findings unless clearly
erroneous. State v. Drew, 2007 WI
App 213, ¶11, 305
¶4 Whether an investigatory stop was legally justified presents
a question of law that we decide independently. State v. Krier, 165
¶5 At the suppression motion hearing, City of
I decided to stop the vehicle, I thought it was somewhat suspicious the subject was coming from between two driveways and technically from the area of the church; from the way he was walking; that it was occupied by three people, and I had no idea whether or not there [were] more suspects involved other than one on initial dispatch.
¶6 The State acknowledges there were a limited number of
specific and articulable facts known to Summers at the time of the stop. Citing Guzy, however, the State emphasizes
that facts known to the officers did not exist in a vacuum.
¶7 The Guzy court concluded that the
uniqueness of long hair, coupled with the fact that there were very few
vehicles on the road at 2:30 a.m., increased the likelihood that the truck’s
occupants were involved in the robbery.
¶8 Here, the State argues that, although the subject entering the vehicle did not match the description of the robbery suspect, “the vehicle was spotted in a location and at a time that would be consistent if the robber had planned to use a vehicle to flee the scene.” Further, a woman told the officer she had not seen anyone pass by on the opposite side of the church. Citing Guzy, the State argues there were no alternative means of further investigation available short of an actual stop and the opportunity for further investigation might have been lost if Summers did not react immediately. Finally, the State claims that the detailed description of the robbery suspect would have allowed Summers to determine with minimal intrusion whether a person of that description was in the vehicle.[2]
¶9 We conclude that the facts in the present case are readily
distinguishable from those in Guzy. In Guzy, both suspects matched the
description of the robber and the late night/early morning observation of the
truck were significant factors in supporting the officers’ decision to stop the
vehicle.
By the Court.—Judgments reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2007-08).
[1] The State asserts Garrett makes no argument challenging his conviction in Rock County Circuit Court Case No. 2006CM910 for receiving stolen property. The stolen property, a checkbook, was discovered on Garrett when searched following the vehicle stop that forms the basis of Garrett’s suppression motion. Garrett’s challenge to the stop, therefore, includes a challenge to his conviction for receiving stolen property.
[2] The State also emphasizes that once the vehicle stopped, one of its passengers, Cunningham, began running from the vehicle. The State claims that Cunningham’s flight provided police with additional reasonable suspicion. The fact that Cunningham fled the car once stopped, however, is irrelevant to the initial determination of whether there was reasonable suspicion to initiate the stop.
[3] Garrett also
argues the circuit court erred by denying his motion in limine to exclude
certain testimony and evidence at trial.
Because the judgments are reversed, we do not address this argument. See
Sweet v. Berge, 113