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COURT OF APPEALS
DECISION
DATED AND FILED
October 20, 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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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In the interest of Rodney L., a person under the age of 17:
State of Wisconsin,
Petitioner-Respondent,
v.
Rodney L.,
Respondent-Appellant.
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APPEAL
from an order of the circuit court for Brown County: JOHN
D. MCKAY, Judge. Judgment reversed and cause remanded.
¶1 BRUNNER, J. Rodney
L. appeals a judgment adjudicating him delinquent resulting from his guilty
plea to possession of a controlled substance with intent to deliver at or near
a park under Wis. Stat. § 961.49(1m)(b)1. Although we conclude that law enforcement’s
temporary detention and protective frisk of Rodney were supported by reasonable
suspicion, we hold that a second search following the initial protective frisk
was unlawful. We therefore reverse the dispositional
order and remand for further proceedings consistent with this opinion.
BACKGROUND
¶2 In the early evening of July 30, 2008, David Swanson, an
on-duty police officer in Green Bay,
was monitoring a park near a middle school for signs of drug and gang activity. He was positioned near a window inside a
community policing center, and could view the center’s parking lot and the park
across the street from this vantage point.
According to Swanson, his assignment was the result of “numerous
complaints of gang activity, including fights, assaults, display of gang
colors, [and] gang signing, occurring in the parking lot.” The police department also received
complaints about drug transactions occurring in the lot.
¶3 At about 6:15 p.m., Swanson observed a car pull into the
parking lot and watched several individuals exit the vehicle and begin gang
signing to one another and to others in the parking lot. Swanson thought this activity suspicious and
watched a man later identified as Hansel Canady approach the vehicle. Canady also made gang signs, used a cell
phone, and then walked out of Swanson’s line of sight to the west.
¶4 After about a minute, Swanson observed Canady return to the
car from the west and make an exchange with the driver. The driver handed Canady some currency, which
Canady began “thumbing through.” Canady
returned some of the currency and also handed the driver a substance Swanson
could not identify. Canady left the car
and walked away to the west and out of Swanson’s sight.
¶5 Thirty to sixty seconds later, Swanson observed Canady again,
who appeared from the west with a companion later identified as Rodney L. Swanson requested assistance based on his
suspicion that the transaction he witnessed involved narcotics, and described
the pair for the responding officers as he continued to track their movement
from the window. Swanson testified at
the suppression hearing that he requested responding officers to detain both
individuals because “generally drug dealers travel in pairs or more, and one
[person] hold[s] the drugs that [the other person is] about to sell.”
¶6 Officer Brian Jordan was one of the officers who intercepted
the pair. Based on Swanson’s
description, Jordan
identified Canady and Rodney while driving in his marked squad car and
approached them. The pair talked next to
a picnic table near some middle-school aged children, but stopped and stared at
the officers as they approached. As
Jordan parked his car, Rodney “quickly put his hands in his front pocket of his
black sweater, turned away from [Canady], put his head down … and tried walking
away from [Canady and] … past my squad.”
Rodney complied when Jordan
ordered him to stop and put his hands behind his back.
¶7 Jordan
questioned Rodney whether he had any contraband on him, to which Rodney replied
in the negative. Another officer
questioned Canady while Jordan,
concerned that a possible drug deal could involve weapons or firearms, frisked
Rodney. Initially, Jordan ran the blade
of his hand down Rodney’s clothing, and felt what he described as “lumps” that
“sound[ed] like plastic cellophane baggies in his right front shorts
pocket.” Although Jordan knew the
objects were not weapons, he testified that they did feel like a narcotic
substance. Jordan then “brushed [Rodney’s pocket]
again to confirm what I felt, and I handcuffed him, and then I reached into his
front pocket.” Jordan
recovered four individually wrapped, small, clear, plastic baggies containing a
greenish-brown, leafy substance that he identified as marijuana.
¶8 The State filed a delinquency petition alleging a violation
of Wis. Stat. § 961.49(1m)(b)1.,
possession of a controlled substance with intent to deliver at or near a
park. Rodney filed a motion to suppress
the evidence retrieved by law enforcement.
The court denied the motion and Rodney later admitted to the charge and
was found delinquent. The court ordered
one year of supervision.
DISCUSSION
¶9 Rodney argues that the circuit court erroneously denied his
suppression motion for three reasons.
First, he asserts that he was impermissibly detained solely on the basis
of his association with another individual suspected of a drug offense. Second, he argues the protective search was
unlawful because the responding officer lacked reasonable suspicion that Rodney
possessed weaponry. Finally, he claims
that a frisk for items of potential evidentiary value following a protective
search revealing no weapons violates the Fourth Amendment’s prohibition against
unreasonable searches and seizures.
¶10 Rodney’s appeal raises constitutional issues involving the
propriety of a search and seizure.
Whether an investigative detention and subsequent pat-down search were
justified by reasonable suspicion is a question of constitutional fact. State v. Kelsey C.R., 2001 WI 54,
¶12, 243 Wis.
2d 422, 626 N.W.2d 777. We apply a
two-step standard of review under these circumstances, upholding the circuit
court’s findings of historical fact unless they are clearly erroneous but
reviewing the circuit court’s application of constitutional principles to those
facts de novo. Id.
Different standards of reasonable suspicion justify a temporary
detention and a protective search. Compare Kelsey
C.R., 243 Wis.
2d 422, ¶38 (temporary detention justified if police had reasonable suspicion
the detainee had committed, was committing, or was about to commit a crime), and
Wis. Stat. § 968.24, with
State
v. Bridges, 2009 WI App 66, ¶10, 767 N.W.2d 593 (protective search is
reasonable if temporary detention is reasonable and the officer reasonably
believes the detainee might be armed and dangerous), and Wis. Stat. § 968.25.
¶11 We conclude Jordan’s
conduct up to the point of the second frisk was lawful. The investigative detention was valid and
supported by Jordan’s
reasonable suspicion that Rodney was involved in a drug transaction. Jordan testified at the suppression
hearing that drug dealers often divide the drug- and money-carrying duties between
two individuals. Drug transactions in
the park generated frequent complaints, and no more than sixty seconds elapsed
between the end of Canady’s transaction with the driver and the time he
reappeared walking and talking with Rodney.
The protective search was also justified at its inception by Jordan’s
reasonable suspicion that Rodney was armed.
Unusual nervousness, which includes an “otherwise inexplicable sudden
movement toward a pocket … where a weapon could be concealed,” is a significant
factor in assessing reasonable suspicion.
State v. Sumner, 2008 WI 94, ¶39 n.20, 312 Wis. 2d 292,
752 N.W.2d 783 (quoting 4 Wayne R.
LaFave, Search and Seizure § 9.6(a), at 628-30 (4th ed.
2004); see also State v. Kyles, 2004 WI
15, ¶¶41, 54, 269 Wis. 2d 1, 675 N.W.2d 449 (“[o]fficers have a legitimate,
objective concern for their own safety when an individual reaches into his pockets”). Police anxiety about armed suspects is
compounded where the detention occurs, as here, in a location known for gang
violence and assaults. See Kyles,
269 Wis. 2d
1, ¶62 (location of the search, and the location’s reputation, are relevant
factors in assessing totality of circumstances). Under the totality of the circumstances,
Rodney’s detention and protective frisk were supported by reasonable suspicion.
¶12 The scope of a weapons
search, however, reflects its limited purpose: protection of the
police and others nearby. State
v. Allen, 226 Wis. 2d 66, 76, 593
N.W.2d 504 (Ct. App. 1999); see also Minnesota v. Dickerson, 508 U.S. 366, 378
(1993). The protective frisk “must be
confined in scope to an intrusion reasonably designed to discover instruments
which could be used to assault the officer.”
Allen, 226 Wis.
2d at 76. When a lawful search for
weapons results in the seizure of a different item, we are “sensitive to the
danger … that officers will enlarge a specific authorization, furnished by a
warrant or an exigency, into the equivalent of a general warrant to rummage and
seize at will.” Dickerson, 508 U.S. at 378 (quoting Texas v. Brown, 460 U.S. 730, 748
(1983) (Stevens, J., concurring in the judgment)). Where a protective search extends beyond what
is necessary to determine if the suspect is armed, the search is no longer
valid under Terry v. Ohio, 392 U.S. 1 (1968), and its fruits must be
suppressed. Dickerson, 508 U.S.
at 373 (citing Sibron v. New York, 392 U.S.
40, 65-66 (1968)).
¶13 In Dickerson, the Supreme Court held that law enforcement officers
may seize contraband found during protective searches for weapons. Dickerson, 508 U.S. at
373. One important qualification
accompanied the Court’s expansion of the plain-view doctrine to encompass such
“plain-touch” seizures: law enforcement must remain within the boundaries set
in Terry
for protective searches. Dickerson,
508 U.S.
at 372-74. The Court approved the
Minnesota Supreme Court’s conclusion that the officer conducting the protective
frisk overstepped these boundaries by “squeezing, sliding and otherwise manipulating
the contents of the defendant’s pocket” even though he knew it contained no
weapon. Id. at 378 (quotation omitted). Professor LaFave states the rule of Dickerson
more bluntly: “If during a lawful pat-down an officer feels an
object which obviously is not a weapon, further ‘patting’ of it is not
permissible.” 4 LaFave, supra, § 9.6(b), at 660.
¶14 At the time of the second frisk, Jordan no longer entertained a
reasonable suspicion that Rodney was armed or dangerous. Jordan’s search was lawful only to
the extent that it was necessary for his or others’ protection. Jordan testified the objects he
felt during the initial pat down were neither hard nor rigid, and he knew the
objects were not weapons. Once Jordan
determined the objects were not weapons, his justification for further
searching dissipated and the second pat down was therefore an unauthorized
evidentiary search. See Dickerson, 508 U.S.
at 378. Where police lack probable cause
to believe an object in plain view is contraband without subjecting the object
to a further search, its incriminating character is not readily apparent and
the plain-view doctrine cannot justify its seizure. Id.
at 375-76. No probable cause to seize
the objects existed until after a second, confirmatory search.
¶15 The State minimizes the importance of the second frisk, arguing
that we should apply Dickerson’s “plain touch” exception
because the objects’ evidentiary nature was immediately apparent to Jordan. The State argues that Jordan displayed “no lack of
confidence” in what he felt. We
disagree. The second frisk was wholly
unnecessary if Jordan
was certain the items he felt during the first pat down were contraband. Jordan’s action is sufficient
evidence of his uncertainty. The law
demands that the illicit nature of the objects be “immediately apparent,” and
here it was obviously not. See Dickerson,
508 U.S.
at 375. We therefore reverse the
dispositional order and remand for further proceedings consistent with this
opinion.
By the Court.—Judgment reversed and
cause remanded.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)4.