COURT OF APPEALS DECISION DATED AND FILED August 12, 2003 Cornelia G. Clark 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 from a judgment of the circuit court for Milwaukee County:� Patricia D. McMahon, Judge.� Affirmed in part; reversed in part.�
�1����������������������� FINE, J. Derrick E. Hopkins appeals from a judgment of conviction entered on his pleas of guilty to unlawfully possessing tetrahydrocannabinols, see Wis. Stat. � 961.41(3g)(e), and to unlawfully carrying a concealed weapon, see Wis. Stat. � 941.23.� He claims that Wis. Const. art. I, � 25 �effectively repealed� � 941.23.� (Uppercasing omitted.)� He also contends that the trial court erroneously denied his motion to suppress the gun and marijuana.� We affirm his conviction for carrying a concealed weapon but reverse his possession-of-marijuana conviction.[1]
I.
�2����������������������� The
facts underlying the legal issues presented by this appeal are undisputed.� In the middle of a February afternoon in
2001, Milwaukee police officers responded to a complaint that shots were fired
from a car.� The officers saw a parked
car that they believed fit the description they were given.� Three men, including Hopkins, were in the
car.� The officers saw what the trial
court described as �furtive movements� by the men in the car once they �realized
the officers were behind them.�� The
officers approached the car, and could smell the odor of burning marijuana
coming from it.� With guns drawn, the
officers asked if anyone in the car had ��any guns or drugs.��� Hopkins replied that he had a gun.
�3����������������������� One
of the officers took Hopkins from the car, handcuffed him, and removed the gun
from Hopkins�s pocket.� Later, another
officer asked the handcuffed Hopkins, who was then sitting in a police squad
car, whether he had any drugs.� Hopkins
replied that he had marijuana in one of his pockets.� None of the officers advised Hopkins of his rights under Miranda
v. Arizona, 384 U.S. 436 (1966), before asking any of these questions
and before taking the gun and marijuana from Hopkins.
II.
�4����������������������� In
reviewing an order suppressing or refusing to suppress evidence, we uphold a
trial court�s findings of historical fact unless they are clearly erroneous;
however, we review de novo a trial court�s conclusion whether a stop and
search comported with the Fourth Amendment.�
State v. Harris, 206 Wis. 2d 243, 249�250,
557 N.W.2d 245, 248 (1996).�
Additionally, whether a statute passes constitutional muster is also an
issue of law.� State v. Cole,
2003 WI 112, �10.� As noted, there are
no disputed material facts here.� Thus,
this appeal presents only issues of law.
A.� Carrying a Concealed Weapon.
�5����������������������� Wisconsin
Const. art. I, � 25
declares:� �The people have the right to
keep and bear arms for security, defense, hunting, recreation or any other
lawful purpose.�� As we have seen,
Hopkins argues that this provision, adopted in 1998, Cole, 2003
WI 112, �9, effectively repealed the statute that makes it unlawful to carry a
concealed weapon.� Cole
held to the contrary, id., ��26, 28�44, and Hopkins does not
allege any of the factors that State v. Hamdan, 2003 WI 113,
recognizes might override the statute, and thus make lawful the carrying of a
concealed weapon.� See id.,
��61�75, 81�84, 86.� Hopkins does,
however, in a brief submitted at our request after both Cole and Hamdan
were decided, seek a remand to the trial court for an evidentiary hearing to
determine whether an �as applied� constitutional challenge to Wis. Stat. � 941.23 would be
viable.� We deny this request for two
reasons.� First, Hopkins did not
challenge in the trial court the application of � 941.23 as applied to
him.� Rather, as we have noted and as
Hopkins concedes in his supplemental brief, he contended that Wis. Const. art. I, � 25 trumped
� 941.23 in its entirety.� By
pleading guilty, Hopkins waived his right to challenge � 941.23 as applied
to him.� See Cole
2003 WI 112, �46.�
�6����������������������� Second,
Hopkins has presented to us nothing as an offer of proof that raises even a
colorable Hamdan argument.�
Hopkins alleges in his supplemental brief that:� he was cooperative when arrested, �he was
basically homeless,� he was �living on money that he received from social
security because of his mother�s death,� he �bought the [gun] about two months
before the incident,� and the prosecutor commented before the trial court that
Hopkins ��stated he never fired the gun and he simply carried it for
protection.��� Although �protection� is
an element of the Hamdan �as applied� criteria, Hamdan,
2003 WI 113, ��64�75, 81�84, Hopkins, like Cole, does �not assert that he had
the weapon[] [on his person] in response to any specific or imminent
threat.�� Cole, 2003 WI
112, �48.� In light of the foregoing, we
reject Hopkins�s constitutional challenge to the enforcement against him of Wis. Stat. � 941.23, and his
request for an evidentiary hearing.
B.� Suppression.
�7����������������������� The
trial court denied Hopkins�s motion to suppress the gun and the marijuana.� Hopkins does not argue that the police did
not have sufficient reasonable suspicion to approach the parked car.� See State v. Richardson,
156 Wis. 2d 128, 139, 456 N.W.2d 830, 834 (1990) (investigatory stop
is permissible if law enforcement officer reasonably suspects, considering the
totality of the circumstances, that some type of criminal activity either is
taking place or has occurred).� He does
argue, however, that the gun and the marijuana were discovered as a direct
result of Hopkins�s in-custody response to questions asked before he was told
of his rights under Miranda, and that, accordingly, the trial
court should have suppressed both the gun and the marijuana as �fruit� of a
�poisonous tree.�� See Wong
Sun v. United States, 371 U.S. 471, 484�488 (1963).� Evidence that is discovered because of
something that a defendant says in response to custodial questioning in
violation of Miranda must be suppressed.� State v. Knapp, 2003 WI
121, ��48�79.
�8����������������������� As
a preliminary matter, the initial appellate briefs of both the State and
Hopkins focused their arguments on the constitutionality of Wis. Stat. � 941.23, and largely
ignored the subsidiary issues that, in light of Cole are now
dispositive.� Although we gave both the
State and Hopkins the chance to file simultaneous supplemental briefs in the
wake of Cole, neither party addressed in their supplemental
briefs any issue other than whether Hopkins�s constitutional challenge to
� 941.23 survives Cole.�
We now turn to the evidence Hopkins argues the trial court should have
suppressed.
1.� The Gun
�9����������������������� Whether
evidence is the fruit of the poisonous tree of a Miranda
violation turns on whether the police were obligated to give the Miranda
warnings before asking the custodial questions at issue.� Police need not, however, first give Miranda
warnings to a person whom they reasonably suspect may have access to a weapon
before they ask questions designed to locate the weapon and neutralize its
danger.� New York v. Quarles,
467 U.S. 649, 654�660 (1984); see also State v. Kunkel,
137 Wis. 2d 172, 186�188, 404 N.W.2d 69, 75�76 (Ct. App. 1987), cert.
denied, 484 U.S. 929.� Based on the
record before us, the police were fully justified in asking whether any of the
men in the car were armed.
�10����������������������� Although
the State does not argue the Quarles principle, we are not bound
by the inadequacy of a party�s appellate submission, especially when the public
interest is implicated.� See Markweise
v. Peck Foods Corp., 205 Wis. 2d 208, 225, 556 N.W.2d 326,
333 (Ct. App. 1996).� Given the dangers
of weapons in the hands of persons who do not fall within the safe-harbor
provisions recognized by Hamdan, it is appropriate to affirm the
trial court�s denial of Hopkins�s motion to suppress the gun based on Quarles.� See State v. Holt, 128
Wis. 2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985) (trial court
will be affirmed if it reaches right result for wrong reason).
2.� The Marijuana
�11����������������������� By
the time the officer asked Hopkins whether he had any drugs, Hopkins was
handcuffed and under police control.�
Unlike access to a gun, neither the police nor the public were at risk
from Hopkins�s potential access to the marijuana.� Accordingly, under Knapp the marijuana should have
been suppressed.� Given the
significantly different public interest in punishing those who possess small
amounts of marijuana as opposed to those who unlawfully carry concealed
weapons, we decline to invoke the rule recognized by Markweise
and decide Hopkins�s appeal of his conviction for possessing marijuana in the
State�s favor on a ground that the State has not argued; namely, that the
marijuana would have been discovered irrespective of the officer�s asking
Hopkins whether he had any drugs before telling Hopkins about his rights under Miranda.� See Nix v. Williams, 467 U.S. 431, 444 (1984); State v.
Washington, 120 Wis. 2d 654, 664�665, 358 N.W.2d 304, 309
(Ct. App. 1984) (inevitable discovery).�
The issue is thus waived.� Reiman
Assocs. v. R/A Adver., Inc., 102 Wis. 2d 305, 306 n.1,
306 N.W.2d 292, 294 n.1 (Ct. App. 1981) (matters not briefed are
waived).� Although Knapp
left open for another day whether suppression would be required if the police
�negligently,� rather than intentionally, do not advise a custodial interviewee
of his or her rights under Miranda, Knapp, 2003 WI
121, �79, we do not see, at least under the circumstances of this case, how,
given the ubiquity of Miranda and the decision�s age, a
modern-day police officer would not know that a person from whom a gun was just
taken and who was handcuffed and under police control in a squad car was in
�custody� for Miranda purposes.�
See Knapp, 2003 WI 121, �47 (��[c]ustodial
interrogation� means �questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.� Miranda, 384 U.S. at 444.�)
(bracket in Knapp).
III.
�12����������������������� We
affirm Hopkins�s conviction for carrying a concealed weapon, but reverse his
conviction for possessing marijuana.
����������� By the Court.�Judgment affirmed in part and
reversed in part.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] A defendant may appeal from an order denying a motion to suppress evidence even though the judgment of conviction rests on a guilty plea.� Wis. Stat. � 971.31(10).