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COURT OF APPEALS DECISION DATED AND RELEASED December 20, 1995 |
NOTICE |
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A party may file with the
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Appeals. See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3065-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
JOSHUA FERRY,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Winnebago County:
ROBERT A. HAWLEY, Judge. Reversed
and cause remanded with directions.
Before Brown, Nettesheim
and Snyder, JJ.
NETTESHEIM, J. The
State of Wisconsin appeals from a nonfinal trial court order suppressing
evidence obtained during two searches of Joshua Ferry's apartment. Despite Ferry's consent to both searches,
the trial court ruled that: (1) the
initial search was invalid because the police did not have reasonable grounds
for detaining Ferry pursuant to § 968.24, Stats.,
and Terry v. Ohio, 392 U.S. 1 (1968); (2) the scope of the
initial search exceeded Ferry's consent; and (3) the illegality of the initial
search tainted the second search.
We conclude that the
police did not detain Ferry under § 968.24, Stats.,
and Terry. We also hold
that the scope of the initial search did not exceed Ferry's consent. Therefore, we hold that both searches were
valid consensual searches.
Alternatively, we hold that even if the first search was illegal, the
second search was sufficiently attenuated from the first search. We therefore reverse the suppression order
and remand for further proceedings.
Facts
The parties do not
dispute the controlling facts of this case.
On August 15, 1994, at 12:50 a.m., Officer Donald Wilson of the Oshkosh
Police Department encountered two men fighting on the street in front of a
restaurant. As Wilson approached the
disturbance, he observed a person, later identified as Ferry, “about to grab
the person off the top or he was lunging towards him when I pulled up.” Wilson believed Ferry to be either an active
participant in the fight or, at the very least, a witness to the incident. When Wilson asked Ferry his name, Ferry
verbally identified himself as Samuel J. Brown.
Wilson then asked
Officer Gary Sagmeister, who had since arrived on the scene, to procure some
written identification which would positively identify Ferry. Ferry, however, was unable to produce any
such identification. Sagmeister then
asked Ferry if the two of them could go to Ferry's nearby apartment to obtain
the identification. Ferry agreed.
Sagmeister and Ferry
traveled together to Ferry's apartment.
Once there, Ferry unlocked the door and he and Sagmeister entered. Sagmeister asked if he could look through
the apartment for Ferry's written identification. Again Ferry agreed.
Sagmeister first looked through the living room and kitchen areas for
mail or other items which would identify Ferry. Finding nothing, Sagmeister next looked in Ferry's bedroom and
found various belongings, but no identification. Ferry explained to Sagmeister that some of the belongings in the
bedroom were his and others belonged to a prior tenant. This prompted Sagmeister to clarify that
Ferry had control over the entire apartment and could authorize a search of the
entire apartment. Ferry replied that he
did have such control and authority.
Sagmeister then
continued his search of the bedroom area, including two closets. On a shelf in one of the closets, Sagmeister
found a hacksaw. In the other closet,
he found a sawed-off portion of a shotgun barrel. Ferry stated, in response to Sagmeister's questions, that he had
not seen the shotgun barrel before and that it might have belonged to a
previous tenant. With Ferry's
permission, Sagmeister took possession of the hacksaw and the sawed-off shotgun
barrel and continued his search.
Meanwhile, back at the
scene of the disturbance in the street, one of the participants in the
disturbance told Wilson of Ferry's true identity. Wilson radioed this information to Sagmeister, who was still in
Ferry's apartment. Sagmeister asked
Ferry why he had lied about his name.
Ferry replied that he thought there were some warrants outstanding against
him. Sagmeister continued his search of
Ferry's apartment but found no identification.
Sagmeister then left Ferry's apartment.
After Wilson had
finished his investigation, he encountered some people who reported that they
had been in Ferry's apartment after Sagmeister had left, that Ferry had told
them that the police had missed a shotgun in their search, and that Ferry had
displayed the shotgun to them. Wilson
confronted Ferry with this information.[1] He asked Ferry whether the police could
again search the apartment to look for the shotgun. Again Ferry agreed. For
his personal safety, Wilson patted Ferry down.
He then transported Ferry to his apartment. Sagmeister also traveled to the apartment by separate
vehicle. Once at the apartment, the
officers entered with Ferry's permission.
They immediately found the shotgun in the location reported to Wilson by
the third parties.
At no time prior to
finding the shotgun did Sagmeister or Wilson place Ferry under arrest. Other than Wilson's pat down of Ferry after
the third parties had reported that the shotgun was in the apartment, neither
officer exercised any physical force or
restraint against Ferry.
The trial court
suppressed the evidence obtained as the result of both searches. The court reasoned that the officers'
initial stop and detention of Ferry was unlawful because Ferry had neither
committed nor was attempting to commit a crime pursuant to § 968.24, Stats.[2] Thus, the court concluded that the initial
search was a product of the illegal detention.
The court also concluded that the initial search was illegal as beyond
the scope of Ferry's consent. In
addition, the court concluded that the second search was tainted by the
illegality of the first search. The
State appeals.
Discussion
1. The
Initial Encounter
The trial court ruled
that the police had no authority to stop and detain Ferry because they did not
have a reasonable suspicion to believe that Ferry had committed or was about to
commit a crime. See § 968.24, Stats.
Whether a search or seizure has occurred is a question of law for our
independent review. State v.
Garcia, 195 Wis.2d 68, 73, 535 N.W.2d 124, 126 (Ct. App. 1995). Although we are not certain, it appears that
the trial court may have believed that such suspicion was a prerequisite to the
authority of the police to approach and question Ferry in the first instance.
However, a seizure does not occur simply
because an officer approaches an individual and asks a few questions. Florida v. Bostick, 501 U.S.
429, 434 (1991). As long as a
reasonable person would feel free to disregard the police and go about his or
her business, the encounter is consensual.
Id. Such an
encounter will not trigger Fourth Amendment scrutiny unless it loses its
consensual nature. Id. Even when officers have no basis for
suspecting an individual of criminal activity, the officer may generally ask
questions of the individual and even ask to examine the person's
identification, “as long as the police do not convey a message that
compliance with their requests is required.” Id. at 434-35 (emphasis added).
Bostick
holds that a police officer may ask questions of an individual and may even ask
for identification although there is no basis for suspecting that individual of
criminal activity. Id. A seizure occurs only when an officer
restrains a person's liberty by means of physical force or show of
authority. State v. Howard,
176 Wis.2d 921, 927, 501 N.W.2d 9, 12 (1993) (citing Terry, 392
U.S. at 19 n.16). Accordingly, not
every citizen encounter with the police will amount to a seizure. Id. at 929, 501 N.W.2d at
12. The question is whether a
reasonable person would feel free to disregard the police and go about his or
her business. Bostick,
501 U.S. at 434; see Howard, 176 Wis.2d at 929, 501 N.W.2d
at 12-13. If so, the encounter is
consensual, and no reasonable suspicion of criminal activity is required. Bostick, 501 U.S. at 434.
The trial court's ruling
in this case focused on § 968.24, Stats.
However, it is important to note that Wilson saw Ferry not only as a possible
participant in the disturbance, but also, “at the very least,” as a material
witness to the event. Thus, even if
we accept the trial court's holding that Wilson's suspicion about Ferry's
culpable participation in the disturbance was not reasonable, Wilson's further
belief that Ferry was at least a witness to the event is unassailable. As Bostick recognizes, not all
police/citizen encounters are governed by the rules pertaining to detention or
arrest. We suspect that many, if not
most, such contacts fall outside a formal arrest or temporary detention
situation.
Here, the State argued
to the trial court that the initial encounter between Ferry and the police was
consensual. We agree with the
State. None of the circumstances
suggestive of a seizure were present.
The officers did not threaten or coerce Ferry; they did not display
their weapons or attempt to physically touch or restrain Ferry; nor did Ferry
testify that their language or tone of voice indicated that their request for
identification was compelled. See
United States v. Mendenhall, 446 U.S. 544, 554 (1980). In fact, Ferry's testimony corroborated the
officers' version of these events. It
is of no consequence that the officers did not specifically tell Ferry that he
was free to decline their request to verify his identification. See id. at 555.
In addition, we see no
hint of chicanery or deceit on the part of the officers. Their need to obtain written verification of
Ferry's identity was legitimate. Ferry
was, at a minimum, a material witness to an event. As such, the police or the prosecuting entity might well have a need
to contact Ferry in the future regarding the event.[3] To this end, the police asked Ferry to
verify his identification. When Ferry
declined or refused, the police asked if they could accompany Ferry to his
apartment, a short distance away, in order to obtain such identification. Ferry readily agreed to this request, never
indicating to the officers that he did not have any such identification at the
apartment or that a search would be futile.
Nothing in the record
even remotely suggests that Ferry was seized or detained. The police did not convey to Ferry, either
expressly or impliedly, that compliance with their request was required. See Bostick, 501 U.S.
at 435. In short, this initial
encounter was not a seizure or detention under § 968.24, Stats., and the law of Terry. Instead, it was a consensual police/citizen
encounter, exactly as Ferry and the police officers described it in their
respective testimonies at the suppression hearing.
Ferry, of course, was
not obligated to cooperate or comply with the police request. Just as the police committed no wrong in
making their request, neither would Ferry have committed any wrong by rejecting
it. However, Ferry never exercised this
option. We conclude that the police did
not detain Ferry and that the initial search was not rendered invalid as the
result of the consensual contact between the police and Ferry.
2. The
Initial Search
We now turn to the
circumstances of the initial search.
The State first argues
that Ferry's consent to this search was free and voluntary. However, we do not see this specific issue
as raised by Ferry in the trial court.
There, Ferry argued that his consent was invalid, not because it was
involuntary, but rather because it was the product of his illegal detention
under § 968.24, Stats., and Terry
v. Ohio.[4] Moreover, the trial court did not address
any issue as to the voluntariness of Ferry's consent in its ruling. Finally, we note that Ferry's respondent's
brief does not address this argument made by the State. Having already concluded that the police did
not seize or detain Ferry prior to the initial search, we conclude that we have
fully addressed Ferry's challenges to the consent.
We therefore move to the
State's further argument that the scope of the initial search did not exceed
the scope of Ferry's consent to the search.
Under the Fourth Amendment, a “search” occurs when law enforcement
officials infringe on an expectation of privacy that society considers
reasonable. Garcia, 195 Wis.2d at 73, 535 N.W.2d at 126. However, the Fourth Amendment does not
proscribe all state-initiated searches and seizures; it merely proscribes those
which are unreasonable. Florida
v. Jimeno, 500 U.S. 248, 250 (1991).
Thus, consensual searches have long been approved because it is
considered reasonable for the police to conduct a search once they have been
permitted to do so. Id.
at 250-51; see also Illinois v. Rodriguez, 497 U.S. 177,
181 (1990).
A consent search is
constitutionally reasonable to the extent that the search remains within the
bounds of the actual consent. State
v. Douglas, 123 Wis.2d 13, 22, 365 N.W.2d 580, 584 (1985). A search pursuant to consent may not be more
intensive than was contemplated by the consent. State v. Stevens, 120 Wis.2d 334, 339, 354 N.W.2d
762, 765 (Ct. App. 1984), rev'd in part on other grounds, 123 Wis.2d
303, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985). The scope of activities reasonably expected
by the consenting occupant is a key consideration in deciding if consent was
valid. Id. A warrantless search and seizure is valid if
consented to by the occupant and if conducted for the purpose contemplated by
the occupant. Id.; see
also United States v. Ressler, 536 F.2d 208, 211 (7th Cir.
1976) (quoting Lewis v. United States, 385 U.S. 206, 211 (1966)).
The facts of this case
are undisputed. In such a setting,
whether a search is permissible under the Fourth Amendment is a question of
law. State v. Krause, 168
Wis.2d 578, 586-87, 484 N.W.2d 347, 350 (Ct. App. 1992). Thus, we review the constitutional
requirement of reasonableness independent of the trial court holding. See State v. Kennedy,
134 Wis.2d 308, 316, 396 N.W.2d 765, 768 (Ct. App. 1986).
In this case, Sagmeister
went to Ferry's apartment with Ferry's permission to look for written
verification of his verbal identification.
Once there, Sagmeister specifically asked if Ferry had the authority to
consent to the search. Ferry replied
that he did. Ferry offered no
assistance as to where Sagmeister might find any identification. Nor did he place any limitations on where
Sagmeister could search.
We reject Ferry's
contention that the search of the two closet areas exceeded the intended scope
of his consent. The search was for
written confirmation of Ferry's identity. We disagree with Ferry that it would
be unusual for an apartment dweller to store such materials in a closet area. This is especially so under the facts of
this case which show that Sagmeister first looked in the more obvious
places—the living room and kitchen—for evidence of mail or other items which
would identify Ferry. Only when this
proved fruitless did Sagmeister's search move to the bedroom and closet
areas. And then only after Sagmeister
again confirmed with Ferry that Ferry had the authority to permit a search of
the entire apartment. There is nothing
in this record which suggests or implies that the police were looking for anything
other than Ferry's identification.[5]
We conclude that the
searches of the closet areas were reasonable under the Fourth Amendment.
3. The
Second Search: Consent/Attenuation
a. Consent
The record is clear and
undisputed that the second search was also conducted with Ferry's express
consent. After the first search, Wilson
learned from third parties that Ferry had told them that Sagmeister had not
discovered the shotgun and that Ferry had actually displayed the weapon to one
of the parties. When Wilson confronted
Ferry with this information, he asked for Ferry's permission to again search the
apartment, specifically advising Ferry that the police would be looking for the
shotgun. Again Ferry agreed. We need not say more.
b. Attenuation
We uphold the second
search of Ferry's apartment on an alternative ground. Assuming that Sagmeister's initial search exceeded the scope of
Ferry's consent, we nonetheless conclude that the second search was
sufficiently attenuated from any illegality associated with the first search.
The primary concern in
attenuation cases is whether the evidence objected to was obtained by
exploitation of a prior police illegality or instead by means sufficiently
attenuated so as to be purged of the taint.
State v. Anderson, 165 Wis.2d 441, 447-48, 477 N.W.2d 277,
281 (1991). If the evidence was
obtained by means sufficiently distinguishable from the prior search, then it
is properly admitted. See id.
at 448, 477 N.W.2d at 281. The factors
which we consider on such a question are the temporal proximity of the official
misconduct, the presence of intervening circumstances and the purpose and
flagrancy of the official misconduct. Id.
Here, the two searches
were conducted in close temporal proximity.
This factor augurs in Ferry's favor.
However, we are not
persuaded that the degree of official misconduct in the scope of Sagmeister's
first search was of such purpose or flagrancy that it dooms the later
search. As we have indicated, even if
Ferry did not intend to allow Sagmeister to search the closet areas, it would
not be unusual for a person living in an apartment setting to store
identification materials in such an area.[6] Thus, Sagmeister's misreading of the scope
of Ferry's consent would not constitute flagrant or purposeful misconduct. Any official misconduct in this case was
minimal and marginal.
The intervening
circumstances, however, represent the most compelling factor in support of
attenuation. When Sagmeister left
Ferry's apartment after the first search, he was finished with Ferry and was
returning to the scene of the original disturbance. Although Sagmeister had reason to suspect that a shotgun might be
in Ferry's apartment, there is no indication in this record that the police
intended to pursue that matter further.[7]
The only reason the
police ended up back at Ferry's apartment was Ferry's later revelation to third
parties that Sagmeister had failed to discover the shotgun and the third
parties passing this information on to Wilson.
However, the police did not solicit or inspire either of these
intervening events. Rather, it was
Ferry's own “loose lips” which proved his undoing.
On this alternative
ground, we uphold the second search of Ferry's apartment.
Conclusion
We reverse the suppression
order and remand for further proceedings.
By the Court.—Order
reversed and cause remanded with directions.
Not recommended for
publication in the official reports.
No. 94-3065-CR
BROWN, J. (dissenting). I
find it difficult to comprehend how consent to search for identification
translates into consent to search someone's closet and look underneath socks
lying on the floor of the closet. We
are supposed to view the reasonableness of humankind's actions, including
police officers', by reference to what “everyman” and “everywoman” would think
to be reasonable. This being so, what
“everyperson” would believe that consent to search for identification includes
searching underneath some socks in a closet?
The majority opinion does not tell us how or why searching a closet and
the clothing within it is reasonably within the parameters of consent to search
for identification. The opinion just
makes the conclusory proposition that it is not unusual for an apartment
dweller to store written confirmation of identification in a closet. While it may not be unheard of for an
apartment dweller to store articles other than clothing in a closet, this supposition
misses the whole point. The question is
not whether articles other than clothing are sometimes stored in an apartment
closet. The question is, rather,
whether an apartment dweller would reasonably believe that consent to look for
identification includes consent to search a closet. The majority has failed to answer that question, let alone ask
it.
So while I agree that
officers may request to search a person's apartment for identification without
having to first satisfy the Terry prerequisites, and while I
agree that Ferry consented to a search of his apartment for identification, I
cannot agree that the scope of Ferry's original consent extended to the closet
area of his apartment. A reasonable
person would believe that consent to search for identification would be limited
to what the majority opinion refers to as “obvious places,” such as the living
room or kitchen where a wallet or mail may be kept.
Nor is it proper for the
majority to justify what the trial court termed a “fishing expedition” by
concluding that an officer twice asked for and received consent to search the entire
premises. While it is true that Officer
Sagmeister testified to this, Ferry testified only that he gave consent to
search for identification. Ferry
was not asked nor did he volunteer whether he gave specific consent to the
officers to search the complete premises, including the closets.
This becomes important
because the trial court made a finding of fact that Ferry's consent was limited
in scope to a search for identification, which the trial court further found
was limited to a search in the “general area ¼ where mail is kept ¼ and not a closet.”
I always thought the rule to be that we, as appellate tribunals, may
make our own findings of fact on whether a defendant voluntarily consented to a
search only if the trial court has not done so. State v. Kraimer, 99 Wis.2d
306, 318, 298 N.W.2d 568, 574 (1980), cert. denied, 451 U.S. 973
(1981). Here, the trial court has
made a factual finding. The majority
therefore departs from our own established rules regarding the standard of
review when it makes a finding that Ferry consented to a search of the “entire
premises.”
Furthermore, I am
cognizant that this court will independently examine the circumstances of the
case to determine whether the constitutional requirement of reasonableness is
satisfied. See id. at
319, 298 N.W.2d at 574. However, before
doing so, this court must accept the findings of fact made by the trial court
unless clearly erroneous. See id. So, the real question before us should not
be whether Ferry gave consent to search the entire premises for identification
and whether such a search is then reasonable in light of the consent given. Instead, the real question should be whether
officers may search a closet when given limited consent to search for
identification. In my opinion, the
trial court made the necessary findings of fact, asked the right question based
on those facts and gave the right answer.
What bothers me about
the majority's holding is that our United States Supreme Court has consistently
found the scope of any search to be limited to the terms of its
authorization. See Florida
v. Jimeno, 500 U.S. 248, 251 (1991) (the scope of a search is generally
defined by its expressed object). The
majority's opinion can be read to say that once an officer is given consent to
search for an expressed object that may lie within an apartment, the whole of
the apartment is open for inspection regardless of what the object is. If that is the court's holding, I find it
troubling.
Finally, the majority
concludes that the second search was not attenuated by the first search. Again, the logic of this conclusion escapes
me. The search of the closet produced
the sawed-off barrel to a shotgun.
People on the street told the officers that they missed finding the gun
itself. So, the officers went back to
find the gun. I do not know how the
subsequent search could be more tainted by the first one. I would affirm the trial court's order of
suppression.
[2]
Wisconsin's temporary detention statute, § 968.24, Stats., which is a codification of the
standards in Terry v. Ohio, 392 U.S. 1 (1968), provides:
Temporary questioning without
arrest. After having identified himself or herself
as a law enforcement officer, a law enforcement officer may stop a person in a
public place for a reasonable period of time when the officer reasonably
suspects that such person is committing, is about to commit or has committed a
crime, and may demand the name and address of the person and an explanation of
the person's conduct. Such detention
and temporary questioning shall be conducted in the vicinity where the person
was stopped.
See State v. Goebel, 103 Wis.2d 203, 209, 307 N.W.2d 915, 918 (1981).
[4] In addition, Ferry argued that the search exceeded the scope of the consent, a matter we will address later in this opinion.
[5] Even in a case where the police engaged in surreptitious conduct when obtaining a suspect's consent, the Wisconsin courts have held that the scope of the search did not exceed the suspect's expectations regarding his consent. See State v. Stevens, 120 Wis.2d 334, 339-40, 354 N.W.2d 762, 765 (Ct. App. 1984), rev'd in part on other grounds, 123 Wis.2d 303, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985).