COURT OF APPEALS DECISION DATED AND RELEASED October 25, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to
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No. 95-1089-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK KELNHOFER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Affirmed.
NETTESHEIM, J. Mark
Kelnhofer appeals from a judgment of conviction for possession of cocaine
pursuant to § 161.41(3m), Stats. The appellate issue is whether Kelnhofer's
initial temporary detention by the police was valid pursuant to Terry v.
Ohio, 392 U.S. 1 (1968), as codified in § 968.24, Stats.
We agree with the trial court's ruling that Kelnhofer was properly
detained. We therefore affirm the
judgment of conviction.
On September 11, 1993,
at approximately 11:50 p.m., Officer Paul DeJarlais was on foot patrol in a
City of Waukesha municipal parking lot.
The lot is located near a tavern.
At that time and place, DeJarlais noticed an automobile parked in the
lot with its motor running. The officer
continued to watch the vehicle for a minute or two. He believed the vehicle to be unoccupied, although he could not
be certain because some of the windows were tinted.
As he continued to watch
the vehicle, DeJarlais became suspicious.
Based on his nine years of experience as a police officer, including one
year as a member of a drug unit, DeJarlais knew that patrons of nearby taverns
would sometimes adjourn to their vehicles to use controlled substances. Moreover, he also testified that the City of
Waukesha has an ordinance prohibiting a person from leaving an unattended motor
vehicle with the motor running.
Based on these
suspicions, DeJarlais approached the vehicle from the driver's side. Because the dark tint of the windows
prevented easy viewing, the officer walked around to the passenger side of the
vehicle. The window on this side of the
vehicle was rolled down. As the officer
approached this side of the vehicle from the rear, he observed a white powdery
substance on the outside of the passenger door. Based on his training and experience, the officer suspected that
the substance was cocaine.
DeJarlais then continued
to the passenger window and shined his flashlight into the interior. He observed a person, later identified as
Kelnhofer, in the driver's seat and another person in the passenger seat. The officer's presence appeared to startle
the occupants. DeJarlais observed
Kelnhofer brush a white powdery substance off a cassette tape case and place
the case on the floorboard of the vehicle, and he observed the passenger
crumple up a dollar bill and throw it on the floor. The officer also observed a white powdery substance on the
floorboard underneath the steering wheel.
The officer further observed the occupants attempt to reach between and
underneath the seats and into their clothing pockets.
DeJarlais then ordered
the occupants to put their hands on the dashboard of the vehicle. The occupants failed to follow this
instruction and, instead, continued to grope into various areas of the
vehicle. The passenger also attempted
to leave the vehicle. DeJarlais then
called for backup assistance and drew his weapon for his own protection. With this show of force, he maintained the
scene until the police assistance arrived.
When the backup
assistance arrived, Kelnhofer and his passenger were arrested. They were searched, as was the vehicle. These searches produced the evidence which
formed the basis for Kelnhofer's prosecution.
Kelnhofer brought a motion to suppress the evidence based on his claim
that DeJarlais's detention of him was contrary to § 968.24, Stats., and Terry. The trial court denied the motion. Kelnhofer then pled no contest to the charge
and he was convicted. This appeal followed.
We first define the
perimeters of our inquiry. At certain
portions of his argument, Kelnhofer appears to take issue with DeJarlais's
right to detain the vehicle and its occupants after he had observed the
suspected cocaine on the passenger door and observed the passengers' conduct
inside the vehicle. If Kelnhofer truly
challenges these actions, we reject the argument out of hand. The officer observed a substance which he
suspected to be cocaine based on his training and experience. He then observed the occupants inside the
vehicle engaging in furtive conduct suggesting an attempt to hide objects or
material. In addition, the officer
observed further traces of material which he believed to be cocaine. We hold that such observations clearly satisfied
not only Terry, but also the higher standard of probable cause to
arrest.
We next address
Kelnhofer's challenge to DeJarlais's authority to approach the vehicle in the
first instance. We address this
argument in greater detail.
In Terry,
the United States Supreme Court held that “a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of
investigating possibly criminal behavior even though there is no probable cause
to make an arrest.” Terry,
392 U.S. at 22. However, in such a
setting, the officer must still have “specific and articulable facts which,
taken together with rational inferences ¼ reasonably warrant [an] intrusion.” Id. at 21. A brief investigatory stop under Terry,
including an automobile stop, is a seizure and is therefore subject to the
reasonableness requirement of the Fourth Amendment. State v. Goebel, 103 Wis.2d 203, 208, 307 N.W.2d
915, 918 (1981). A police officer is
not required to rule out the possibility of innocent behavior before initiating
a Terry stop. State
v. Anderson, 155 Wis.2d 77, 84, 454 N.W.2d 763, 766 (1990). Wisconsin's temporary detention statute, §
968.24, Stats., is a codification
of the Terry standards. Goebel,
103 Wis.2d at 209, 307 N.W.2d at 918.
Here, DeJarlais was
confronted with activity which, based on his training and experience,
reasonably suggested suspicious activity related to controlled substances. Under those circumstances, the officer had a
right to approach the vehicle and inquire further. Separate and apart from that legitimate suspicion, DeJarlais also
had a right to approach the vehicle because he was witnessing a possible
violation of the city ordinance making it illegal to leave an unattended motor
vehicle with the motor running. Here
again, the officer was entitled to at least approach the vehicle and inquire
further.
We acknowledge that the
circumstances confronting DeJarlais also suggested the possibility of totally
innocent behavior. But, as we have
noted, the officer is not required to rule out the possibility of innocent
behavior before initiating a Terry inquiry. Anderson, 155 Wis.2d at 84,
454 N.W.2d at 766. To the contrary, if
any reasonable inference of wrongful conduct can be objectively discerned,
notwithstanding the existence of other innocent inferences that could be drawn,
police officers have the right to temporarily detain the individual for
purposes of inquiry. Id.
Suspicious conduct is by
its very nature ambiguous, and the principal function of the investigative stop
is to quickly resolve that ambiguity. Id. Faced with such ambiguity, the police
officer is not required to look the other way and to lose the opportunity for
further investigation. See State
v. King, 175 Wis.2d 146, 154, 499 N.W.2d 190, 193 (Ct. App. 1993). Instead, the officer may temporarily detain
the individual in order to maintain the status quo while obtaining more
information to resolve the situation. See
Goebel, 103 Wis.2d at 211, 307 N.W.2d at 919.
We also approve of
DeJarlais's initial approach to Kelnhofer's vehicle on a more fundamental
basis—the community caretaker function of the police. This activity addresses those police actions which are divorced
from the detection, investigation or acquisition of evidence relating to the
possible violation of a criminal statute.[1] Cady v. Dombrowski, 413 U.S.
433, 441 (1973); Bies v. State, 76 Wis.2d 457, 471, 251 N.W.2d
461, 468 (1977).
Apart from any
suspicions related to possible violations of the law, we conclude that a
reasonable police officer would be prompted to inquire further to resolve any
ambiguities or concerns about the situation.
If someone in the vehicle was in distress, the officer could render
aid. If the vehicle was unoccupied, the
officer could turn the motor off if the vehicle was unlocked. These are classic community caretaker
functions which the police provide on a daily basis and which constitute “an
important and essential part of the police role.” Bies, 76 Wis.2d at 471, 251 N.W.2d at 468.
The threshold inquiry
under a community caretaker inquiry is whether the police had the right to be
where they were when they made their observations and took their responsive
action. See id. at
464, 251 N.W.2d at 465. DeJarlais was
on foot patrol in a public parking lot at a late evening hour. He was not directly involved in the
detection or investigation of a specific crime at the time he observed the
vehicle. The officer had a right to be
where he was when he made his observations.
He also had a right to walk where he chose in this public area whether or
not he harbored suspicions or concerns regarding the vehicle. We are unaware of any law which holds that a
public parking lot is within the protected curtilage of a vehicle parked
therein.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] We note that we are not governed by the particular police officer's subjective reasons in the particular case for engaging in certain police action. Rather, we are to view the circumstances objectively from the standpoint of a reasonable person confronting the situation. See State v. Goebel, 103 Wis.2d 203, 209, 307 N.W.2d 915, 918 (1981).