COURT OF APPEALS DECISION DATED AND RELEASED August
24, 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,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1097
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF RACHE M.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
RACHE
M.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dane County: ROBERT R.
PEKOWSKY, Judge. Affirmed.
Before
Dykman, Sundby, and Vergeront, JJ.
DYKMAN,
J. Rache M., a juvenile, appeals from
an order in which he was adjudicated delinquent after entering a plea that he
knowingly possessed a controlled substance, cocaine, with intent to deliver,
contrary to § 161.41(1m)(cm)1, Stats.[1] Rache entered the plea after the trial court
denied his suppression motion. Rache's
appeal presents the following issues:
(1) whether the trial court erred when it determined that the
police officers had reasonable suspicion to justify their investigative stop of
Rache;[2]
and (2) whether the trial court erred when it concluded that probable
cause and exigent circumstances existed justifying the subsequent warrantless
search of Rache. We conclude that the
police officers had reasonable suspicion to believe that criminal activity had
taken place and thus the investigative stop was proper. We also conclude that Rache consented to a
search and that probable cause and exigent circumstances existed to justify the
warrantless search. We therefore
affirm.
BACKGROUND
During
the evening of September 14, 1994, Madison Police Officers Tony J. Peterson and
Trevor Knight were investigating a neighborhood known to them to be a high drug
and crime area. Officer Peterson
testified that he was assigned to a special division within the police
department known as the Neighborhood Intervention Task Force or Blue Blanket
which deals with gangs, guns and drugs in problem neighborhoods. He stated that he had been involved in over
500 arrests for the transfer of cocaine in the past six months. Officer Knight testified that he had been
assigned to the Neighborhood Intervention Task Force for the past ten months
and had been involved in numerous drug-related arrests and investigations in
the neighborhood they were observing.
At
about 8:00 p.m., Officer Knight saw three individuals, including Rache, meet a
male on a street corner. Officer Knight
testified that he recognized the male as a person who had been arrested for
attempting to buy drugs earlier that year.
Officer Knight observed Rache reach into his pocket, pull something out
and thrust it forward. Officer Knight
could not see what was in Rache's hand or to whom he extended his hand because
his view was partially obstructed.
Officer Knight then testified that he saw the male walk away in the
direction from which he came.
Officer
Peterson testified that he observed the male walking quickly down the
street. He also testified that Officer
Knight told him that he saw suspicious activity thought by Officer Knight to be
a drug transaction. Officer Peterson
stated that he could not observe the exchange because his view was partially
blocked.
Officers
Peterson and Knight approached Rache and Officer Peterson put his hands on
Rache's left arm so that Rache could not escape and asked him if he could
search him. Rache agreed and Officer
Peterson began to search Rache's pockets for drugs. Officer Peterson then asked Rache if he could look into Rache's mouth
because he knew that persons who use and deal in controlled substances often
hide them in their mouths. Rache opened
his mouth and Officer Peterson asked Rache to lift up his tongue because, in
his experience, persons commonly hide drugs underneath their tongues. Officer Peterson testified that Rache
closed his mouth and then he dropped his chin, which is
indicative to me from my experience in this situation of persons starting to
try and swallow the cocaine base. At
that point I placed a jaw thrust hold on [Rache's] lower jaw in an attempt to
keep his mouth closed so he could not swallow what I believe was [a] controlled
substance in his mouth.
The police officers pulled Rache to the ground and Rache
eventually spit out three cocaine base rocks.
Officer Knight testified that he believed it was necessary to get the
drugs out of his mouth because, if swallowed, Rache could either destroy the
evidence or overdose.
Before
trial, Rache moved to suppress the cocaine rocks from evidence on the grounds
that the search and seizure were unreasonable.
After a hearing on the matter, the trial court denied the motion
concluding that reasonable suspicion existed to support the investigative stop
and probable cause and exigent circumstances existed to support the
search. Rache then entered a plea of
guilty. The trial court adjudged Rache
to be delinquent and placed him in a juvenile detention facility for a period
of one year. Rache appeals.
STANDARD OF REVIEW
In reviewing an
order suppressing evidence, this court will uphold a trial court's findings of
fact unless they are against the great weight and clear preponderance of the
evidence.[3] However, whether a seizure or search has
occurred, and if so, whether it passes statutory and constitutional muster are
questions of law subject to de novo review.
State v. Kiper, 193 Wis.2d 69, 79-80, 532 N.W.2d 698, 703 (1995)
(quoted source omitted; footnote added).
THE
INVESTIGATIVE STOP
Rache
argues that the police officer's investigative stop violated the Fourth
Amendment to the United States Constitution because the police officers did not
have reasonable suspicion to believe that criminal activity had taken or was
taking place. Consequently, he argues
that the trial court should have suppressed cocaine recovered in an ensuing
search. We disagree.
A
brief investigatory stop is a seizure and is therefore subject to the
requirement of the Fourth Amendment to the United States Constitution that all
searches and seizures be reasonable. Terry
v. Ohio, 392 U.S. 1, 20-22 (1968).
However, because an investigative stop is less restrictive than an
arrest, it is permitted upon a showing of reasonable suspicion rather than
probable cause. United States v.
Sokolow, 490 U.S. 1, 7 (1989).
Reasonable suspicion "requires `some minimal level of objective
justification'" beyond the officer's "inchoate and unparticularized
suspicion or `hunch.'" Id.
(quoted source omitted). To satisfy the
Fourth Amendment, a law enforcement officer "must be able to point to
specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21. See also § 968.24, Stats.[4]
Thus, Terry and its progeny
require that a law enforcement officer reasonably suspect, in light of his or
her experience, that some kind of criminal activity has taken or is taking
place. State v. Richardson,
156 Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990). The reasons for the stop must be judged by an objective standard
in which we ask whether "the facts available to the officer at the moment
of the seizure or the search `warrant a man of reasonable caution in the
belief' that the action taken was appropriate[.]" Henes v. Morrissey, ___ Wis.2d
___, ___, 533 N.W.2d 802, 806 (quoting Terry, 392 U.S. at
21-22).
In
the instant case, the police officers were specially trained in gangs, guns and
drug investigations, were observing a high drug and crime area, saw a person
one police officer knew to have been involved with drugs approach three other
individuals, including Rache, for a short period of time, and observed hand
gestures which could be construed as the transfer of drugs. Based upon these facts taken together and
the reasonable inferences that can be drawn from them, we conclude that the
police officers had reasonable suspicion to believe that Rache was involved
with a drug deal. Contrary to Rache's
assertions, the facts presented in the instant case are not like the facts of Brown
v. Texas, 443 U.S. 47 (1979), where the Supreme Court concluded that a
police officer's observation of two men—one of whom was not known to the
arresting officers—walking away from one another in an alley located in a high
drug traffic area, did not rise to the level of reasonable suspicion. Here, the police officers observed the
duration of the meeting and Rache's furtive gestures. Those factors, combined with the facts that one of the men was
known to have been previously arrested for drug use and that the meeting
occurred in a high crime and drug area, were sufficient for the police officers
to have had reasonable suspicion to believe that a crime had been
committed. Accordingly, the investigative
stop did not violate the Fourth Amendment to the United States Constitution.
THE
SEARCH
Rache
also argues that the ensuing search which yielded three cocaine rocks was
unconstitutional. According to Rache,
while he consented to a limited search, once he closed his mouth in response to
Office Peterson's request for him to lift up his tongue, he withdrew his
consent. He also argues that the police
officers lacked probable cause and exigent circumstances to grab Rache's jaw
and force him to spit out the cocaine.
We disagree.
Section
968.25, Stats., provides that a
law enforcement officer may search a person for weapons if the officer
reasonably suspects that the officer or another is in danger of physical
injury. However, to extend the scope of
the search, a police officer must have either consent from the suspect or
probable cause to believe that a crime has been committed and exigent
circumstances exist such that obtaining a warrant is rendered fruitless. City of Milwaukee v. Cohen, 57
Wis.2d 38, 46, 203 N.W.2d 633, 638 (1973).
Probable
cause to arrest exists if the facts and circumstances known to the police
officer would warrant a reasonable police officer to believe that a person has
committed or is committing a crime. State
v. Drogsvold, 104 Wis.2d 247, 254, 311 N.W.2d 243, 247 (Ct. App.
1981). This is an objective test and
does not depend upon the officer's subjective beliefs. Id. at 255, 311 N.W.2d at
247. We look at the totality of the
circumstances to determine whether probable cause exists. Illinois v. Gates, 462 U.S.
213, 230-31 (1983).
A
warrantless search of a person may be conducted when a police officer has
probable cause to believe a crime has been or is being committed and exigent
circumstances exist such that there is an urgent need for immediate action coupled
with insufficient time to secure a warrant.
See State v. Smith, 131 Wis.2d 220, 228, 388 N.W.2d
601, 605 (1986).
The basic test to
determine whether exigent circumstances exist is an objective one: "Whether a police officer under the
circumstances known to the officer at the time reasonably believes that delay
in procuring a warrant would gravely endanger life or risk destruction of
evidence or greatly enhance the likelihood of the suspect's escape." State v. Smith, 131 Wis.2d
220, 230, 388 N.W.2d 601[, 606] (1986).
As a result, this court has identified four factors which constitute the
exigent circumstances required for a warrantless entry: (1) an arrest made in "hot
pursuit," (2) a threat to safety of a suspect or others, (3) a
risk that evidence will be destroyed, and (4) a likelihood that the
suspect will flee.
Kiper, 193 Wis.2d at 89-90, 532 N.W.2d at 707-08. Thus, we must determine whether exigent circumstances exist
independently, without reference to the subjective beliefs of the arresting
officers. Id.
After
the police officers stopped Rache, they asked him if he would consent to a
search. Rache agreed to a search of his
pockets as well as a search of his mouth for drugs. When Officer Peterson asked Rache to lift up his tongue, Rache
refused, shut his mouth and appeared to be attempting to swallow
something. At that point, the police
officers had probable cause to believe that Rache possessed drugs. Exigent circumstances also existed because
it appeared that Rache was attempting to dispose of the drugs by swallowing
them. To prevent the destruction of
evidence and to prevent a possible overdose, the police officers were justified
in grabbing Rache's jaw to prevent him from swallowing the drugs, and forcing
him to expel the drugs from his mouth. See
Schmerber v. California, 384 U.S. 757, 770-71 (1966) (factors to
be considered in determining whether an intrusive search of a person's body is
permitted is that the officer must have a clear indication that incriminating
evidence will be found and, if no warrant is obtained, exigent circumstances
exist, such as the imminent destruction of evidence, and the officer uses a
reasonable method to search the suspect).
Accordingly, the trial court did not err when it denied Rache's
suppression motion.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
No. 95-1097(D)
SUNDBY,
J. (dissenting). Some forty years ago,
police officers stopped Malcolm X because he was a black man in a white neighborhood. Sheri Lynn Johnson, Race and the Decision
to Detain a Suspect, 93 Yale L.J.
214, 214 (1983) (citing M. Little, The
Autobiography of Malcolm X 145-46 (1964)). As recently as 1980, law enforcement officers have admitted that
"race is an independently significant, if not determinative, factor in
deciding who to follow, detain, search, or arrest." Luther Wright, Jr., Who's Black, Who's
White, and Who Cares: Reconceptualizing
the United States's Definition of Race and Racial Classifications, 48 Vand. L. Rev. 513, 555 (1995).[5] At oral argument, the State conceded that
the officers improperly considered that one of the participants in the alleged
drug transaction was white.[6] The other alleged participants were
black. Because such racial
discrimination offends the principles of the Equal Protection Clause and one's
fundamental liberties to travel and to associate, I dissent.
On
September 14, 1994, two Madison police officers were patrolling a neighborhood
known to be a high crime and drug area.
The officers detained the defendant, Rache M., under Terry v. Ohio,
392 U.S. 1 (1968). In justifying the
"stop," one of the officers, Officer Peterson, testified that he
became suspicious of Rache for two reasons:
(1) the white male, Kirby Doiron, walked quickly into the area, and (2)
Doiron was a white male in a predominately black neighborhood. Describing this second factor, Officer
Peterson stated that many of the persons who purchase drugs in this
predominately black neighborhood are white.[7]
Officer Peterson's justification assumes that whites generally enter black
neighborhoods to buy drugs and blacks living in such neighborhoods generally
sell drugs.
The
State claims that the Terry stop of Rache was justified because
the police officers had "reasonable suspicion" to believe that a
crime was being committed--namely, a drug transaction. According to the Supreme Court's decision in
Terry, law enforcement officers may conduct investigatory stops
as long as the stops are consistent with the reasonableness requirement of the
Fourth Amendment. Terry,
392 U.S. at 20-22. In particular, the
Fourth Amendment requires that officers have "reasonable suspicion"
to make such stops, United States v. Sokolow, 490 U.S. 1, 7
(1989); that is, the Fourth Amendment requires that officers have "some
minimum level of objective justification," id. (quoting INS
v. Delgado, 466 U.S. 210, 217 (1984)).
The Terry Court specifically stated that law enforcement
officers "must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant
th[e] intrusion." 392 U.S. at
21.
Although
the "reasonable suspicion" standard is fairly easy to satisfy, it may
not be satisfied by pointing to one's race.
Simply put, race is not a factor which officers may consider when
determining who to follow, detain, search, or arrest. Unfortunately,
[t]he indeterminate nature of the standard makes it easy
for police officers who stop someone for discriminatory reasons ... to later
justify the stop by articulating other benign reasons. Because courts are routinely deferential to
law enforcement officers, an officer can point to many aspects of the suspect's
conduct and claim that in the totality of [the] circumstances, he or she was
justifiably suspicious.
Randall S. Susskind, Race, Reasonable Articulable
Suspicion, and Seizure, 31 Am. Crim.
L. Rev. 327, 332 (1994).[8] Judge Edwards of the Federal Court of
Appeals for the District of Columbia recently stated: "It is well known, by now, that the police will cite
virtually any circumstance noted prior to arrest or a Terry-stop
in order to justify the defendant's detention." United States v. Prandy-Binett, 995 F.2d 1069, 1077
n.3 (D.C. Cir. 1993) (Edwards, J., dissenting), quoted in 31 Am. Crim. L. Rev. at 332-33.
In
theory, the reasonable suspicion standard should protect individuals
from discriminatory seizures. 31 Am. Crim. L. Rev. at 334. Indeed, Justice Marshall wrote:
By requiring reasonable suspicion as a prerequisite to
such seizures, the Fourth Amendment protects innocent persons from being
subjected to "overbearing or harassing" police conduct carried out
solely on the basis of imprecise stereotypes of what criminals look like, or on
the basis of irrelevant personal characteristics such as race.
Sokolow, 490 U.S. at 12 (Marshall, J., dissenting), quoted in 31 Am. Crim. L. Rev. at 334. However, most courts continue to permit
police to seize individuals based upon their race as long as the officers can
point to other circumstances when justifying the seizure in court.[9]
Such
practices by law enforcement officers, as well as condonation of these
practices by the courts, clearly violate the Equal Protection Clause of the
Fourteenth Amendment. The Equal
Protection Clause provides: "No
State shall ... deny to any person ... the equal protection of the laws." U.S.
Const. amend. XIV, § 1.
"[A] primary purpose of the Fourteenth Amendment was to free blacks
from stereotypes, prompted by a history of disadvantage and slavery that
ignored the qualities of the individual ...." 93 Yale L.J. at
242. Accordingly, the Equal Protection
Clause prohibits state action which discriminates on the basis of race; police
officers stopping citizens certainly constitutes state action. 31 Am.
Crim. L. Rev. at 339. Moreover,
racial classifications "are subject to the most exacting scrutiny; to pass
constitutional muster, they must be justified by a compelling governmental
interest and must be `necessary ... to the accomplishment' of their legitimate
purpose." Palmore v. Sidoti,
466 U.S. 429, 432-33 (1984), quoted in 31 Am. Crim. L. Rev. at 339; see also Loving v.
Virginia, 388 U.S. 1, 11 (1967) ("Over the years, this Court has
consistently repudiated `[d]istinctions between citizens solely because of
their ancestry' as being `odious to a free people whose institutions are
founded upon the doctrine of equality.'") (quoted source omitted).
Judge Keith of the Sixth Circuit commented
on the relation between the police's use of race in determining who to stop and
the Equal Protection Clause:
"Surely, this [racially discriminatory] practice must `be subjected
to the strictest scrutiny and [can be] justified only by the weightiest of
considerations.'" United
States v. Taylor, 956 F.2d 572, 581 (6th Cir.) (Keith, J., dissenting)
(quoted source omitted), cert. denied, 113 S. Ct. 404 (1992), quoted
in 31 Am. Crim. L. Rev. at
340. I do not believe the State can
legitimately argue that detaining African-Americans, or other minorities,
because of the color of their skin, is necessary to accomplish a compelling
governmental interest. See Jones
v. DEA, 819 F. Supp. 698, 723 (M.D. Tenn. 1993) (holding that "the
discriminatory investigation of citizens on the basis of race certainly
violates the Equal Protection Clause of the Fourteenth Amendment.").
Over
fifty years ago, the United States Supreme Court permitted such racial
discrimination in Korematsu v. United States, 323 U.S. 214 (1944). In Korematsu, the Court upheld
the relocation and internment of thousands of Japanese-Americans during World
War II on the grounds that Japanese-Americans "were more likely to be
subversive of the United States' war interests"; the Court determined that
"the racially discriminatory policy sufficiently advanced the compelling
state interest in domestic peace."
Racial Discrimination on the Beat:
Extending the Racial Critique to Police Conduct, 101 Harv. L. Rev. 1494, 1497 (1988). Korematsu represents a
shameful example of executive and judicial hypocrisy, equally opprobrious as Dredd
Scott. Today, one cannot
realistically argue that because of the color of a person's skin, that person
is more likely to engage in criminal activity.
To so argue, would defy both logic and reason, as well as validate
ludicrous stereotypes.
Some
have argued that race is indeed indicative of criminal propensity, citing
arrest statistics which reveal that a disproportionate percentage of minorities
are involved in criminal activity. 101 Harv. L. Rev. at 1507. However, these generalizations are tenuous,
at best, because "arrestees for most street crimes constitute only a small
fraction of the population in any given community: the national average ranges between 1% and 5% annually without
taking recidivism into account." Id.
at 1508. The fact that a particular
minority group may be disproportionately represented in arrest statistics is
not probative of whether a particular member of that group is presently engaged
in criminal conduct.
In
addition, empirical studies demonstrate that racial discrimination by police
officers in choosing whom to arrest causes arrest statistics to exaggerate what
differences might exist in crime patterns between certain minorities (e.g.,
African-Americans) and whites, making any reliance on arrest patterns
misplaced. Id. at
1507-08. In part, "this exaggeration
results from a self-fulfilling statistical prophecy: racial stereotypes influence police to arrest minorities more
frequently than nonminorities, thereby generating statistically disparate
arrest patterns that in turn form the basis for further selectivity." Id. at 1508; see also
93 Yale L.J. at 240. ("That
some agents have observed the [drug] couriers to be predominantly Hispanic,
while others have observed them to be almost exclusively black females,
suggests a self-fulfilling prophecy.
Agents who look for Hispanic drug couriers find them, and agents who lie
in wait for black females do not arrest white males.").
United
States v. Taylor is illustrative of
this latter point. In that case, the
arresting officer testified that seventy-five percent of those stopped at the
Memphis airport as suspected drug couriers were African-American. In response to this "evidence,"
Judge Keith stated:
The
disproportionate number of African-Americans who are stopped indicates that a
racial imbalance against African-Americans does exist and is implicitly
sanctioned by the law enforcement agency.
The assumption that seventy-five percent of those persons transporting
drugs and other contraband through public modes of transportation are
African-American is impermissible. It
flies in the face of reason and legitimates a negative stereotype of
African-Americans.
956 F.2d at 581 (Keith, J., dissenting), quoted in
31 Am. Crim. L. Rev. at 340.
Because
the State cannot reasonably point to any compelling governmental interest
to justify such racial discrimination, I conclude that these types of Terry
stops violate the Equal Protection Clause of the Fourteenth Amendment.
In
addition, this police misconduct violates citizens' fundamental rights to
travel and to associate. See Dunn
v. Blumstein, 405 U.S. 330, 338 (1972) (recognizing fundamental right
to travel); Illinois St. Bd. of Elections v. Socialist Workers Party,
440 U.S. 173, 184 (1979) (acknowledging right to associate). If, for instance, African-Americans are
harassed whenever they enter white neighborhoods, they will cease to enter such
areas. Considering this issue, the
Supreme Court of California correctly stated:
A person's racial status is not an "unusual"
circumstance and the presence of an individual of one race in an area inhabited
primarily by members of another race is not a sufficient basis to suggest that
crime is afoot. Freedom to travel
and to associate are fundamental rights in this state, and the suggestion
that their exercise can contribute to a lawful seizure of one's person under
these circumstances is both illogical and intolerable.
People v. Bower, 597 P.2d 115, 119 (Cal. 1979) (emphasis added).
Some
have argued that these type of police tactics do not violate an individual's
rights to travel and to associate because the police officer's focus on race
imposes symmetrical burdens on all groups.
93 Yale L.J. at 244. That is, "[t]he use of racial incongruity
is purportedly justified because blacks face increased suspicion if they
venture into white neighborhoods while whites face increased suspicion if they
venture into black neighborhoods."
Id.
There
are several problems with this argument.
First, the same reasoning was used to support segregation in the
1950's: "Segregation does not
violate the Fourteenth Amendment because it imposes symmetrical burdens on each
group." 93 Yale L.J. at 244 (citing Plessy v. Ferguson,
163 U.S. 537, 551-52 (1896) (applying "separate but equal" doctrine
to segregation)). Fortunately, in 1954,
the Supreme Court in Brown v. Board of Education, 347 U.S. 483
(1954), rejected the concept of segregated schools and the "symmetrical
burden" doctrine. 93 Yale L.J. at 244.
Second,
even if the symmetrical burden doctrine were permitted, the police's use of
race in making investigative and arrest decisions creates inequitable, not
symmetrical, burdens; minorities are disadvantaged to a much greater extent. Id. at 245. This phenomenon has been explained as
follows:
Because there are far more predominantly white than
predominantly black neighborhoods, a black person has many fewer areas in which
he may travel without prompting suspicion and possible detention. Furthermore, because many black
neighborhoods are poor, have limited public recreation facilities, and have
higher crime rates than white neighborhoods, it would be unusual for a white
person to want to enter many of these neighborhoods except to visit a particular
person. It would be much more likely
that a black person would want to enter a white area, many of which are
aesthetically pleasant, contain the most desirable public recreation
facilities, and benefit from better public safety services. Thus, blacks would be detained because their
race was "out of place" more often than would whites, and blacks
would be inhibited in their choices of where to travel more often than would
whites.
Id.
This
emphasis on race also fosters racial separation and negative stereotypes. For example, consider the theory behind
using racial incongruity to support "reasonable suspicion": "[A] black person in a white
neighborhood is there to rob a home or steal a car; a white person in a black
neighborhood either needs to be protected or is there to buy drugs." 101 Harv.
L. Rev. at 1517. Accordingly,
even if the symmetrical burden doctrine could be considered, it is inapplicable
here; a law enforcement officer's reliance on race to establish reasonable
suspicion creates disparate burdens on whites and minorities, and clearly
perpetuates negative racial stereotypes.
In
addition to violating the Equal Protection Clause and the fundamental liberties
to travel and associate, these police practices offend the public policies
underlying the Civil Rights Movement.
Such practices "engender[] distrust of law enforcement officials,
and perpetuate[] the perception among minority citizens that they are
second-class citizens, and are likely to be suspected of wrongdoing solely
because of their race or ancestry."
Jones, 819 F. Supp. at 723. The affect of these negative stereotypes has been explained as
follows:
[R]acial
discrimination is injurious not simply because it attaches generalizations on
the basis of "immutable" physical features, but more importantly
because it disrespects the very culture and heritage that define a given racial
or ethnic group.... [D]iscriminatory
police misconduct injures racial minorities by denigrating them as a group and
by contributing to those groups' historically subordinate position.
Government's
ability to denigrate groups is especially powerful when the law being applied
discriminatorily is the criminal law, the very purpose of which is to
stigmatize as unworthy of freedom those found to have violated its precepts.... [W]hen the state treats a given racial group
as if it were criminally predisposed--as when police systematically impute
criminal intent to black citizens--the state identifies the culture that
defines the group as having a propensity to be morally depraved, thus endorsing
a view of those who share in that culture as unworthy of equal respect.... Indeed, racial discrimination reinforces a
set of deeply held negative attitudes about those who by virtue of their racial
identity tend disproportionately to occupy the lowest ends of the socioeconomic
scales--attitudes that often exert imperceptible influence on societal
behavior. These very attitudes help
perpetuate the underclass status of racial minorities which, in turn,
influences society in general and police in particular to deny minorities equal
access to society's benefits.
101 Harv. L. Rev.
at 1514-15.
Because
reasonable suspicion based on race violates the Equal Protection Clause, the
fundamental liberties to travel and associate, and important public policy
concerns, I would hold that Terry stops based on such suspicions
are impermissible, and all evidence obtained as a result should be
excluded. Violations of the Fourth
Amendment invoke the Exclusionary Rule; violations of the Fourteenth Amendment,
therefore, should also mandate exclusion.
See 101 Harv. L. Rev. at 1519-20.
Indeed, courts have consistently applied the Exclusionary Rule where
they have "deemed it necessary to deter police misconduct and preserve the
dignity of the judiciary." State
v. Barber, 823 P.2d 1068, 1077 (Wash. 1992) (Dolliver, J., dissenting).
The
United States Supreme Court has explicitly stated: "Few principles of law are more firmly stitched into our
constitutional fabric than the proposition that a State must not discriminate
against a person because of his race or the race of his companions, or in
any way act to compel or encourage racial segregation." Adickes v. S.H. Kress & Co.,
398 U.S. 144, 150-52 (1970), quoted in 93 Yale L.J. at 245-46.
Because our decision perpetuates "a dual racially based system in
which minority defendants receive less Fourth Amendment protection than their
white counterparts," 31 Am. Crim.
L. Rev. at 349, I dissent.
[2] At the suppression hearing, Officer Tony J.
Peterson testified that the fact that one of the persons he observed was a
white male walking quickly through a predominantly black neighborhood added to
his suspicion. At oral argument,
however, the State conceded that for the purposes of this appeal, the officer
should not have relied upon the race of an individual for determining whether
there was reasonable suspicion to stop. As a result of this concession, we will not consider this
factor. Instead, we will look at the
remaining testimony to determine whether there was reasonable suspicion to stop
Rache. We will also not address Rache's
arguments and supporting case law related to the race issue.
The
dissent focuses on race and fails to follow the proper standard of review. In determining probable cause, we do not
consider the arresting officer's subjective views. Rather, we review the testimony of the officer to determine
whether "police officers of reasonable caution could have believed the
defendant probably committed a crime."
State v. Drogsvold, 104 Wis.2d 247, 255, 311 N.W.2d 243,
247 (Ct. App. 1981). "It is
sufficient that a reasonable police officer would conclude, based upon the
information in the officer's possession, that the defendant probably committed
the offense." State v. Babbitt, 188 Wis.2d 349, 357, 525
N.W.2d 102, 104 (Ct. App. 1994).
Once
we have the historical facts before us, probable cause for an arrest is a
question of law which we review de novo.
Drogsvold, 104 Wis.2d at 262, 311 N.W.2d at 250. We have examined all of the facts known to
the police officers except for the fact of race. Without regard to race, and using the facts set out in the body
of this opinion, we conclude that a reasonable police officer would have
reasonable suspicion to stop Rache, and then probable cause to arrest him. The facts having to do with race are
therefore irrelevant.
[3] This standard is essentially the same as the
clearly erroneous standard. Noll
v. Dimiceli's Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct. App.
1983).
[4] Section 968.24, Stats., provides in pertinent part, "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 ...."
[5] See also Randall S. Susskind, Race,
Reasonable Articulable Suspicion, and Seizure, 31 Am. Crim. L. Rev. 327, 337 (1994) ("Sheriff Henry Lee of
Jefferson Parish, Louisiana, explicitly admitted discriminatory use of racial
incongruity in 1983: `If there are some
young blacks driving a car late at night in a predominantly white area, they
will be stopped.'") (emphasis added).
[6] The majority relegates this issue to a
footnote, determining that because the State conceded that the officers'
reliance on race was improper, the court need not consider the racial
discrimination.
[7] Additionally, I find it curious, if not
suspicious, that the police officers failed to stop Doiron--the one Caucasian
involved in the transaction; especially in light of the fact that Officer
Knight "recognized [Doiron] as a person who had been arrested for
attempting to buy drugs earlier that year." Maj. Op. at 3. Rather
than stop Doiron--a known drug buyer--the officers decided to stop and search a
black fourteen-year-old boy. Had they
stopped Doiron and searched him, they could have confirmed whether a drug
transaction occurred. If not
discriminatory, the police procedures were inept.
[8] See also Luther Wright, Jr., Who's
Black, Who's White, and Who Cares:
Reconceptualizing the United States's Definition of Race and Racial
Classifications, 48 Vand. L. Rev.
513, 556 (1995) (noting that "[t]his practice has been approved at least
indirectly by the courts, allowing police officers to make racially-based stops
and justify them post hoc.").
[9] In an attempt to respond to these arguments,
the majority merely claims: "The
dissent focuses on race and fails to follow the proper standard of
review." Maj. Op. at 2 n.2. The majority argues that all the court need
do is "review the testimony of the officer," and "examine[] all
of the facts known to the ... officer[] except for the fact of race." Id. (emphasis added). Unfortunately, the majority has fallen into
the "trap" which I have described:
Because courts frequently defer to police officers, the judiciary
routinely allows officers to make racially-based stops and justify them
post-hoc by pointing to "pretextual" circumstances. Indeed, consider the other
"circumstance" which Officer Peterson claims justified the stop: "The white male, Kirby Doiron, walked
quickly into the area." For some
reason, we are to believe that this constitutes suspicious behavior. Such post-hoc and pretextual reasons for
justifying discriminatory stops cannot be tolerated. The facts having to do with race are hardly irrelevant.