|
COURT OF APPEALS DECISION DATED AND RELEASED June 19, 1996 |
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. 95-1931-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SINGKEO INPHACHACK,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Sheboygan County:
GARY LANGHOFF, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Singkeo Inphachack appeals from a judgment convicting
him of being party to the crime of possession of cocaine with intent to
deliver. On appeal, he challenges the
trial court's order denying his motion to suppress evidence. The court ruled that he was lawfully
stopped, frisked and arrested.
Inphachack does not challenge the fact that he was lawfully stopped by
police; he challenges the search and arrest.
Because we conclude that the search of Inphachack was constitutional and
there was probable cause to arrest him, we affirm.[1]
Inphachack does not
contest the following findings made by the trial court after a hearing on his
motion to suppress. The Sheboygan
county drug unit had set up a drug buy, and on January 4, 1995, an undercover
officer gave Somkhith Neuaone $400 to purchase cocaine. Officers then followed Neuaone to monitor
the anticipated drug transaction.
Police saw Inphachack enter Neuaone's vehicle as a passenger. The two were followed by drug unit officers
to Milwaukee. Officers observed the
vehicle stop in the 2500 block of Michigan Avenue in Milwaukee; Neuaone left
the vehicle and Inphachack remained inside.
After Neuaone returned to the vehicle, he and Inphachack drove to a
restaurant where they made a telephone call and then returned to the 2500 block
of Michigan Avenue. Neuaone went into a
residence while Inphachack remained in the vehicle. Neuaone returned to the vehicle and both entered a residence on
that block.
The Neuaone vehicle was
stopped on its way back to Sheboygan.
Neuaone and Inphachack exited the vehicle and were handcuffed for the
officers' safety. The officers were
aware that Neuaone had carried weapons in the past. Inphachack was also frisked for weapons. The police located a pager on Inphachack and
were aware that drug traffickers often use pagers. Inphachack consented to a search of his clothing. No contraband was found on Inphachack or in
the Neuaone vehicle. Inphachack told
the officers that he was in Milwaukee eating noodles. The officers noted that Inphachack was walking in an unusual
manner at the scene, and after he was transported to the sheriff's department,
crack cocaine was found in his shoes.
The trial court found
that the officers had probable cause to stop Neuaone's vehicle and authority
under Terry v. Ohio, 392 U.S. 1 (1968), to perform a pat-down
search on Inphachack. The court also
determined that the officers had probable cause to arrest Inphachack at the
scene of the traffic stop based on the following circumstances. The officers were aware that Inphachack had
accompanied Neuaone, who had been asked to purchase drugs for an undercover
officer. In Milwaukee, Neuaone and
Inphachack acted suspiciously and appeared to be in the process of obtaining
drugs. The pat-down search of
Inphachack revealed a pager. Finally,
the officers believed that Inphachack lied when he claimed that he was in
Milwaukee eating noodles.
On appeal, Inphachack
does not challenge the reasonableness of the stop of Neuaone's vehicle. However, he challenges the constitutionality
of the pat-down search at the scene of the stop.
When we review an order
denying a suppression motion, we will uphold the trial court's findings of fact
unless they are clearly erroneous. See
State v. Jackson, 147 Wis.2d 824, 829, 434 N.W.2d 386,
388 (1989). However, whether these
facts satisfy the constitutional requirement of reasonableness presents a
question of law which we determine independently. Id.
We use a two-part
analysis to assess the constitutionality of a stop-and-search (or frisk) to
determine whether a police officer acted within permissible constitutional
grounds in initiating a search: (1)
whether the officer was rightfully in the presence of the party frisked;
and (2) whether the officer suspected the party was armed and dangerous. State v. Buchanan, 178 Wis.2d
441, 445, 504 N.W.2d 400, 402 (Ct. App. 1993) (quoted source omitted). Inphachack does not dispute the first prong
of the test. He focuses his challenge
on the second prong and claims that the officers did not have reasonable
suspicion that he was armed and dangerous.
Under Terry,
"an officer must have a reasonable suspicion—less than probable cause, but
more than a hunch—that someone is armed before frisking that person for
weapons." State v. Guy,
172 Wis.2d 86, 95, 492 N.W.2d 311, 314 (1992), cert. denied, 509 U.S.
914 (1993). An officer need not be
absolutely certain that the individual is armed. The question is whether a reasonably prudent officer under the
circumstances would be warranted in believing that his or her safety or that of
others was endangered. See id.
at 99, 492 N.W.2d at 316. In
determining whether the officer acted reasonably under the circumstances, due
weight must be given to the specific reasonable inferences which the officer is
entitled to draw from the facts in light of the officer's experience. Buchanan, 178 Wis.2d at 448,
504 N.W.2d at 403‑04 (quoted source omitted).
The facts found by the
trial court are not clearly erroneous, and Inphachack does not dispute them on
appeal. Officer James Tetzlaff of the
Sheboygan county drug unit testified at the suppression hearing that he
customarily searches an individual if he believes that the individual is
involved with a controlled substance. Tetzlaff
testified that he knew Neuaone had kept a weapon in his car in the past and
Neuaone had been provided with money for a drug transaction. Tetzlaff was involved in the surveillance of
Neuaone's vehicle as it traveled in and around Milwaukee, and based upon his
experience, the activities of Neuaone and Inphachack in Milwaukee indicated
drug activity. Considering the totality
of the circumstances, including the possibility that Inphachack might be
armed, Tetzlaff frisked Inphachack for weapons.
Tetzlaff's concern that
Inphachack might be armed was a reasonable inference from the facts in light of
the officer's experience. See Guy,
172 Wis.2d at 96, 492 N.W.2d at 315.
One of the purposes of a Terry frisk is to safeguard the
officer. Guy, 172 Wis.2d
at 93-94, 492 N.W.2d at 314. An
officer's belief that safety might be jeopardized when dealing with persons
engaged in drug transactions is reasonable given that weapons are often
"tools of the trade" for drug dealers. Id. at 96, 492 N.W.2d at 315 (quoted source
omitted). Based upon the information
available to Tetzlaff, we conclude that he had a reasonable suspicion that
Inphachack was involved in drug dealing and might be armed. Therefore, the Terry frisk was
constitutional.
Inphachack also challenges
the existence of probable cause to arrest him.
The probable cause to arrest standard "is defined in terms of facts
and circumstances sufficient to warrant a reasonable police officer in
believing that the defendant committed or was committing a crime." State v. Koch, 175 Wis.2d 684,
701, 499 N.W.2d 152, 161, cert. denied, 114 S. Ct. 221 (1993). "Probable cause exists where the
totality of the circumstances within the arresting officer's knowledge at the
time of the arrest would lead a reasonable police officer to believe that the
defendant probably committed a crime."
Id.
The trial court found
that Inphachack was arrested at the scene of the stop based on probable
cause. The court found the following
factors contributed to probable cause to arrest Inphachack. The officers knew that Neuaone had been
given $400 to purchase cocaine as part of an undercover buy, that he picked up
Inphachack and they drove to Milwaukee in Neuaone's car. The officers observed that while in
Milwaukee, Neuaone and Inphachack acted suspiciously and appeared to be in the
process of obtaining drugs. When
Inphachack was lawfully frisked, police found a pager—a device often used by
drug traffickers.
Whether there was
probable cause for Inphachack's arrest involves the application of a
constitutional standard to undisputed facts.
See State v. Riddle, 192 Wis.2d 470, 475, 531
N.W.2d 408, 410 (Ct. App. 1995). We
conclude that the totality of the circumstances within the arresting officer's
knowledge at the time of the arrest would have led a reasonable officer to
believe that Inphachack probably committed a crime. We conclude that there was probable cause to arrest Inphachack.
Inphachack relies upon Riddle
to support his contention that he was unlawfully arrested. We agree with the State that Riddle
is distinguishable. Riddle was a
passenger in a stopped vehicle, and a search of the trunk found a substance
later identified as cocaine. The court
of appeals held that other than the fact that he was one of three individuals traveling
with the driver of the vehicle, Riddle had no relationship to the cocaine found
in the locked trunk and there was no evidence to show that Riddle was engaged
in a conspiracy to possess and sell the cocaine. Id. at 477-78, 531 N.W.2d at 410-11. Riddle never acted suspiciously and did not
provide the arresting officer with any reasonable indication that he possessed
the cocaine or had access to the location where it was concealed. Id. at 477, 531 N.W.2d at 410.
Here, in contrast, the
officer had a reasonable basis for believing that Inphachack was involved in
possession of drugs. He was traveling
with Neuaone, who was on the way to conduct a drug transaction at the request
of an undercover officer. Inphachack
and Neuaone engaged in activity in Milwaukee which the officer reasonably
believed indicated a drug transaction was underway. Furthermore, when Inphachack was lawfully patted-down, the police
found a pager—a device which in the officer's experience indicated that
Inphachack was involved in drug dealing.
In Riddle, the defendant's connection to the probable
commission of a crime was more tenuous than it was in this case. Here, the totality of the circumstances led
the arresting officer to reasonably believe that Inphachack probably committed
a crime.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.