COURT OF APPEALS DECISION DATED AND RELEASED May 21, 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. 95-2000-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RUDOLFO BRISENO,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. Rudolfo Briseno appeals from a judgment of conviction, upon
a guilty plea, for failure to pay a controlled substance tax and possession of
a controlled substance (marijuana). He
challenges the trial court's denial of his motion to suppress evidence. His argument is two-fold: first, he
challenges the trial court’s factual finding that he “voluntarily” consented to
the officers' search of his apartment; and second, he argues that the State
failed to prove he “voluntarily” consented to the search in question. We reject his arguments and affirm.
I.
Background.
The following facts were
presented at the suppression hearing.
On January 24, 1995, three law enforcement officers, Wisconsin
Department of Justice Special Agents Cathy Willeford and Gary Smith, and
Wisconsin State Patrol Officer Brian Turner, went to Briseno's apartment to
investigate a report that his vehicle may have been involved in drug
trafficking.
According to Special
Agent Smith, upon the officers' arrival at the apartment, Briseno agreed to
talk with them. Special Agent Smith
testified that when the drug trafficking allegation was mentioned, Briseno
“seemed somewhat ... nervous.”
Nevertheless, the police continued their conversation with
Briseno—according to Special Agent Smith, first, by telling him that they
believed there were drugs in the apartment; and second, asking for his consent
to search the apartment. Special Agent
Smith testified that Briseno declined to consent, stating: “You have to respect
my privacy. There is nothing here.”
Special Agent Smith also
testified that he then told Briseno that he believed there were drugs in the
apartment, and asked him if he wanted the officers to leave. According to Smith, Briseno told the
officers that they did not have to leave and he was willing to talk to them. Special Agent Smith stated that he asked
Briseno twice more if they could search the apartment, and again Briseno
declined. Special Agent Smith stated
that he then told Briseno that he would exercise other options, at which point
Briseno took the officers to the kitchen and surrendered two to three ounces of
marijuana. The officers did not place
Briseno under arrest, but asked him to provide the police with information on
Briseno's drug suppliers. Special Agent
Smith testified that he never threatened Briseno, nor did he tell Briseno that
if Briseno did not consent to the search, the officers would get a search
warrant.
Briseno testified that
he told the officers several times to get a search warrant. He also testified that the officers told him
that he if he did not consent to the search, they would get a search warrant
and that they would handcuff him and his wife while they procured the
warrant. Briseno's wife's testimony was
for the most part consistent with her husband's.
Briseno was later
charged with the two counts and originally entered pleas of not guilty to both
charges. He also filed a pretrial
motion to suppress the marijuana seized during the search. The trial court denied Briseno’s motion,
finding that the officers' account of the encounter with Briseno was more
credible and that Briseno's consent to the search was voluntary. Briseno then pleaded guilty.
II.
Analysis.
Briseno first challenges
the trial court’s factual finding that he was not coerced into surrendering the
marijuana. Briseno contends that the
trial court’s finding regarding this fact was “clearly erroneous.” Briseno maintains the police threatened to
exercise “other options” and to handcuff both Briseno and his wife if they
needed to procure a warrant before searching the apartment. Briseno contends that he felt he had little
choice but to show the police the marijuana which he had in his kitchen
cupboard.
When presented with
conflicting testimony, findings of fact are required to assess the credibility
of the witnesses to determine which version of the event is more credible. Thus, the trial court’s credibility
determination must be upheld by the court unless such a determination goes
against the great weight and clear preponderance of the evidence; in other
words, is “clearly erroneous.” Section
805.17(2), Stats.; see State
v. Johnson, 177 Wis.2d 224, 230-31, 501 N.W.2d 876, 878 (Ct. App.
1993). Further, we are prohibited from
substituting our judgment for the trier of fact unless the fact finder relied
on evidence which was inherently or patently incredible, the kind of evidence
which conflicts with nature or fully established or conceded facts. See State v. Daniels,
117 Wis.2d 9, 17, 343 N.W.2d 411, 415‑16 (Ct. App. 1983).
With this standard in
mind, we reject Briseno's argument. The
trial court was presented with two different versions of the encounter and was
thus required to reach its findings based on the credibility of the witnesses'
testimony. The trial court found that
the officers' testimony was more credible.
Briseno provides this court with nothing that undermines the trial
court's credibility determination.
Hence, we will not conclude that the trial court's factual findings were
clearly erroneous.
Briseno further argues
even if we accept the trial court’s factual findings, such findings fail to
show that he voluntarily consented to the search. We reject this argument as well.
Our review of the trial
court's application of its historical facts to a constitutional standard is de
novo. See State v.
Clappes, 136 Wis.2d 222, 235, 401 N.W.2d 759, 765 (1987). The test for voluntariness is whether
consent to search was given in the absence of actual coercive, improper police
practices designed to overcome the resistance of a defendant. See State v. Xiong, 178
Wis.2d 525, 531-32, 504 N.W.2d 428, 430 (Ct. App. 1993). We make this determination after looking at
the “totality of the circumstances.” See
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
We agree with the trial
court that the facts as found do not establish coercion. Special Agent Smith did not improperly
coerce Briseno by informing him that if he did not consent to the search the
officers would exercise other options.
This is not coercion under the totality of the circumstances. Consequently, the trial court did not err in
determining that Briseno voluntarily consented to the search of his apartment.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.