|
COURT OF APPEALS DECISION DATED AND RELEASED November 21, 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. 95-2252-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN THE INTEREST OF
CARLTON S. C.‑B.,
A CHILD UNDER THE AGE
OF 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
CARLTON S. C.‑B.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County: CHRISTOPHER R. FOLEY, Judge. Affirmed.
SULLIVAN,
J. Carlton S. C.-B. appeals from a dispositional order adjudicating
him delinquent for possession of a controlled substance—cocaine base, as a
party to a crime. He presents this
court with one issue for review—whether the trial court erred in denying his
motion to suppress physical evidence.
This court concludes that the police's search and eventual seizure of
cocaine was proper under the “plain touch” exception to the warrant requirement
of the Fourth Amendment, and, therefore, the trial court properly denied
Carlton's suppression motion. The
dispositional order is affirmed.[1]
On March 8, 1995, City
of Milwaukee police responded to a call of a family disturbance on the near
north side of the City of Milwaukee.
The call was placed by Carlton's mother. She complained to the police that her son was defiant and hard to
control. Further, she informed the
police that she believed her son was selling drugs. The officers conducted a pat-down search of Carlton for weapons,
but no weapons were found. Officer
Byron Andrews did uncover a package in Carlton's jacket that contained a
substance that later tested positive for cocaine base. Carlton was taken into protective custody,
and the State filed a delinquency petition against him.
Carlton later filed a
suppression motion, arguing that the search violated his rights as guaranteed
by the Fourth Amendment to the United States Constitution and Article I,
Section 11 of the Wisconsin Constitution.
Officer Andrews gave the following testimony during the suppression
hearing on Carlton's motion. He stated
that because Carlton was “so agitated,” he conducted a pat-down search for the
officers' safety. He stated that
Carlton was wearing a Starter name-brand athletic jacket, with the inside out,
thereby placing the normally inside pockets on the outside. He patted down the outside and felt a
substance he believed to be contraband in the right pocket; he opened the
jacket and pressed his open hand on it again; and then had Carlton remove the
jacket. Officer Andrews further
testified that through the jacket pocket's lining he “felt something sliding in
the jacket which [he] believed to be plastic containing several hard objects
moving around inside of the plastic.”
Through his training he believed these objects to be contraband. When the objects were eventually removed
they were confirmed to be crack cocaine “rocks,” each roughly one-quarter of an
inch around.
The trial court
concluded that the pat-down was valid under Terry v. Ohio, 392
U.S. 1 (1968), and that pursuant to Minnesota v. Dickerson, 508
U.S. ___, 124 L.Ed.2d 334 (1993), the officer's search and recovery of the
cocaine was valid under the “plain touch” exception to the warrant requirement
of the Fourth Amendment. The trial
court specifically found that Officer Andrews's testimony that the nature of
the contraband “was immediately apparent to him” was credible. Accordingly, the trial court denied the
suppression motion, and Carlton pleaded guilty to the delinquency
petition. He now appeals from the
dispositional order.
Both the Fourth
Amendment to the United States Constitution and Article I, Section 11, of the
Wisconsin Constitution, guarantee citizens the right to be free from
unreasonable governmental searches and seizures. We consistently apply the law of search and seizure as developed
by the United States Supreme Court under the Fourth Amendment to questions
raised under the state constitution in order to “prevent the confusion caused
by differing standards.” State v.
Fry, 131 Wis.2d 153, 172-73, 388 N.W.2d 565, 573-74 (1986). Searches and seizures “`conducted outside
the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a few specifically
established and well delineated exceptions.'”
Dickerson, 508 U.S. at ___, 124 L.Ed.2d at 343-44
(citation omitted). Further, the
“burden is on the state to show that the search and seizure in question fall[s]
within one of the recognized exceptions to the warrant requirement.” State v. Johnston, 184 Wis.2d
794, 806, 518 N.W.2d 759, 762 (1994).
The “plain touch” or
“plain feel” doctrine—an extension of the “plain view” doctrine—is a recognized
exception to the warrant requirement. State
v. Buchanan, 178 Wis.2d 441, 449, 504 N.W.2d 400, 404 (Ct. App.
1993). For the doctrine to properly
apply, the State must show the following elements:
“(1) the evidence must be in plain view;[2]
(2) the officer must have a prior justification for being in the position from
which [he or] she discovers the evidence in `plain view'; and (3) the evidence
seized `in itself or in itself with facts known to the officer at the time of
the seizure, [must provide] probable cause to believe there is a connection
between the evidence and criminal activity.'”
Id.
(citation omitted; brackets in original; footnote added).
On appeal, Carlton
rightly concedes that the second element is met. The officers were informed by Carlton's mother that he was hard
to control and defiant, and that she thought he was selling drugs. The allegations gave the officers reasonable
suspicion to conduct a Terry stop, which in turn allowed them to
conduct a pat-down of Carlton's clothing in order to locate a potential
weapon. It was this lawful pat-down
that provided Officer Andrews with the prior justification for being in the
position from which the contraband was discovered. See id.
Carlton argues that the
remaining two elements are not met. We
disagree. Because Officer Andrews felt
the objects in Carlton's jacket pocket, the evidence was in “plain view.” See id. at 450, 504
N.W.2d at 404; see also supra note 2.
Thus, the only issue is
whether the third element of the doctrine is met. The third element has also been phrased as whether the officer
“immediately recognized the incriminating nature” of the contraband. See id.; see also
Dickerson, 508 U.S. at ___, 124 L.Ed.2d at 345. The trial court made a factual finding that
Officer Andrews could and did immediately recognize the incriminating nature of
the objects in Carlton's jacket. The
trial court based this factual finding on its determination that Officer
Andrews's testimony was credible due to his training and the information
provided to Officer Andrews by Carlton's mother. While the question of whether a defendant's Fourth Amendment
rights were violated presents a question of “constitutional fact” reviewed de
novo, see State v. Heft, 185 Wis.2d 288, 296, 517
N.W.2d 494, 498 (1994), witness credibility determinations are left to the
trial court. Accordingly, we cannot
conclude that this historical factual finding, i.e., that Officer Andrews
immediately recognized the object as crack cocaine, is clearly erroneous. Section 805.17(2), Stats. As such, we
conclude that the state properly met all three elements of the “plain touch”
doctrine and that the trial court properly denied Carlton's suppression motion.
By the Court.—Order
affirmed
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.