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COURT OF
APPEALS DECISION DATED AND
RELEASED March
28, 1996 |
NOTICE |
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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. 95-2617-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent
v.
ALEXANDER
DEJESUS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Rock County: EDWIN C. DAHLBERG,
Judge. Reversed and cause remanded
with directions.
DYKMAN,
J. This is a single-judge appeal
decided pursuant to § 752.31(2)(f), Stats. Alexander Dejesus appeals from a judgment
convicting him of one count of possession of marijuana, contrary to
§ 161.41(3r), Stats.[1] Dejesus pleaded no contest after the trial
court denied his motion to suppress evidence discovered in a search of his
pockets. He contends that the seizure
violated the Fourth Amendment to the United States Constitution because Police
Officer John Fahrney lacked reasonable suspicion to stop him. Because we conclude that there are
insufficient facts of record to determine whether the police contact and the
subsequent search were a seizure within the meaning of the Fourth Amendment, we
reverse the trial court's order and remand for a factual determination of this
issue.
BACKGROUND
Dejesus
and two other males were walking northbound in the 900 block of Wisconsin
Avenue in Beloit at about 2:30 a.m. on January 6, 1995, when they were observed
by Officer Fahrney. According to
Officer Fahrney, some businesses and cars in the area had been broken into
within the last year.
Officer Fahrney stopped
his squad car, approached the three males, and asked them for identification
and why they were out at that time of night.
Dejesus gave Officer Fahrney a false name. Officer Fahrney asked them if they had any drugs or weapons and
if he could search their pockets or persons for these items. Dejesus agreed and Officer Fahrney found a
partially smoked marijuana cigarette in his pockets. Officer Fahrney subsequently arrested him and the prosecutor
charged Dejesus with obstructing an officer and possession of marijuana.
Dejesus
filed a motion to suppress evidence of the marijuana. The trial court found Officer Fahrney's testimony that Dejesus
consented to the search to be credible, thereby making the evidence seized from
the pat down search admissible.
Furthermore, the court found it reasonable for an officer to be
"stopping people at that hour of the day, in an area where they are, and
asking them to identify themselves."
Dejesus appeals.
STANDARD OF REVIEW
In
reviewing a trial court's denial of a motion to suppress evidence, we will
uphold the court's findings of fact unless they are clearly erroneous. Section 805.17, Stats.; State v. Roberts, 196 Wis.2d 445, 452,
538 N.W.2d 825, 828 (Ct. App. 1995). However, whether a search passes constitutional muster is a
question of law which this court reviews de novo. Id.
WAS
THERE A SEIZURE?
Both
the Fourth Amendment to the United States Constitution and article I, section
11 of the Wisconsin Constitution guarantee the right of citizens to be free
from unreasonable searches and seizures.
But not all contact between police officers and citizens are seizures
for Fourth Amendment purposes: "Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of
a citizen may we conclude that a `seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968).
The
totality of the circumstances must be considered to determine whether the
police conveyed a message that they required compliance with their
request. Florida v. Bostick,
501 U.S. 429, 437 (1991). The Supreme
Court has consistently repeated:
"the crucial test is whether, taking into account all of the
circumstances surrounding the encounter, the police conduct would `have
communicated to a reasonable person that he was not at liberty to ignore the
police presence and go about his business.'" Id. (quoted source omitted). An individual may decline an officer's
request without fearing prosecution. Id.
Since
Terry, the Supreme Court has consistently held that questioning
alone does not constitute a seizure.
For example, in Florida v. Royer, 460 U.S. 491, 497
(1983), the Court wrote:
[L]aw enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or in another
public place, by asking him if he is willing to answer some questions, by
putting questions to him if the person is willing to listen, or by offering in
evidence in a criminal prosecution his voluntary answers to such questions.
Relying on Royer, the Court later
determined that an officer may generally ask a person who he or she is and
examine his or her identification even when the police have no basis for
suspecting that particular individual of any wrongdoing. INS v. Delgado, 466 U.S. 210,
216 (1984).
Dejesus
insists that Officer Fahrney's actions conveyed a message that compliance was
necessary. He contends that when a
police officer pulls up in a marked squad car in front of three pedestrians on
a city street at 2:30 a.m., and requests identification, an explanation of
where they are going, what they are doing, how old they are, and whether they
are carrying drugs or weapons, compliance is unquestionable.
But
we believe that the facts of this case leave open the question of whether a
seizure occurred. One police officer,
in a marked squad car, approached three males, asked them questions, and
obtained consent to search at least one of them. The trial court made no findings of fact as to whether the
officer pointed a gun at Dejesus, activated the squad car's lights, used a
threatening tone of voice or acted in any other manner which would have
communicated to a reasonable person that he or she was not free to leave. Pursuant to Bostick, 501 U.S.
at 437-39, we remand this case so that the court may evaluate the seizure
question under the totality of the circumstances.
REASONABLE SUSPICION
Should the trial court
find that Officer Fahrney's actions required Dejesus to comply with his
requests thereby constituting a seizure, we conclude that Officer Fahrney did
not have the requisite reasonable suspicion to stop Dejesus. Therefore, the motion to suppress the
evidence must be granted.
Officer
Fahrney asserts that he stopped Dejesus because he had a concern for the crime
problems in the area in which Dejesus was walking. But this fact, alone, does not constitute reasonable suspicion
justifying a stop. An officer's
perception of an area as "high-crime" may be a factor. State v. Morgan, 197 Wis.2d
200, 211, 539 N.W.2d 887, 892 (1995).
The time of day may also be a factor.
Id. In Morgan,
the court concluded that the police could search a person for weapons who was
driving in and out of alleyways in a high-crime neighborhood, late at
night, and who appeared nervous when
stopped. Id. at 215, 539
N.W.2d at 892.
But
in this case, no other facts were put into evidence aside from the time of day
and the fact that some burglaries had taken place in the area in the last
year. We conclude that under the
totality of the circumstances, Officer Fahrney lacked reason to suspect that
DeJesus was committing a crime.
SUMMARY
In
summary, we conclude that we must remand to permit the trial court to determine
whether Dejesus was seized within the meaning of the Fourth Amendment to the
United States Constitution. The court
may, if it chooses, take additional testimony before making this
determination. If the court concludes
that a seizure took place, then Dejesus's motion to suppress must be granted
because we have concluded that Officer Fahrney did not have the requisite
reasonable suspicion to conduct a Terry stop.
By
the Court.—Judgment reversed
and cause remanded with directions.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.