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COURT OF
APPEALS DECISION DATED AND
RELEASED May
30, 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. 95-2848-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
PAUL
H. GATES,
Defendant-Appellant.
APPEAL
from an order and a judgment of the circuit court for Grant County: JOHN R. WAGNER, Judge. Reversed and cause remanded.
EICH,
C.J.[1] Paul H. Gates appeals from a judgment
convicting him of possession of marijuana.
He pled to the charge, reserving for appeal his challenge to the trial
court's order denying his motion to suppress evidence.
The
issue is whether the police had grounds to stop Gates and search his vehicle
(where the marijuana was found). We
think they did not and reverse the order and judgment.
The
facts are undisputed and derive from the testimony of the only witness to appear
at the suppression hearing, the arresting officer, Grant County Deputy Sheriff
Jack Johnson. Johnson and several other
law enforcement officers were executing a search warrant at a farm owned by
Keith Welsh. They were looking for
stolen automobiles.
Johnson,
who said he had been assigned "to secure the area and stop any vehicle
that came into the farm area," saw Gates's car traveling down the adjacent
road. Johnson acknowledged that he
"did not know if the vehicle was going to be pulling into the [farm]
driveway or if it was going to keep going by," but that when it appeared
to be slowing down, he "assumed ... it was going to be pulling in,"
so he "stepped out onto the roadway" and flagged Gates down.
When
Gates pulled over, Johnson asked him where he was going, and Gates replied that
he and his passengers had been at a lumberyard down the road and were headed
into Muscoda, "going the back way into town."[2] Johnson testified that while talking to
Gates he smelled "what [he] believed to be marijuana coming from the
vehicle." He then asked Gates and
the others to get out of the car and, searching Gates, found "a cigarette
paper with a green, leafy substance in it," which Johnson believed to be
marijuana. In a search of Gates's car,
Johnson found "several roaches" in the ashtray. Thus, the fruits of Johnson's search of
Gates and his car formed the basis for Gates's conviction.
There
is no question that there was no warrant in existence for the search of either
Gates's person or his automobile. An
officer may, however, stop a person for investigative purposes in cases where
he or she may be said to have an "articulable suspicion that the person
has committed or is about to commit a crime." Terry v. Ohio, 392 U.S. 1, 21-22 (1968); State
v. Goyer, 157 Wis.2d 532, 536, 460 N.W.2d 424, 425-26 (Ct. App.
1990). The reasonableness of an
investigative "stop" is a question of law, which we decide
independently. State v. Kiper,
193 Wis.2d 69, 79-80, 532 N.W.2d 698, 703 (1995).[3]
The
only "suspicion" Johnson had--by his own admission--was his
"assum[ption]" that the car traveling down the adjacent roadway was
going to pull into the driveway of a farm being searched by officers for the
presence of stolen automobiles, and Gates questions whether any court has held
that police may stop citizens on public highways under the aegis of a warrant
for the search of adjacent property.
We
think it is an appropriate question on the facts of this case, and the State's
only response is to refer us to Michigan v. Summers, 452 U.S. 692
(1981), where police, searching a house for narcotics (pursuant to a warrant),
were held to have reasonably detained a person found exiting the house. "Of prime importance in assessing the
intrusion," said the Court, was the fact that the police had a warrant
issued on "probable cause to believe that the law was being violated in
that house ...." Id.
at 701 (emphasis added). Here, of
course, Gates was neither in the Welsh house nor on the Welsh property when
Johnson stopped and detained him: he was driving on a public highway. We do not see Summers as
advancing the State's position.[4]
The
sum and substance of this case is that the police could stop Gates and detain
him for limited investigation only if they had "a reasonable articulable
suspicion [that he had engaged or was engaging in] criminal
activity." State v. Johnston,
184 Wis.2d 794, 813, 518 N.W.2d 759, 765, cert. denied, 115 S. Ct. 587
(1994). We agree with Gates that Summers
might be more on point if he had been found on or leaving the property that was
the subject of the search warrant but, as we have indicated, he was not.
It
may be that Johnson--who had not even seen the warrant being executed by the
other officers--was asked to "[s]top anybody that came into the area [and]
[f]ind out why they wanted to come onto the farm." But such an instruction from fellow officers
cannot serve to extend Summers-type authority to a point outside
the searched premises. The fact remains
that all Gates had done before Johnson stopped him was to drive down a public
roadway and appear to reduce his speed in an area near the entry to a farm that
was being searched by a dozen or more police officers.[5] We conclude that that conduct is
insufficient to give rise to the type of reasonable, articulable suspicion of wrongdoing
that would justify an investigative stop under Terry and its
progeny. Consequently, we reverse the
order and the judgment and remand to the trial court with directions to enter
an order granting the defendant's motion to suppress evidence filed with the
court on April 4, 1995.
By
the Court.—Order and judgment
reversed and cause remanded.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Johnson testified that the road on which
Gates was driving was not the most direct route between the two points, stating
that "[a] person would not have to drive on Taylor Road to get to Muscoda
from the lumberyard." Johnson's
opinion in this regard was subject to extensive cross-examination.
[3] We do, of course, accept the trial court's
findings of historical fact unless they are clearly erroneous, State v.
Jackson, 147 Wis.2d 824, 829, 434 N.W.2d 386, 388 (1989). As indicated above, however, the facts are
undisputed, all coming from the testimony of a single witness.
[4] The Court also emphasized in Summers
that the officer's conduct in detaining the house occupant was reasonable
because of two other "articulable facts" which were present in their
search for narcotics: the prevention of "flight in the event that
incriminating evidence is found [in the search]," and "the interest
in minimizing the risk of harm to the officers" in a narcotics search,
which, according to the Court, "may give rise to sudden violence or
frantic efforts to conceal or destroy evidence." Michigan v. Summers, 452 U.S. 692, 702 (1981). In this case, of course, the officers were
simply looking for automobiles with altered identification numbers.
[5] The State, without giving us the benefit of a
pinpoint citation, says that nullifying the stop in this case would be contrary
to language in Summers which it characterizes as granting law
enforcement officers "unquestioned command" of premises being
searched pursuant to a warrant. Like
the State's other arguments, this one is answered by once again pointing out
where and how Gates was stopped by the officer. He was not on the premises being searched.