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COURT OF APPEALS DECISION DATED AND RELEASED July 2, 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. 95-3152-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Appellant,
v.
Anthony Johnson and
Sharon A. Johnson,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County:
DANIEL L. KONKOL, Judge. Reversed.
SCHUDSON, J.[1] The State of Wisconsin appeals from the
trial court order granting the defense motion to suppress evidence. This court reverses.
The facts relevant to
resolution of this appeal are not in dispute.
The trial court found:
[O]n October 18, 1994, [Milwaukee Police]
Officer [Victor] Centeno was involved with the Gang Crimes Intelligence
Division of the police department, he had arrested several people with a
quantity of narcotics across the street from the defendants' tobacco store,
that the officers observed that some of the people who had been released went
to the defendants' store across the street, that particularly one person went
inside and one waited outside.
The
officers were concerned there may be a connection between the marijuana that
was involved across the street from the tobacco store and the smoke shop itself.
The
officers went into the store believing it was a licensed premises so that they
would be entitled to conduct a search of the premises and particularly to check
on the licenses. The store apparently
was open to the public.
The
officers went into the store....
Officer Centeno observed inside the store several items of drug
paraphernalia inside a glass case that was visible in the public area of the
store. The officer then went behind the
counter in an area that might otherwise be used by employees to search and look
for the licenses. He observed that the
licenses that were on display were an expired cigarette license and expired
food seller permit. He also observed
some other licenses, he can't recall what they were, whether they were current
or not current. The officer again
described the numerous items of drug paraphernalia that he saw inside the glass
counter, again visible as he walked in, and he testified that those items he
saw were used to consume or manufacture narcotics.
The
defendant Mrs. Johnson was present on the premises and was identified as the
manager. Subsequently her husband, Mr.
Johnson, the other co-defendant, arrived and was indicated to be the owner of
the premises.
The
officer in going behind the counter to check on licenses was also concerned
that as a licensed premises it may have some firearms and for officers' safety
he then was looking for any firearms so that no one would pull a firearm on him
during the course of the inspection.
The officer searched behind the counter and went below the glass
counters and opened some doors that were behind and found, again, several more
items of drug paraphernalia. The
officers were informed by the defendants that they didn't know they were doing
anything wrong.
The
officers confiscated the observable items, the items they were observing, and
informed the defendants that their sale of those items was illegal and that
they would be back again to check again on the licensed premises in the future.
The
officers then came back on January 26 for the purpose of inspecting the
licensed premises. They came into the
premises. Apparently at that time
coincidentally as they were coming into the premises they saw someone who was a
suspect in a narcotics matter and the suspect then ran into the store, the
officers ran into the store, past the counter, and apprehended the suspect.
[Milwaukee
Police] Officer [Robert] Menzel went through the entire store into the areas
way into the back of the store to storage areas checking to see if there were
any other people there, again concerned with officer safety, checking if there
might be someone else there that might have some weapon, that they wanted to be
secure, that there was not somebody else there that would be interfering with
their apprehension. When he was way in
the back of the store he then discovered a closet area that did not have a door
but then in plain view where he was standing he had items of drug
paraphernalia.
The other officers, including Officer Centeno,
went behind the counters of the store.
Again they said, or the officers testified there were some items of drug
paraphernalia visible in the glass cases, and the officers went behind the
glass cases and underneath the glass cases from the employee area, found several
of the other items of drug paraphernalia.
On October 18, 1994, the
police found large quantities of ziploc bags, pipes, cocaine grinders, test
tubes, copper mesh screens, and other items.
Most were in plain view inside the glass counter located in the public
entry area of the store. Below the
counter the police found “[m]ore of the same.”
On January 26, 1995, the police found similar items as well as scales
and “several kinds of powder,” which Officer Centeno believed “are used for
mixing cocaine.” Centeno testified that
on this second occasion some of the items were in plain view in the glass case,
but most “were pretty much all in the first part of the store by the glass
counter, underneath and behind, and there were some items also taken from a
storage [area] in the back.”
The State charged the
Johnsons with two counts of possession with intent to deliver drug
paraphernalia, party to a crime. The
trial court granted the defendants' motion to suppress the seized items,
relying on See v. Seattle, 387 U.S. 541 (1967), and State
v. Schwegler, 170 Wis.2d 487, 490 N.W.2d 292 (Ct. App. 1992). The trial court concluded that these
warrantless seizures were unreasonable.
The trial court, however, observed:
What strikes me as strange is that if the officers
would have said, well, as long as they were in the area they just stopped by to
buy some tobacco and went in as a customer to buy some tobacco, they saw the
drug paraphernalia, they could have confiscated it and that would have been all
right. But because the officers are
going in there in connection with checking out the premises, for that reason
they are not allowed. And I guess that
causes me some problem in that thought process, but it seems that the two cases
[See and Schwegler] are controlling despite what
would seem like a normal though process with regard to being in the locations.
The
trial court's musings were correct; its reliance on See and Schwegler
was misplaced.
“[T]he validity of a
search and seizure involves constitutional questions subject to independent
appellate review and requires an independent application of the constitutional
principles involved to the facts as found by the trial court.” State v. Angiolo, 186 Wis.2d
488, 494-495, 520 N.W.2d 923, 927 (Ct. App. 1994). A trial court's determination of whether a warrantless search was
justified under the “plain view” exception to the warrant requirement is
subject to this court's de novo review.
See Bies v. State, 76 Wis.2d 469, 251 N.W.2d 461,
467 (1977).
The Wisconsin Supreme
Court explained that a warrantless seizure may be justified under the “plain
view” exception to the warrant requirement only where the following criteria
are met:
(1)
The officer must have a prior justification for being in the position from
which the “plain view” discovery was made;
(2)
The evidence must be in plain view of the discovering officer;
(3)
The discovery of the evidence must be inadvertent; and
(4) The item seized, in itself or in itself
with facts known to the officer at the time of the seizure, provides probable
cause to believe there is a connection between the evidence and criminal
activity.
Bies, 76
Wis.2d at 464, 251 N.W.2d at 464-465.
Clearly, the undisputed facts establish that all the criteria were
satisfied in both searches.
On both occasions the
police had prior justification for being in the store—to investigate a
suspected connection between crime and the store, to apprehend a suspect, and
to carry out license inspections. On
both occasions the police seized items that were in plain view. On both occasions the discovery was
inadvertent—there is nothing to suggest that the police expected the store to
contain drug paraphernalia on October 18 and, unless this court were to permit
the Johnsons to rely on their own disobedience to the warning they received
from the police on October 18, there is nothing to suggest that the police
expected to find drug paraphernalia on January 26. On both occasions, the seized items provided probable cause of
the criminal offenses for which the Johnsons were charged.
See and Schwegler
are distinguishable for several reasons.
Most significantly, See involved the appellant's refusal
to permit a representative of the Seattle Fire Department to enter and inspect
a “locked commercial warehouse” of a “private commercial property” without a
warrant. See, 387 U.S. at
541-543. The Supreme Court concluded
“that administrative entry, without consent, upon the portions of commercial
premises which are not open to the public may only be compelled through
prosecution or physical force within the framework of a warrant
procedure.” Id. at 545
(emphasis added). Somewhat similarly, Schwegler
involved a county humane officer's warrantless administrative inspection of a
horse-breeding operation. Schwegler,
170 Wis.2d at 492, 490 N.W.2d at 294.
Neither case involved a store open to the public and to any police
officer who, for whatever reason, might choose to enter.
Moreover, under several
statutes cited in the State's excellent brief, police are authorized to enter
and inspect tobacco stores to assure compliance with licensing
requirements. See, e.g.,
§ 139.39(2), Stats. (“any ...
police officer ... may at all reasonable hours enter the premises of any
permittee or retailer ... and may enter and inspect any premises where
cigarettes are made, sold or stored”).
Therefore, this court
concludes that the trial court erred in concluding that the searches and
seizures were unreasonable. This court
notes, however, that the defense moved to suppress “at this point based on the
evidence thus far submitted,” after the State had presented its three witnesses
and, in their brief to this court, the Johnsons state that they had nine more
witnesses. The trial court prefaced its
decision by stating, “[a]t this point the facts show ...,” and granted the
defense motion at the conclusion of the State's evidence. Additionally, given the trial court's
decision, it did not make factual findings drawing any distinctions that may
have existed between public and private areas of the premises, and between
seized items in or out of plain view.
Thus, although this court reverses the trial court order, this court
does not foreclose the trial court from allowing for the presentation of
additional evidence.
By the Court.—Order
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.