COURT OF APPEALS DECISION DATED AND RELEASED November 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. 95-3220-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN K. PINNEY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Wood County:
EDWARD F. ZAPPEN, JR., Judge. Reversed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Steven Pinney appeals from a judgment of conviction,
specifically challenging an order denying his suppression motion. Because we conclude that the circuit court
erred in denying Pinney's suppression motion, we reverse the judgment of
conviction.
BACKGROUND
Pinney lived in a house
with Jackie Johnson. On September 18,
1994, Johnson's sister Jane Sailer was visiting the house. Sailer called police near 9:00 p.m.,
complaining that Pinney was creating a drunken disturbance with friends. Police responded to the call and determined
that: (1) Pinney was not on the
property, and (2) Sailer and Johnson were under the influence of alcohol. The police left without taking any further
action.
Approximately one hour
later, Sailer again contacted police, this time alleging that Pinney had come
back carrying a .22 rifle.[1] Police again responded to the house and en
route saw a man they believed to be Pinney walking away from the house. The suspect was not armed with a long
gun.
The State agrees that
the police officers' action at this point amounted to an arrest. Specifically, Pinney was ordered to lie
spread eagle on the ground, was not free to leave, had drawn weapons pointed at
him, and was handcuffed. Searching
Pinney, police found THC, a marijuana derivative.
Pinney moved to suppress
the THC as the result of an improper search.
The circuit court denied his motion.
We reverse.
ANALYSIS
Probable cause to arrest
exists when the totality of the circumstances lead a reasonable police officer
to believe the defendant has probably committed a crime. State v. Koch, 175 Wis.2d 684,
701, 499 N.W.2d 152, 161, cert. denied, 510 U.S. 880 (1993). That quantum of evidence was not met
here.
Police were first
requested to remove Pinney from his own home based on the word of a visitor
known to police to be under the influence of alcohol. Police investigation of this claim proved it groundless, and the
police left after explaining that it would take some evidence to apprehend
Pinney.
Police were then again
requested to apprehend Pinney by the same complainant they had previously found
not credible.[2] This time, the complainant added a detail
easily susceptible of visual confirmation, namely, that Pinney was armed with a
long gun.
When police saw a
suspect they thought might be Pinney, they arrested him although: (1) they
were not sure he was, in fact, Pinney, and (2) the suspect was not in any
manner disorderly, nor was he armed with a long gun. Arrest under these circumstances was unreasonable.[3] It therefore follows that a search incident
to arrest was improper, as was the order denying suppression.
By the Court.—Judgment
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] There is some confusion in the record as to whether police were informed that Pinney was armed with a .22 rifle or with a shotgun. However, the record is clear that the police officers responding to Sailer's second call were informed that Pinney was armed with a long gun, as opposed to a handgun.