City of Milwaukee v. Nelson

• Decision Date: 11 May 1989
• Docket Number: No. 86-2234-CR,86-2234-CR
• Citation: 149 Wis.2d 434,439 N.W.2d 562
• Parties: , 57 USLW 2722 CITY OF MILWAUKEE, Plaintiff-Intervenor-Appellant-Cross Petitioner, State of Wisconsin, Plaintiff, v. Stefan NELSON, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 562

439 N.W.2d 562

149 Wis.2d 434, 57 USLW 2722

CITY OF MILWAUKEE, Plaintiff-Intervenor-Appellant-Cross Petitioner, State of Wisconsin, Plaintiff, v. Stefan NELSON, Defendant-Respondent-Petitioner.

No. 86-2234-CR.

Supreme Court of Wisconsin.

Argued Nov. 2, 1988.

Decided May 11, 1989.

Peter D. Goldberg, Asst. State Public Defender, for defendant-respondent-petitioner.

Scott G. Thomas, Asst. City Atty., argued, Grant F. Langley, City Atty., on briefs, Milwaukee, for plaintiff-intervenor-appellant-crosspetitioner.

William A. Pangman, and William A. Pangman & Associates, Waukesha, amicus curiae, for American Civil Liberties Union of Wisconsin Foundation and Wisconsin Ass'n of Criminal Defense Lawyers.

DAY, Justice.

This is a review of an unpublished court of appeals' decision, 142 Wis.2d 944, 419 N.W.2d 573, which reversed an order of the Circuit Court for Milwaukee County, Honorable Russell W. Stamper, Judge. The circuit court had ruled that Milwaukee City Ordinance 106-31(1)(a), ¹ a loitering ordinance, was unconstitutionally vague and overbroad. It also found the ordinance and sec. 800.02(6), Stats. 1987-88 ² which permits arrest for ordinance violations, contravened the fourth amendment of the United States Constitution ³ and art. I, sec. 11, of the Wisconsin Constitution. ⁴ The court of appeals reversed these determinations. We affirm the court of appeals.

There are four issues on this review. First, is Milwaukee City Ordinance 106-31(1)(a), unconstitutionally vague? We conclude it is not. Second, is Milwaukee City Ordinance 106-31(1)(a), unconstitutionally overbroad? We hold it is not. Third, do Milwaukee City Ordinance 106-31(1)(a), and sec. 800.02(6), Stats., violate the fourth amendment? We conclude they do not. Fourth, has the City of Milwaukee (City) exceeded its municipal power by enacting an ordinance which allows for arrest on reasonable suspicion? We conclude that the ordinance only allows arrest where there is probable cause to believe the ordinance has been violated and therefore, the City has not exceeded its power.

This ordinance allows a very modest and relatively unobtrusive inquiry by police officers of those whose loitering or prowling under circumstances described in the ordinance arouses suspicion of potential criminal activity. Several courts have wisely upheld this very type of ordinance. We join them.

On March 4, 1985, Stefan Nelson (Nelson) was arrested by two Milwaukee police officers for violating Milwaukee City Ordinance 106-31(1)(a), which prohibits loitering and prowling. At approximately 7:30 p.m., the two officers observed Mr. Nelson on a street corner in front of a tavern called the Cobra Club. The area was allegedly a high crime area with reported drug trafficking, loitering, and public drinking. "No loitering" signs were posted at each of the four corners of the intersection near where the arrest occurred.

From about a block and a half away, the officers, using binoculars, observed Nelson and another person shaking hands with pedestrians and automobile passengers. The handshake was described as a clasping of the fingers together, twisting them back and forth and then reclasping them. The handshakes were characterized as "friendly." Nelson would approach the automobiles and lean toward the passenger door, resting his hands just inside the window. At no time did the officers observe an exchange of money or other items. They did not know Nelson and they had no information that he was a suspect or was wanted in connection with any crime. After about fifteen minutes, the officers approached Nelson and his companion in their squad car and Nelson and his companion hurriedly entered the tavern.

The officers circled the block and returned to their initial observation point. Shortly thereafter, Nelson and the other person emerged from the tavern and resumed shaking hands with pedestrians and automobile passengers. The officers waited another five to ten minutes and then reapproached Nelson in their squad car. Nelson quickly reentered the tavern. This time, however, the officers followed him inside and asked him what he was doing outside the tavern to which he replied "nothing." Nelson was then arrested for loitering in violation of Milwaukee City Ordinance 106-31(1)(a).

Nelson was "patted down" but no weapon was found. ⁵ He was placed in a police van which took him to the police station. Shortly after Nelson had left the van, it was searched and a twenty-five caliber handgun was discovered. Nelson admitted the gun was his, that he had concealed it in his pants, and that he had placed it in the van. He also stated he had stolen the handgun. Nelson was subsequently charged with violating sec. 941.23, Stats. (carrying a concealed weapon), and secs. 943.20(1)(a) and (3)(a), (theft).

In a separate action Nelson pled guilty in municipal court to violating the loitering ordinance. On the criminal charges, however, Nelson's counsel filed various pretrial motions including a motion to suppress evidence obtained from an illegal arrest and a motion to dismiss the complaint.

A suppression hearing was held which included testimony by the arresting police officers. At the end of the hearing, Nelson's counsel orally requested a declaratory judgment pursuant to sec. 806.04, Stats., to declare the Milwaukee Loitering Ordinance unconstitutional. Counsel for Nelson also challenged the constitutionality of an arrest for an ordinance violation and the extension of the municipality's police power in allowing such an arrest.

A written motion for declaratory judgment as to the constitutionality of the loitering ordinance and sec. 800.02(6), Stats., was filed with the circuit court. This motion was served on the district attorney, the city attorney, and the attorney general.

Although not a party in the criminal proceeding, the City appeared and filed a brief arguing that it could not be made a party to a declaratory judgment action arising from a state criminal action. The City also contended the ordinance was constitutional.

After taking briefs on the various issues, the circuit court rendered an oral decision on the matter on November 18, 1986, and a written decision on November 21, 1986. It ruled that the ordinance, alone and in combination with sec. 800.02(6), Stats., violated the fourth amendment of the United States Constitution and art. I, sec. 11 of the Wisconsin Constitution by allowing an arrest on less than criminal probable cause. The circuit court also held the ordinance was unconstitutionally vague and overbroad. In addition, the circuit court found no evidence of probable cause to believe that Nelson had violated the ordinance. ⁶ The evidence resulting from Nelson's arrest was suppressed as fruit of an illegal arrest. The declaratory judgment was ruled appropriate in the case and the City was enjoined from enforcing the ordinance.

The City intervened in the action and appealed the circuit court's ruling on the constitutionality of the ordinance. ⁷

In an unpublished opinion, the court of appeals reversed the judgment of the circuit court. It held that Nelson's conduct fell within the "hard core" proscriptions ⁸ of the ordinance and therefore he could not complain that its provisions were unconstitutionally vague. The court of appeals also concluded the ordinance was not unconstitutionally overbroad. In addition, no fourth amendment violation was found. Nelson petitioned this court for review and the court accepted his petition.

The Milwaukee Loitering Ordinance 106-31(1)(a), is patterned after sec. 250.6 of the Model Penal Code (Official draft, 1962) which was drafted by the highly respected American Law Institute. Extraordinary care and effort was put into the drafting of the Model Penal Code and sec. 250.6. The American Law Institute (ALI) was established in 1923. The Model Penal Code drafted by the ALI, had its beginning in 1950.

In the succeeding ten years there were numerous meetings of Advisors, usually lasting for three days, at which basic issues of policy were debated and resolved, studies and drafts prepared by the Reporters or Consultants were considered and revised, criticisms of the tentative drafts examined and reviewed, and the entire work subjected to a final critical revision. The product of the Reporters and Advisors was in turn considered by the Council in some thirty-one Council Drafts examined and debated in the years from 1953 to 1962. After consideration and revision or approval by the Council, the material with supporting commentary was put before successive meetings of the Institute in Tentative Drafts numbered 1 to 13....

Wechsler, "The Model Penal Code and the Codification of American Criminal Law" in Crime, Criminology and Public Policy 419, 421 (R. Hood ed. 1976).

The ALI's effort was widely accepted. It is said that "nearly forty states have recodified their criminal laws, using the Code as the lodestar." Singer, Foreward, Symposium: The 25th Anniversary of the Model Penal Code, 19 Rutgers L.J. 519 (1988).

More specifically, sec. 250.6 of the Model Penal Code underwent thorough analysis before it was approved in its final form by the ALI. In its comments to sec. 250.6, the ALI discusses the constitutional implications of loitering statutes from the United States Supreme Court opinion in Papachristou, et al. v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972) to numerous state court decisions concluding that, "[i]f even the Model Code provision is unconstitutionally vague ... then it seems likely that no general provision against loitering can be drafted to survive constitutional review.... [T]here would be no provision to deal with the person who is obviously up to no good but whose precise intention cannot be ascertained." A.L.I. Model Penal Code sec. 250.6, Commentary (hereinafter MPCc) at 396-97. State v. Ecker, 311 So.2d 104, 107 (Fla.1975) noted that the Model Penal Code sec. 250.6...