Jones v. State

• Decision Date: 30 September 1975
• Docket Number: No. S,S
• Citation: 233 N.W.2d 441,70 Wis.2d 62
• Parties: Hollis JONES, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 229.
• Court: Wisconsin Supreme Court

Page 441

233 N.W.2d 441

70 Wis.2d 62

Hollis JONES, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 229.

Supreme Court of Wisconsin.

Sept. 30, 1975.

This appeal and review involves the conviction, upon a plea of guilty, of the plaintiff in error, Hollis Jones (hereinafter defendant), on a count of armed robbery, contrary to Sec. 943.32(1)(b), (2) and Sec. 939.05, Stats., and one count of robbery, contrary to sec. 943.32. The defendant was sentenced to consecutive terms of thirty years and nine years. A written order denying the defendant's motion for reconsideration of both sentences was entered on August 30, 1974.

The appeal is from the judgment of conviction on the armed robbery charge and the writ of error was issued to review the order denying defendant's motion for reconsideration of sentences.

The incident resulting in this conviction occurred on August 3, 1972. At 2:20 A.M. Johnny Whittley reported to police that he had been robbed less than an hour ago at the premises located at 1630 North 24th Street, City of Milwaukee, by a lone redshirted black male armed with a pistol. Money and jewelry had been taken.

City of Milwaukee Police Officers Patrick Leffler and Jerry Wiesmueller made an investigation of the complaint at 1630 North 24th Street. Present during the interview was the complainant's girlfriend, Vernell McCants. She stated that she had seen a person matching Whittley's description of the robber in the company of her brother, Hollis Jones. They had stopped briefly at the Club Detroit, a tavern owned by Whittley where she had been working, within an hour prior to the robbery. She had also seen them together a few days before.

In the course of the officers' investigation, they stopped at a residence at 1949 West Finn Place. The occupant, Leslie Cox, was known by them to be an acquaintance of the defendant. Although she did not know Jones' whereabouts, she expected him soon. This was at 4:00 A.M. At that time, she received a phone call from the defendant. The brief conversation revealed no more than that Jones wanted to see her.

The officers then parked their squad car in an alley across from the Cox residence. Shortly thereafter, they observed an automobile approaching. Alert to the possibility that Jones and the robbery suspect might be occupants, the officers kept the vehicle under surveillance. As it slowed near the residence, both officers observed the defendant in the right front seat. Officer Leffler also saw that the rear seat passenger was a black male wearing a red upper garment.

The officers then pursued and stopped the vehicle. No attempt had been made to elude them, nor had any traffic violations been observed. Wiesmueller, with gun drawn, ordered Jones to leave the vehicle. He also recognized that the rear seat passenger met Whittley's description of the robber. After patting down Jones for weapons, Wiesmueller then ordered the suspect to exit the vehicle. While the latter was complying, the officer directed his flashlight into the interior. A sawed-off shotgun was revealed on the floor. The suspect was later identified as Jimmy Dell Walker. After being advised of his rights, Walker confessed to the robbery.

Both Jones and Walker were taken to the Detective Bureau. The officers then searched the vehicle. Cartridges and a revolver were found under the seat occupied by Jones. A brown paper bag containing a watch and packets suspected of being marijuana was found on the rear seat. The watch and a ring worn by Walker were identified by Whittley as having been taken in the robbery.

During questioning at 6:20 A.M., Jones was advised of his arrest for the Whittley robbery. At that time, he made an oral statement regarding the crime. Another oral statement was given during the early afternoon of the next day. The latter statement was suppressed by the trial court as obtained under circumstances violating the defendant's right to counsel. Motions to suppress the earlier statement and physical evidence were denied by orders of January 18, 1973 and March 12, 1973.

Dennis W. Egre, Milwaukee, for plaintiff-in-error.

Bronson C. LaFollette, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for defendant-in-error.

HANLEY, Justice.

Four issues are presented for review:

1. Was the stopping of the Bacon vehicle and the accompanying 'frisks' of the occupants an act of officials' illegality, the fruits of which must be suppressed?

2. Was the arrest of defendant illegal as without probable cause, such that fruits of the arrest must be suppressed?

3. Was the search of the vehicle legal?

4. Should the trial court be required to review the sentence imposed?

Legality of Forced Stop of Vehicle

The defendant contends that the police officers needed 'probable cause to arrest' before they could stop the vehicle he was occupying. He also admits the possible application of a lessor standard of 'reasonable cause', Adams v. Williams (1972), 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612, although disputing that the officers involved had information sufficient to satisfy either standard. It is settled law that, in certain circumstances, a police officer may '. . . in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. . . . ' Terry v. Ohio (1968), 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889.

Such approaches may involve forcible stops that amount to 'seizures' under the Fourth Amendment. Id. at 19, 88 S.Ct. 1868.

Terry, of course, addressed itself mainly to the weapons 'frisk' that might accompany an investigative stop. While the constitutional propriety of the investigative seizure was not answered by Terry, Id., at 19 and n. 16, 88 S.Ct. 1868, the decision does supply implicit recognition of the 'legitimate investigative function.' Moreover, the decision in Adams v. Williams, supra, recognized that a police officer has alternatives to the traditional arrest: a brief stop to obtain information may be most reasonable, even if probable cause to arrest is lacking. Id., 407 U.S. at 145, 146, 92 S.Ct. 1921.

Citing Terry, the court proposed that the Fourth Amendment

'. . . does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. . . . (I)t may be the essence of good police work to adopt an intermediate response.' Adams, supra, p. 145, 92 S.Ct. p. 1923.

In Adams, an officer was advised by an individual known to him that a person seated in a nearby vehicle possessed narcotics and carried a gun at the waist. When the seated individual rolled down a window in response to the officer's request to open the door, the policeman reached in and removed the hidden revolver. The arrest for unlawful weapon possession and its incidental full search were not found to be acts of official illegality.

Adams also indicated that the Terry doctrine was flexible in other ways. The court noted that the 'reasonable cause' for a stop need not be based on the officer's personal observations. Reports from informants, although not meeting the Spinelli-Aquilar tests for sufficient reliability, may still justify a forcible stop. Adams, supra, at 147, 92 S.Ct. 1921. Thus, the 'reasonable cause' standard is a viable doctrine capable of various applications.

The 'reasonable cause' doctrine has been followed in Wisconsin also. The Adams ruling was adopted in State v. Chambers (1972), 55 Wis.2d 289, 198 N.W.2d 377. The nature of the 'intermediate response' allowed was more fully discussed in State v. Beaty (1973), 57 Wis.2d 531, 536--540, 205 N.W.2d 11. After noting that an arrest involves the detaining of a person by word or action, with the intent to take him into custody and the person's corresponding understanding that he is in custody, this court distinguished the arrest from an investigative stop:

'An arrest, . . . is 'inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows.' Obviously, stopping a suspect to question him--and to frisk him for weapons--does not involve such certainty of continued or future restraint. It may, but not necessarily so.' (emphasis in original) Id. at 537, 205 N.W.2d at 15, quoting Terry, supra, 392 U.S. at 26, 88 S.Ct. 1868.

The defendant disputes that Terry may be extended to situations where an automobile must be stopped to initiate the investigation. His contention is that the presence of the automobile alters the balance and makes 'reasonable cause' a too minimal standard to protect the great and more numerous constitutional rights infringed upon by the stops. This contention is expressly refuted by Terry: one cannot seek to isolate from constitutional scrutiny the contacts involved by suggesting a rigid all-or-nothing model of justification and regulation. Id. at 17, 88 S.Ct. 1868. The automobile's presence is not a controlling distinction that dictates a standard different from temporary seizures of pedestrians. Its effect may be felt in measuring whether the acts of the officers were reasonable.

This court has had occasion to follow Terry and Adams in automobile situations. In State v. Williamson (1973), 58 Wis.2d 514, 206 N.W.2d 613, the court believed an investigatory stop was justified after the defendant drove a circuitous route, pulled to the curb and pretended to stop in the presence of a squad car. Noting that the engine was still running and that the driver did not exit after opening the door, the squal returned to the area. The driver again pretended to stop. Unsatisfactory and evasive answers provoked a frisk that uncovered bullets. Thereupon, a full search of the vehicle produced a revolver. The orderly mounting of justification to arrest began with the valid suspicion-based stop.

A temporary...