State v. Alexander

• Decision Date: 18 December 2007
• Docket Number: No. 2007AP403-CR.,2007AP403-CR.
• Citation: 744 N.W.2d 909,2008 WI App 9
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Clemente Lamont ALEXANDER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

744 N.W.2d 909

2008 WI App 9

STATE of Wisconsin, Plaintiff-Respondent, v. Clemente Lamont ALEXANDER, Defendant-Appellant.

No. 2007AP403-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs November 6, 2007.

Opinion Filed December 18, 2007.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael C. Demo of Wagner, Falconer & Judd, Ltd., of Brookfield.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general and Michael J. Loose, assistant attorney general.

Before CURLEY, F.J., WEDEMEYER and KESSLER, JJ.

¶ 1 WEDEMEYER, J

Clemente L. Alexander appeals from a judgment entered after he pled guilty to possession with intent to deliver cocaine and marijuana. He also appeals from an order denying his motion for reconsideration. He claims the trial court erroneously exercised its discretion when it denied his motion to suppress. Because the totality of the circumstances support the police officer's reasonable suspicion to conduct the pat-down and protective search, we affirm.

BACKGROUND

¶ 2 On February 9, 2000, at approximately 9:19 p.m., Alexander was riding in the front passenger seat of a car driven by a woman named Peggy Brown. A man named Bryan Winters was in the backseat. The car was driving on 27th Street toward Capitol Drive and passed by a marked police car. Milwaukee Police Officers Dean Newport and William Sheehan were parked in the police car, in the 4000 block of North 27th Street. They were assigned to that area due to recent "shots-fired" complaints. As they were watching the area, they noticed a silver Dodge Stratus drive past them and proceed to the stoplight at North 27th and West Capitol Drive. As the car approached the intersection, the stoplight turned red and the Stratus turned right through the red light without stopping. The officers proceeded to follow the Stratus with the intent to pull the vehicle over for the traffic violation. The officers activated the squad's emergency lights in the 2800 block of West Capitol. The Stratus did not immediately pull over and stop. The vehicle did eventually stop in the 3000 block of West Capitol.

¶ 3 During the time the squad followed the Stratus, Newport indicated that he noticed three people in the car, later identified as Brown, Alexander and Winters. Newport stated that he saw Alexander and Winters making furtive movements as though each was giving something, or receiving something from the other. Newport then saw Alexander turn back towards the front of the car and lean forward towards the glove compartment. Alexander also appeared to lean toward Brown, who lifted herself up as if to allow Alexander to place something under her, or in her seat. After the furtive movements stopped, the car pulled over. Based on the furtive movements, the delay in pulling over, the high-crime area, and the time of day, Newport believed, based on his prior experience, that such circumstances usually result in weapons in the car. The officers called for backup. The officers then proceeded to immediately have the occupants exit the vehicle and conducted a pat-down. They started with Winters, patted him down and did not find any weapons. Then they asked Alexander to exit and he initially refused. He then complied and a pat-down did not reveal any, weapons on Alexander. Then Brown was asked to exit and a pat-down was conducted. No weapon was found, but officers did observe a bottle of air freshener, some papers, and the auto manual on the driver seat—items typically kept in the glove compartment. The officers then searched the glove compartment of the vehicle and discovered a gun, and a large amount of cocaine and marijuana.

¶ 4 Alexander was charged based on his alleged possession of these items. The case was tried to a jury, which found Alexander guilty. Alexander filed a post-conviction motion, alleging ineffective assistance of trial counsel. The trial court denied the motion, but this court reversed for a Machner hearing.¹ State v. Alexander, No.2002AP2669-CR, unpublished slip op. (WI App Sept. 22, 2003). On remand, the trial court held the evidentiary hearing and then concluded that Alexander had received effective assistance of counsel. Alexander appealed, and we reversed the trial court's decision, ruling that Alexander's trial counsel was deficient and that Alexander was prejudiced. We remanded for a new trial. State v. Alexander, No.2004AP1064-CR, unpublished slip op., 2005 WL 914460 (WI App Apr. 19, 2005).

¶ 5 On remand, Alexander filed a motion seeking to suppress evidence, which was denied. He then pled guilty and was sentenced to a period of probation with a stayed sentence. He moved the trial court to reconsider its decision denying his suppression motion. The trial court declined. Alexander now appeals.

DISCUSSION

¶ 6 The issue in this case is whether the trial court erred in finding that reasonable suspicion existed for dangerousness to require the defendant to get out of the car, pat him down, handcuff him, and search the glove compartment. We are not convinced that the trial court erred based on the totality of the circumstances and the trial court's analysis of credibility.

¶ 7 "`Whether evidence should be suppressed is a question of constitutional fact.'" State v. Knapp, 2005 WI 127, ¶ 19, 285 Wis.2d 86, 700 N.W.2d 899 (citation omitted). "A finding of constitutional fact consists of the circuit court's findings of historical fact, and its application of these historical facts to constitutional principles. We review the former under the clearly erroneous standard, and the latter independently." State v. Johnson, 2007 WI 32, ¶ 13, 299 Wis.2d 675, 729 N.W.2d 182.

¶ 8 In Johnson, our supreme court recently addressed the issue of whether evidence should be suppressed following an investigative stop triggered by a traffic violation and furtive movements. Id., ¶ 12. The court reiterated the legal principles applicable to investigative stops:

During an investigative stop, an officer is authorized to conduct a search of the outer clothing of a person to determine whether the person is armed if the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 [88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ... The test is an objective one: "Whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger" because the person may be armed with a weapon and dangerous.

Johnson, 299 Wis.2d 675, ¶ 21, 729 N.W.2d 182 (brackets in Johnson). An officer's "hunch" is insufficient to satisfy the standard, but the officer may "draw from the facts in light of his [ ] experience." Id. These cases are fact-intensive and must be decided on a "`case-by-case basis, evaluating the totality of the circumstances.'" Id., ¶ 22 (citation omitted). Thus, the standard we look at is whether the officer conducting the protective search had reasonable suspicion to believe that the person was dangerous and may have had immediate access to a weapon. Id.

¶ 9 In Johnson, the court concluded that the facts were insufficient to satisfy that standard. Id., ¶ 48. In Johnson, the officers saw a vehicle fail to signal for a turn, the vehicle had been stopped three days earlier for a suspended registration due to an emissions violation. Id., ¶ 40. The officers activated the police vehicle's lights and sirens and pulled the car over. Id., ¶¶ 2-3. As they were doing so, the officers saw two persons inside the car and noticed that the driver leaned forward as if he was putting something under the seat. Id., ¶ 3. When the officers approached, they advised the driver that he was stopped for the emissions violation. Id., ¶ 4. Johnson responded that the emissions issue had been resolved and produced paperwork to support that representation. Id. The officer was satisfied by the paperwork. Id. The officer then asked Johnson to step out of the car and proceeded to pat-down Johnson. Id., ¶¶ 5-6. Based on this set of facts, the supreme court held that the circumstances did not demonstrate a reasonable suspicion of dangerousness. The court reasoned that the issue triggering the stop had been resolve& to the officer's satisfaction, and therefore the "generalized concern for safety" no longer existed. Id., ¶ 45 n. 17.

¶ 10 In the instant case, the facts are distinguishable from Johnson. Officer Newport testified about the high-crime area, stating that it was an area of violent crime, drug dealing, and active gangs. A number of homicides, attempted homicides, and shootings had occurred in this area, which Newport had five years of experience in patrolling. He had personally encountered armed criminals in the area, and was parked there on the evening of Alexander's stop due to "shots-fired" complaints, some of which were drive-by shootings.

¶ 11 In addition, Newport testified that when the squad car activated its emergency lights, signaling the vehicle Alexander was riding in, to pull over, the vehicle did not immediately do so. Rather, it pulled into the right lane and slowed down, but failed to stop for two blocks. Newport testified that cars normally pull over within one-half of a block when being stopped by the police. The delay in stopping raised suspicion for the officers that the occupants were trying to buy time to conceal weapons or contraband. During this time, the officers also observed furtive movements by the occupants. Two of the occupants were looking back at the squad car, and the officers observed Alexander and Winters move their bodies as if they were exchanging an item from the front to the back or vice versa. Then Alexander moved forward as if placing/retrieving items into/from the glove compartment. They also noticed that Alexander turned towards the driver, who then leaned toward the...