State v. Anderson

Citation454 N.W.2d 763,155 Wis.2d 77
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. David Paul ANDERSON, Defendant-Appellant. 88-0692-CR.
Decision Date09 May 1990
CourtUnited States State Supreme Court of Wisconsin

Christopher G. Wren, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on the briefs, for plaintiff-respondent-petitioner.

Patricia Flood, Asst. State Public Defender, for defendant-appellant.

BABLITCH, Justice.

The issue presented is whether an individual's flight upon seeing the police is suspicious behavior sufficient in and of itself to justify a temporary investigative stop by the police. The State of Wisconsin (State) seeks review, arguing that flight from the police is sufficient to justify a stop. Because we conclude that flight from the police is a strong indication of "mens rea," i.e. a guilty mind or a guilty purpose, we conclude that behavior which evinces in the mind of a reasonable police officer an intent to flee from the police is suspicious behavior sufficient to justify a temporary investigative stop. Accordingly, we reverse the decision of the court of appeals.

The essential facts are as follows: Officers Thomas Bushey and Charles Nicoud of the City of Elkhorn Police Department were patrolling an alley in the city of Elkhorn on May 28, 1985, at approximately 2:00 a.m. when David Paul Anderson's (Anderson) Chevette approached their squad car. Officer Bushey had previously received complaints that Anderson's vehicle was parking in private business stalls in the community. Although Officer Bushey ran a license plate check on Anderson's vehicle a week or two earlier, the officer made no prior attempts to contact Anderson concerning the problem.

Upon recognizing the vehicle as the one about which complaints were received, Officer Bushey decided it was an opportune time to "talk to the [person] who was driving the car ... to advise him about the complaints that his car had been parked in private stalls." Officer Bushey pulled the squad car over to allow the vehicle to park behind a restaurant which abutted the alley. Officer Bushey knew that the person who normally drove the car lived in an apartment above the restaurant, and he had previously seen this car parked at that location.

However, when Anderson sighted the squad car containing the two officers, he turned south into an adjoining alley, attaining a speed of approximately ten to fifteen miles per hour. He then turned onto city streets, attaining a speed of approximately thirty miles per hour. The officers followed and activated their flashing lights. According to Officer Bushey's testimony, Anderson was stopped because of "the parking situation and the suspicious behavior of his driving."

Anderson stopped his vehicle immediately upon the officers activating their flashing lights. After the vehicle was stopped, however, the officers noticed Anderson's arms "feverishly moving as to try to hide something underneath the seat or pull something out from underneath the seat." As the officers approached on each side of the vehicle, Anderson's arms were still moving as if trying to hide something. Officer Bushey ordered Anderson to place his hands on the steering wheel, then ordered Anderson out of the car and handcuffed him. Meanwhile, Officer Nicoud saw a leather object sticking out from beneath the seat. Officer Nicoud then searched the vehicle and found the leather object was an empty holster. He then discovered a loaded .22 caliber revolver, a double-edged survival knife, and two steak knives. A pat-down search of Anderson revealed a pair of handcuffs, two multi-functional knives, and a box of .22 caliber shells.

On May 31, 1985, a complaint was issued charging Anderson with one count of possession of a firearm by a felon, and one count of carrying a concealed weapon, contrary to secs. 941.29(1), (2), and 941.23, Stats. Anderson moved to dismiss the complaint and suppress all the evidence on the basis of an illegal stop. The trial court denied the motion, concluding that the stop of Anderson's vehicle was proper under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and sec. 968.24. Anderson then entered Alford pleas to the charges and appealed.

The court of appeals reversed the judgment of conviction, concluding the stop was improper under Terry or sec. 968.24, Stats. See State v. Anderson, 142 Wis.2d 162, 417 N.W.2d 411 (Ct.App.1987) (Anderson I ). However, the court of appeals remanded the case for further proceedings to determine whether the police were performing a bona fide community caretaker function when they stopped Anderson's vehicle. After numerous proceedings not relevant to the issue before us, the court of appeals issued a decision, State v. Anderson, 149 Wis.2d 663, 439 N.W.2d 840 (Ct.App.1989) (Anderson II ), which held that the stop was improper either under community caretaker analysis, Terry principles, or our intervening decision in State v. Baudhuin, 141 Wis.2d 642, 416 N.W.2d 60 (1987). We accepted review on June 6, 1989.

We reverse the decision of the court of appeals. We conclude that Anderson's conduct constituted flight from the police which, under Terry and sec. 968.24 Stats, was sufficient in and of itself to justify a temporary stop to further investigate.

I.

In State v. Jackson, 147 Wis.2d 824, 834, 434 N.W.2d 386 (1989), we concluded that flight from the police, under the facts presented along with all reasonable inferences which could be drawn from them, provided reasonable suspicion justifying a temporary investigative stop. The facts in Jackson involved an individual fleeing on foot at the approach of a squad car at 2:00 a.m. in the city of Racine. The officer left the squad car and ran after him. The person eventually evaded the officer after running through yards and jumping fences. The officer returned to his squad car where he was informed by another officer that the person who ran from him "had warrants" and that was the reason he fled. Approximately one-half hour later, the officer stopped a person whose clothing and physical description matched the person who fled. As a result of the stop, the officer observed evidence that later led to an arrest for armed robbery and burglary. Id. at 826-28, 434 N.W.2d 386.

Jackson sought to suppress the evidence on the grounds that the stop was improper. We declined to adopt the rule urged by Jackson that suspicion based on an individual's flight from police, without more, is unreasonable per se. We held that "flight from the police can, dependent on the totality of circumstances present, justify a warrantless investigative stop." Id. at 833, 434 N.W.2d 386. Because of the circumstances presented, i.e., the nature of the flight consisting of running through yards and jumping fences, as well as the officer's belief at the time of the stop that the man he chased had outstanding warrants against him, we did not need to reach, and did not reach, the issue of whether flight from the police in and of itself is suspicious behavior sufficient to justify a temporary investigative stop under Terry or sec. 968.24, Stats. This case presents that precise issue.

In State v. Chambers, 55 Wis.2d 289, 294, 198 N.W.2d 377 (1972), we adopted the position expressed in Terry that temporary stops are permissible when, at the time of the stop, an officer possesses "specific and articulable" facts which would warrant a reasonable belief that the action taken was appropriate. Our legislature also codified the constitutional standard established in Terry in sec. 968.24, Stats, quoted in full below. 1 We have recognized that sec. 968.24, is the "statutory expression" of the Terry rule, and in interpreting the scope of the statute, resort must be made to Terry and the cases following it. Jackson, 147 Wis.2d at 831, 434 N.W.2d 386.

We emphasized in Jackson that the fundamental focus of the fourth amendment, and sec. 968.24, Stats, is on reasonableness. The question of what constitutes reasonableness is a common sense test. What is reasonable under the circumstances? What would a reasonable police officer reasonably suspect in light of his or her training and experience? Id. at 834, 434 N.W.2d 386. What should a reasonable police officer do?

We also stressed that police officers are not required to rule out the possibility of innocent behavior before initiating a brief stop. In this regard, we pointed out that the suspects in Terry " 'might have been casing the store for a robbery, or they might have been window-shopping or impatiently waiting for a friend in the store.' " Jackson, 147 Wis.2d at 835, 434 N.W.2d 386 (quoting 3 W. LaFave, Search and Seizure, sec. 9.2(c), at 357-58). We noted that suspicious conduct by its very nature is ambiguous, and the principle function of the investigative stop is to quickly resolve that ambiguity. Therefore, if any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry. Jackson, 147 Wis.2d at 835, 434 N.W.2d 386.

Flight at the sight of police is undeniably suspicious behavior. Although many innocent explanations could be hypothesized as the reason for the flight, a reasonable police officer who is charged with enforcing the law as well as maintaining peace and order cannot ignore the inference that criminal activity may well be afoot. Although it does not rise to a level of probable cause, flight at the sight of a police officer certainly gives rise to a reasonable suspicion that all is not well. Under these circumstances, "[i]t would have been poor police work indeed for an officer ... to have failed to investigate this behavior further." Terry, 392 U.S. at 23, 88 S.Ct. at 1881.

There was ample objective evidence of flight in the present case. For example, when questioned about his purpose in following...

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