State v. Anderson

• Decision Date: 22 March 1989
• Docket Number: No. 88-0692-CR,88-0692-CR
• Citation: 149 Wis.2d 663,439 N.W.2d 840
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. David Paul ANDERSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 840

439 N.W.2d 840

149 Wis.2d 663

STATE of Wisconsin, Plaintiff-Respondent, ^d v. David Paul ANDERSON, Defendant-Appellant.

No. 88-0692-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 21, 1989.

Opinion Released March 22, 1989.

Opinion Filed March 22, 1989.

[149 Wis.2d 668] Patricia Flood, Asst. State Public Defender, on the briefs, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Christopher G. Wren, Asst. Atty. Gen., on the brief, for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

In State v. Anderson, 142 Wis.2d 162, 417 N.W.2d 411 (Ct.App.1987) (Anderson I ), this court reversed a judgment of conviction entered against David Anderson and remanded for further proceedings: (1) to determine whether the police authorities were performing a bona fide community caretaker function when they stopped Anderson's vehicle in the city of Elkhorn on May 28, 1985; and (2) if so, to apply the balancing test we set out in Anderson I. ¹ We further directed that if the trial court, after following the directive of our remand, again denied the motion to suppress, the judgment of conviction was to be reinstated. ²

Upon remand, the successor judge, the Honorable Robert D. Read, concluded that the seizure of Anderson's vehicle was invalid under the community caretaker function. However, Judge Read did not expressly determine whether the police action was a bona fide discharge of the community caretaker function; nor did Judge Read apply the balancing test. Instead, the judge determined that the police seizure of Anderson's vehicle was valid under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Baudhuin, 141 Wis.2d 642, 416 N.W.2d 60 (1987). Baudhuin was released after our decision in Anderson I. The Terry aspect of Judge Read's ruling essentially reconfirmed the reasoning underlying the initial trial court order denying Anderson's motion to suppress and which inspired the first appeal. Anderson again appeals, arguing that Judge Read failed to follow the dictates of remand in Anderson I.

By order dated November 23, 1988, we concluded that Judge Read had failed to comply with our remand directions. Therefore, without ruling on Anderson's appeal, we again remanded this matter to the circuit court for application of the community caretaker analysis set forth in Anderson I. We retained jurisdiction of this appeal pending further proceedings in the circuit court in compliance with this latest remand.

The proceedings required by our remands have now taken place before the third judge assigned to this case, the Honorable Robert J. Kennedy, whose findings and conclusions have been filed with this court. Judge Kennedy ruled that the police authorities were not performing a bona fide community caretaker function when they stopped Anderson's vehicle. Judge Kennedy also concluded, after applying the community caretaker balancing test, that the seizure of Anderson's vehicle was illegal.

The essential and controlling facts in this case remain those set forth in Anderson I. 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 two o'clock in the morning when they noticed Anderson's vehicle approaching their squad car. Officer Bushey had previously received complaints that Anderson's vehicle was parked in private business stalls in the area. Although Officer Bushey had run a license plate check on Anderson's vehicle a week or two earlier, he had made no previous attempt to contact Anderson about the parking problem.

Upon approaching the squad car containing the two officers, Anderson turned south into an adjoining alley, attaining a speed of approximately ten to fifteen miles per hour. He then turned onto the city streets, attaining a speed of approximately thirty miles per hour. The officers followed and activated their red and blue flashing lights. Anderson stopped immediately. After the stop, the officers turned the squad's spotlights on Anderson's vehicle.

According to Officer Bushey's testimony, Anderson was stopped because he had driven his vehicle away from the officers in the alley and because the officers wished to speak to him about the parking matter.

After the vehicle was stopped, the officers saw Anderson's arms "feverishly moving as to try to hide something underneath the seat or pull something out from underneath the seat." The officers approached the car, Officer Bushey on the driver's side and Officer Nicoud on the passenger's side. As the officers approached, Anderson's arms were still moving underneath the seat. Officer Nicoud then saw a leather object sticking out from underneath the seat. Officer Bushey ordered Anderson to place his hands on the steering wheel and then ordered Anderson out of the car and handcuffed him. Meanwhile, Officer Nicoud searched the vehicle and found an empty holster (the leather object), a loaded .22 caliber revolver, a Gerber survival knife and two steak knives. A pat-down search of Anderson revealed two multi-functional knives, a pair of handcuffs and a box of .22 caliber shells.

ANDERSON I

and "LAW OF THE CASE"

On this appeal, the state defends Judge Read's order denying suppression of the evidence on grounds beyond those addressed in Anderson I. Anderson responds that "law of the case" principles preclude any broadening of the issues on this appeal beyond the community caretaker issues contemplated by our remand in Anderson I.

We begin by recalling what was not before us in Anderson I.

It is acknowledged that the police officers did not have probable cause to stop, seize or search Anderson's vehicle. The state also concedes upon appeal that there was no reasonable basis for the officers to conclude that Anderson was committing, was about to commit or had committed a crime, thereby allowing a temporary stop under sec. 968.24, Stats.

Instead, the state relies upon the police "community caretaker" function to justify the officers' actions in this case.

Anderson I, 142 Wis.2d at 166, 417 N.W.2d at 413 (footnote omitted). In light of this The state defends Judge Read's reinstatement of Anderson's judgment of conviction on the grounds that the officers' actions were proper under State v. Baudhuin, 141 Wis.2d 642, 416 N.W.2d 60 (1987), and State v. Jackson, 147 Wis.2d 824, 434 N.W.2d 386 (1989). The "law of the case" principle holds that "a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal." Univest Corp. v. General Split Corp., 148 Wis.2d 29, 38, 435 N.W.2d 234, 238 (1989).

                narrowing of the issues in Anderson I, we addressed the community caretaker implications of the case and fashioned the balancing test when a community caretaker function is asserted as justification for a seizure. 3  As noted, we remanded for application of this test
                

However, the "law of the case" doctrine is not a principle to which this court is bound by any legislative enactment, nor is it a rule to be inexorably followed in every case. Id. at 38-39, 435 N.W.2d at 238. One well-recognized exception to its application is when intervening case law has served to change the state of the law. See State v. Brady, 130 Wis.2d 443, 448, 388 N.W.2d 151, 154 (1986). Since the state's argument is that Baudhuin and Jackson represent post-Anderson I cases supporting Judge Read's ruling, we choose in our discretion not to apply "law of the case" principles to this appeal. We therefore address the state's Baudhuin and Jackson arguments.

STATE v. BAUDHUIN

and STATE v. JACKSON

Baudhuin stands for the proposition that the Fourth Amendment to the United States Constitution and art. I, sec. 11 of the Wisconsin Constitution do not prohibit the police from seizing, without a warrant, an automobile and its occupants when there is a factual basis upon which to stop the driver for a traffic violation, even though the police officer intends only to render assistance to the driver and not to issue a traffic citation. Baudhuin, 141 Wis.2d at 643-44, 652, 416 N.W.2d at 60, 64. Implicit in the authority to arrest for a traffic violation is the authority to stop the vehicle where the officer has reasonable grounds to believe the violation has occurred. Id. at 648, 416 N.W.2d at 62. The legality of such a stop is a question of law. Id.; see also Village of Elkhart Lake v. Borzyskowski, 123 Wis.2d 185, 189, 366 N.W.2d 506, 508 (Ct.App.1985).

Officer Bushey testified that, in his opinion, Anderson reached speeds of up to ten to fifteen miles per hour in an alleyway and twenty-five to thirty miles per hour in the city streets. Officer Bushey, however, acknowledged that he did not "clock" Anderson's vehicle in any conventional manner by use of radar or the police vehicle speedometer. The officer conceded that he did not have sufficient facts to warrant the issuance of a traffic citation or to conclude that Anderson was violating the law. Beyond the officer's suspicion that Anderson may have been speeding, the record is devoid of any suggestion of any traffic violation. Officer Bushey had no articulable facts to believe that Anderson was violating a traffic law under a reasonable grounds standard. See Baudhuin, 141 Wis.2d at 650, 416 N.W.2d at 63. Baudhuin does not support the state's argument that probable or reasonable cause existed to stop Anderson's vehicle.

The state also seeks to justify the seizure of Anderson's vehicle under State v. Jackson, 147 Wis.2d 824, 434 N.W.2d 386 (1989). Jackson is a "flight" case in which the supreme court concluded that, in appropriate circumstances, flight from a police officer can justify a warrantless investigative stop. Id. at 833, 434 N.W.2d at 390. This presents a Terry inquiry: whether the totality of the circumstances creates a reasonable suspicion that a...