State v. Anderson, No. 86-2306-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM; NETTESHEIM
• Citation: 417 N.W.2d 411,142 Wis.2d 162
• Decision Date: 04 November 1987
• Docket Number: No. 86-2306-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David Paul ANDERSON, Defendant-Appellant.

Page 411

417 N.W.2d 411 142 Wis.2d 162 STATE of Wisconsin, Plaintiff-Respondent,
v.
David Paul ANDERSON, Defendant-Appellant. No. 86-2306-CR. Court of Appeals of Wisconsin. Argued Aug. 12, 1987.
Opinion released Nov. 4, 1987.
Opinion filed Nov. 4, 1987.

Page 412

[142 Wis.2d 163] Patricia Flood, Asst. State Public Defender, Madison, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and [142 Wis.2d 164] Christopher G. Wren, Asst. Atty. Gen. (argued), Madison, for plaintiff-respondent.

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

NETTESHEIM, Judge.

David P. Anderson appeals his convictions for one count of carrying a concealed weapon contrary to sec. 941.23, Stats., and one count of possession of a firearm by a felon contrary to sec. 941.29(1) and (2), Stats. Anderson contends that the stop, seizure and search of his vehicle and person were unconstitutional. The trial court held that the search and seizure was valid under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and sec. 968.24, Stats., the "temporary detention statute." Upon appeal, the state does not defend the trial court's ruling under sec. 968.24. Instead, the state contends that the search and seizure of Anderson's vehicle and person were valid under the police "community caretaker" function. We agree that this case does not present a sec. 968.24 "temporary detention" situation. Therefore we reverse the trial court's judgment. Because factual issues remain to be resolved under the "community caretaker" function, we remand for further proceedings.

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 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.

[142 Wis.2d 165] Upon seeing 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 .22 caliber loaded 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 brought a motion to suppress all the evidence discovered in the search of his vehicle. The trial court denied the motion, concluding that the stop [142 Wis.2d 166] of Anderson's vehicle was permitted under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 and sec. 968.24, Stats. Anderson then entered Alford pleas to the charges. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970). Anderson now appeals the denial of the suppression motion, alleging that the stop, seizure and search of his vehicle and person violated the fourth amendment.

Page 413

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. ¹

Instead, the state relies upon the police "community caretaker" function to justify the officers' actions in this case. This concept was addressed by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), where a warrantless search of a vehicle was permitted because the police were engaged in "what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Id. at 441, 93 S.Ct. at 2528.

[142 Wis.2d 167] This concept was approved by the Wisconsin Supreme...