State v. Avila
| Citation | 202 Wis.2d 648,551 N.W.2d 62 |
| Decision Date | 16 May 1996 |
| Docket Number | No. 95-0396-CR,95-0396-CR |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Pedro P. AVILA, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
Before GARTZKE, P.J., SUNDBY and VERGERONT, JJ.
Pedro Avila appeals from a judgment convicting him on one count of burglary, § 943.10(1)(a), STATS., and from an order denying his postconviction motion. 1
The issues are: (1) whether the officers conducted a proper investigatory stop of the van that Avila drove on October 8, 1993; (2) whether the officers had probable cause to arrest him; (3) whether the jury could reasonably infer from the evidence that Avila intended to steal in the building he entered; (4) whether the admission of "other acts" evidence was error; (5) whether Avila was denied a fair trial because he appeared before the jury in handcuffs; (6) whether the trial court properly found that a witness was unavailable; and (7) whether Avila's sentence is excessive. We decide each issue adversely to Avila and affirm.
Avila moved the trial court to suppress evidence the police acquired after their investigative stop of the van he was driving. He contends the officers had no basis for conducting an investigative stop. At the conclusion of the evidentiary hearing, the court denied his motion. The court ruled the police had "probable cause to stop the vehicle." It based its ruling on all of the evidence in the record and the reports the police had received from the police in another county.
The absence of specific factual findings does not prevent our review. When a trial court fails to make specific findings to support its ruling on a suppression motion, we may assume that the court made the necessary findings. State v. Wilks, 117 Wis.2d 495, 503, 345 N.W.2d 498, 501 (Ct.App.1984), aff'd, 121 Wis.2d 93, 358 N.W.2d 273 (1984). When a finding is not made on an issue, we will assume it was determined in favor of or in support of the decision. Sohns v. Jensen, 11 Wis.2d 449, 453, 105 N.W.2d 818, 820 (1960). We review the trial court's findings of historical fact under the clearly erroneous standard. However, we review de novo constitutional facts, such as the reasonableness of a search and seizure. State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827, 832 (1987). Our review extends beyond the evidentiary hearing itself. We "may take into account the evidence at the trial, as well as the evidence at the suppression hearing." State v. Griffin, 126 Wis.2d 183, 198, 376 N.W.2d 62, 69 (Ct.App.1985).
An investigative stop of a motor vehicle is a seizure within the meaning of the Fourth Amendment to the United States Constitution. State v. Guzy, 139 Wis.2d 663, 672, 407 N.W.2d 548, 552-53 (1987). A law enforcement officer may make an investigative stop prompted by an officer's suspicion that the occupants have committed a crime, even though the officer lacks probable cause to arrest. Id. at 675, 407 N.W.2d at 554. The officer must, however, "have a suspicion grounded in specific, articulable facts and reasonable inferences from those facts, that the individual has committed a crime." An unparticularized suspicion or hunch is insufficient. Id. The reasonableness of an investigative stop depends upon the facts and circumstances present at the time of the stop. Id. at 679, 407 N.W.2d at 555.
We conclude that the officers' suspicion that the occupants of the van had been involved in criminal activity was based on specific and articulable facts and on reasonable inferences from those facts that they had committed a crime. The stop was reasonable.
The essential facts developed at the evidentiary hearing and at the trial are undisputed. At about 8:00 p.m. on October 7, 1993, detectives from the Rock County sheriff's department began surveillance in Milwaukee of a dark brown cargo van with dual wheels. The van was parked in front of Avila's residence, and the officers were informed by the Milwaukee police department that they had had several contacts with Avila while he drove it. However, nothing in the record shows that the officers knew Avila was or would drive it on October 7.
The van was under surveillance because it was a "suspect vehicle" in a burglary in the Rock County area which had occurred in September. On the night of that burglary, the van bore a license plate bearing the same number as the van the officers surveilled on October 7. A vehicle matching the description of the van was also a suspect vehicle in a couple of other area burglaries. The license plate number belonged to a Meguel Rivera residing at 771 Greenfield in Milwaukee but the officers had learned there was no such address.
The van remained parked at Avila's residence until about 10:15 p.m., and then was driven to Old Ashippun in Dodge County where it parked near the entry drive to the Lorenz Company for about forty to forty-five minutes. While the van was parked, its lights were off, there was no movement, and its hood was down. The area was primarily rural and unlighted, but part of an industrial park and a large shed were nearby. At about 11:40 p.m. the van left, and shortly after it entered Waukesha County, a Town of Oconomowoc officer stopped it at the request of Dodge County or Rock County officers.
The facts known to the officers added up to grounds for a reasonable suspicion that the occupants of the van had been engaged in criminal activity. The van itself had been suspected of being involved in two or more previous burglaries in Rock County. Its license plate registration was to a non-existent address. It parked in a rural area containing an industrial park late at night for no apparent reason, such as a mechanical breakdown. It was reasonable for the police to suspect criminal activity because the van had traveled from Milwaukee to an industrial park area late at night and remained parked at a dark spot near a shed for forty-five minutes. Other explanations are possible--that the occupants were lovers or fatigued--but the police could reasonably infer criminal reasons accounted for its movements.
Avila contends that his arrest occurred immediately after the Oconomowoc officer stopped it. That is not what the evidence shows. The occupants in the van were Avila, Mercado and Ramirez. The undisputed testimony is that the arrest occurred well after the stop--after all three were ordered out of the van, after they were taken to separate squad cars, after detective Schieve had interviewed Mercado and obtained information inculpating Avila, and after Schieve gave that information to detective Beier.
It is immaterial that Avila and the other occupants were ordered out of the van at gunpoint and handcuffed. An investigative stop does not become an arrest merely because the police draw their weapons. State v. Washington, 120 Wis.2d 654, 662, 358 N.W.2d 304, 308 (Ct.App.1984), aff'd, 134 Wis.2d 108, 396 N.W.2d 156 (1986). Nor does handcuffing convert a stop into an arrest. United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1983), cert. denied, 459 U.S. 1211 (1982). State v. Swanson, 164 Wis.2d 437, 448, 475 N.W.2d 148, 153 (1991).
Probable cause is that amount of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime. State v. Nordness, 128 Wis.2d 15, 35, 381 N.W.2d 300, 308 (1986). The evidence need only be sufficient to lead a reasonable police officer to believe that guilt is more than a possibility. State v. Paszek, 50 Wis.2d 619, 625, 184 N.W.2d 836, 840 (1971). When the facts are undisputed, an appellate court independently reviews the trial court's conclusion that probable cause existed. Wilks, 117 Wis.2d at 501, 345 N.W.2d at 500.
The evidence supports the trial court's conclusion that the officers had probable cause to arrest Avila. All of the facts surrounding the investigatory stop are pertinent to the issue. In addition to those facts, Mercado implicated Avila in a burglary. Mercado told detective Schieve that when the van stopped in Old Ashippun, Avila motioned toward a building and said to Mercado, "Let's go over and check that building out." Mercado stayed behind while Avila and Ramirez went to the building. When Schieve asked Mercado if he knew what Avila and Ramirez were going to do, Mercado responded that they were going to break into the building. Schieve relayed that information to detective Beier, who then arrested Avila.
Avila challenges rulings which he asserts erroneously permitted the jury to hear "other acts" evidence: the reason for surveilling the van, Avila's suspected involvement in other burglaries, a witness's reference to "knowing [Avila's] past criminal activities," a witness's statement that he had testified "on this case in Sheboygan County," Avila's driver's license which falsely identified him as another person, and another occupant in the van having provided the police with a false driver's license.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the a person in order to show that the person had acted in conformity with that character, but that rule does not exclude evidence offered for other purposes, such as proof of motive, opportunity, intent and the like. Section 904.04(2), STATS. When other acts evidence is offered, the trial court must first determine whether it is relevant to an issue, and if it is, whether it is admissible under § 904.04(2), and if it is, then whether its probative value is substantially outweighed by the danger of unfair prejudice. State v. Alsteen, 108 Wis.2d 723, 729, 234 N.W.2d 426, 429, 324 N.W.2d 426 (1982).
The reason for surveillance of the van--that it was suspected of having been used in several...
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