State v. Chambers
| Decision Date | 30 June 1972 |
| Docket Number | No. S,S |
| Citation | 198 N.W.2d 377,55 Wis.2d 289 |
| Parties | STATE of Wisconsin, Appellant, v. Keith C. CHAMBERS, Respondent. tate 176. |
| Court | Wisconsin Supreme Court |
The appeal is from a trial court ruling that the police officer's frisking or 'patting down' the defendant to determine if he had any weapons on his person when he walked into the apartment in which the police officers had, in a valid search of the premises, found illegal drugs.
On October 30, 1970, the Kenosha police were informed that marijuana had been sold and that a quantity of marijuana was stored in an apartment located at 1359 56th Street in the city of Kenosha. Detective Robert K. Chase and Investigator James Gleason were assigned to investigate.
The tenant in the apartment, Mary K. Lassen, gave permission to the police officers to search the apartment. The validity of the search by consent of the tenant is not challenged on this appeal, and was not challenged at the time of trial court proceedings. The police officers found a quantity of marijuana stored in the apartment.
At the time of the lawful consent-search of the Lassen apartment there were eight persons in the apartment with the two police officers. All were casually dressed, the males in T-shirts and jeans, the females in blouses and slacks. The testimony was that the clothing was such that it would be hard to conceal any weapons on the persons of the eight in the apartment. One of the eight acted in an unusual manner, walking from room to room, going into the bathroom, locking the door, coming out, and repeating the process. The police checked the bathroom for weapons and found none.
At approximately 3:00 p.m., after the marijuana had been found in the apartment, the buzzer sounded and the defendant, Keith C. Chambers, came up the steps and entered the kitchen and was met by Officer Chase. Detective Chase, a 12 1/2 years' veteran of the city police force, had never met and did not know the defendant. Detective Chase identified himself as a police officer.
When he entered the kitchen of the apartment in which marijuana had been found, the defendant was wearing a heavy winter jacket. Detective Chase patted down the defendant to determine if he carried a weapon in the pockets of the heavy jacket. The sole reason for the pat-down was to be certain that the defendant carried no weapons in the heavy winter jacket. As the officer patted down the jacket pockets, he felt a long hard object in the right front slash pocket of the jacket. To the officer, this long hard object felt like one of the following: a knife, a homemade gun or a teargas gun. Having felt this object in the pocket, Detective Chase reached into the jacket pocket and took hold of the object. Removing it from the pocket revealed it to be a brass pipe for smoking enclosed in a plastic sandwich bag, which also contained a vial and a small capsule. The vial contained plant-like material which appeared to Detective Chase to be marijuana and was chemically determined to be marijuana. The capsule was chemically determined to contain the dangerous drug, methylenedioxyamphetamine.
On February 16, 1971, a warrant was issued charging defendant with possession of a dangerous drug, contrary to sec. 161.30(7), Stats. On the same date, a warrant was issued charging defendant with possession of marijuana, contrary to sec. 161.30(12)(a), Stats.
At the April 19, 1971 hearing on the marijuana charge, objection was made to the admission of the drugs found on the person of the defendant. On April 27, 1971, arraigned on the felony charge, the defendant filed a written motion to suppress the evidence found on his person. On August 20, 1971, the trial court granted the motion to suppress, making no finding as to the reasonableness of the patting down of the defendant for weapons, but ruling: 'The Court is of the opinion that the defendant, not being under arrest nor specifically charged with any offense at the time that the search was made of the defendant and the items of alleged contraband secured from his person were in violation of his constitutional rights. . . .' From this ruling the state appeals.
Robert W. Warren, Atty. Gen., Madison, Burton A. Scott, Dist. Atty., Thomas G. Hetzel, Asst. Dist. Atty., Kenosha, for appellant.
Vaudreuil & Vaudreuil, Kenosha, for respondent.
Was the police officer entitled to interrogate a person who had come into the apartment where illegal drugs had been found during a valid consent search of such premises? Was there a reasonable basis for the officer's suspicion that such person carried a weapon?
Both questions must be answered affirmatively to make the pat-down of the defendant's outer jacket pockets by the police officer proper, prudent and permissible. Each question is to be answered in the light of the surrounding circumstances. That is made clear in a very recent decision of the United States Supreme Court. 1
Even though there is no probable cause to make an arrest, Adams makes clear that a police officer may 'in appropriate circumstances' detain a person for interrogation. 2 In fact, Adams holds that it may be 'the essence of good police work' to briefly stop a suspicious individual 'in order to determine his identity or to maintain the status quo momentarily while obtaining more information.' 3 A police officer 'making a reasonable investigatory stop' is not denied 'the opportunity to protect himself from attack by a hostile suspect.' 4 Adams states clearly '. . . So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.' 5 Whether or not the carrying of concealed weapons is a criminal offense makes no difference for the patting down is not to discover evidence of a crime but to allow the officer to pursue his investigation without fear of violence. 6
We deal here with a very limited frisking or pat-down, no more than a patting of the hands on the outside of jacket pockets to determine if they contain a gun or blackjack or other weapon. That it was a frisking for weapons, no more, is clear, not only from the officer's testimony, but from the nature of the patting down. If the officers had been looking for a marijuana cigarette or heroin capsule concealed in the jacket pockets, a pat on the outside of the pockets would hardly have revealed the presence of either cigarette or capsule.
That this was a bona fide pat-down for weapons and not in any way a search of the person for illegal drugs 7 is additionally established by what transpired earlier. When the two police officers went to the apartment to conduct a consent search of the premises, they found eight persons in the apartment. None were searched. All were dressed in casual, summer-type attire. The males were dressed in T-shirts and jeans, the females in blouses and slacks. The officers, one with twelve years police experience, concluded that the casual attire provided no place of concealment for articles as bulky as revolvers or zip-guns. So no pat-down of the eight took place. Also, the two police officers stated to those present that they would not be searched for dangerous drugs. In fact, the officers stated that they would leave the room so that any of the eight, if they had dangerous drugs on their person, could toss them on the floor while the officers were out of the room. They certainly were not required to do this, but they did.
It was only when the ninth person, wearing a bulky jacket with two large slash-type pockets, walked into the kitchen that what this court has termed 'necessarily swift action predicated upon the on-the-spot observations of the officer' 8 occurred. The trial court, holding the pat-down improper, found controlling the fact that the person patted down was '. . . not under arrest nor specifically charged with any offense at the time.' That is not the test. Neither arrest nor being charged with an offense is a prerequisite to a protective pat-down for weapons, as Adams makes crystal clear. 9
Under the Adams holding, it is the surrounding circumstances that one looks to to determine if there was a reasonable basis for investigating or interrogating and for the frisking or patting down of the person stopped for questioning. 10 As the nation's highest tribunal said on another point in Adams, 'One simple rule will not cover every situation.' 11 Circumstances can alter cases, and here it is to the particular circumstances of this particular case that we must direct our attention.
Moreover, it is to the totality of circumstances present, and inferences properly drawn therefrom, that we must look. Did the circumstances here warrant the officer in reasonably concluding that the person who walked into the search scene ought be questioned and in reasonably suspecting that such person was carrying a weapon in his jacket pocket? It is all of the circumstances that are to be considered in determining what was reasonable police procedure in the particular situation.
Here are the surrounding circumstances that, considered together, we hold to render entirely reasonable stopping the defendant for questioning and the preceding of such questioning by the patting of his outside jacket pockets to see if they contained a weapon.
FACT OF SEARCH. When the defendant was patted down for weapons, he had entered an apartment in which the two police officers were conducting a search of the premises. No challenge is made to the validity of that search of the premises. It was made with the consent of the person who rented or leased the apartment searched. At the time of the defendant's entry, the officers had already found a quantity of illegal drugs stored on the premises. The two officers were engaged in the discharge of an official and often enough risky police function. The officers were entitled to take into consideration that, in...
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...of the stop. Id. at 21, 88 S.Ct. 1868. ¶ 11 This court adopted the Terry standard for investigative stops in State v. Chambers, 55 Wis.2d 289, 294, 198 N.W.2d 377 (1972). The Wisconsin legislature codified the standard in Wis. Stat. § 968.24(2005-06).3 In interpreting § 968.24 we apply Terr......
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...possible criminal behavior even though there is not probable cause to make an arrest. Id. at 22, 88 S.Ct. 1868 ; State v. Chambers, 55 Wis.2d 289, 294, 198 N.W.2d 377 (1972). The Wisconsin Legislature codified the Terry constitutional standard in Wis. Stat. § 968.24. When we interpret § 968......
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