State v. Davis

• Decision Date: 12 July 2012
• Docket Number: No. 2010AP2966–CR.,2010AP2966–CR.
• Citation: 820 N.W.2d 155,344 Wis.2d 122,2012 WI App 97
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Kenneth O. DAVIS, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

344 Wis.2d 122
820 N.W.2d 155
2012 WI App 97

STATE of Wisconsin, Plaintiff–Respondent,
v.
Kenneth O. DAVIS, Defendant–Appellant.

No. 2010AP2966–CR.

Court of Appeals of Wisconsin.

July 12, 2012.

Appeal from a judgment of the circuit court for Kenosha County: Mary Kay Wagner, Judge. Affirmed.
Before VERGERONT, HIGGINBOTHAM and BLANCHARD, JJ.¶ 1HIGGINBOTHAM, J.

Kenneth O. Davis appeals a judgment of conviction entered on his guilty plea to a charge of armed robbery. Davis argues the circuit court erred in denying his motion to suppress the results of a show-up identification procedure. For the reasons that follow, we affirm.

BACKGROUND

¶ 2 In the early morning hours of August 22, 2009, Kenosha police officer Mark Poffenberger received a dispatch of a possible robbery. Upon arriving at the scene of the alleged robbery, the two victims reported that, as they were going to their car behind their house, a man they later identified as Davis approached them with a gun drawn and took their money and cellphones. A witness at the scene reported that he saw Davis run behind a house about two blocks away from where the robbery took place. The witness provided a detailed description of the alleged robber.

¶ 3 Within five minutes after arriving on the scene, police, including Poffenberger, set up a perimeter around the house identified by the witness. Approximately twenty to thirty minutes thereafter, Davis appeared on the east side of the house centered within the perimeter, going first onto the house's front porch and then approaching police standing on the street.¹ Complying with Poffenberger's directions, Davis stopped eight to ten feet in front of him, then turned around with his hands behind his back and backed up toward the officer, agreeing to allow Poffenberger to search him. Poffenberger found a “wad of cash” in Davis's back pocket in various denominations; the total amount was more than the amount reported stolen in the robbery.²

¶ 4 As part of the investigation, Davis was detained (sitting unrestrained on the street curb) because he matched part of the description of the robber. Poffenberger maintained a distance of approximately five to six feet from Davis during this time. Upon running his identification, police discovered Davis was on probation. Crime scene supervisor Lieutenant Steven Larson directed Poffenberger to ask Davis if he had been drinking as this would have been a probation violation and would have permitted police to hold Davis for a potential line-up. Davis answered no and as Poffenberger noted no signs of intoxication, the police concluded they had no probable cause to hold Davis on a probation violation or to take him into custody for any purpose.³

¶ 5 At this point, Larson ordered a show-up identification procedure. In concluding that the show-up was necessary, Larson testified at the motion hearing that: “I'm missing probable cause to arrest for a state statute violation, ordinance violation. There were no active commitments, no warrants, no probation holds. There's no establishment for foundation for a no drink hold.” “There was absolutely no probable cause to make any type of arrest on Mr. Davis at that time, none whatsoever.”

¶ 6 Officer Brian Ruha was taking a statement from one of the victims when he was told to conduct a show-up identification. In conducting the show-up identification procedure, Ruha followed the Kenosha Police Department Show–Up Eyewitness Identification Instructions form. Ruha drove the victim to Davis, had Davis stand up from the curb and shined the squad car's headlights onto him. Upon seeing Davis's face, one victim immediately stated, “that's who robbed me” and that he was “one hundred percent sure.” The second victim also identified Davis during a separate show-up identification procedure conducted shortly after the first procedure and in the same location as the first. Davis was then placed under arrest.

¶ 7 After his arrest, police first noticed the smell of intoxicants on Davis's breath. In assisting Davis enter the door of the police station, Officer James Krein held Davis's arm and spoke to him at close quarters. Krein then informed Davis that he could smell intoxicants on his breath and asked Davis...