State v. Diggins

Decision Date30 July 2013
Docket NumberNo. 2012AP526–CR.,2012AP526–CR.
Citation349 Wis.2d 787,2013 WI App 105,837 N.W.2d 177
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Ryan Erik DIGGINS, Defendant–Appellant.
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Milwaukee County: Rebecca F. Dallet, Judge. Reversed.

Before FINE, KESSLER and BRENNAN, JJ.¶ 1KESSLER, J.

Ryan Erik Diggins appeals the judgment of conviction following his guilty plea to being a felon in possession of a firearm. Diggins also appeals the circuit court's order denying his motion to suppress evidence which he contends was obtained as a result of an illegal stop.1 We reverse.

BACKGROUND

¶ 2 On October 1, 2010, Diggins was charged with one count of possession of a firearm by a felon, stemming from his arrest on September 28, 2010. According to the criminal complaint, Diggins was arrested at the 3500 block of West Silver Spring Drive, Milwaukee, after Milwaukee Police Sergeant Joe Roberson recovered a .22 caliber Smith and Wesson semi-automatic weapon from Diggins's coat pocket. At the time of his arrest, Diggins was on probation in Minnesota for felony assault.

¶ 3 Diggins filed a motion to suppress evidence, arguing that the firearm was recovered as a result of an illegal stop and subsequent search. The circuit court held a hearing on the motion on December 16, 2010. Only Sergeant Roberson testified at the hearing. Roberson stated that on the night of September 28, 2010, he was patrolling the area around the 3500 block of West Silver Spring Drive. Roberson testified that he observed Diggins and a companion with their backs against the wall of a gas station located at the corner of North 35th Street and West Silver Spring Drive. Roberson was driving an unmarked patrol car; he drove about two blocks past Diggins, made a U-turn, and observed Diggins and his companion still in the same location. According to Roberson, neither Diggins nor his companion were drinking, eating or smoking. Roberson never observed anything in Diggins's hands. Roberson drove past Diggins again and made another U-turn. Diggins and his companion were standing at the gas station for approximately five minutes. Roberson concluded that they were loitering, and called for backup “to assist ... in a field interview stop of the subjects.” Roberson testified that the gas station is in a “high crime area,” and that Diggins was dressed in all black. According to Roberson, “subjects [that] are usually dressed like that ... are either committing armed robberies or ... dealing drugs.” Diggins's companion was dressed in light-colored clothing.

¶ 4 Roberson testified that he circled the block and as he reapproached the gas station he saw the back-up marked squad car approaching from the west. Roberson stated that Diggins and his companion started walking away from the gas station before Roberson saw the marked squad car. Roberson observed Diggins and his companion seated at a bus stop across the street from the gas station. Roberson testified it was his “impression,” although he could not testify with certainty, that Diggins actually saw the squad car before crossing the street.

¶ 5 After Diggins and his companion sat down at the bus stop, Roberson stopped his car in front of the bus stop and exited the car to conduct a field interview of Diggins. The stop was based on Roberson's concern about loitering “to see if [Diggins] was in the area—legally in the area, not committing any crimes or about to commit any crimes.” Two additional officers also approached Diggins. When Diggins was sitting at the bus stop, Roberson observed Diggins's hands were held “really tight” in his (Diggins's) coat pockets. Diggins's hands being “pressed down” in his coat pocket, Roberson testified, did not have any significance based on his training and experience. Roberson thought Diggins may have been holding something. Before asking Diggins any questions, Roberson told Diggins to remove his hands from his pockets. Diggins complied. In the patdown that followed, Roberson recovered a gun in Diggins's coat pocket.

¶ 6 The circuit court denied the motion to suppress, stating:

This is a situation where—This isn't like ten seconds or 30 seconds. This is five minutes. The defendant and his friend are up against a wall of a Citgo station. They're not purchasing anything. They're not purchasing gas. They're not smoking a cigarette. They're not eating something that they purchased in there or drinking something that they purchased in there, and I think a reasonable look at the loitering statute provides for the ability for officers to ask the questions of the defendant and his friend, what are you doing.

And I think it's significant that it is a high crime area and an area where drug dealing and gun crimes occur and specifically at that location. [W]here these things take place to assure that they don't happen again.

Now, had he been there for ten seconds or 30 seconds, been coming out of the door on his way somewhere, certainly there would be no basis for the stop; but five minutes up against the wall with no real obvious purpose for being there, I believe meets the definition in terms of reasonable suspicion for what is really a limited stop. It is a stop to ask questions, a field interview.... But for a limited stop, reasonable suspicion, I believe it's there in terms of loitering based on this record.

Now, did the officers have the ability to pat down the individual that they are talking to prior to asking questions? ... [I]t's a minimally invasive seizure of the person, a frisk.

And this officer testified to how minimally it was, which was to pat down for weapons, not to search, not to manipulate clothing....

[G]iven the circumstances of the area, given the fact that the defendant has got his hands in his pockets, even though nothing's seen; and for the officer's safety, I don't think we need to require officers—I don't think we need to hinder them from being able to talk to someone because of their fear of someone pulling out a gun.

And given that area, given the fact that it's dark and even though it's only 8:30, it's dark. There's more than one individual, even though there's more than one officer; and there is the hands in the pocket that the defendant had in which he could have had something. He was holding his hands close to him. It's not like his hands were out and obvious the whole time.

So I think given all of that, the officer has reasonable suspicion to do the pat down, so I'm gonna deny the motion to suppress.

¶ 7 Diggins subsequently pled guilty and was sentenced to four years' incarceration, consisting of two years of imprisonment and two years of extended supervision. Diggins, through postconviction counsel, filed a motion for reconsideration. The circuit court denied the motion. This appeal follows.

STANDARD OF REVIEW

¶ 8 We apply a two-step standard of review in a challenge to a ruling on a motion to suppress. State v. Martin, 2012 WI 96, ¶ 28, 343 Wis.2d 278, 816 N.W.2d 270. When reviewing a circuit court's ruling on a motion to suppress evidence, we will uphold the circuit court's factual findings unless they are clearly erroneous. See State v. Eskridge, 2002 WI App 158, ¶ 9, 256 Wis.2d 314, 647 N.W.2d 434. We independently decide, however, whether the facts establish that a particular search or seizure occurred and, if so, whether it violated constitutional standards. See State v. Richardson, 156 Wis.2d 128, 137–38, 456 N.W.2d 830 (1990). Where an unlawful stop occurs, the remedy is to suppress the evidence it produced. See State v. Washington, 2005 WI App 123, ¶ 10, 284 Wis.2d 456, 700 N.W.2d 305;Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

¶ 9 “The right to be secure against unreasonable searches and seizures is protected by both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution.” State v. Dearborn, 2010 WI 84, ¶ 14, 327 Wis.2d 252, 786 N.W.2d 97. In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court stated that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” To make a valid investigatory stop, Terry requires that a police officer reasonably suspect, in light of his or her experience, that some kind of criminal activity has taken or is taking place.” State v. Allen, 226 Wis.2d 66, 71, 593 N.W.2d 504 (Ct.App.1999).

¶ 10 The test we apply to determine whether an officer has reasonable suspicion, described in Terry and its progeny, is objective:

Law enforcement officers may only infringe on the individual's interest to be free of a stop and detention if they have a suspicion grounded in specific, articulable facts and reasonable inferences from those facts, that the individual has committed [or was committing or is about to commit] a crime. An inchoate and unparticularized suspicion or hunch ... will not suffice.

State v. Waldner, 206 Wis.2d 51, 56, 556 N.W.2d 681 (1996) (citations and quotation marks omitted; brackets and ellipses in Waldner ). “Thus, although an officer's subjective belief might color an objective analysis by giving context to an otherwise dry recitation of facts, simple good faith on the part of the arresting officer is not enough because if it were, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers and effects, only in the discretion of the police.” State v. Pugh, 2013 WI App 12, ¶ 11, 345 Wis.2d 832, 826 N.W.2d 418 (Ct.App.2012) (citation and quotation marks omitted).

¶ 11 It is undisputed here that a stop occurred. While Diggins was seated at the bus stop, Roberson and two other officers pulled up in front of Diggins to conduct a field interview. Diggins argues that he was illegally...

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