State v. Flynn

• Decision Date: 07 February 1980
• Docket Number: No. 77-078-CR,77-078-CR
• Parties: STATE of Wisconsin, Plaintiff in Error, v. Robert FLYNN, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 710

285 N.W.2d 710

92 Wis.2d 427

STATE of Wisconsin, Plaintiff in Error, v. Robert FLYNN, Defendant in Error.

No. 77-078-CR.

Supreme Court of Wisconsin.

Argued Oct. 9, 1979.

Decided Dec. 4, 1979.

Reconsideration Denied Jan. 15, 1980.

On Motion for Reconsideration Feb. 7, 1980.

Chris Heikenen, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen. and Wm. L. Gansner, Asst. Atty. Gen., on brief, for plaintiff in error.

Richard M. Sals, Asst. State Public Defender, argued, Howard B. Eisenberg, State Public Defender, on brief, for defendant in error.

BEILFUSS, Chief Justice.

The facts out of which this question arises are as follows: On February 5, 1976, at approximately 2:45 a. m., Green Bay Police Officer Timothy Sargent was dispatched to a break-in at Trader's Point, a sporting goods store in the 200 block of North Broadway, Green Bay, Wisconsin. A witness had reportedly observed a man between 5I and 6' tall with dark hair and dressed all in dark clothing break a window to the store and remove a rifle. Upon his arrival at the scene, Officer Sargent was instructed to patrol the area and look for possible suspects.

At approximately 3:15 a. m., Sargent observed two men emerge from an alley one-and-a-half to two blocks away from Trader's Point. One of the men fit the description of the man who had been seen breaking into the store a half hour earlier. After notifying headquarters that "he had a suspect and that there was another party with him," Officer Sargent approached the two men and requested identification.

The person who fit the suspect's description identified himself as Daniel Liesch. The other person, however, who was later identified as Robert Flynn, defendant herein, refused to identify himself. Officer Sargent explained to the defendant his reason for requesting identification that there had been a burglary in the area and that he was in the company of a man who fit the burglar's description but Flynn persisted in his refusal. Flynn admitted that he was carrying identification in his wallet but At this point Officer Sargent instructed Flynn to spread his legs and raise his hands so that he could frisk him. Two other police officers, Officer Timmerman and Sergeant Grimmett, had also arrived on the scene by this time. In the course of his frisk, Officer Sargent removed Flynn's wallet and a long-nosed pliers from his left pocket. As he did so, Flynn suddenly dropped his arms and a flashlight fell from his sleeve onto the ground. The pliers and the flashlight were seized.

stated that under no circumstances would he show it to Officer Sargent. Sargent then informed Flynn that if he did not identify himself he would be taken down to the police station and properly identified there. Again Flynn refused, becoming verbally abusive as he did so.

Officer Sargent handed the wallet to Sergeant Grimmett immediately after removing it from Flynn's pocket. Grimmett opened the wallet and leafed through it until he found something with Flynn's name on it. Upon discovering his identity, the officers radioed headquarters and were informed that a "pick-up" order had been issued on him. Flynn was then placed under arrest and conveyed to the police station. Liesch was not arrested but was allowed to ride to the station with Flynn at his own request.

At approximately six or seven a. m., the following morning, it was discovered that the King's X Bar, located in the same general area, had also been broken into. A long-nosed pliers and a flashlight were among the items that had been taken in that burglary. At 9:15 a. m., after having been confronted with this information, Flynn signed a written statement admitting that he and Daniel Liesch had broken into the King's X Bar between 2:30 and 2:45 a. m., on February 5, 1976, and had taken a box of steaks and a bottle of wine in addition to the flashlight and pliers. The steaks and wine were later recovered by police in an alley where Flynn told them he had left them.

Flynn also admitted at this time that on January 31, 1976, he had attempted to steal a stereo from a Prange-Way Store located in Green Bay. It was this offense that had been the subject of the "pick-up" order issued on him. According to Corporal Huth of the Green Bay Police Department, who had issued the order, Flynn had been identified by several witnesses to that offense. When Flynn had failed to appear for questioning as previously arranged, Huth issued the "pick-up" order.

Flynn was charged with the burglary of the King's X Bar by a criminal complaint filed February 5, 1976. On April 20, 1976, he filed a motion to suppress all oral and physical evidence on the ground that it had been obtained in an illegal search. Following a hearing on this motion the county court filed a written decision granting defendant's motion in all respects. The court ruled that Officer Sargent had no grounds for conducting any type of a search of defendant. It made no formal findings of fact but merely stated in its decision that the search was clearly illegal because "there is no evidence that the officer had any fear for his safety or was conducting a patdown for weapons."

We believe that the trial court erred in its ruling that Officer Sargent was not justified in conducting at least a Terry -type stop-and-frisk of the defendant. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), the United States Supreme Court held that where a police officer lacks probable cause to arrest an individual but has reason to believe that such individual may be involved in the commission of a crime, he may stop such person for questioning. If there is also reason to believe that the individual stopped may be armed, the officer may conduct a limited pat-down search for weapons of the person's outer clothing.

The court emphasized in Terry that the test to be used in determining whether " . . . (I)n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making such assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" 392 U.S. at 21-22, 88 S.Ct. at 1880.

a police officer's intrusion was justified is an objective one.

Applying this test to the case before us, we believe that Officer Sargent was aware of sufficient facts to warrant a brief investigatory stop of the defendant on the morning of February 5, 1976. A burglary had been reported in the immediate vicinity only a half hour earlier. It was in the early morning hours and there was no one else on the streets. Defendant was in the company of a person who fit the description of the man seen breaking into the store, and the two had just emerged from an alley. Under these circumstances "(i)t would have been poor police work indeed for an officer . . . to have failed to investigate this behavior further." Terry v. Ohio, 392 U.S. at 23, 88 S.Ct. at 1881.

We also believe that Officer Sargent had sufficient justification under Terry to frisk both Liesch and the defendant for weapons before questioning them. "It is clearly the law that a police officer 'making a reasonable investigatory stop' is not to be denied such 'opportunity to protect himself from attack by a hostile suspect.' " State v. Williamson, 58 Wis.2d 514, 519-20, 206 N.W.2d 613, 616 (1973). "Police officers are not required to take unnecessary risks in the performance of their increasingly hazardous duties." State v. Beaty, 57 Wis.2d 531, 539, 205 N.W.2d 11, 16 (1973).

This court has upheld the right of a police officer to frisk suspects for weapons in cases involving drug and even traffic offenses, as well as those in which the nature of the offense would seem to indicate a much greater likelihood that the suspect is armed. State v. Chambers, 55 Wis.2d 289, 198 N.W.2d 377 (1972); State v. Williamson, supra. It is not simply the nature of the suspected offense but all of the circumstances under which the confrontation takes place that must be taken into consideration in determining whether an officer is entitled to conduct a limited weapons search of a person whom he has justifiably stopped.

In the case before us, Officer Sargent was aware that a burglary had occurred in the area and that at least one firearm had been taken. Even had a gun not been reported taken in the break-in, Officer Sargent would have been justified in frisking defendant and his companion for weapons. A burglary is certainly the type of offense that would " 'warrant a man of reasonable caution in the belief' " that the one who committed the offense may be armed. And when a police officer confronts one suspected of such a crime in a desolate alley in the early morning hours, and the suspect becomes verbally abusive and uncooperative at the mere request for identification, the officer's right to frisk for weapons is obvious.

It does not follow from the fact that only one person was seen breaking into Trader's Point and that the defendant himself did not fit the description of that person that Officer Sargent was not justified in stopping and...