State v. Friday
| Decision Date | 11 January 1989 |
| Docket Number | No. 86-1484-CR,86-1484-CR |
| Citation | 147 Wis.2d 359,434 N.W.2d 85 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John F. FRIDAY, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Sharon Ruhly, Asst. Atty. Gen., argued, Barry M. Levenson, Asst. Atty. Gen., and Donald J. Hanaway, Atty. Gen., on briefs, for plaintiff-respondent-petitioner.
James J. Ewers, Madison, argued, and Ewers Law Office, Bonnie S. Musial and Musial Law Office, Madison, on brief, for defendant-appellant.
This is a review of a decision 1 of the court of appeals which reversed the conviction of John F. Friday by the circuit court for Dane county, George R. W. Northrup, circuit judge. We reverse the court of appeals because, unlike the court of appeals, we conclude, on undisputed facts, that there was probable cause for the seizure and for the search of the automobile of the defendant, John F. Friday.
John F. Friday was arrested, charged, and convicted of two counts of possession of controlled substances, marijuana and cocaine. His only defense, proffered in motions to suppress evidence, was that the contraband was obtained by an illegal seizure and an illegal search.
After his motions to suppress were denied, Friday entered a plea of no contest to both counts of possession with intent to deliver, contrary to sec. 161.41(1m)(b), Stats. Sentence was withheld, and Friday was placed on three years concurrent probation on each count. A fine was imposed, but all sentences were stayed pending appeal.
The court of appeals reversed, holding that the warrantless search was illegal and the evidence produced by the search should have been suppressed. Because the court of appeals concluded that the search was not based on probable cause, it declined to determine whether the initial seizure of defendant's automobile was illegal (see State v. Friday, 140 Wis.2d at 704, n. 1, 412 N.W.2d 540) and, in any event, the fruits of the search were subject to suppression.
The state has urged that we decide whether the "reasonable suspicion" standard, first stated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), would have justified the seizure of the automobile. Because the undisputed facts and the reasonable inferences drawn here without a doubt demonstrated probable cause for the warrantless seizure, we decline to explore any possible alternative justification. We do not decide whether a police officer who has a reasonable suspicion that a motor vehicle contains contraband may "seize" (as opposed to "stop," as in State v. Guzy, 139 Wis.2d 663, 407 N.W.2d 548 (1987)) the vehicle without first securing a warrant.
The facts of record are lengthy, but because this court is called upon to evaluate probable cause under the circumstances, it is necessary to recount them in detail. The basic facts are undisputed. It is the inferences drawn from the facts that are disputed. Friday's counsel at oral argument repeatedly stated that the inference of drug dealing had to be incorrect, because it was inconceivable that persons actually dealing in drugs would have blatantly revealed their purpose in the presence of known narcotics officers. 2 True, there is evidence of record of overt and bumbling conduct that clearly revealed the suspected person's drug dealing to the police. This was indeed "The Gang That Couldn't Shoot Straight." 3 Ineptness in criminal conduct is not, however, an index of innocence. On the contrary, it furnished the basis for probable cause to seize Friday's vehicle and subsequently to search it.
The facts are that, on the evening of October 25, 1983, four police officers--Dandurand, Klubertanz, Topp, and Rickey--apparently in plain clothes and members of the intra-county narcotics squad, went to Stevens restaurant and bar in the City of Madison for no purpose other than to have dinner. At about 6:30 p.m. John Friday entered the bar with a woman. Officer Dandurand recognized Friday because of information acquired during prior drug investigations. On the basis of this information, Dandurand believed that Friday used a beeper and used telephone communications to sell cocaine. Dandurand decided that the officers should stay in the restaurant to observe Friday's conduct. Shortly thereafter, a person, later identified as Tim Gearhardt, talked to Friday. During this conversation, Dandurand noted that Friday was receiving messages on his beeper and was making numerous telephone calls. Dandurand observed that Friday noticed his presence in the bar and was of the opinion that Friday recognized him from previous encounters in which Dandurand had arrested persons who were with Friday.
A person whom Dandurand recognized as Friday's brother Vaughn then arrived at the bar. Friday pointed out Dandurand to Gearhardt and Vaughn, Dandurand was close enough to hear Friday say, "We have had problems." It appeared to Dandurand that Friday became increasingly nervous. At about 7:00 P.M., two brothers, Jeff and Stef Kundert, whom Dandurand recognized as having been arrested previously for drug violations, entered the bar and spoke to Friday. While doing so, they turned and looked at Dandurand. A short time later, Jeff Kundert and Friday left the bar together, followed out by Dandurand. Dandurand saw that Friday was nervously looking over his shoulder. The two, Jeff Kundert and Friday proceeded only a short distance and then returned to the bar. As Friday entered, he accosted Dandurand and asked what he did for a living, Dandurand answered, "As little as possible." The state uses this encounter to demonstrate that Friday knew Dandurand. The defense argues that the incident shows Friday did not know the officer. Friday and Jeff Kundert remained in the bar for a short time and then, followed by Dandurand, left. Dandurand saw the two drive away. They, however, reentered the bar five minutes later.
Shortly thereafter, Dandurand confronted both Kunderts as they were leaving the bar. Dandurand identified himself as a police officer and told them he believed drugs were being dealt in the bar, and he asked to talk to them and to Friday. Stef Kundert left at once. Jeff Kundert produced identification and stated that he knew why Dandurand was watching Friday, but that Friday was no longer selling and that Dandurand was just harassing Friday. Jeff Kundert said he was not involved. Jeff Kundert and Dandurand reentered the bar; and, in Friday's presence, Jeff Kundert again stated Dandurand was harassing Friday. At about this time, Dandurand heard Friday say on the telephone, "Jim, you have to get down here right away, there is problems." 4
At about 8 p.m., Dandurand saw Friday speaking to Linda Stevens, the co-owner and manager of the establishment. He saw Stevens shake her head. Stevens then indicated to Officer Topp that she wished to talk to him. Officer Topp approached Stevens, and she told him that Friday had the bag that his brother Vaughn had been carrying and Friday had asked her to take the bag into the kitchen area. Stevens told Topp that she knew what was going on and that there were drugs in the bag and that was why Friday asked her to get rid of it.
At about this time, Gearhardt walked out to the parking lot. He was followed by Dandurand, who there identified himself as a police officer. Dandurand testified that Gearhardt said that Friday was involved with drugs and he knew that was why Dandurand was watching Friday. Gearhardt denied, however, that he had anything to do with drugs. He stated that Friday's attorney was on his way.
Soon thereafter, a person known to Dandurand to be Dino Corti entered the bar and talked with Friday. Corti looked around and appeared to recognize the officers. He knew Dandurand, Klubertanz, and Topp and knew they were police officers. Upon spotting the police officers, Corti left the bar by the rear entrance. Dandurand directed Klubertanz to follow Corti. Then Friday looked over at Dandurand and said, "Well, dammit, if you're going to bust me, bust me."
Officer Klubertanz testified that, when she followed Corti out of the bar at about 8:15 p.m., she saw him unhooking a grey or silver Mustang from the tow chain on Corti's tow truck. Klubertanz quickly ran a license check on the vehicle and found it was registered to Friday.
It was only then that the vice squad officers knew that Friday owned the Mustang.
Klubertanz and Corti talked in the parking lot. Who initiated the conversation is not clear, but, as Klubertanz approached, Corti said, "I don't want to have anything to do with this mess." Klubertanz then asked whether Friday had called Corti to tow the car away. Corti responded, Corti got into his tow truck and drove away.
Klubertanz recounted this incident to Dandurand. He instructed her to stay with the Friday vehicle. Shortly thereafter, Friday left the bar area and was followed outside by Officers Topp and Dandurand. Dandurand identified himself as a police officer and told Friday that he believed there were drugs in the Mustang and that it was being held to get a search warrant. Dandurand told Friday that he was free to leave but the vehicle was being detained.
Dandurand testified that, at this time, he believed he had probable cause to seize the vehicle. It was agreed at oral argument that the "seizure" of the vehicle took place when Friday was told that the vehicle was being held and from then on was guarded by a police officer.
Following the car seizure, Friday's brother Vaughn was arrested in the bar. A search of the bag that Vaughn was carrying disclosed a quantity of marijuana.
While Vaughn was being arrested, Topp and Klubertanz identified themselves to Friday in the parking lot and told him that the car was not to be entered or moved. Friday returned to the bar, and shortly thereafter a woman emerged, who told the...
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