State v. Goebel

Decision Date06 July 1981
Docket NumberNo. 80-129-CR,80-129-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Glen J. GOEBEL, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Donna L. Hintze, Asst. State Public Defender, for defendant-appellant-petitioner.

Kirbie Knutson, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., and Pamela Magee-Heilprin, Asst. Atty. Gen., on brief.

DAY, Justice.

This is a review of an unpublished decision of the court of appeals dated October 15, 1980, 99 Wis.2d 804, 300 N.W.2d 83, which affirmed an order and judgment of the circuit court for Ozaukee county, WALTER J. SWIETLIK, Circuit Judge. The primary question presented on review is: Did the activities of the police under the circumstances of this case, violate the defendant's Fourth Amendment right to be free from unreasonable searches and seizures? We hold that the defendant's rights were not violated and affirm.

On October 18, 1978, the defendant, Glen J. Goebel, was charged in a criminal complaint with possession of a controlled substance, (marijuana) with intent to deliver, contrary to sec. 161.41(1m), Stats.1977. 1

Following a preliminary hearing, the defendant was bound over for trial. The defendant, by his counsel, moved the trial court to dismiss the complaint on the ground that the complaint was based on an illegal arrest, thereby depriving the court of personal jurisdiction. He also moved to suppress certain evidence arguing that it had been obtained by an illegal search. A hearing on the motions was held on May 10, May 30 and July 6, 1979. The trial court, in a memorandum decision, dated July 19, 1979, denied the motions.

On July 27, 1979, the defendant changed his plea from not guilty to no contest. A judgment of conviction was entered on October 10, 1979. The defendant was given a two-year sentence, which was stayed and the defendant was placed on probation for two years and ordered to pay a fine of $3,000. The court ordered half of the fine to be paid before the end of the first year of probation and the remainder before the end of the probation. The defendant later moved the court to amend the sentence, arguing that the fine imposed was beyond his ability to pay. The court did change the probation order to permit payment of the fine at any time during the term of probation, but did not change the amount of the fine. An amended judgment of conviction was entered on January 8, 1980.

The defendant appealed from the judgment of conviction and the order modifying his sentence. The court of appeals affirmed both the order and the conviction. This court granted defendant's petition to review. 2

This prosecution arose from events in the early evening hours of October 17, 1978. At approximately 6:16 p. m. on that day, Officer Dennis Burch of the Mequon police department was on patrol on Lake Shore Drive in the city of Mequon. According to his testimony he was proceeding south on Lake Shore Drive when he observed a yellow Ford automobile parked on the west side of the road. The vehicle was partially on the roadway and partially on the shoulder of the road. As Burch pulled up behind the vehicle he observed two occupants in the car. He saw the passenger "leaning over to the left, as if he were putting something under the seat or possibly taking something out, making kind of a quick motion." Burch got out of his squad car and walked up to the yellow Ford. The driver of the yellow Ford then got out of his car and quickly walked toward Burch, meeting the officer at the rear of the Ford. Burch asked the driver, the defendant, whether he was having any problems. The defendant responded that he had carburetor trouble and his car wasn't getting any gas, but that he could get the car going. Burch stated the defendant "appeared to be very nervous, wanting to leave the area very quickly." The defendant testified he told Burch he had a problem with his fuel filter but that he "could probably start it after letting it sit for a short time."

Burch then asked the defendant for his driver's license and returned to his squad car. He then radioed for a backup officer because he considered "the parties were very suspicious, his actions were very suspicious, and I felt I would want a backup." He also ran a "check" on the defendant's driver's license and license plate. Before he got a response from the check, Burch again walked to defendant's car. The defendant again met him at the rear of his car. Burch then told defendant that he wanted to "get the passenger's information, such as his name, date of birth." The defendant walked with Burch to the driver's side door and, according to Burch "turned his back toward the window and was obstructing my view from looking into the vehicle to get information from the passenger." Burch then leaned into the driver's side car window to get information from the passenger. The passenger, Vincent Di Mayo, then slid across the front seat and got out of the driver's side door of defendant's car. Burch took Mr. Di Mayo's information and identification and returned to his squad car to run a check on Di Mayo. Burch waited in his car for the "check" and for the backup he had requested earlier. Burch did not recall receiving any response to the "check."

The backup officer, Mario Valdes, arrived about ten minutes later. Valdes, on Burch's radioed advice, pulled up his squad car and parked it one and one-half to two feet in front of defendant's car.

Burch then approached defendant's car for a third time, this time with Valdes approaching the car on the passenger side. The defendant again met Burch at the rear of his car. Burch then asked the defendant "what was being put underneath the seat in the car as (he) pulled up to them." Defendant said, "I'll show you what we put under the seat." The defendant then returned to his car and pulled a McDonald's restaurant bag from under the seat. At this point Officer Valdes was standing on the passenger side of the car looking in. Defendant then pulled a second McDonald's bag from under the passenger seat. The defendant testified that as he reached for a third McDonald's bag he pulled out a small plastic bag of marijuana. He stated that he dropped that bag and pulled out another McDonald's bag instead. He testified that he may have attempted to put the marijuana bag back under the seat, but was not certain whether he had. Officer Valdes observed the bag of marijuana when it was exposed by the defendant. Valdes testified that the plastic bag contained a green vegetable material which he recognized as marijuana. Valdes informed Burch that he had seen the contraband.

Both defendants were then formally placed under arrest and put in separate squad cars. Officers Burch and Valdes then searched defendant's car and found additional bags of marijuana.

The defendant does not allege any impropriety in Officer Burch's original contact with the defendant, wherein he inquired whether defendant was having car trouble. Contacts of this sort are not only authorized, but constitute an important duty of law enforcement officers. In this case Officer Burch did ask the defendant if he had a car problem and the defendant said that he did, but could remedy the problem alone. This explanation did not satisfy the officer, because he considered the defendant's nervous manner and the "furtive gesture" of Di Mayo in leaning to his left and reaching under the car seat to be suspicious for reasons he detailed at the suppression hearing.

The defendant, however, argues that the officer had no basis for detaining him for further investigation.

In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the Supreme

Court of the United States held 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." The court in Terry recognized that a brief investigatory stop is a "seizure" and is therefore subject to the reasonableness requirement of the Fourth Amendment. The standard established by the court, which has been repeatedly adhered to, requires that 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." Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1879.

The facts must be judged against an objective standard, that is:

"... 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?" Terry, supra, 392 U.S. at 21-22, 88 S.Ct. at 1879-80.

The Wisconsin legislature has codified the Terry standard for a temporary stop in sec. 968.24, Stats., which provides:

"968.24. Temporary questioning without arrest. After having identified himself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of his conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped."

The trial court relied on this section in finding that "the temporary detention and questioning of the defendants was not in violation of their constitutional rights."

The court of appeals found that the record amply supported that conclusion. We agree. Because of the Fourth Amendment questions presented, "... this court will independently examine the circumstances of the case to determine whether the constitutional requirement of reasonableness is satisfied." Bies v. State, 76 Wis.2d 457, 469, 251 N.W.2d 461 (1977).

When Officer...

To continue reading

Request your trial
67 cases
  • State v. Wisumierski
    • United States
    • Wisconsin Supreme Court
    • March 30, 1982
    ...great weight and clear preponderance of the evidence. Bies v. State, supra at 469, 251 N.W.2d 461; State v. Goebel, 103 Wis.2d 203, 221, 307 N.W.2d 915 (1981) (Abrahamson, J., dissenting). The trial judge's memorandum decision reveals the following findings of fact which we conclude are not......
  • State v. Drogsvold
    • United States
    • Wisconsin Court of Appeals
    • September 25, 1981
    ...circumstances of the case to determine whether the constitutional requirement of reasonableness is satisfied." State v. Goebel, 103 Wis.2d 203, 209, 307 N.W.2d 915, 918 (1981), quoting Bies v. State, 76 Wis.2d 457, 469, 251 N.W.2d 461, 467 (1977), which relies in part on Ker v. California, ......
  • State v. Kramer
    • United States
    • Wisconsin Supreme Court
    • January 29, 2009
    ...on the side of a highway, especially after dark and outside of an urban area when help is not close at hand. State v. Goebel, 103 Wis.2d 203, 208, 307 N.W.2d 915 (1981) (noting that when police stop to assist motorists, such contact is "not only authorized, but constitute[s] an important du......
  • Cnty. of Grant v. Vogt
    • United States
    • Wisconsin Supreme Court
    • July 18, 2014
    ...is “ ‘not only authorized, but constitute[s] an important duty of law enforcement officers.’ ” Id. (quoting State v. Goebel, 103 Wis.2d 203, 208, 307 N.W.2d 915 (1981)). Thus, the first factor weighs in favor of the reasonableness of Officer Small's exercise of the community caretaker funct......
  • Request a trial to view additional results
1 books & journal articles
  • U.S. Supreme Court clarifies search and seizure rules.
    • United States
    • Wisconsin Law Journal No. 2004, June 2004
    • June 2, 2004
    ...an arrestee is a "recent occupant" of a vehicle. Wisconsin note: the Thornton case should not affect Wisconsin law. In State v. Goebel, 103 Wis. 2d 203, 217 (1981), the court ruled that the arrestee "need not be in the vehicle, or close by" to justify the search. State v. Fry, 131 Wis. 2d 1......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT