State v. Griffith, No. 98-0931-CR.

• Court: United States State Supreme Court of Wisconsin
• Citation: 236 Wis.2d 48,2000 WI 72,613 N.W.2d 72
• Decision Date: 28 June 2000
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Terry GRIFFITH, Defendant-Appellant-Petitioner.
• Docket Number: No. 98-0931-CR.

236 Wis.2d 48
2000 WI 72
613 N.W.2d 72

STATE of Wisconsin, Plaintiff-Respondent,
v.
Terry GRIFFITH, Defendant-Appellant-Petitioner

No. 98-0931-CR.

Supreme Court of Wisconsin.

Oral argument April 7, 2000.

Decided June 28, 2000.

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For the defendant-appellant-petitioner there were briefs by Paul G. LaZotte and the Frank Remington Center, Madison, and oral argument by Paul G. LaZotte.

For the plaintiff-respondent the cause was argued by Paul Lundsten, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. JON P. WILCOX, J.

Terry Griffith petitions for review of a decision of the court of appeals affirming his convictions for obstructing an officer, possession of marijuana, and escape from custody. Griffith was convicted in the Circuit Court for Racine County, Emmanuel J. Vuvunas, Judge. On appeal, Griffith

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argues that the police questioning that led to the obstruction charge constituted an unreasonable search or seizure. Griffith contends that all of his convictions should therefore be reversed

¶ 2. Griffith was convicted for obstructing an officer after he gave a police officer false information during a traffic stop. Griffith was arrested at the scene of the traffic stop, but he escaped from the officers and fled from the scene. He was later identified as the escaped passenger and was apprehended.

¶ 3. At his trial, Griffith presented a defense of mistaken identity, arguing that he was not the passenger who fled from police. The jury found Griffith guilty.

¶ 4. In a postconviction motion, Griffith argued that he did not receive effective assistance of counsel because his trial attorney failed to raise a Fourth Amendment argument. Griffith's claim is that under the Fourth Amendment and Wis. Const. art. I, § 11, the officer lacked lawful authority to ask the passenger his name and date of birth. If the officer lacked lawful authority to pose these questions to the passenger, then the passenger did not violate Wis. Stat. § 946.41(1)(1995-96),¹ obstructing an officer.² If the passenger was not subject to a legal arrest, then the marijuana was not discovered during a lawful search incident to arrest. In addition, if the passenger was never legally arrested, then he did not "escape" from

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legal arrest in violation of Wis. Stat. § 946.42(3)(a).³ In sum, Griffith contends that because the officer lacked lawful authority to ask his name and date of birth, all of his convictions must fail

¶ 5. The circuit court rejected Griffith's argument. The court determined that Griffith's Fourth Amendment argument was without merit and that failure to raise a meritless argument did not constitute ineffective assistance of counsel. The court of appeals affirmed, and Griffith petitioned for review.

¶ 6. We agree with the circuit court and the court of appeals that Griffith's Fourth Amendment argument fails on the merits.⁴ Asking the passenger his name and date of birth during a lawful traffic stop was not an unreasonable search or seizure in violation of the Fourth Amendment. We therefore affirm.

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I

¶ 7. Because Griffith's trial counsel did not raise any Fourth Amendment challenge, no suppression hearing took place in this case. Griffith also did not attempt to establish additional facts surrounding the traffic stop at his postconviction hearing. Thus, the only record of the events surrounding the traffic stop and the questioning of the passenger were established through testimony at Griffith's trial. The facts established at the trial are as follows.

¶ 8. On November 19, 1996, Investigators Bruce Larrabee and William Warmington were on patrol in the city of Racine. Larrabee and Warmington were detectives in the Street Crimes Unit of the Racine Police Department. They patrolled in an undercover car and wore plainclothes. Larrabee was driving.

¶ 9. Warmington noticed a white Pontiac Bonneville with Illinois plates. Warmington knew that the Bonneville belonged to Tyrone Malone and that Malone did not possess a valid driver's license. The Bonneville was parked with the engine running, and Warmington thought he saw Malone in the driver's seat. The detectives therefore called for another Street Crimes Unit detective, intending to stop the Bonneville when it left the area. Investigator Geller answered the call and said he would respond.

¶ 10. While Warmington and Larrabee were waiting for Geller, the Bonneville began moving. Warmington and Larrabee followed the car and radioed headquarters for a marked squad car to pull it over. Before the marked squad car arrived the Bonneville pulled into an apartment building parking lot and stopped. The detectives pulled in behind the Bonneville, blocked the exit, and approached the car, showing their badges.

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¶ 11. As Warmington and Larrabee approached, Malone started to exit the car through the front passenger side door. Warmington ordered Malone and all the other occupants of the car to remain inside the vehicle. Investigator Geller and two uniformed patrol officers in marked squad cars soon arrived. Geller and the patrol officers stood behind the Bonneville while Larrabee and Warmington contacted the occupants of the car

¶ 12. Larrabee went to the driver's side of the car, while Warmington went to the passenger's side. Warmington began speaking to Malone, who was sitting in the front passenger seat. While speaking to Malone, Warmington looked over at the driver and recognized him as Damien Robinson. He asked Robinson when he had obtained a driver's license. Robinson replied that he had "lost them."

¶ 13. At some point, apparently shortly after he spoke to Robinson, Warmington also noticed a third person in the vehicle, sitting behind Robinson. Warmington thought he recognized the passenger's face but could not remember his name. Warmington's testimony about what happened next was as follows:

Q Did you ask the rear passenger for any identification?

A Yes, I did.

Q What occurred then?

A He did not have any identification. I asked him for his name, [he] stated his last name was Stevenson. I asked him to spell it. He spelled it Steven, S-T-E-V-E-N. I asked him for his first name. He gave me the name of Rick. I asked him for a date of birth. He gave me a date of birth. . .At that time I asked him okay, how old are you. He stated he was 22. The

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date of birth that he provided would have made him 23.

. . . .

Q What happened next then?

A At that up point [sic] in time, I confirmed the information he had given me. I then—

Q When you say you confirmed the information?

A I asked him again to repeat the date of birth and how old he was. I then stepped back away from the car and said over the roof to Investigator Larrabee, who was on the driver's side, and advised him to remove the rear passenger from the left side, that the party was to be handcuffed, as the party was providing us with false information.

Larrabee removed the rear passenger from the Bonneville and placed him under arrest. While Larrabee was putting handcuffs on the passenger, the passenger made a move as if he was going to try to run. Larrabee then brought the passenger to the back of the vehicle near the other officers.

¶ 14. Warmington continued with the traffic stop. He asked Malone and Robinson for permission to search the car. They consented to the search. While Warmington conducted a consensual search of the car, Geller began conducting a search of the passenger incident to his arrest. During this search, Geller found marijuana inside a crumpled tissue in the passenger's front jacket pocket. Geller looked up at the passenger and said, "What do we have here?" The handcuffed passenger immediately bolted from the scene. Geller and the other officers failed to apprehend him.

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¶ 15. On December 5, 1996, a confidential informant identified Terry Griffith⁵ as the passenger who fled from the scene of the traffic stop. The police arrested Griffith at his sister's apartment on that date. Authorities later learned that Griffith had been an escapee from Kenosha Correctional Center since May 17, 1996.

¶ 16. Griffith was charged with four offenses: (1) knowingly obstructing an officer while the officer was acting with lawful authority, in violation of Wis. Stat. § 946.41(1), as a habitual offender; (2) possession of a controlled substance, in violation of Wis. Stat. §§ 961.41(3g)(e)⁶ and 961.14(4)(t),⁷ as a habitual offender; (3) escape from custody after a legal arrest, in violation of Wis. Stat. § 946.42(3)(a);⁸ and (4) theft of the handcuffs, in violation of Wis. Stat. § 943.20(1)(a), as a habitual offender. Griffith pleaded not guilty to all of these charges.

¶ 17. At Griffith's trial, the prosecution presented the testimony of several officers identifying Griffith as the rear passenger in the Bonneville. The prosecution also presented evidence that Griffith had

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escaped from Kenosha Correctional Center on May 17, 1996. Griffith presented a defense of mistaken identity, arguing that he was not the rear passenger. With regard to the theft charge, Griffith argued that whoever took the handcuffs did not do so with the intent to permanently deprive the officer of them.

¶ 18. On June 11, 1997, the jury convicted Griffith on the first three charges but acquitted him of the theft charge. The circuit court sentenced Griffith to one year for obstructing an officer, one year for possession of marijuana, and five years for escaping from the lawful arrest. Each of these sentences was consecutive to the others and consecutive to the sentence that Griffith was serving at Kenosha Correctional Center before he escaped from that facility.

¶ 19. Griffith sought postconviction relief on the basis that he had received ineffective assistance of counsel. Griffith contended that his trial attorney should have raised a Fourth Amendment challenge to Officer Warmington's authority to ask the...