State v. Guy

• Decision Date: 09 December 1992
• Docket Number: No. 91-0708-CR,91-0708-CR
• Citation: 172 Wis.2d 86,492 N.W.2d 311
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robin H. GUY, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 311

492 N.W.2d 311

172 Wis.2d 86

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robin H. GUY, Defendant-Appellant.

No. 91-0708-CR.

Supreme Court of Wisconsin.

Argued Sept. 3, 1992.

Decided Dec. 9, 1992.

For the plaintiff-respondent-petitioner the cause was argued by Stephen W. Kleinmaier, Asst. Atty. Gen., with whom on the briefs was James E. Doyle, Atty. Gen.

For the defendant-appellant there was a brief and oral argument by Elizabeth E. Stephens, Asst. State Public Defender.

CECI, Justice.

This case is before the court on petition for review of a published decision of the court of appeals, State v. Guy, 165 Wis.2d 333, 477 N.W.2d 349 (Ct.App.1991), which reversed a judgment of the circuit court for Milwaukee County, Michael J. Skwierawski, Circuit Judge. The circuit court denied Robin H. Guy's (the defendant) motion to suppress cocaine that police had found in her pants pocket and subsequently convicted her of possession of cocaine with intent to deliver, in violation of secs. 161.16(2)(b)1 and 161.41(1m)(c)1, Stats.

The first question this case presents is whether the Milwaukee police, while executing a warrant authorizing them to search for cocaine and drug-related items in a private residence, constitutionally frisked the defendant. The second question is, assuming the frisk was constitutional, did the police then constitutionally seize cocaine when, upon feeling something soft in the defendant's front pants pocket during the frisk, an officer reached into that pocket and pulled out a baggie containing cocaine. We hold that both the frisk and the ensuing seizure were constitutional and, therefore, reverse the decision of the court of appeals.

On August 23, 1990, Detective James Boyd obtained a warrant to search a single-family home in Milwaukee. An anonymous police informant supplied the information supporting the warrant after making a controlled purchase of cocaine from a male at the home. The warrant authorized a search for

cocaine, scales, packaging material, records of drug transactions, monies and/or fruits of the crimes, letters and/or utility bills and keys which would help to identify the person in control of the premises. Also, person of 'John Doe' b/m 31, 5'9"', 145#.

The next day, approximately ten to fifteen Milwaukee police officers executed the search warrant. The defendant sat in the living room of the home, watching television, when two officers entered with weapons drawn. The officers guided the defendant to the front porch where they handcuffed her. The police also brought the defendant's mother, cousin, and brother out to the porch and handcuffed them. The officers had already handcuffed the defendant's mother's boyfriend, who had been on the porch when police arrived.

An officer then ordered Officer Constance Zarse to frisk the defendant. (Milwaukee police procedure calls for female officers to frisk female suspects when possible.) Officer Zarse patted down the defendant's body. When Zarse felt a soft bulge in the defendant's front pants pocket, she asked the defendant what it was. The defendant said, "Find out for yourself." Zarse reached into the defendant's pocket and pulled out a baggie containing eleven paper "bindles." Those eleven bindles contained a total of 1.66 grams of cocaine. The defendant was charged with possessing cocaine with intent to deliver, in violation of secs. 161.16(2)(b)1 and 161.41(1m)(c)1, Stats.

The defendant moved to suppress the cocaine, arguing that the police had illegally searched her. At the suppression hearing, Officer Zarse said the police had escorted the defendant out to the porch so that the police could search the living room for weapons. Zarse stated that as she approached the defendant, the defendant stood motionless and did not appear to be armed. Zarse said she frisked the defendant for "contraband and weapons." She testified that as she frisked the defendant, she felt a soft bulge in the defendant's left front pants pocket. To Zarse, the bulge "[f]elt like it was drugs. It felt like a bag of--of possibly cocaine or marijuana."

Zarse testified that at the time she frisked the defendant, she had participated in about 300 drug investigations and about 150 search warrant executions. Zarse said that while executing those 150 search warrants, she had found evidence of either possession or possession with intent about 100 times. According to Zarse, a razor blade is the type of thing she searched for while executing a search warrant for drugs. She explained that she was familiar with the use of razor blades in cocaine trafficking and that a person could hide razor blades on her person and use them as a weapon.

Detective James Boyd also testified at the hearing. Boyd said he had obtained the warrant in this case and was present when the police executed it. Boyd testified he had executed between 300 and 400 search warrants for drugs. According to Boyd, he had found weapons in "most" of those cases.

Boyd explained that in this case officers brought everyone out onto the porch because the police department has a policy of gathering everyone on the premises in one central place while executing a drug warrant. This policy's goals are: (1) to prevent those present during the execution of a drug warrant from exchanging information, passing drugs, and destroying evidence; and (2) to allow the police to search those present and the premises for weapons. According to Boyd, the police department also has a policy of searching everyone on the premises for weapons while executing a search warrant for cocaine. If cocaine is found, police search everyone on the premises for cocaine as well.

The trial court denied the defendant's motion to suppress. The court found the frisk was a reasonable one for weapons. The court went on to conclude that once Officer Zarse felt the bulge, she had probable cause to reach into the defendant's pocket and seize the cocaine. After the court denied her motion to suppress, the defendant pleaded guilty.

The court of appeals reversed because it concluded the officers did not have a reasonable suspicion that the defendant was armed. Guy, 165 Wis.2d at 348, 477 N.W.2d 349. In a footnote, the court of appeals said, "If Zarse's frisk of Guy was lawful, the subsequent search would be lawful as well since Zarse felt something that she believed was either cocaine or marijuana." Id. at 337 n. 3, 477 N.W.2d 349 n. 3.

The defendant challenges the search and seizure under both the United States and Wisconsin Constitutions. Whether searches and seizures pass constitutional muster is a question of law, which this court reviews without deference to the lower courts. State v. Guzman, 166 Wis.2d 577, 586, 480 N.W.2d 446 (1992). We may interpret art. I, sec. 11 of the Wisconsin Constitution differently than the United States Supreme Court interprets the Fourth Amendment to the United States Constitution. Id. However, we conform Wisconsin's law of search and seizure to the law of search and seizure developed by the Supreme Court--in part because the text of the two provisions is identical in all important respects and in part to avoid the confusion different standards could cause. Id. at 586-87, 480 N.W.2d 446.

Did Officer Zarse constitutionally frisk the defendant? A frisk is a search. Terry v. Ohio, 392 U.S. 1, 16-17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). The fourth amendment does not proscribe all searches, only unreasonable searches. Id. at 9, 88 S.Ct. at 1873. In order to determine whether a search is reasonable, we balance the need for the search against the invasion the search entails. Id. at 21, 88 S.Ct. at 1879.

In Terry, the Court applied this balancing test to determine the legality of an on-the-street frisk of a person suspected of casing a robbery location. The Court first considered the need for the search, emphasizing the need for police to protect themselves from violence:

[T]here is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.

Id. at 23, 88 S.Ct. at 1881. The Court then balanced the need for police protection against the intrusion on individual rights which a frisk entails. Although the Court viewed a frisk as "a severe, though brief, intrusion upon cherished personal security" and an "annoying, frightening, and perhaps humiliating experience[,]" Id. at 24-25, 88 S.Ct. at 1882, the Court held that when an officer has a reasonable suspicion that a suspect may be armed, the officer can frisk the suspect for weapons. Id. at 30, 88 S.Ct. at 1884.

The facts of each case determine the reasonableness of a frisk, Id., and we judge those facts against an objective standard. Id. at 21, 88 S.Ct. at 1880.

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.... And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id. at 27, 88 S.Ct. at 1883 (citations and footnote omitted).

In the years since the Court decided Terry, the Court has applied the Terry standard to different facts. The constant refrain in these cases has been that the need for police to protect themselves can justify a limited frisk for weapons. See, e.g., Maryland v. Buie, ...