State v. Guzy

• Citation: 134 Wis.2d 399,397 N.W.2d 144
• Decision Date: 28 October 1986
• Docket Number: No. 85-2104-CR,85-2104-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Michael J. GUZY, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

Page 144

397 N.W.2d 144

134 Wis.2d 399

STATE of Wisconsin, Plaintiff-Appellant, v. Michael J. GUZY, Defendant-Respondent.

No. 85-2104-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 24, 1986.

Opinion Released Oct. 28, 1986.

Opinion Filed Oct. 28, 1986.

Review Granted.

Bronson C. La Follette, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., for plaintiff-appellant.

Borns, Macaulay & Jacobson by Mark F. Borns, Madison, for defendant-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

The state appeals an order suppressing evidence and dismissing an armed robbery complaint against Michael J. Guzy. The trial court found unconstitutional an investigatory stop of the truck in which Guzy was a passenger. In addition, the trial court suppressed evidence it found tainted by the illegal stop, including a revolver and a $100 bill found during a consent search of the truck; an incriminatory statement Guzy made to a cellmate; statements by Kenneth Hunt, an accomplice and the truck's driver, that implicated Guzy; and an in-court identification of Guzy by a robbery victim. ¹ We agree that the stop was illegal and that its illegality tainted Hunt's statements to police. However, we determine that Guzy's statements to his cellmate and the in-court identification need not be suppressed. We further conclude that the admissibility of Hunt's later statements to police and the items found in the consent search of the truck depends on factual findings not made by the circuit court. Therefore, we affirm in part, reverse in part, and remand for determination of the voluntariness of Hunt's permission to search his truck and his later statements to police implicating Guzy.

A man armed with a revolver robbed a New Richmond grocery store at about two o'clock on the morning of April 13, 1985. The employees promptly called the police and described the robber as a slim man, five feet six inches tall, with long dark hair, a light beard, and wearing a blue vest with About twenty minutes after the robbery, Deputy Sheriff Robert Volkert heard the employees' description of the robber while routinely transporting a prisoner. Several minutes later, he drove onto interstate highway 94-West, a few miles from the Minnesota border, merging in behind a pickup truck. He noticed that the two occupants of the truck wore shoulder-length hair and that the passenger's hair was darker. Volkert concurred with his partner that a vehicle fleeing the robbery site could be in the same area as the truck they were trailing. After following the truck for thirty to forty seconds, Volkert decided to stop it to "investigate the situation further." The stop occurred at about 2:40 a.m.

red stripes. No one saw the robber leave the store.

The officers approached the truck and requested Hunt's identification. During a consent search of the truck's interior for weapons, they found a paper bag containing clothing and another containing what was later determined to be the robbery money. Volkert then arrested Guzy and Hunt, and transported them to the St. Croix County Jail in Hudson.

At about 4:30 that morning, two members of the New Richmond Police Department interviewed Hunt. After receiving a Miranda warning, Hunt made a statement implicating Guzy in the robbery.

Two days later, Hunt gave the police permission to search his truck. Inside the truck, police found a .32 caliber revolver and a $100 bill. The same afternoon, Guzy's cellmate gave a statement detailing how Guzy, several hours after being jailed, had admitted and described the robbery to him.

More than two weeks after the robbery, Hunt gave an additional statement to the police that further implicated Guzy in the robbery. Hunt then explained that he had earlier given permission for the police to search his truck because he had been worried that children might find the revolver under the dashboard and injure themselves.

At the April 24 preliminary examination, a store employee identified Guzy as the robber from a four-person lineup.

GUZY'S STANDING TO CHALLENGE THE STOP

The state raises for the first time on appeal the issue of Guzy's standing as a passenger to challenge an investigatory stop of the truck Hunt was driving. Though Guzy argues that the state waived its right to contest his standing, we will consider the issue. A reviewing court may decide a constitutional question not raised at trial if justice compels a decision and the facts are uncontested. State v. Copening, 103 Wis.2d 564, 571, 309 N.W.2d 850, 853-54 (Ct.App.1981). Here, because the investigatory stop is the underlying basis for the arrest and triggers Guzy's fourth amendment protections, justice compels a decision. The parties have briefed the issue and neither contests the facts necessary to our discussion. See Wirth v. Ehly, 93 Wis.2d 433, 444, 287 N.W.2d 140, 146 (1980). Because the fourth amendment protects Guzy as a passenger from unreasonable search and seizure, we conclude that he properly challenges the stop.

The state bases its challenge to Guzy's standing on Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and several other decisions that cite Rakas as holding that a passenger has no standing to challenge a vehicle stop. In Rakas, the Supreme Court upheld the admissibility of evidence seized from a car in which the defendants were passengers. Id. at 149-50, 99 S.Ct. at 433-34. The Rakas Court avoided treating the question as one of standing. Instead, the Court framed the question substantively, as "whether the challenged search or seizure violated the Fourth Amendment rights" of a criminal defendant who seeks to exclude evidence obtained during it. Id. at 139-40, 99 S.Ct. at 428-29.

The Rakas Court reasoned that because fourth amendment rights could not be asserted vicariously, a passenger must be able to demonstrate that he or she had a The Rakas Court explained that whether an expectation of privacy is legitimate depends not on the defendant's subjective beliefs, but on what "society is prepared to recognize as 'reasonable.' " Id. at 143 n. 12, 99 S.Ct. at 430 n. 12. The Court concluded that the trunk, glove box and back seat of a car are generally areas that a passenger may not reasonably expect society to recognize as protected by the fourth amendment. Id. at 148-49, 99 S.Ct. at 432-33. Because the defendants in Rakas asserted no possessory interest in the places within the automobile yielding the challenged evidence, the Court concluded that their fourth amendment rights had not been infringed.

                legally recognizable interest in the areas searched.  Id. at 133, 148, 99 S.Ct. at 424, 432.   This interest, according to the Rakas Court, "depends not upon a property right in the invaded place but upon whether the person who claims the protection of the [Fourth] Amendment has a legitimate[134 Wis.2d 406]  expectation of privacy in the invaded place."  Id. at 143, 99 S.Ct. at 430
                

Here, the question is not whether Guzy has standing to challenge the subsequent search of another's truck, but whether, as a passenger, an illegal stop infringed his fourth amendment rights. Under the Rakas framework, we must exclude evidence obtained in violation of fourth amendment rights. Id. at 134, 99 S.Ct. at 425.

A passenger may challenge the legality of a vehicle stop. Wisconsin recognizes that an investigatory stop triggers fourth amendment protections. State v. Goebel, 103 Wis.2d 203, 208, 307 N.W.2d 915, 918 (1981). Moreover, federal constitutional law views the stopping of a car in the same manner as it does a seizure of that car's occupants. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979). Consequently, an occupant's location within a stopped car has no bearing on that person's fourth amendment right to be free from unreasonable seizure. See People v. Kunath, 99 Ill.App.3d 201, 54 Ill.Dec. 621, 425 N.E.2d 486 (1981). ² The notion that stopping a vehicle does not simultaneously stop its passengers defies common sense. Thus, it is not surprising that in cases relying on Rakas, we find little support for the proposition that passengers have no standing to challenge a vehicle stop. ³ We conclude that Guzy properly challenges the legality of the stop because the fourth amendment guarantees his freedom from unreasonable seizure regardless of where he sits within a vehicle.

THE LEGALITY OF THE STOP

The state contends that Volkert had a reasonable basis to stop the truck. We conclude, however, that the facts available to Volkert at the time of the stop were not sufficient to justify an investigatory stop.

An officer may stop a person for a reasonable length of time when the officer "reasonably suspects that such person is committing, is about to commit or has committed a crime...." Section 968.24, Stats. To justify the reasonableness of such a stop, an officer must prove "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Wendricks v. State, 72 Wis.2d 717, 723, 242 N.W.2d 187, 191 (1976) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). The same standard applies to automobiles. Jones v. State, 70 Wis.2d 62, 68-69, 233 N.W.2d 441, 444-45 (1975). Officers may stop an automobile if they have an "articulable and reasonable suspicion that ... either the vehicle or an occupant is ... subject to seizure for violation of law." State v. Washington, 120 Wis.2d 654, 660, 358 N.W.2d 304, 307 (Ct.App.1984) (quoting Prouse, 440 U.S. at 663, 99 S.Ct. at 1401).

Here, because the essential facts are undisputed, we independently review whether a stop meets the fourth amendment standard of reasonableness. Washington, 120 Wis.2d at 660-61, 358 N.W.2d at 307. We must decide whether the facts available at the time of the stop support a reasonable suspicion, or whether Guzy's stop arose merely from an "inchoate and...