State v. Guzy, No. 85-2104-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: BABLITCH; HEFFERNAN
• Citation: 139 Wis.2d 663,407 N.W.2d 548
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Cross-Petitioner, v. Michael J. GUZY, Defendant-Respondent-Petitioner.
• Decision Date: 24 June 1987
• Docket Number: No. 85-2104-CR

Page 548

407 N.W.2d 548 139 Wis.2d 663 STATE of Wisconsin, Plaintiff-Appellant-Cross-Petitioner,
v.
Michael J. GUZY, Defendant-Respondent-Petitioner. No. 85-2104-CR. Supreme Court of Wisconsin. Argued May 28, 1987.
Opinion Filed June 24, 1987.

Page 550

[139 Wis.2d 666] Marguerite M. Moeller, Asst. Atty. Gen., argued, for plaintiff-appellant-cross-petitioner; Donald J. Hanaway, Atty. Gen., on brief.

Mark F. Borns and Richard B. Jacobson, Madison, argued, for defendant-respondent-petitioner; Borns, Macaulay & Jacobson, Madison, on brief.

BABLITCH, Justice.

The State of Wisconsin (State) seeks review of a published decision of the court of appeals, State v. Guzy, 134 Wis.2d 399, 397 N.W.2d 144 (1986), affirming in part and reversing in part a trial court order which suppressed certain evidence and dismissed a criminal complaint against the defendant, Michael J. Guzy (Guzy).

The evidence was obtained after law enforcement officers stopped the vehicle in which Guzy was a passenger. The State argues, first that Guzy does not have standing to challenge the reasonableness of the stop, and, second that even if Guzy does have standing the evidence should not have been suppressed. We conclude that Guzy does have standing; we further conclude that under the circumstances presented, the initial investigative stop of the vehicle by law enforcement officers was reasonable and therefore all evidence is admissible.

The facts surrounding the stop of the vehicle in which Guzy was a passenger are as follows. On April [139 Wis.2d 667] 13, 1985, at approximately 2:00 a.m. a man robbed Krueger's Super Value (Krueger's) in New Richmond, Wisconsin. Employees called the police and a description of the robber was broadcast over the police radio. The robber was described as a white male, 5'5"'-5'8"', with dark shoulder length hair and a beard, a slim build, wearing sunglasses and a blue vest with red stripes. No information was given concerning a getaway vehicle nor was there any indication that more than one individual participated in the robbery. Deputy Sheriff Ronald Volkert (Volkert) and Auxiliary Deputy Sheriff Roland Brinkman (Brinkman) of the St. Croix County Sheriff's Department heard this description at approximately 2:30 a.m. while transporting a prisoner from the River Falls Police Department to the county jail in Hudson.

As Volkert and Brinkman's squad car entered Interstate 94 off of Highway 35 west bound, they pulled directly behind a blue Ford pickup truck with Minnesota license plates traveling towards the Minnesota border. Their attention was called to

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the truck because both male occupants had very long shoulder length hair. The deputies also noted that the driver's hair was a lighter color and the passenger's was a much darker color.

Volkert and Brinkman followed the truck for 30-40 seconds during which time they discussed that a vehicle leaving Krueger's after the robbery could be in the area at about that time and the fact that the occupants had unusually long hair which fit the description of the grocery store robber's hair length. Based on this information, the deputies decided to stop the truck in order to further scrutinize the occupants. The stop was made at approximately 2:40 a.m. within two miles of the Minnesota-Wisconsin border.

[139 Wis.2d 668] Volkert approached the driver, asked for and was presented with a temporary Minnesota drivers license issued to Kenneth Hunt. Volkert radioed for a further description of the robbery suspect and was given essentially the same information that had been previously broadcast. Volkert observed that Guzy, the passenger, had a slight beard growth and a slim build. He also noticed that Guzy was wearing an unzipped gray sweatshirt without an undershirt. Volkert asked Guzy to step out of the truck so that he could pat him down for weapons. When Guzy emerged from the vehicle, Volkert noticed a small brown paper grocery bag, protruding from under the passenger seat. Volkert removed the bag, opened it to look for a gun and found a large amount of money. Both Guzy and Hunt were then arrested.

The driver, Hunt, gave a statement to Police Chief Levi (Levi) and Sergeant Jarchow (Jarchow) of the New Richmond Police Department at approximately 4:20 a.m. Hunt had been given the Miranda warnings and responded that he understood his rights. Hunt said he and Guzy had gone to a New Richmond bar and that later he had fallen asleep in his truck while Guzy went elsewhere. Hunt was awakened when, upon his return, Guzy threw a paper bag into the truck under the passenger seat, saying "money, money, money" and told Hunt to "go, go, go." Hunt said Guzy had been wearing a blue shirt and blue vest, but wore different clothing upon his return. Guzy told Hunt to keep his "mouth shut" and "don't tell the police anything."

On April 15, Hunt gave Chief Levi permission to search the truck, which had been sealed and locked following the robbery. A .32 caliber chrome gun was found under the dashboard on the passenger side. [139 Wis.2d 669] Police also found a $100 bill stuffed inside a soda can in the front seat area of the truck. On April 30, Hunt gave a second more detailed statement to probation and parole agent James Jablonski (Jablonski). He related that Guzy robbed the store in order to pay a $500 fine at the Anoka Minnesota County Courthouse. Hunt also stated that he consented to the April 15 truck search because he feared that some children might find the gun and be injured.

On April 15, Gari Vance (Vance), Guzy's cellblockmate at the St. Croix County Jail, gave a sheriff department investigator an oral statement concerning the armed robbery at Krueger's. Vance, disclaimed any prior knowledge of the crime and said Guzy told him he was brought into the jail for armed robbery of Krueger's grocery store. According to Vance, Guzy told him he used a .32 caliber gun during the robbery and that the gun was underneath the dashboard of Hunt's truck. Guzy told Vance he had taken the store employees into a back room after placing the money in a brown paper bag; upon leaving the store he shed his clothes while running through people's yards, including a vest worn during the robbery and that he put on other clothes when he got back to Hunt's truck parked nearby.

On April 15, 1987, Guzy was charged with the April 13, 1985, robbery of Krueger's in violation of sec. 943.32(2), Stats. Guzy was bound over for trial following a preliminary hearing on the armed robbery charge on April 24, 1985. During the preliminary hearing a line-up was arranged to allow store employee Hanson an opportunity to identify the robber. From the four-man line-up, Hanson identified Guzy as the armed robber.

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[139 Wis.2d 670] Guzy filed motions challenging the personal jurisdiction of the court over him, arguing that the stop of Hunt's truck was without probable cause, contrary to sec. 968.24, Stats., art. 1 sec. 8 and 11 of the Wisconsin Constitution and the fourth, fifth, and fourteenth amendments of the United States Constitution. He sought to suppress evidence seized by law enforcement officers from the truck on April 13. The trial court determined the stop was illegal and dismissed the complaint because the court lacked personal jurisdiction over Guzy.

The State issued an amended complaint on August 7, 1985, based on evidence other than that seized from Hunt's truck. Guzy then filed motions to suppress: 1) Hunt's statement to Levi and Jarchow: 2) Hunt's statement to Jablonski; 3) Vance's statement; 4) the .32 caliber revolver; 5) the $100 bill found in the soda can; and 6) the Hanson in-court identification. The motions to suppress were based on the theory that the evidence supporting the charge was obtained as a result of the illegal stop of the vehicle and resulting arrest of Hunt and Guzy. The trial court determined the evidence supporting the reissuance of the complaint was the "fruit" of the illegal stop and arrest. It therefore suppressed the evidence and dismissed the complaint.

The court of appeals agreed that the investigatory stop of the truck was illegal and that the illegality tainted Hunt's first statement to law enforcement officer. However, the court of appeals held that Guzy's statements to his cellmate and his in-court identification by employee Hanson need not be suppressed. Additionally, the court of appeals found that the admissibility of Hunt's second statement to law enforcement officers and the items seized in the consent [139 Wis.2d 671] search of the truck depended upon factual findings not made by the trial court; accordingly, the court of appeals affirmed in part, reversed in part, and remanded the matter to the trial court for determination of the voluntariness of Hunt's permission to search his truck and his later statement to law enforcement officers which implicated Guzy in the robbery.

In reviewing an order suppressing evidence, this court will uphold the trial court's findings of fact unless they are against the great weight and clear preponderance of the evidence. State v. Flynn, 92 Wis.2d 427, 437, 285 N.W.2d 710 (1979). However, the issues reviewed in this appeal, 1) Guzy's standing to challenge the truck stop and 2) the legality of the initial investigative stop, are questions of law and therefore we are not bound by the lower courts' decisions on these issues. See State v. Wisumierski, 106 Wis.2d 722, 733, 317 N.W.2d 484 (1982); State v. Williamson, 113 Wis.2d 389, 401, 335 N.W.2d 814 (1983).

The threshold issue, raised by the State, is whether Guzy has standing to challenge the stopping of the vehicle? The State contends that Guzy lacks standing because as a "mere passenger" ¹ he does not have a legitimate expectation of privacy in the uninterrupted travel of the vehicle. The State reasons that a passenger, by ceding some control over his or her person to the driver, forfeits the right to be free of governmental interference while in the vehicle.

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