State v. Harris
| Decision Date | 27 December 1996 |
| Docket Number | Nos. 95-1595-C,95-1596-CR,s. 95-1595-C |
| Citation | 206 Wis.2d 243,557 N.W.2d 245 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Anthony HARRIS, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs and oral argument by Robert J. Diaz, Brookfield.
For the plaintiff-respondent the cause was argued by Warren D. Weinstein, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
This is a review of a court of appeals decision affirming the denial of a motion to suppress evidence ordered by Milwaukee County Circuit Judge Daniel L. Konkol against the defendant, Anthony Harris. 1 Harris ultimately pled no contest to the misdemeanor offense of unlawful possession of marijuana. 2 This case presents us with two questions. First, should this court adopt a bright line rule that when police officers stop a vehicle, all of the occupants of that vehicle have standing to challenge the stop as a seizure under the Fourth Amendment to the United States Constitution and art. I, sec. 11 of the Wisconsin Constitution? Second, if such a stop is a seizure of all of the vehicle's occupants, did the officers here have reasonable, articulable suspicion to seize Harris? We hold that when police stop a vehicle, all of
the occupants of that vehicle are seized and thus have standing to object to the seizure. We further hold that the officers here lacked suspicion, grounded in specific, articulable facts and reasonable inferences from those facts to seize any of the occupants in the vehicle, including Harris.
On June 8, 1994, at approximately 11:30 p.m., a car was parked in front of the home of a robbery suspect for whom the Milwaukee police were searching. 3 The only description police had of the suspect, other than height and weight, was of a young black male with very short hair. As far as the investigating officers knew, the suspect did not own a car. The officers saw no one exit or enter the car while it remained parked in front of the suspect's house. There was no testimony that the driver of the vehicle violated any traffic laws or handled the car in an erratic fashion.
When the car in question pulled away from the curb, plain clothes officers stopped its travel by blocking the car with their own unmarked vehicle. The officers exited their squad car and approached the stopped vehicle. At least one of the officers had his service gun drawn. One officer approached the driver's side of the car, and later testified that he saw three individuals in the vehicle, the driver, a front seat passenger, and a passenger seated behind the driver. The rear seat passenger was Mr. Harris.
The only testifying officer at the suppression hearing told the trial court that he "could not observe the occupants [of the car] until I approached it," agreeing in response to a question from defense counsel that he "had no idea" who or how many people were in the car at the time of the stop. It was only after the vehicle was stopped, and as the officer approached the driver's door, that he could see that the front passenger resembled the description of the suspect by virtue of being a young black male with close-cropped hair.
The driver rolled down his window as one of the officers approached. That officer testified that "smoke came out of the car which smelled like burning marijuana." The officer ordered the driver out of the car. After patting him down, the officer asked what the smell was, and the driver replied, "They're smoking marijuana." Another officer then ordered Harris out of the car, patted him down and removed a plastic bag containing six bundles of suspected marijuana from Harris' waistband.
The Milwaukee County District Attorney charged Harris with one count of possession of a controlled substance (marijuana). Seeking to suppress evidence of the marijuana, Harris argued to the circuit court that the seized marijuana was the "fruit" of an illegal seizure. Although the court agreed that the police officers did not have reasonable, articulable suspicion to stop the car, the circuit court held that Harris lacked standing to complain. Further, the court ruled that once the vehicle was stopped, and before there was any other contact with Harris, one of the officers smelled smoke like burning marijuana, and received information from the driver that the defendant was using marijuana. At that point, according to the circuit court, the officers had reasonable, articulable suspicion to search Harris for possession of a controlled substance. Harris ultimately pled no contest to the possession charge, and pursued an appeal. 4
In reviewing an order suppressing evidence, this court will uphold the trial court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2). 6 However, the issues presently before us, 1) a passenger's standing to challenge the lawfulness of the police-initiated stop, and 2) the legality of the initial investigative stop in this case, are questions of law that we review de novo. State v. Guzy, 139 Wis.2d 663, 671, 407 N.W.2d 548, cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987).
Whether a passenger of a vehicle stopped as part of a criminal investigation, and who is not a target of the stop, has standing to challenge the lawfulness of the stop is a question of first impression in Wisconsin. In Guzy, we expressly did not decide this question. 139 Wis.2d 663, 672, n. 2, 407 N.W.2d 548. In Howard, 176 Wis.2d at 924, 501 N.W.2d 9, we considered a passenger's challenge to the lawfulness of a police-initiated traffic stop. We held that the standing analysis must begin with an inquiry as to whether the passenger's own Fourth Amendment rights were implicated in the stop. Id. We concluded in Howard that the traffic stop in that case "was not so intimidating that a reasonable person in the defendant's position would have believed his freedom of movement had been restricted in any meaningful way." Id. at 929, 501 N.W.2d 9.
The court of appeals affirmed Harris' conviction, relying first on the rationale of Howard that the defendant did not have a possessory interest in, or "dominion or control over," the suspect vehicle. Further, the court of appeals ruled that, as in Howard, "at the time of the stop ... the 'officers' conduct was not so intimidating that a reasonable person in [Harris'] position would have believed his freedom of movement had been restricted in any meaningful way,' " applying the case-by-case analysis endorsed in Howard. 7
As petitioner Harris points out, the real standing analysis depends not, as in other constitutional claims, on whether there has been injury in fact, Rakas, 439 U.S. at 139, 99 S.Ct. at 428, (citations omitted), but whether the action taken by the law enforcement officers constitutes a seizure of the defendant. In other words, has the disputed seizure infringed on an interest of the defendant which the Fourth Amendment and art. I, sec. 11 were designed to protect? See State v. Dixon, 177 Wis.2d 461, 467, 501 N.W.2d 442 (1993). We need only answer yes to that question to determine that the defendant has standing, before we proceed to a substantive analysis of the legality of the seizure. Rakas, 439 U.S. at 138-40, 99 S.Ct. at 427-29.
Harris asks us to establish a bright line rule that all passengers have standing to challenge a vehicular stop as an unconstitutional seizure. Harris points to the growing number of federal circuit and state court decisions which recognize the right of a passenger to challenge the lawfulness of a vehicle stop. This trend reflects a recognition of the similar interests passengers and drivers possess in remaining free from unreasonable seizure within the meaning of the Fourth Amendment, and thus each may challenge a vehicular stop. See, e.g., United States v. Erwin, 875 F.2d 268, 269 (10th Cir.1989); People v. Lionberger, 185 Cal.App.3d Supp. 1, 230 Cal.Rptr. 358 (1986). Alternatively, Harris asks us to apply the case-by-case approach of Howard, and rule that the vehicular stop here constituted a seizure of Harris, a passenger.
The State, on the other hand, asks us to refrain from establishing a blanket rule that a stop of a vehicle is automatically a seizure of all of its occupants. Rather, relying on United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and Howard, the State asks us to affirm the court of appeals and rule that the determination of...
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