State v. Hope
| Citation | 241 Wis. 2d 573,624 N.W.2d 421 |
| Decision Date | 30 January 2001 |
| Docket Number | 99-2853 |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Carlos D. Hope, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I |
| Court | Court of Appeals of Wisconsin |
APPEAL from a judgment of the circuit court for Milwaukee County: JOHN J. DIMOTTO, Judge. Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
¶1.
Carlos D. Hope appeals his conviction for armed robbery while a habitual criminal, contrary to Wis. Stat. §§943.32(1)(b) & 2, and 939.62.1 Hope argues that the trial court erred in denying his suppression motion because the police lacked probable cause to arrest him and, as a consequence, his photo taken after his arrest, by which the victim identified him as the robber, was the fruit of an illegal arrest. Hope also submits that the trial court erred in denying his suppression motion because the photo array shown to the witnesses was impermissibly suggestive. We affirm.
¶2. On November 10, 1997, an employee of the Wauwatosa Laundry and Dry Cleaners, Diane Roberson, was robbed at gunpoint. Two days later, on November 12, 1997, Christine Kleist, a sales clerk at the Vogue Cleaners, also located in Wauwatosa, was the victim of an attempted armed robbery. In both instances, two men walked into the store, loitered, asked several questions, and then one of the men pointed a gun at the sales clerk and asked for money. In the attempted robbery, the two men fled when the clerk was unable to open the cash register.
¶3. On that same day, at yet another Wauwatosa business, Bartz's Display, which had been robbed just one month before, two employees observed two men acting suspiciously in the store, called the police and stated that they feared that they were going to be robbed. The employees described the men as black males with their hats pulled down covering their faces, making it difficult to view their facial features. The employees told the police that the suspicious men drove away in a grey car traveling eastbound on North Avenue. A short time later, the police stopped a grey car on North Avenue containing Hope and three other black men. Although Hope properly identified himself, two of the other three men gave false names. All four men denied having been in Bartz's Display store. When asked where they were coming from, the men were unable to satisfactorily account for their whereabouts. The Bartz's Display employees were brought to the scene, but they could not identify anyone. The police then arrested all four men for the Wauwatosa Cleaners armed robbery and the Vogue Cleaners attempted armed robbery.
¶4. At the police station, the police took pictures of the four men. After adding a fifth picture to this group, the police showed the pictures to Roberson, Kleist and another employee of the Wauwatosa Cleaners who saw the robbers. All three identified Hope as the gunman. Hope was then charged with robbery with threat of force, party to a crime, as a habitual criminal. He filed a motion seeking to suppress his identification, claiming that the photo array was obtained from an "improper warrantless arrest not supported by probable cause and the photo array was overly suggestive." The motion was denied. A jury convicted Hope of the charged crime, and after the trial court found he was a habitual criminal, he was sentenced to thirty-five years in prison.
A. Probable Cause
¶5. Hope contends that the trial court erred in not granting his suppression motion because the police lacked probable cause to arrest him. Hope insists that the descriptions of the perpetrators of the armed robbery and the attempted armed robbery were too general to give the police probable cause to arrest him. He also points out that the description of the car parked behind the Wauwatosa Cleaners at the time of the robbery and the car in which he was riding when arrested did not match. He submits that since the incriminating photograph shown to the witnesses was taken after his improper arrest, the photo must be suppressed.2 We disagree and conclude that the police had probable cause to arrest Hope.
¶6. Under the Fourth Amendment to the United States Constitution and ArticleI, §11 of the Wisconsin Constitution, an arrest is invalid unless the police have probable cause to believe the arrested person has committed a crime. State v. Riddle, 192 Wis.2d 470, 475-76, 531 N.W.2d 408 (Ct. App. 1995). The trial court found that, under the totality of the circumstances, the officer had probable cause to arrest Hope for the two earlier incidents at the dry cleaners. An evaluation of the trial court's determination that the police had probable cause to arrest, when the underlying facts are not in dispute, is a question of law that we review de novo. State v. Truax, 151 Wis.2d 354, 360, 444 N.W.2d 432 (Ct. App. 1989). Here, the facts leading to Hope's arrest are not in dispute.
¶7. "[P]robable cause exists where the totality of the circumstances within the arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe that the defendant probably committed a crime." State v. Koch, 175 Wis.2d 684, 701, 499 N.W.2d 152 (1993). Probable cause to arrest includes both probable cause to believe that a crime has been or is being committed and probable cause to believe that a specific individual is a criminal actor. State v. Wilson, 229 Wis.2d 256, 267-68, 600 N.W.2d 14 (Ct.App. 1999). The information must reasonably lead the officer to believe that "guilt is more than a possibility." Id.
¶8. Here, the arresting officer had sufficient facts to believe that Hope had committed the crimes at the dry cleaning stores. First, Hope's close proximity, in both time and vicinity, to the armed robbery location was a significant factor. The Wauwatosa Cleaners armed robbery took place two days earlier in the same vicinity where Hope was arrested. In fact, as noted in the State's brief, Bartz's Display is only two blocks away from the Wauwatosa Cleaners store. Inasmuch as a police officer first spotted the car in which Hope was a passenger two blocks away from Bartz's Display, it was reasonable to surmise that Hope was in a car within four blocks of the robbery location, two days after the robbery. Further, the police were aware that more than one robbery had occurred in the same general location over the span of two days, increasing the possibility that another robbery would occur nearby.
¶9. Second, and more importantly, Roberson's physical description of the robber established probable cause because it closely matched Hope's physical characteristics. Contrary to Hope's contention that Roberson's description was general, Roberson gave the police a detailed description. In his brief, Hope summarized Roberson's description of the gunman given to the police:
"[T]he gunman [w]as a black male, plus or minus 23 years of age, 6 foot 3 inches tall, 180 pounds, medium build, dark complexion, unshaven, wearing a three-quarter length down coat, a black knit skull cap and a large diamond pierced earring in his left ear."
According to police records, Hope is black, six feet one inches tall, 180 pounds, and, at the time of his arrest, was 23 years old. Hope's photo, taken when he was arrested in this case, further supports the victim's description as Hope is depicted as being dark complected and unshaven. Also, Hope had a large diamond pierced earring in his left ear. Thus, Roberson's description correctly estimated Hope's actual age and weight, his complexion, the fact that he was unshaven and had an earring, and her approximation of his height was within two inches.
¶10. Third, the arresting officer knew that the conduct of the robbers of the dry cleaning stores was similar to the behavior observed by the Bartz's Display employees. At the time of the stop, the police could reasonably suspect that two of the occupants of the stopped car were in the Bartz's Display store. Although no Bartz's Display employees could identify the suspicious men, a car with occupants matching their description was spied only two blocks away from the store. Thus, a reasonable officer could suspect that two of the men in the car had been in the store. Consequently, the police could consider the similarity between the behavior of the two men observed at Bartz's Display and that of the two armed robbers at the Vogue Cleaners and Wauwatosa Cleaners robberies. The victims in the robberies reported that the armed robbers lingered in the store until they approached the sales clerks, asked several questions, and then displayed a gun. The Bartz's Display employees stated that the two suspicious men also meandered through the store for a period of time without actually looking at any merchandise. Further, one of the men had his hand in his pocket the entire time, suggesting he was armed. Police suspicions were further heightened when two of the passengers gave false names and could not account for their recent whereabouts.
¶11. Finally, while the descriptions of the car involved in the armed robbery and the car containing Hope were not identical, they were similar. At the time of the Wauwatosa Cleaners robbery, one of the owners of the cleaners saw a car containing at least three black people drive slowly through the alley, stop, and then back up and drive off. Minutes later, the...
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