State v. Johnson

• Decision Date: 21 March 2007
• Docket Number: No. 2005AP573-CR.,2005AP573-CR.
• Citation: 2007 WI 32,729 N.W.2d 182
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Gary A. JOHNSON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

729 N.W.2d 182

2007 WI 32

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Gary A. JOHNSON, Defendant-Appellant.

No. 2005AP573-CR.

Supreme Court of Wisconsin.

Argued September 13, 2006.

Decided March 21, 2007.

For the plaintiff-appellant-petitioner there were briefs by Mark A. Neuser and Sally L. Wellman, Assistant Attorneys General, with whom on the briefs was Peggy A. Lautenschlager, Attorney General, and there was oral argument by Sally L. Wellman.

For the defendant-appellant there was a brief and oral argument by Eileen A. Hirsch, Assistant State Public Defender.

¶ 1 LOUIS B. BUTLER, JR., J

The State seeks review of a published decision of the court of appeals reversing a judgment of conviction against Gary A. Johnson for possession of cocaine with intent to deliver in violation of Wis. Stat. § 961.41(1m)(cm)1r. (2003-04).¹ Johnson contends the circuit court erred in denying his motion to suppress contraband seized during a protective search of his vehicle and his person following a traffic stop. Because we conclude the search was not justified by specific, articulable facts supporting a reasonable suspicion that Johnson posed a threat to the officers' safety or that of others, we affirm the decision of the court of appeals.

I

¶ 2 The following facts are undisputed and taken from testimony given at the hearing on Johnson's suppression motion. On November 2, 2003, City of Racine Police Officer Chad Stillman stopped a 1989 black Cadillac and discovered that the car's registration had been suspended for an emissions violation. Because the driver² was not the person to whom the car was registered, Stillman did not issue a citation for the emissions violation at that time. Late in the afternoon of November 5, 2003, Stillman spotted the car again while on squad patrol with Officer Michael Dummer. The officers followed the vehicle for a short distance when Dummer observed it fail to signal for a turn.

¶ 3 The officers stopped the car with the squad car's emergency lights and siren engaged. It was dark, but the area was illuminated by street lamps. The officers observed two persons in the car. Officer Dummer testified that he saw the driver of the car, later identified as Gary Johnson, "lean forward, which appeared to be reaching underneath his front seat." On cross-examination, Dummer confirmed that he could not see Johnson's hands but stated that the driver's head was "pretty close" to disappearing from view. Officer Stillman testified that he "observed [Johnson] make a strong furtive movement bending down as if he was reaching . . . underneath the seat. . . ." Stillman confirmed that he saw a portion of Johnson's head and shoulders disappear from view. Stillman later stated that "[t]he furtive movement was under the seat, his head and shoulders disappearing." Both officers testified that, in light of their experience and training, they believed that Johnson's movement was consistent with an attempt to conceal contraband or weapons.

¶ 4 The officers approached the car. Stillman advised Johnson that he was being stopped for an emissions violation. Johnson provided Stillman with paperwork indicating that the emissions problem had been corrected. Stillman was satisfied that the paperwork was "adequate" to show "that the vehicle had passed emissions within the past couple days so that those circumstances were cleared up." Stillman did not ask Johnson about the hidden movement that he and Dummer had observed Johnson make earlier.

¶ 5 Stillman asked Johnson to step out of the car. Johnson complied and told Stillman that he had a bad leg. Stillman informed Johnson he was being asked to exit the car because of Johnson's movement inside the car after he pulled over. Dummer testified that Johnson was asked to step out of the car "just for officer safety, not knowing what maybe he had been reaching for to either grab or to put down thinking it could possibly be a weapon that could injure us." Neither officer had had any prior police contact with Johnson.

¶ 6 Dummer testified that "once [Johnson] was towards the back of the vehicle, Officer Stillman advised him that he was going to do a pat down for weapons just for our safety." Dummer testified that when Stillman reached Johnson's left pant leg during the pat down, Johnson fell to the ground. Johnson told the officers that he felt pain in that area. The officers helped him up, and Stillman attempted to resume patting down Johnson's left pant leg, but Johnson again fell to the ground. Stillman testified that when the officers did the weapons pat down Johnson "acted like he fell down. He didn't completely make it to the ground because I had held him up, but yes, he did fall down, or attempted to." Dummer testified that he and Stillman then "helped [Johnson] over to the curb and just had him sit . . . hoping that that would ease his leg."

¶ 7 Stillman asked Johnson if there was anything illegal in the car. According to Dummer, "Stillman advised Mr. Johnson due to his movements that we were going to search the vehicle," and Johnson responded, "`I don't have a problem with that.'" Both officers indicated that they intended to search the vehicle with or without Johnson's assent.

¶ 8 Stillman searched the vehicle and found a baggie of marijuana underneath the driver's seat. Stillman informed Johnson that he was under arrest, and conducted a search of Johnson's person incident to arrest. Johnson put his hand in his left pant pocket during the search and would not remove it on Stillman's request. Stillman conducted a "focus strike"—a hit to a specific area intended to stun or stop a certain movement—to Johnson's left arm to get him to remove his hand from his pocket. The strike was successful, and Stillman recovered a baggie from Johnson's pocket that contained several grams of crack cocaine.

¶ 9 Johnson was charged with possession of cocaine with intent to deliver more than five grams but not more than 15 grams, contrary to Wis. Stat. § 961.41(1m)(cm)2., and possession of tetrahydrocannabinols (THC), commonly known as marijuana, contrary to Wis. Stat. § 961.41(3g)(e). Johnson moved to suppress evidence obtained during the search of his person and vehicle on grounds that they were the product of an illegal stop and arrest.

¶ 10 The Racine County Circuit Court, the Honorable Allan B. Torhorst, denied Johnson's motion following a suppression hearing, holding that information about a possible emissions violation and Dummer's observation that the car failed to signal for a turn gave officers reasonable suspicion to stop Johnson's car. The court did not address whether the officers were justified in conducting a protective search of Johnson's car and person, stating that Stillman had "obtained Johnson's consent to search the vehicle."

¶ 11 Johnson eventually accepted a plea agreement in which he pled no contest to a reduced charge of cocaine possession with intent to deliver more than one gram but not more than five grams, contrary to Wis. Stat. § 961.41(1m)(cm)1r.³ Johnson was convicted on the reduced charge and was sentenced to a three-year term of imprisonment, consisting of one-and-one-half years' initial confinement and one-and-one-half years' extended supervision. Johnson appealed his conviction.

¶ 12 The court of appeals reversed Johnson's conviction. State v. Johnson, 2006 WI App 15, 288 Wis.2d 718, 709 N.W.2d 491. On appeal, the State conceded that Johnson did not consent to the protective search of his vehicle. Id., ¶ 9, 709 N.W.2d 491. The court of appeals focused its inquiry on whether Stillman had reasonable suspicion to justify the search of Johnson's vehicle. Id. The court held that "`furtive' or suspicious movements do not automatically give rise to an objectively reasonable suspicion that the occupant of the vehicle is armed and dangerous." Id., ¶ 17, 709 N.W.2d 491, (citing State v. Kyles, 2004 WI 15, ¶¶ 48-50, 269 Wis.2d 1, 675 N.W.2d 449). The court concluded that Johnson's furtive movement in the car and his falling down during the pat down, when considered under the totality of the circumstances did not give rise to an objectively reasonable suspicion that Johnson was armed and presented a threat to the safety of the officers. Id., ¶ 18, 675 N.W.2d 449. Consequently, the court of appeals reversed the judgment of conviction. The State appeals the court of appeals' reversal of Johnson's conviction. We accepted review.

II

¶ 13 "Whether evidence should be suppressed is a question of constitutional fact." State v. Knapp, 2005 WI 127, ¶ 19, 285 Wis.2d 86, 700 N.W.2d 899 (quotation and citation omitted). A finding of constitutional fact consists of the circuit court's findings of historical fact, and its application of these historical facts to constitutional principles. State v. Turner, 136 Wis.2d 333, 343-44, 401 N.W.2d 827 (1987). We review the former under the clearly erroneous standard, and the latter independently. Id.

III

¶ 14 As a preliminary matter, we begin with the circuit court's determination that Stillman received Johnson's consent to search the car. The State concedes before this court, as it did in the court of appeals, that Johnson did not freely consent to the search of his vehicle.⁴ We have reviewed the record and agree with the State that the circuit court's finding that Stillman obtained Johnson's consent to conduct a search of the car was clearly erroneous.

¶ 15 Whether a suspect freely consented to an otherwise unlawful search is a question of constitutional fact, which presents a mixed question of fact and law. Turner, 136 Wis.2d at 343-44, 401 N.W.2d 827. As we indicated earlier, constitutional facts consist of a circuit court's findings of historical fact, which we review under the clearly erroneous standard, and its application of these historical facts to constitutional principles, which we review de novo. Id.⁵ ¶ 16 When the purported legality of a warrantless search is based on the consent of the defendant,...