State v. KELSEY CR
| Citation | 2001 WI 54,626 N.W.2d 777,243 Wis.2d 422 |
| Decision Date | 31 May 2001 |
| Docket Number | No. 99-3095.,99-3095. |
| Parties | IN the INTEREST OF KELSEY C.R., a person Under the Age of 17: STATE of Wisconsin, Petitioner-Respondent, v. KELSEY C.R., Respondent-Appellant-Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
For the respondent-appellant-petitioner there were briefs and oral argument by Susan E. Alesia, assistant state public defender.
For the petitioner-respondent the cause was argued by Christian R. Larsen, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶ 1.
This case arises out of a stop and pat-down search of Petitioner Kelsey C.R. (Kelsey). Two police officers came upon Kelsey sitting alone after dark in a high-crime neighborhood. The officers were concerned that she was a runaway so they began asking her questions. After Kelsey had responded to a few questions, the police told her to "stay put." Kelsey then fled from the police. The police chased and eventually caught her. The officers detained Kelsey, and had a pat-down search of her person for weapons conducted. The police found a loaded handgun on Kelsey, and she was charged with possession of a dangerous weapon. Kelsey moved the circuit court to suppress the results of the pat-down —the handgun—as evidence. The circuit court denied her motion and the court of appeals affirmed. We granted Kelsey's petition for review.
¶ 2. To resolve this case, we address three distinct points in the encounter between the police and Kelsey. First, did the police seize Kelsey, thereby invoking her constitutional protection against unreasonable seizures, when they told her to "stay put" but she ran away? Second, was the detention of Kelsey after she fled and the police caught her reasonable? Third, was the pat-down search of Kelsey reasonable?
¶ 3. We hold that the circuit court properly denied Kelsey's motion to suppress the evidence. The police did not seize Kelsey when they told her to "stay put" but she ran away, because she did not yield to the police officers' show of authority. Even if this initial exchange was considered a seizure, it was justified by the police community caretaker function. We further hold that the investigative detention of Kelsey, after she fled from the police, was reasonable because the officers had reasonable suspicion that Kelsey had committed, was committing, or was about to commit, a crime. Lastly, we hold that the pat-down search, or frisk, of Kelsey was reasonable.1 We conclude that the frisk was reasonable because the officers had reasonable suspicion that Kelsey may be armed and dangerous. We therefore affirm the court of appeals.
¶ 4. On March 1, 1999, at about 7:40 p.m., darkness had descended on the high-crime neighborhood of Eighth and Mitchell Streets in the City of Milwaukee, when Police Officers Bernard Gonzalez (Gonzalez) and Rafael Rivera (Rivera) observed a juvenile female who appeared to need their help. The officers observed Kelsey sitting in the middle of the block leaning up against a storefront. It was a commercial area, but most of the stores were closed and few people were around. Gonzalez testified at the suppression hearing that it was not a good area, especially for a young female alone at night. In addition, Kelsey appeared to be withdrawn, sitting in a huddled position with her hood up over her head.
¶ 5. The officers were concerned that Kelsey might be a runaway, so they stopped the police car and rolled down the window to ask her a few questions. The officers were on the opposite side of the street from where Kelsey was located. The police car was unmarked, but both officers were wearing their uniforms. Gonzalez asked Kelsey if she was all right. Kelsey responded that she was. Gonzalez asked Kelsey how old she was. Kelsey told him that she was 15. When Gonzalez inquired as to where she lived, Kelsey pointed in a direction and said that she lived over there. Gonzalez then asked Kelsey what she was doing. Kelsey said that she was waiting for a friend. This answer raised Gonzalez's curiosity, because he thought that most people waiting for a friend would be standing on the corner, rather that sitting in the middle of the block. Gonzalez thought Kelsey's answers were evasive and was still concerned that Kelsey was a runaway, so he told her to "stay put" so he could make a U-turn with the police car to be on the same side of the street as Kelsey and ask her more questions. Kelsey then fled.
¶ 6. After a 30-40 second chase, the officers caught Kelsey. When asked why she ran, Kelsey told the officers that she was afraid, but could not explain why she was afraid. The officers checked a national computer database which indicated that Kelsey was not a runaway. Kelsey provided the officers with her telephone number. Gonzalez called the number and spoke with Kelsey's mother. She told Gonzalez that Kelsey was not a runaway, and asked Gonzalez to bring Kelsey home. In addition, Kelsey's mother told Gonzalez that she could not understand why Kelsey fled the police. At this time Gonzalez decided to issue Kelsey a citation for resisting or obstructing an investigation.2
¶ 7. Before the officers placed Kelsey in the police car to take her home, they wanted to perform a pat-down search. Because Kelsey was a female, the officers called for a female officer to conduct the search. The closest female officer was downtown so the officers had to wait about 20 minutes for her to arrive. While they were waiting for the female officer to arrive, Gonzalez described Kelsey as very cooperative. When the female officer arrived, she immediately conducted a pat-down search of Kelsey. During the search, she felt something hard in the front of Kelsey's jeans. When she asked what the object was, Kelsey did not respond. The female officer asked if she could take the object out. Kelsey sighed and said yes. The object was a small, loaded handgun. Kelsey was then taken to the District 2 police station.
¶ 8. The State petitioned for a determination that Kelsey was delinquent based on the possession of a dangerous weapon by a person under 18, in violation of Wis. Stat. § 948.60 (1997-98).3 Kelsey moved to suppress the evidence found during the pat-down search, claiming that the officers did not have probable cause to arrest her for resisting or obstructing an investigation, and that the officers did not have reasonable suspicion for the investigative detention.
¶ 9. The circuit court denied Kelsey's motion to suppress. The court concluded that there were two stops, one when the officers began asking Kelsey questions, and a second when the officers caught Kelsey after she fled. The court held that the first stop was justified, because the officers had reasonable suspicion that Kelsey was a runaway. The court held that the second stop was justified, because Kelsey fled from the police. The court then determined that the pat-down search of Kelsey was reasonable, because the officers were doing good police work and were concerned with their safety. After the court denied the motion to suppress, Kelsey admitted to being delinquent based on a violation of Wis. Stat. § 948.60. Kelsey then appealed, claiming that the circuit court erroneously denied her suppression motion.
¶ 10. The court of appeals affirmed. First, the court concluded that the initial investigation, when the officers began asking Kelsey questions, was justified by the police community caretaker function, because the officers were concerned that Kelsey might be a runaway. In addition, the court stated that this initial stop was justified by the authority granted to police to take runaways into custody. Second, the court held that the stop of Kelsey, after the police chase, was justified by the fact that Kelsey fled from the police. Third, the court held that the pat-down search of Kelsey was reasonable because it was prudent for the officers to frisk Kelsey before placing her inside the police car. The court concluded that the intrusion of a pat-down search was outweighed by the officers concern for their safety. We granted Kelsey's petition for review.
¶ 11. This case presents three issues. One, did the police officers seize Kelsey, thereby invoking her constitutional protection against unreasonable seizures, when Gonzalez told her to "stay put" but she ran away? Two, was the investigative detention after she fled based on a reasonable suspicion that she had committed, was committing, or was about to commit, a crime? Three, was the pat-down search of Kelsey based on a reasonable suspicion that she may be armed and dangerous?
[1, 2]
¶ 12. To resolve the issues presented by this case, we must review the circuit court's denial of Kelsey's motion to suppress evidence. The issues in this case involve the constitutional protection against unreasonable searches and seizures. The determination of whether there is reasonable suspicion for an investigative detention and a subsequent pat-down search presents a question of constitutional fact. State v. Martwick, 2000 WI 5, ¶ 18, 231 Wis. 2d 801, 604 N.W.2d 552. We apply a two-step standard of review to questions of constitutional fact. Id. First, we review the circuit court's findings of historical fact and uphold them unless they are clearly erroneous. Id. Second, we review the circuit court's determination regarding reasonable suspicion de novo. Id. We benefit from the analyses of the circuit court and the court of appeals, however.
¶ 13. The parties make several arguments with respect to the issues before us. The State contends that the initial exchange between the police and Kelsey, when the officers began asking her questions, told her to "stay put" but she ran away, was not a seizure. The State asserts that not all police-citizen encounters are seizures. For example, when a police officer seeks a citizen's voluntary cooperation through non-coercive questions, and does...
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