State v. Kolk

• Citation: 726 N.W.2d 337,2006 WI App 261
• Decision Date: 22 November 2006
• Docket Number: No. 2006AP31-CR.,2006AP31-CR.
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Calvin R. KOLK, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

Page 337

726 N.W.2d 337

2006 WI App 261

STATE of Wisconsin, Plaintiff-Appellant, v. Calvin R. KOLK, Defendant-Respondent.

No. 2006AP31-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs October 5, 2006.

Opinion Filed November 22, 2006.

COPYRIGHT MATERIAL OMITTED

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Sarah K. Larson, assistant attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Michael D. Zell of Zell Peterson, LLC of Milwaukee.

Before BROWN, NETTESHEIM and ANDERSON, JJ.

¶1 BROWN, J

In this case, a roadside frisk led to the discovery of drugs without a prescription, providing the justification for the arrest of the defendant driver and a search of his vehicle that uncovered more drugs. The State argued before the trial court that the frisk was valid because there was reasonable suspicion that the driver was carrying drugs or, alternatively, that the driver consented to it. The trial court rejected the State's arguments and suppressed the drugs. The State renews these arguments on appeal, but we affirm the trial court. The reasonable suspicion argument fails because the citizen informant who first alerted police to the possible criminal activity of the driver did not demonstrate how he or she knew about the activities reported—a factor we believe the case law holds to be of utmost importance in considering a tip's reliability. Nor was the citizen informant's so-called "predictive information" verified as to time and place such that it significantly strengthened the credibility of the tip. The argument that the driver consented also fails because at the time of the claimed consent, the driver was detained beyond the legal justification of the traffic stop and without reasonable suspicion.

¶2 The relevant facts are taken from the suppression hearing and are undisputed except where noted. On the morning of May 20, 2005, an investigator for the Washington County Sheriff's Department received a tip that Calvin Kolk was on his way to Milwaukee to pick up some Oxycontin. The informant identified him- or herself to the investigator and provided a date of birth, address and cell phone number, but wished to have that information kept confidential. The investigator had not had prior dealings with the informant. The informant spoke with the investigator four or five times over the course of the day, sharing information, though it is not stated in the record what this information was.

¶3 In response to the tip, an officer drove past Kolk's house and noted that Kolk's car was parked there. The informant called back later and stated that Kolk had already been to Milwaukee and had returned and would leave that afternoon for Madison. The informant provided a description of Kolk and his automobile. A team of officers was sent to Kolk's residence and set up surveillance.

¶4 Eventually, the surveilling officers observed Kolk exit the house and get into his vehicle. He drove north on Highway 175, and at one point exceeded the speed limit, going sixty-two in a fifty-five mile per hour zone. The officer who witnessed the speeding radioed to another officer, who pulled Kolk's vehicle over after Kolk had turned westbound on County Trunk S. The officer who stopped Kolk also noted that his windshield was cracked.

¶5 The officer approached Kolk's window and asked for his driver's license. Kolk complied, and the officer told him that he had been stopped for speeding and for the cracked windshield. The officer told him that he would receive a written warning and then took Kolk's license and returned to his squad car. At some point, the officer returned to Kolk's vehicle and asked for his registration. When Kolk opened the glove compartment to retrieve his registration, the officer noted that it also contained a pill bottle. The officer took the pill bottle to his squad car and eventually determined that it contained legal dietary supplements. The officer again returned to Kolk's vehicle.

¶6 Here the testimony of Kolk and the officer diverge. Both agree that the officer returned Kolk's license and registration to him. The officer testified that he also gave Kolk the written warning at this point. Both agree that the officer asked Kolk if he had any drugs or weapons in the vehicle and that Kolk responded that he did not. The officer asked Kolk whether he could search the vehicle; the officer testified that Kolk said it would be okay. Kolk testified that he refused the officer's request, and the officer asked again; Kolk again refused, and the officer asked a third time, at which point Kolk finally relented, believing he had no choice but to allow the search. According to Kolk, after he consented, the officer again returned to his squad car and upon returning to Kolk's vehicle, asked him to get out. Kolk testified that the officer also gave him the written warning at this time.

¶7 At this point, the officer's and Kolk's testimony reconverge. When Kolk got out of the vehicle, the officer told him that he was concerned for his safety and wished to pat-down Kolk for weapons. Kolk consented. The officer had noticed a bulge in Kolk's front pants pocket; when he frisked Kolk, he testified that he could tell that some of the items in the pocket were pill bottles, but that another object might have been a pocket knife. The officer removed the pill bottles from Kolk's pocket and identified the pills inside as oxycodone. Kolk stated that he did not have a prescription for the drugs, and so he was arrested. Another officer who had arrived on the scene searched Kolk's vehicle incident to the arrest and found more drugs.

¶8 Kolk moved the circuit court to suppress the drug evidence on the grounds that it was obtained in violation of his Fourth Amendment rights. After a hearing, the circuit court suppressed the evidence obtained in the searches of Kolk and his vehicle. The State moved for reconsideration, and the court denied the motion. The State appeals the suppression order and the order denying reconsideration.

¶9 Both Kolk and the State zero in on the frisk as the key moment in the encounter between Kolk and the officer, contesting issues of reasonable suspicion, danger to the officer, the permissible scope of the pat-down search, and consent. We agree that the frisk was a pivotal point in the investigation, since it turned up the first drugs and led to Kolk's arrest. However, we do not find it necessary to examine the issues of danger to the officer or the proper scope of a pat-down search. This case turns on the issues of consent and reasonable suspicion; one or the other must have been present in order for the frisk to be permissible. We hold that neither was, and so we need not inquire further. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (appellate court need not consider issues in an appeal disposed of by decision on other issues). Absent the drugs found during the pat-down, Kolk's arrest was unsupported by probable cause and so the search of the vehicle was not a legitimate search incident to arrest.¹ We will address reasonable suspicion and consent in turn.

¶10 The questions of the existence of either consent or reasonable suspicion under the Fourth Amendment are questions of constitutional fact. State v. (Lawrence) Williams, 2002 WI 94, ¶17, 255 Wis.2d 1, 646 N.W.2d 834; State v. (Roosevelt) Williams, 2001 WI 21, ¶18, 241 Wis.2d 631, 623 N.W.2d 106. We apply a two-step standard of review to such questions; we uphold the circuit court's findings of fact unless clearly erroneous, but determine de novo whether the facts as found demonstrate a constitutional violation. (Roosevelt) Williams, 241 Wis.2d 631, ¶18, 623 N.W.2d 106.

¶11 Warrantless searches are per se unreasonable under the Fourth Amendment. State v. Jones, 2005 WI App 26, ¶9, 278 Wis.2d 774, 693 N.W.2d 104, review denied, 2005 WI 134, 282 Wis.2d 720, 700 N.W.2d 272. However, a police officer may conduct a frisk for weapons where "`a reasonably prudent man in the circumstances would be warranted in the belief that his safety and that of others was in danger' because the individual may be armed with a weapon and dangerous." State v. Kyles, 2004 WI 15, ¶10, 269 Wis.2d 1, 675 N.W.2d 449 (citation omitted). Though the rule is often stated as if suspicion of a concealed weapon were the only criterion for a pat-down, it is also necessary that the officer have the right to detain the individual in the first place. See Terry v. Ohio, 392 U.S. 1, 32, 88 S.Ct. 1868, 20 L.Ed.2d 889 (Harlan, J., concurring) ("[I]f the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop."); see also 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT, § 9.6(a), at 615-17 (4th ed.2004). This in turn requires reasonable suspicion that the individual is committing, is about to commit, or has committed a crime. See (Roosevelt) Williams, 241 Wis.2d 631, ¶21, 623 N.W.2d 106; WIS. STAT. § 968.24 (2003-04).² Therefore, the first question we must address is whether the police had information that could give rise to reasonable suspicion that Kolk was in possession of drugs³ such that they were justified in detaining him.⁴

¶12 The State contends that the information the officers received from the informant was sufficient to create a reasonable suspicion that Kolk was in possession of drugs. The circuit court rejected the State's argument, labeling the tipster a "confidential informant." Both the State and Kolk agree that the tipster here is best characterized as a citizen informant, and we also concur. Though there is some confusion in the case law, we believe that the distinction is that a confidential informant is a person, often with a criminal past him- or herself, who assists the police in...