State v. Kyles

Decision Date02 March 2004
Docket NumberNo. 02-1540-CR.,02-1540-CR.
Citation2004 WI 15,269 Wis.2d 1,675 NW 2d 449
PartiesState of Wisconsin, Plaintiff-Appellant-Petitioner, v. Joshua O. Kyles, Defendant-Respondent.
CourtWisconsin Supreme Court

For the plaintiff-appellant-petitioner the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-respondent there was a brief and oral argument by Eileen A. Hirsch, assistant state public defender.

¶ 1. SHIRLEY S. ABRAHAMSON, C.J.

This is a review of an unpublished decision of the court of appeals affirming the order of the Circuit Court for Kenosha County, David M. Bastianelli, Judge.1 The circuit court granted the motion of Joshua O. Kyles, the defendant, to suppress marijuana seized in a frisk, a protective search for weapons during a routine traffic stop. "Frisk" refers to "measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm."2 The circuit court ruled that the police officer lacked an articulable, reasonable objective basis to believe that the defendant was armed and dangerous. Because it concluded that the protective search for weapons was invalid, the circuit court further concluded that no basis for the arrest existed and that the marijuana seized during the frisk was inadmissible evidence at the defendant's trial.

¶ 2. The court of appeals affirmed the circuit court's order suppressing the marijuana. Because we conclude that the totality of the circumstances was not sufficient to create reasonable suspicion to justify a protective search for weapons, we affirm the decision of the court of appeals.

¶ 3. The dispute in the present case centers on two issues: first, whether the circuit court erred in allowing the officer to testify about his "belief that his safety was in danger"3 and further erred in considering the officer's belief that his safety was not in danger in deciding that no reasonable suspicion existed to justify the frisk; and second, whether the defendant's placing his hands in his pockets after being told by the officer to remove them is sufficient, in and of itself, to raise reasonable suspicion justifying a protective search for weapons. With regard to both issues, the State asserts that the court of appeals erred in the present case and in State v. Mohr4 and asks us to overturn the Mohr decision.

¶ 4. We conclude that an officer's belief that his safety or that of others was in danger when confronting an individual is not a prerequisite to conducting a protective search for weapons. We do not accept the State's position that under no circumstances may an officer be questioned about his or her belief about whether his or her safety or that of others was in danger at the time the frisk was conducted. We conclude that officers may be so questioned because officers may draw reasonable inferences from the facts in light of their experiences. A court may therefore consider an officer's belief that his or her safety or that of others was or was not in danger in determining whether the objective standard of reasonable suspicion was met.

¶ 5. We conclude, as do the State and the defendant, that an individual's failure to obey the direction of an officer to keep his hands in the officer's sight is a significant factor to consider in determining the reasonableness of an officer's suspicion that the individual being frisked might be armed and dangerous. We decline to hold, as the State urges, that the requirement of specific and articulable facts providing reasonable suspicion is automatically satisfied when a person fails to comply with an officer's order to keep his hands out of pockets that could be concealing a weapon. Circuit courts are aptly positioned to decide on a case-by-case basis, evaluating the totality of the circumstances, whether an officer had reasonable suspicion to justify a protective search in a particular case. Finally, we decline the State's invitation to overturn the Mohr decision.

I

¶ 6. The defendant challenges the officer's protective search for weapons conducted on him as a violation of his Fourth Amendment guarantee that persons be free from "unreasonable searches."5 In reviewing an order granting a motion to suppress evidence obtained during a protective search for weapons, we uphold a circuit court's findings of fact unless they are against the great weight and clear preponderance of the evidence.6 The facts in the present case are undisputed.

¶ 7. Whether the facts satisfy the constitutional requirement for performing a protective search for weapons—that an officer must have reasonable suspicion that a person may be armed and dangerous to the officer or others—is a question of constitutional law for this court to decide.7 We are not bound by a circuit court's or court of appeals' decision on this question of law, but we benefit from the analyses of these courts.8

¶ 8. The controlling principles of constitutional law applicable to the "reasonable suspicion" standard of a protective search for weapons are firmly established, and neither party challenges these principles. The parties disagree, in the present case, over whether the facts satisfy the constitutional standard of "reasonable suspicion."

¶ 9. The touchstone for examining a frisk is the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Court authorized a protective search of an individual suspected of criminal activity in order "to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm."9 In order to limit the state's power to intrude upon individual rights, however, the Court held that to justify a particular intrusion, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion."10 The Court went on to explain that "due weight must be given, not to his [the officer's] inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."11

¶ 10. The reasonableness of a protective search for weapons is an objective standard, that is, "whether 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.12 In determining whether a frisk was reasonable, a court may look "to any fact in the record, as long as it was known to the officer at the time he conducted the frisk and is otherwise supported by his testimony at the suppression hearing."13

II

¶ 11. We first state the relevant undisputed facts; we will expound upon the facts later in the opinion as we discuss the arguments of the parties. At approximately 8:45 p.m. on December 23, 2001, a police officer pulled over a vehicle for the traffic violation of operating a vehicle without headlights after dark. The defendant was a passenger in the vehicle. No one in the vehicle was suspected of a crime.

¶ 12. A second officer came to the scene of the stop. At the request of one of the officers, the defendant exited the vehicle to allow the police to perform a consensual search of the vehicle. The officer's request to the defendant to exit the vehicle and the defendant's consent to the search of the vehicle have not been challenged.

¶ 13. The defendant was wearing a "big, down, fluffy" coat, suitable for the cold winter weather that night. The officer testified that when the defendant exited the vehicle he was behaving suspiciously: he appeared nervous, looked around, and was "kind of trying to keep his hands in his pockets." The officer also testified that the defendant did not try to flee.

¶ 14. When the defendant exited the vehicle, he placed his hands in his coat pockets. The officer directed the defendant to remove his hands from his pockets. As the defendant was walking, at the officer's request, to the rear of the car, the defendant again placed his hands in his pockets. Again the officer told the defendant to "keep your hands out of your pockets." Again the defendant complied and removed his hands from his pockets. The officer testified that the defendant's placement of his hands in his pocket was "like a nervous habit. He'd put them in, take them out, put them back in, take them out."

¶ 15. About four to eight seconds elapsed between the time the defendant exited the vehicle and the time the officer conducted a frisk of the defendant. Only one officer performed the protective search for weapons and testified about it. No weapon was found on the defendant's person; however, marijuana was found.

III

¶ 16. We now address the question whether the totality of the circumstances supports the conclusion that the officer had reasonable suspicion to justify the protective search for weapons on the defendant.

¶ 17. The parties disagree about the weight to be given the following six factors that compose the totality of the circumstances in the present case:

(1) The officer testified that he "didn't feel any particular threat before searching" the defendant.
(2) The defendant, during a four-to-eight-second interval, at least twice inserted his hands into and removed his hands from his coat pockets after being directed by the officer to remove his hands from his pockets;
(3) The defendant wore a big, fluffy down coat in which a weapon could be secreted;
(4) The defendant appeared nervous;
(5) The stop occurred at night; and

The officer testified, in response to a question about the criminal activity in the area of the stop, that it was "pretty active."

¶ 18. We address each of these six factors in turn and then examine them in their totality.

(1)

¶ 19. The principal issue in this case, according to the State, is that ...

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