State v. Limon

• Citation: 751 N.W.2d 877,2008 WI App 77
• Decision Date: 08 April 2008
• Docket Number: No. 2007AP1578-CR.,2007AP1578-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent<SMALL><SUP>&#x2020;</SUP></SMALL> v. Tamara Concha LIMON, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

751 N.W.2d 877

2008 WI App 77

STATE of Wisconsin, Plaintiff-Respondent^† v. Tamara Concha LIMON, Defendant-Appellant.^†

No. 2007AP1578-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs January 31, 2008.

Opinion Filed April 8, 2008.

On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Tyroler, assistant state public defender, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and James M. Freimuth, assistant attorney general.

Before CURLEY, P.J., WEDEMEYER and FINE, JJ.

¶ 1 CURLEY, P.J

Tamara Concha Limon appeals from a judgment of conviction entered after she pled guilty to one count of possession with intent to deliver cocaine as party to a crime, contrary to WIS. STAT. §§ 961.16(2)(b)1., 961.41(1m)(cm)1r., and 939.05 (2003-04).¹ Limon pled guilty after the trial court denied her motion to suppress evidence discovered during a search of her purse.²

¶ 2 In challenging the trial court's denial of her suppression motion, Limon argues that the investigative stop and subsequent search of her purse violated her constitutional rights.³ We disagree and conclude that the totality of the circumstances provided sufficient justification for an investigative stop; that the police officer who searched Limon's purse "reasonably suspect[ed] that he ... or another [wa]s in danger of physical injury," WIS. STAT. § 968.25; and that the search was a valid weapons frisk. Accordingly, we approve the trial court's decision to deny Limon's suppression motion and affirm the judgment of conviction.

I. BACKGROUND.

¶ 3 The relevant facts as developed at the suppression hearing are not in dispute. During the week of April 21, 2006, a Milwaukee police officer received information regarding a residence located at 5178 North 39th Street in Milwaukee from a citizen who wished to remain anonymous. According to the officer, the citizen told him:

[There was] a lot of loitering that was going on at this residence, that there was drug dealing going on, people smoking drugs and that he was very fearful for his safety because of it[,] because he's in the area quite a bit; and he asked me if I could monitor that residence.

The citizen also told the officer that he had spoken to the owner of the residence, who indicated that the lower unit was vacant and that no one should be on the porch there.

¶ 4 The officer was questioned at the suppression hearing about the citizen who reported the information to him. The officer testified that the citizen who approached him was not someone he knew or had met before. According to the officer, the citizen "seemed very credible. He wasn't intoxicated. He wasn't high. He was very articulate in what he was telling me, and I had no reason to doubt what he was telling me was true."

¶ 5 Although he never contacted the owner of the residence to verify its vacancy, in the week following the citizen's request, the officer monitored the residence. In addition, he had his sister squad monitor the residence. Occasionally during the week, the officer saw people on the porch of the residence, but he did not have an opportunity to investigate. That changed on April 21, 2006, when, at approximately 2:20 p.m., he and his partner saw two men and Limon on the porch.

¶ 6 After parking the squad car in front of the residence, the officer asked whether either the men or Limon lived at the residence and learned that they did not. It does not appear from the record that any of the three offered an explanation or a purpose for his or her presence at the residence. The officer then asked one of the men to stand up, at which point the officer observed a "blunt" cigar that appeared to contain marijuana on the porch within a foot or so of where the man had been sitting and within approximately three feet of where Limon was standing.⁴ The blunt was not lit at the time, and the officer testified that he did not detect the odor of marijuana. Although he did not know how long the blunt had been on the porch, the officer, who had encountered marijuana thousands of times, testified that "[i]t looked fresh."

¶ 7 Thereafter, the officer conducted a pat-down search of the man closest to the blunt to check for weapons. The officer testified that the area where the residence was located was considered a high-crime area, and that two blocks away, a state agent was murdered while on duty. He further testified to investigating shootings in the area, that armed robberies were prevalent, and that it seemed like many people in the area were armed. He said that he conducted the pat-down search of the man out of concern for his safety, his partner's safety, and the safety of citizens in the area. Not finding any weapons on the man, the officer then focused on Limon, who remained standing on the porch. Meanwhile, the officer's partner searched and interviewed the other man who was present on the porch.

¶ 8 Limon was cooperative and did not make any furtive movements. Both because the officer did not believe she had a weapon on her person, and due to police department policy, which required that a female officer search a female absent exigent circumstances, he did not conduct a pat-down search of Limon. Limon was, however, holding a purse, and the officer said, "Let me see your purse." Limon handed her purse to the officer, and he opened it and looked inside.

¶ 9 The officer testified that he was looking for weapons that could have been concealed within the purse, which was approximately twelve inches long and six inches high. Upon opening the purse, the officer saw that sitting on top of the contents was a plastic bag, and inside the plastic bag was another clear plastic bag containing a number of individually wrapped white pieces of a chunky substance. Based on his experience, the officer testified that the substance looked like crack cocaine. He subsequently arrested Limon.

¶ 10 Limon was charged with one count of possession with intent to deliver cocaine as party to a crime, contrary to WIS. STAT. §§ 961.16(2)(b)1., 961.41(1m)(cm)1r., and 939.05. She filed a motion to suppress the evidence derived from the search of her purse, which the trial court denied. She pled guilty and now appeals.

II. ANALYSIS.

¶ 11 Limon asks this court to determine whether the investigative stop and subsequent search of her purse violated her constitutional rights. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" is protected by both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. U.S. CONST. amend. IV; WIS. CONST. art. I, § 11.⁵ "The ultimate standard under the Fourth Amendment is the reasonableness of the search or seizure in light of the facts and circumstances of the case." Bies v. State, 76 Wis.2d 457, 468, 251 N.W.2d 461 (1977).

¶ 12 On appeal following the denial of a motion to suppress, we "will uphold the court's findings of fact unless they are against the great weight and clear preponderance of the evidence. However, this court will independently examine those facts to determine whether the constitutional requirements of reasonableness [are] satisfied." State v. Williamson, 113 Wis.2d 389, 401, 335 N.W.2d 814 (1983) (citation omitted).

A. Investigative stop.

¶ 13 Investigative stops were recognized as an effective way for police officers to carry out their tasks of "crime prevention and protection," when the court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), acknowledged: "`[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.'" State v. Richardson, 156 Wis.2d 128, 138, 456 N.W.2d 830 (1990) (quoting Terry, 392 U.S. at 22, 88 S.Ct. 1868). Wisconsin's "`statutory expression'" of the constitutional requirements set forth in Terry is found at WIS. STAT. §§ 968.24 and 968.25. Williamson, 113 Wis.2d at 400, 335 N.W.2d 814 (citations omitted). These statutes read as follows:

968.24 Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

968.25 Search during temporary questioning. When a law enforcement officer has stopped a person for temporary questioning pursuant to s. 968.24 and reasonably suspects that he or she or another is in danger of physical injury, the law enforcement officer may search such person for weapons or any instrument or article or substance readily capable of causing physical injury and of a sort not ordinarily carried in public places by law abiding persons. If the law enforcement officer finds such a weapon or instrument, or any other property possession of which the law enforcement officer reasonably believes may constitute the commission of a crime, or which may constitute a threat to his or her safety, the law enforcement officer may take it and keep it until the completion of the questioning, at which time the law enforcement officer shall either return it, if lawfully possessed, or arrest the person so questioned.

¶ 14 In order for an investigative stop to be warranted, it is required that "a law enforcement officer reasonably suspect, in light of his or her experience, that some kind of criminal activity has taken or is taking place." Richardson, 156 Wis.2d at 139, 456 N.W.2d 830. "In determining whether the police have...