State v. McGill, 98-1409-CR.

• Decision Date: 12 May 2000
• Docket Number: No. 98-1409-CR.,98-1409-CR.
• Citation: 2000 WI 38,609 N.W.2d 795,234 Wis.2d 560
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jose C. McGILL, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

234 Wis.2d 560

2000 WI 38

609 N.W.2d 795

STATE of Wisconsin, Plaintiff-Respondent, v. Jose C. McGILL, Defendant-Appellant-Petitioner.

No. 98-1409-CR.

Supreme Court of Wisconsin.

Oral argument November 11, 1999.

Decided May 12, 2000.

For the defendant-appellant-petitioner there were briefs and oral argument by Steven P. Weiss, assistant state public defender.

For the plaintiff-respondent the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DIANE S. SYKES, J.

This is a challenge to a protective frisk for weapons that produced not a weapon but cocaine. The defendant, Jose C. McGill, has two complaints. First, he says there was insufficient justification for the frisk because this was merely a routine traffic stop devoid of any circumstances suggesting that he was armed and presently dangerous. And, second, he says that even if the weapons frisk was justified, the officer exceeded its scope by seizing and opening the package of cocaine that he had in his pocket. We disagree and hold that both the frisk and the subsequent seizure and inspection of the packaged drugs in McGill's pocket were constitutional.

¶ 2. The facts are from the suppression hearing and are undisputed. On November 7, 1996, at approximately 10:10 p.m., City of Beloit Police Officer Curt Wald was on patrol in a marked squad car. As Wald drove north on Fourth Street, approaching the intersection of Fourth and Portland Avenue, he observed a maroon vehicle traveling west on Portland.

¶ 3. The intersection of Portland and Fourth was in the early stages of construction and the westbound lane of Portland was barricaded just west of Fourth Street. Despite posted signs stating "road closed," the vehicle Wald was observing drove around the barricades using the eastbound lane and continued west on Portland.

¶ 4. Officer Wald activated his squad car's emergency lights and pursued the vehicle down Portland. The vehicle did not immediately stop and pull over, however, despite the fact that at the time Wald turned on his emergency lights it was only a short distance—about a block and a half—away. Instead, it proceeded down Portland for several blocks, eventually turning north onto Vine Street with Wald still in pursuit.

¶ 5. The vehicle eventually turned into a driveway at 905 Vine Street and stopped.¹ As Wald pulled his squad behind the vehicle, he observed the driver get out of the car and walk away. Wald testified that the driver walked away from the car as if he were "trying to avoid being with that vehicle or being stopped by the police."

¶ 6. Wald got out of his squad car and ordered the driver to stop. The driver stopped walking away and returned to where Wald was standing. Wald asked to see his driver's license. Although there were street-lights in the area, it was sufficiently dark in the driveway that Wald needed a flashlight to read the license. It identified the driver as the defendant, Jose C. McGill.

¶ 7. Wald testified that as McGill came closer, he appeared more nervous than other people he routinely stopped on his patrol. Wald also noticed that McGill's hands were twitching and that he had the odor of intoxicants and the slight odor of marijuana on his person.

¶ 8. Wald decided to conduct a field sobriety test on McGill; however, before doing so, he frisked McGill for weapons. Wald testified at the suppression hearing that he decided to conduct the frisk based upon a number of factors, including the fact that McGill did not stop for his lights, appeared unusually nervous, tried to walk away from the encounter, was "twitchy" and smelled of both drugs and alcohol. Wald's concerns were raised because he viewed McGill's actions as out of the ordinary. When asked what was different about McGill's actions, Wald replied:

He didn't actually stop for my lights. He pulled into a driveway. He exited the vehicle and began to walk away from it as though he was trying to avoid being with that vehicle or being stopped by the police. . . .He twitched and acted nervous with his hands. He kept moving his hands to his pockets. Most people stay in their car and pull over immediately when they see red and blue lights flashing behind them.

¶ 9. Wald instructed McGill to keep his hands on top of the squad car during the frisk. However, despite the order, McGill moved his hands from the hood of the squad car to his pockets several times while Wald attempted to pat him down. Wald testified that this behavior increased his concern about the contents of McGill's pockets and the potential presence of a weapon.

¶ 10. Wald continued with the frisk until he felt a "hard oblong shaped object" in McGill's right front pants pocket. Wald testified that based on the size and shape of the object, he believed it was possibly a pocketknife. Wald asked McGill directly about the object. McGill replied that it was nothing, "just some change." The object did not feel at all like change to Wald.

¶ 11. Wald handcuffed McGill's hands behind his back before removing the object. Wald testified that he placed McGill in handcuffs as a precautionary measure because he "didn't want to be fighting over a knife." Upon removing the object from McGill's pocket, Wald noted that it was not a knife (or change, as McGill had claimed), but an object wrapped in aluminum foil and a plastic baggie. Based upon his training and experience (seven years as an officer), Wald believed that the item "could be any type of narcotic or drug." Wald testified that he had seen drugs packaged that way in the past.

¶ 12. Wald opened the package. Inside the foil was a plastic baggie containing what Wald believed was powder cocaine. The powder had been packaged so tightly that it formed a hard block. Wald performed a field test on the substance and confirmed its identity. He then placed McGill under arrest for possession of cocaine.

¶ 13. Sometime after Wald discovered the cocaine, Officer Allen Cass arrived at the scene and conducted a search of McGill's vehicle incident to arrest. On the floor behind the driver's seat, Cass discovered a rolled-up paper bag containing marijuana.

¶ 14. McGill was charged with one count of possession of cocaine with intent to deliver as a second offender, contrary to Wis. Stat. §§ 961.41(1m)(cm)(2) and 961.48; one count of possession of THC with intent to deliver as a second offender, contrary to Wis. Stat. §§ 961.41(1m)(h)(2) and 961.48; and two tax stamp violations, contrary to Wis. Stat. §§ 139.88 and 139.89. McGill moved to suppress the drug evidence, alleging that Officer Wald discovered the cocaine on his person pursuant to an illegal search. McGill also claimed that the marijuana found in his car should be suppressed as "fruit of the poisonous tree" because the officers would not have searched his car if not for the unconstitutional search of his person, which led to the discovery of the cocaine.

¶ 15. The Rock County Circuit Court, the Honorable James E. Welker, denied McGill's motion, finding Wald's decision to conduct the frisk reasonable under the circumstances:

I think you have to look at the totality of the circumstances. . .[I]n the course of that interview, he observed that this defendant who had previously tried to walk away, was moving his hands toward his pockets. And I think that that was a reasonable basis for a police officer to at least determine whether there was a weapon in that pocket before he continued with the interview.²

The court also found that Wald was justified in seizing and opening the foil-wrapped package in McGill's pocket.

¶ 16. McGill pled guilty to a reduced charge of simple possession of cocaine as a second offense and possession of THC with intent to deliver as a second offense. He was sentenced to a total of 12 years in state prison. McGill appealed, and the court of appeals, in an unpublished opinion, affirmed.

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¶ 17. We turn first to the permissibility of the frisk under the Fourth Amendment. In reviewing the denial of a motion to suppress evidence, we will uphold the circuit court's findings of fact unless they are against the great weight and clear preponderance of the evidence. State v. Williamson, 113 Wis. 2d 389, 401, 335 N.W.2d 814 (1983). We then independently review those facts to determine whether the constitutional requirement of reasonableness is satisfied. Id.

¶ 18. The Fourth Amendment prohibits unreasonable searches and seizures. Courts make the determination of whether a search is reasonable by balancing the government's need to conduct the search against the invasion the search entails. Terry v. Ohio, 392 U.S. 1, 21 (1968).

¶ 19. In Terry, the United States Supreme Court struck a balance between the need for law enforcement officers to protect themselves from harm and the individual's right to personal security. Id. at 23-25. The Court recognized the dangers faced by the police when conducting close-range investigations of suspects. Id. at 23-24. It concluded that the "more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him" justifies the limited intrusion on individual rights that the protective frisk entails. Id. Where an officer reasonably believes that his safety may be in danger because the suspect he is investigating may be armed, it would be unreasonable not to allow him to conduct a limited search for weapons. Id. at 24.

¶ 20. The need for officers to frisk for weapons is even more compelling today than it was at the time of Terry. In 1966, 57 law enforcement officers were feloniously killed in the line of duty and 23,851 officers were assaulted. Terry, 392 U.S. at 24 n.21. Although the number of officers killed in the line of duty has increased only slightly (61 officers killed in 1998), the number of assaults on officers has more than doubled (59,545...