State v. Mendoza

• Decision Date: 20 May 1998
• Docket Number: No. 97-0952-CR,97-0952-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Robert A. MENDOZA, Defendant-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 174

584 N.W.2d 174

220 Wis.2d 803

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Robert A. MENDOZA, Defendant-Appellant.

No. 97-0952-CR.

Court of Appeals of Wisconsin.

Oral Argument May 20, 1998.

Opinion Released July 7, 1998.

Opinion Filed July 7, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael K. Gould, Assistant State Public Defender, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Gregory M. Posner-Weber, Assistant Attorney General.

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

CURLEY, Judge.

Robert A. Mendoza appeals from a judgment entered by the trial court, following a jury trial, convicting him of possession of cocaine with intent to deliver, as a second or subsequent offense, contrary to §§ 161.16(2)(b)1, 161.41(1m)(cm)3, and 161.48, STATS., 1993-94. Mendoza claims that the trial court erred by: (1) not suppressing evidence seized during an administrative search, which Mendoza claims was pretextual; (2) not suppressing evidence seized from Mendoza's car, which Mendoza claims should have been excluded under the "fruit of the poisonous tree" doctrine; and (3) removing four jurors for cause solely because they had criminal records. First, we conclude that the trial court failed to exercise its discretion by removing the four jurors for cause, solely because they had criminal records, and we also conclude that this error requires reversal of Mendoza's conviction. Second, we conclude that we cannot determine whether the administrative search was proper because the trial court did not make sufficient factual findings regarding whether the administrative search was a pretext for obtaining evidence of the violation of criminal laws. Third, we decline to address the issue of whether the evidence seized from Mendoza's car should have been excluded as the "poisoned fruit" of the administrative search, because we cannot do so without determining whether the administrative search was constitutional. Therefore, we reverse the judgment and remand to the trial court with instructions to make specific factual findings regarding whether the administrative search was a pretext to obtain evidence of the violation of criminal laws.

I. BACKGROUND.

On June 16, 1996, Mendoza was working as a bartender at the Fast Times Tavern located at 1556 West Lincoln Avenue in Milwaukee. At approximately 12:30 a.m., six uniformed officers of the Milwaukee Police Department entered the tavern. The officers involved, Bernard Gonzales, John Belsha, Alphonzo Morales, David Kolatski, Earl Turner and Sergeant Michael R. Ziarnik, were assigned to Squad 242P, the "tavern check squad." Officer Gonzales testified at the suppression hearing that "the squad primarily deals with licensed premises, taverns, liquor stores, as well as other types of investigations such as drug dealing complaints and basically vice related offenses."

Officer Gonzales, Sergeant Ziarnik and Officer Belsha testified that they entered the tavern for the purpose of conducting a "tavern check" or "license check," and that Mendoza was told, upon arrival, that they were entering for that purpose. Officer Gonzales, however, also testified that he and the other officers conducted the tavern check because they "were receiving complaints of possible drug activity from that tavern." Officer Gonzales specifically testified that they had received complaints from other tavern owners that drug activity was occurring at the Fast Times Tavern. Sergeant Ziarnik testified that the officers had received specific information that a vehicle parked in front of that tavern had been involved in possible drug activity. Sergeant Ziarnik also testified that the officers had received complaints concerning the possibility of drug activity and prostitution at the tavern. Officer Belsha testified that, prior to entering the tavern, the officers discussed the complaints of drug dealing in the tavern, and that that information had been "shared collectively." Finally, the arrest reports made by another officer, Officer Turner, explicitly state that the officers conducted a license check of the tavern "following up on a drug dealing complaint."

When the officers entered the tavern, Mendoza and George Paulos were tending bar for two patrons sitting at the bar. Mendoza, Paulos and the two patrons were ordered to identify themselves, and Officer Belsha conducted pat-down searches of all of them. Officer Belsha did not testify as to the reason for the pat-down searches. Sergeant Ziarnik, however, testified that the patrons did "not specifically" appear to be dangerous, and Officer Gonzales testified that the patrons did not appear to be dangerous to him.

Officer Gonzales testified that he went to the back of the bar and entered a storage room. The storage room contained a large cooler, a desk and a couch. Mendoza had been temporarily storing his belongings in the storage room and sleeping on the couch at night. Officer Gonzales testified that he observed a white plastic bag containing clothing on the floor near the couch. Officer Gonzales testified that he saw another smaller bag with handles protruding from the bag of clothing. Officer Gonzales observed fireworks sticking out of the smaller bag, and then returned to the barroom and reported his discovery to Sergeant Ziarnik. Sergeant Ziarnik and Officer Gonzales then returned to the storage room with Mendoza and asked Mendoza whether the fireworks belonged to him. Mendoza admitted they were his. The officers then removed the fireworks from the bag and found a small baggie of what appeared to be cocaine at the bottom of the bag. Mendoza first denied, but then admitted, owning the cocaine.

After finding the cocaine, the officers returned to the barroom. Gonzales testified that, after searching the storage room, he returned to the front of the tavern, and checked the tavern's license. Sergeant Ziarnik and Mendoza testified, however, that Gonzales checked the tavern's license prior to entering the storage room. In any event, besides checking the tavern's license, the officers apparently did not conduct any other activities in furtherance of a tavern check pursuant to § 139.08(4), STATS.

Earlier, when frisking Mendoza, the officers seized a set of keys which included the keys to the tavern's cash register and the keys to a 1985 Lincoln Town Car parked outside of the tavern. Mendoza told the officers that the car belonged to his father, but that he was using it to store his belongings. The officers requested Mendoza's consent to search the car, and eventually, approximately an hour after the police had entered the tavern, Mendoza signed a written consent form. Officers Belsha and Morales then searched the trunk of the car and discovered a bandanna tied in a knot inside a plastic bag containing clothing. Inside the bandanna, the officers found two clear plastic bags containing suspected cocaine. A test later revealed that the larger of the two bags contained 19.8 grams of cocaine.

Mendoza was arrested and charged with felony possession of cocaine with intent to deliver, as a second or subsequent offense. Prior to trial, Mendoza filed a motion to suppress the evidence seized from the storage room and the car, which the trial court denied. Mendoza was then tried before a jury. At the close of voir dire, the State moved to strike four jurors for cause solely because each had been convicted of a crime. Over defense objection, the trial court granted the motion and removed the jurors. The jury found Mendoza guilty of possession of cocaine, in violation of § 161.41(3m), STATS., 1993-94. The trial court sentenced Mendoza to twenty-four months in prison, and Mendoza now appeals.

II. ANALYSIS.

A. Removal for cause of jurors who had been convicted of a crime.

We begin with Mendoza's last claim because, standing alone, it requires reversal. Following voir dire, the State moved to strike four jurors for cause, solely on the basis that each had been convicted of a crime. One of the jurors had been convicted of a misdemeanor charge in Milwaukee County earlier in the year, and three of the jurors had been convicted of felonies. ¹ The State specifically argued that the fact that three of the potential jurors were convicted felons "itself is sufficient for striking those persons," and that "the status as felons has the association of perhaps a hidden agenda where they have been subject to the personality of the State's prosecution previously." ² Mendoza's counsel objected to the State's motion to strike, and argued that the jurors' prior convictions did not "automatically disqualify them because they haven't--they haven't said anything in response to questioning during voir dire that has left any reason to doubt their ability to be fair and impartial." The trial court then granted the State's motion and struck all four jurors for cause.

"The question of whether a prospective juror is biased and should be dismissed from the jury panel for cause is a matter of the circuit court's discretion." State v. Ramos, 211 Wis.2d 12, 15, 564 N.W.2d 328, 330 (1997) (internal quotation marks and quoted source omitted). A circuit court's discretionary decision is erroneous, however, if based on an error of law. See id. at 16, 564 N.W.2d at 330.

In Wisconsin, a juror who is not indifferent in a case must be excused. Section 805.08(1), STATS. As the State concedes, however, criminal convictions do not automatically disqualify prospective jurors. See § 756.01, STATS. (prospective jurors must be electors of the state); § 6.03(1)(b), STATS. (persons convicted of treason, felony, or bribery cannot be electors unless their civil rights are restored); § 304.078, STATS. ("Every person who is convicted of a crime obtains a restoration of his or her civil rights by serving out his or her term of imprisonment or otherwise satisfying his or her...