State v. Moretto

• Decision Date: 25 May 1988
• Docket Number: No. 86-2174-CR,86-2174-CR
• Citation: 423 N.W.2d 841,144 Wis.2d 171
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Joseph G. MORETTO, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 841

423 N.W.2d 841

144 Wis.2d 171

STATE of Wisconsin, Plaintiff-Appellant, v. Joseph G. MORETTO, Defendant-Respondent.

No. 86-2174-CR.

Supreme Court of Wisconsin.

Argued Feb. 3, 1988.

Decided May 25, 1988.

Jerome S. Schmidt, Asst. Atty. Gen., (argued), with whom on the briefs was Donald J. Hanaway, Atty. Gen., for plaintiff-appellant.

Glenn L. Cushing, Asst. State Public Defender, Madison, for defendant-respondent.

BABLITCH, Justice.

The State of Wisconsin (State) appeals from a circuit court order suppressing a knife seized from the vehicle of the defendant Joseph G. Moretto (Moretto), following a search conducted by the police during a stop for temporary questioning. The question certified to this court is whether sec. 968.25, Stats., permits a police officer to search for weapons in the vehicle of an individual stopped for temporary questioning by the police.

We hold that sec. 968.25, Stats. permits an officer to search the passenger compartment of a vehicle for weapons where the individual who recently occupied the vehicle is stopped for temporary questioning under sec. 968.24, and the officer "reasonably suspects that he or another is in danger of physical injury." Applying this holding, we conclude that the search of Moretto's vehicle and the seizure of the weapon were proper. Accordingly, the postconviction order of the circuit court is reversed, and the judgment of conviction is reinstated.

The facts of this case are not in dispute. On October 6, 1985, at 8:00 in the evening, police officer Towler was dispatched to the residence of David Schlosser (Schlosser). When officer Towler arrived, Schlosser told him that he had received a threatening phone call from an individual he identified as Moretto.

Officer Towler interviewed Schlosser about the call. Schlosser explained that Moretto had called and accused him of owing money. Moretto told Schlosser that he was coming over to collect the money. Schlosser denied owing Moretto any money, and the phone conversation became heated. At one point, Moretto told Schlosser that he was going to "kick his ass up and down the street, that he had better have lots of cops around because he would need them."

Schlosser also told officer Towler that Moretto "had held two friends of his up at Mr. Schlosser's apartment about two weeks before with a weapon," and that he had heard from friends that Moretto was the type that would carry a gun or a knife. Although Schlosser did not know Moretto, he was able to describe Moretto and his vehicle, a silver Dodge Colt, to officer Towler through descriptions obtained from friends.

As officer Towler left Schlosser's residence, he observed a car matching the description of Moretto's car with two individuals inside drive by the residence. The car proceeded in a normal fashion. Towler radioed for assistance, and then moved his squad car so that he blocked the oncoming vehicle.

Towler approached the stopped vehicle and instructed Moretto, who was in the driver's seat of the car, to step out and place his hands on top of the vehicle. Towler also instructed the passenger in the front seat, Lloyd, to place his hands on the dashboard.

Approximately 30-45 seconds later officer Sawyer arrived. Under officer Towler's request, officer Sawyer had Lloyd step out of the vehicle. Both men were given a pat down search by the officers and moved to the rear of the vehicle. Nothing was found on either man.

Officer Towler then searched the inside of Moretto's car, using a flashlight to illuminate the driver's seat. He found an unsheathed knife, with a four and one-half inch blade, between the bottom cushion of the driver's seat and the harness clip of the seat belt. The blade was sticking up about two inches over the seat. Moretto acknowledged that the knife was his, and Towler seized the knife and arrested Moretto for carrying a concealed weapon.

Prior to trial, Moretto moved to suppress the evidence seized by the police. Moretto claimed that the seizure of the knife violated his federal and state constitutional rights against unreasonable searches and seizure, as well as violating ch. 968, Stats. After a hearing on the motion, the circuit court denied Moretto's motion to suppress on federal constitutional grounds. The court concluded that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) there was sufficient grounds to stop Moretto, and that the United States Supreme Court's decision of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), permitted a subsequent search of the individual's vehicle for weapons where the officer had "some reason to feel there might be a dangerous weapon in the vehicle." The circuit court did not consider any statutory basis for suppressing the evidence.

On February 6, 1986, a jury found Moretto guilty of the offense of carrying a concealed weapon. Subsequently, the circuit court issued a judgment of conviction and sentenced Moretto to the county jail.

On September 2, 1986, Moretto filed a postconviction motion for relief requesting the circuit court to enter an order suppressing the evidence obtained from the search of his vehicle and granting a new trial. Moretto based his motion on the grounds that the search was contrary to and beyond the scope of sec. 968.25, Stats., which governs the scope of a search conducted during temporary questioning by police.

The circuit court issued an order granting Moretto's motion for postconviction relief, concluding that sec. 968.25, Stats., limits the scope of the search to that authorized by Terry, namely, the outer clothing of the person, and therefore that the search of Moretto's vehicle was beyond the purview of the statute.

The State subsequently appealed the circuit court's order claiming that the search of Moretto's vehicle was authorized by sec. 968.25, Stats. The court of appeals then certified the case to this court. Certification was granted on November 17, 1987.

Both parties agree for purposes of this appeal that the initial stop of Moretto by officer Towler was proper under sec. 968.24, Stats., and Terry. Our inquiry focuses on whether sec. 968.25, Stats. permits an officer, who has stopped an individual for temporary questioning under sec. 968.24, to search the individual's vehicle for weapons. Both statutes are cited in full below. ¹

While Moretto acknowledges that the Long decision extends the scope of a permissible search under a Terry stop to vehicles, he argues that the language of sec. 968.25, Stats., precludes vehicle searches. The circuit court concurred and granted Moretto a new trial, ordering that the knife be suppressed from the new trial.

We conclude that the scope of a search for weapons under sec. 968.25, Stats. is not limited to the search of the person but may, in accordance with Long, encompass the search of the passenger compartment of the person's vehicle where the officer "reasonably suspects that he or another is in danger of physical injury." This conclusion is consistent with our prior interpretation of the statute, the underlying policy of the statute, and the constitutional right against unreasonable searches and seizures of which sec. 968.25 is the legislative embodiment.

Section 968.25, Stats., embraces the principles established in Terry, in which the United States Supreme Court upheld the "frisk" of an individual stopped for temporary questioning where the police had reasonable ground to believe that the individual was armed and dangerous. The statute authorizes a police officer, who has stopped an individual for temporary questioning under sec. 968.24 and who "reasonably suspects that he or another is in danger of physical injury ...," to "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." While the statutory language would appear to limit the scope of a search under sec. 968.25 to that of the "person," our caselaw reveals that the construction of the statute is not limited by the principles of stop and frisk law existing at the time of the statute's enactment.

Specifically, this court's past interpretation of sec. 968.25, Stats., supports the conclusion that the scope of the statute must be ascertained not only by reference to the principles of Terry, but to subsequent constitutional developments of those principles. In State v. Williamson, 113 Wis.2d 389, 404, 335 N.W.2d 814 (1983), cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983), we noted that secs. 968.24 and 968.25 are the "legislative expression" of the constitutional requirement established in Terry. However, we further stated that when interpreting the scope of these statutes, resort must be made not only to Terry but the "cases following it." Id. at 399-400, 335 N.W.2d 814.

This position is consistent with the Supreme Court's acknowledgement in Terry, that the principles set forth did not conclusively establish the scope of permissible searches and seizures for weapons. As the Court carefully noted,

" '[w]e need not develop at length in this case ... the limitations which the Fourth Amendment places upon a protective search and seizure for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases.' Contrary to Long's view, Terry need not be read as restricting the preventative search to the person of the detained suspect." Long, 463 U.S. at 1047, 103 S.Ct. at 3479-80, citing Terry, 392 U.S. at 29, 88 S.Ct. at 1884. (Citations omitted).

Moreover, the underlying policy of sec. 968.25 Stats. justifies the specific expansion of a protective search for weapons to the vehicle of an individual subject to a Terry stop. The central policy of the statute is to "provide for the safety of the officer by permitting a search for weapons." Comments to chapter 255, laws of 1969. This policy is advanced by...