State v. Morgan, No. 93-2089-CR (Wis. 11/21/1995)
| Decision Date | 21 November 1995 |
| Docket Number | No. 93-2089-CR.,93-2089-CR. |
| Parties | State of Wisconsin, Plaintiff-Appellant, v. Michael T. Morgan, Defendant-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner there were briefs by William J. Tyroler, assistant state public defender; Calvin Malone and Rebholz, Auberry & Malone, Milwaukee and oral argument by Calvin Malone.
For the plaintiff-appellant the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
Amicus curiae brief was filed by Pamela Moorshead and Adelman, Adelman, and Murray, S.C., Milwaukee for the American Civil Liberties Union of Wisconsin Foundation and National Association for the Advancement of Colored People (NAACP).
This is a review of an unpublished court of appeals decision reversing an order of the circuit court for Milwaukee County, the Honorable John A. Franke, suppressing a handgun and cocaine base found on petitioner Michael T. Morgan (Morgan). Morgan was charged with carrying a concealed weapon, contrary to Wis. Stat. § 941.23 (1991-92), and possession of cocaine while armed, contrary to Wis. Stat. §§ 161.14(7)(a), 161.41(3m), 161.48, 939.63 (1991-92). Morgan challenged the legality of the pat-down search that produced the evidence leading to the charges. At a hearing on May 28, 1993, the circuit court granted the defendant's motion to suppress the evidence. The court of appeals, in an unpublished opinion, reversed the circuit court. We hold that the pat-down search did not violate Morgan's right under the federal and state constitutions to be free from unreasonable searches. Accordingly, we affirm the court of appeals.
The following facts are taken from the preliminary hearing and suppression hearing in this matter, and are undisputed. City of Milwaukee Police Officers Peter Mulock (Mulock) and Brent Tidquist (Tidquist) were on patrol at four a.m. on March 1, 1993. Officers Mulock and Tidquist were driving in a squad car near Capitol Drive in Milwaukee, an area which Officer Mulock described as a "fairly high-crime-rate area." Officer Mulock also noted that "there was not a whole lot of traffic" on the street at that time. Officers Mulock and Tidquist observed a vehicle containing three males driving out of an alley. The car then made several turns in the space of a few city blocks, and entered another alley. Having observed that the car's license plates were expired, the officers engaged the emergency lights on their squad car and stopped the vehicle. Officer Mulock then approached the car and asked Morgan (the car's driver) for his operator's license. Morgan rapidly checked his pockets and wallet, and searched some of his pockets several times; however, he was unable to locate the license. According to Officer Mulock, Morgan "appeared nervous" while searching for his license. Officer Mulock testified at the suppression hearing:
Morgan did in fact possess a license, which was discovered in a later search of his wallet incident to arrest.
Officer Mulock then asked Morgan to step out of the vehicle, and performed a pat-down search on Morgan. In the course of the pat-down search, Officer Mulock discovered a loaded .22-caliber pistol in Morgan's coat pocket. Officer Mulock placed Morgan under arrest and conducted a custodial search of Morgan's person which discovered certain pills (later determined to be diazepam, an antianxiety drug) and a pipe showing traces of cocaine base residue. According to Officer Mulock's testimony, in the event that he had not found the gun on Morgan, the officer would have placed Morgan in the back of his squad car while he or Officer Tidquist conducted various informational inquiries through the squad car's radio, such as an operator's license check and a criminal record check.
Morgan challenged the legality of the pat-down search. Following a suppression hearing, the circuit court granted Morgan's motion to suppress. The circuit court ruled that the pat-down search was impermissible under State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991):
Officer Mulock had every intention to put [Morgan] into some sort of custody and run a check. He was going to put him in the back of the vehicle using his vehicle as something of a tentative booking room, run a check, and then either keep him in custody or release him. I think it's reasonable for a police officer to do that. . . .
. . . .
The only way I think this frisk flies is by the custodial search by the officer. And while it seems to be reasonable, it seems to me that the way Swanson is written, it appears to be very deliberate, very careful, very intentional, that what this officer did, at least at the time of the pat down had not yet ripend [sic] into an arrest, that I have to look at this not in the context of what might not have happened in the next few minutes, not even a five or ten minute period, but that the moment, under Swanson at that moment, I don't believe there was an arrest and, therefore, I don't believe that—Well, at least arguably reasonable, the search can fly. . . .
If Officer Mulock had said then I believe that this flies. Swanson, at least in dicta, addressed this problem and says the officer's unarticulated plan is irrelevant in determining the question of custody.
The circuit court held that, in the absence of a "clear and specific record," it could not rely on the officer's testimony that the stop occurred in a high-crime neighborhood in determining the legality of the search. In addressing the other factors the officer raised as justifying the search, the circuit court stated:
While the time of night and the nervousness of the subject and the number of occupants are all factors that are pertinent in deciding whether there's a sufficient basis to conduct the pat down, they're not enough by themselves. And together here there's really nothing more than a routine traffic stop. People who were stopped with expired plates and can't find their licenses are often nervous . . . and I don't find that there was any nervousness that was not easily attributable to the fact [Morgan] could not find a license. The fact that he actually did have his license on him is not important in assessing what the officer did but it's important in assessing the credibility of what happened here and I'm satisfied based on the officer's own testimony in that fact that what he was observing was a person nervously trying to come up with their driver's license and thinking it's there and not being able to find it.
The court of appeals reversed, holding that the pat-down search was permissible because the totality of the circumstances justified a protective search for weapons. The court of appeals held that the circuit court had erroneously relied on Swanson in granting the defendant's motion to suppress; the court of appeals stated that Swanson held a search invalid because it had exceeded its permissible scope, and not because the officer had failed to inform the suspect of his intention to place the suspect in his squad car. The court of appeals then held that the search of Morgan was supported by articulable facts in the record, including
the "fairly-high-crime-rate area"; Morgan's driving in two alleys at approximately 4:00 a.m.; Morgan's nervous and unsuccessful efforts to produce a driver's license upon request; and Morgan's apparent violation of the traffic law by driving without a license. We also note that Officer Mulock and his partner were outnumbered by the three occupants of the car.
The court of appeals concluded: "While none of these factors in isolation necessarily would justify a frisk for weapons, and although the trial court noted the lack of a `clear and specific record' regarding whether the area was one of high crime, in combination they provide ample justification."
The Fourth Amendment to the United States Constitution and Article I, § 11 of the Wisconsin Constitution guarantee citizens the right to be free from "unreasonable searches."1 This court, in construing Article I, § 11 of the Wisconsin Constitution, consistently follows the United States Supreme Court's interpretation of the Fourth Amendment. State v. Betterly, 191 Wis. 2d 407, 417, 529 N.W.2d 216 (1995). Upon review of an order granting suppression, this court will uphold the trial court's findings of fact unless they are against the "great weight and clear preponderance of the evidence." State v. Kiper, 193 Wis. 2d 69, 79, 532 N.W.2d 698 (1995) (quoting State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990)). However, deciding whether a search is unreasonable is a question of law that this court reviews without deference to the lower courts. Betterly, 191 Wis. 2d at 416-17.
A pat down, or "frisk," is a search. State v. Guy, 172 Wis. 2d 86, 93, 492 N.W.2d 311, 314 (1992), cert. denied, 113 S. Ct. 3020 (1993) (citing Terry v. Ohio, 392 U.S. 1, 16-17 (1968)). The Fourth Amendment prohibits only unreasonable searches; in determining whether a search is reasonable, this court balances the need for the search against the invasion of the suspect's privacy entailed in the search. Id. at 93. Pat-down searches are justified when an officer has a reasonable suspicion that a suspect may...
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