State v. Richardson, No. 89-1375-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: STEINMETZ
• Citation: 456 N.W.2d 830,156 Wis.2d 128
• Docket Number: No. 89-1375-CR
• Decision Date: 28 June 1990
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Glen P. RICHARDSON, Defendant-Appellant.

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456 N.W.2d 830 156 Wis.2d 128 STATE of Wisconsin, Plaintiff-Respondent,
v.
Glen P. RICHARDSON, Defendant-Appellant. No. 89-1375-CR. Supreme Court of Wisconsin. Argued May 30, 1990.
Decided June 28, 1990.

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[156 Wis.2d 131] Ruth S. Downs, Asst. State Public Defender, for defendant-appellant.

Sally Wellman, Asst. Atty. Gen., argued, James M. Freimuth, Asst. Atty. Gen., on brief, Donald J. Hanaway, Atty. Gen., on brief (in Court of Appeals), for plaintiff-respondent.

STEINMETZ, Justice.

This appeal is before this court on certification by the court of appeals pursuant to sec. (Rule) 809.61, Stats. The defendant, Glen P. Richardson,[156 Wis.2d 132] appealed to the court of appeals seeking review of a judgment of conviction rendered against him in the circuit court for La Crosse county, Peter G. Pappas, Judge.

Two issues are presented for review. The first issue is whether an anonymous tip on which the tipster gave a detailed description of the defendant and his immediate future plans, the innocent details of which were corroborated through personal observation by police, provided the police with reasonable suspicion to execute an investigative stop of the vehicle and frisk of the defendant. We conclude that the detail within the tip and personal verification by police of all innocent detail provided therein as true allowed a reasonable inference that the tipster was also correct about the ultimate fact--that the defendant's motive was to traffic illegal drugs--such that the police had reasonable suspicion upon which to execute both an investigative stop of the vehicle and a protective frisk of the defendant.

The second issue is, assuming the investigative stop and frisk are lawful, whether the subsequent body search of the defendant went beyond the scope of a Terry ¹ stop and frisk such that the evidence found in the defendant's pockets is inadmissible. Under the circumstances of this case, we conclude that the police had probable cause to conduct a search of the defendant's person such that the packets of cocaine found in his pockets were lawfully seized. We therefore affirm the circuit court order admitting the cocaine into evidence and uphold the judgment of conviction.

On November 4, 1988, the defendant, Glen P. Richardson, was driving a car in the city of La Crosse when he was stopped by the police. Two other men were with him at the time of the stop. The defendant was searched [156 Wis.2d 133] and was found to have approximately one-third of an ounce of cocaine on his person and various small drug paraphernalia.

The criminal complaint filed November 9, 1988, accused the defendant of possessing cocaine with intent to deliver contrary to secs. 161.16(2)(b) and 161.41(1m)(c)1, Stats., as a party to the crime, in violation of sec. 939.05. The amended complaint and information, both filed November 16, 1988, contained further information that the defendant was a repeat drug offender who, upon conviction, would be subject to penalty enhancement under sec. 161.48.

On November 23, 1988, the defendant filed a motion to suppress all evidence seized from him on November 4, 1988. The motion was based on statutory grounds and on the Fourth Amendment to the United States Constitution and Article I, sec. 11 of the Wisconsin Constitution.

At the hearing on the motion to suppress, Investigator Donald Sutton of the La Crosse Police Department testified that on November 4, 1988, his shift commander, Lt. Jacobs, called and informed him that an anonymous telephone call had been received

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from a male who wished to speak with a detective about drug trafficking out of Viroqua, Wisconsin. Officer Sutton called the number given to him, which was later traced to a public telephone booth, and spoke with an individual who stated that, at that moment, the defendant and another specifically identified man were en route from Viroqua to La Crosse with about one-quarter ounce of cocaine which they intended to sell in La Crosse. The caller said that he had been with the two men and had personally seen the cocaine, a substance with which he was familiar.

[156 Wis.2d 134] The anonymous caller described the vehicle in which the men were traveling as a 1978 Camaro and gave the license plate number. The caller also described both men. In particular, the caller described the defendant as an extremely large man, weighing around 300 pounds and standing about six feet tall. The defendant was further described as having some scarring on his face and as having hands that had nubs instead of fingers.

Officer Sutton was told the time at which the men had left Viroqua and when they would be expected to arrive in La Crosse. He was also told that the men would stop at an unknown residence in La Crosse. The caller suggested that the authorities wait to pick up the two men until after the stop in La Crosse because he thought they were going to pick up additional cocaine at that time.

The caller expressed concern over the defendant's involvement in drug trafficking and voluntarily expressed interest in going through the Crime Stopper Program. The caller also told Officer Sutton that the defendant had previous problems with drug related offenses, but the officer did not have time to verify this information until after the defendant was searched and arrested. Prior to speaking with the anonymous caller, Officer Sutton testified that he had no suspicions regarding the defendant and the sale of any illegal controlled substances.

Officer Sutton further testified that the anonymous caller specifically revealed that the defendant, the passenger in the car, was travelling on Highway 14 to Highway 35 and would travel through Westby and Coon Valley, Wisconsin. The caller suggested that the officer act quickly if he was going to intercept the car. Based on the information in this tip, Officer Sutton set up surveillance on Highway 14, a short distance from its intersection[156 Wis.2d 135] with Highway 35. He was met at the surveillance point by an Officer Byerson, whom he informed of the details of the surveillance.

Shortly thereafter, the described Camaro, with a large male passenger, passed the surveillance point, and the officers then followed the vehicle along the described route into La Crosse where the vehicle stopped at an apartment building. While the men were inside the building, Officer Sutton called for assistance, and Officers Larson and Hogan arrived and were briefed on the situation. Officer Sutton informed Officer Larson that a felony-type traffic stop would be effectuated, meaning that the situation was considered high risk and that weapons would be drawn. A roadblock situation was set.

After approximately one-half hour, during which time constant surveillance by Officers Sutton and Byerson was effectuated, the defendant, accompanied by his original companion and a third man, exited the building, entered the car and drove away. The officers followed. Officer Byerson testified that neither the automobile nor its occupants engaged in any suspicious behavior. Neither he nor Officer Larson testified at the motion hearing that any traffic laws had been violated. Nevertheless, the vehicle was stopped and its occupants were removed, and the defendant was searched. As stated, the search of the defendant's person revealed that he was in possession of cocaine.

The circuit court denied the defendant's motion on the record at the close of the evidentiary hearing. The circuit court concluded based on the testimony elicited that the anonymous caller's information, verified on all points up to the actual sighting of the drugs, justified the stop and subsequent search under the United States [156 Wis.2d 136] Supreme Court holding in Adams v.

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Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

After his motion to suppress evidence was denied, the defendant pleaded guilty to the charge of possession of cocaine with intent to deliver as a party to the crime. The plea was accepted. Judgment was entered on March 30, 1989, at which time the defendant was sentenced as a repeat offender to seven years in prison.

The defendant appealed the judgment of conviction to the court of appeals seeking review of the circuit court's denial of his motion to suppress and requesting plea withdrawal. The court of appeals certified the appeal to this court, and we accepted certification.

The first issue on appeal questions whether corroboration of only innocent details in a tip from an anonymous telephone caller may be relied upon by police to form the reasonable suspicion necessary to effectuate an investigative stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The defendant maintains that La Crosse police lacked reasonable suspicion to stop his vehicle based on an anonymous telephone tip. The defendant argues that the corroboration of purely innocent details is insufficient to supply police with reasonable suspicion to effectuate an investigative stop.

Rather, under the totality of the circumstances, the defendant argues that police officers must be able to supply specific and articulable facts from which rational inferences can be made indicating that the observed conduct of the defendant carried with it a degree of suspicious activity. The defendant asserts that the purely innocent details verified by the police in this case raise no reasonable inference of a degree of suspicion in the defendant's conduct necessary to justify the stop.

In contrast, the state asserts that the level of detail supplied by the anonymous caller in this case and the [156 Wis.2d 137] corroboration of all of the innocent details by police observation is sufficient to supply police with the reasonable suspicion needed to lawfully effectuate an investigatory stop. The state maintains that if the anonymous tipster is found through police observation to be true and correct about the innocent facts within...