State v. Robinson

• Decision Date: 30 June 2009
• Docket Number: No. 2008AP266-CR.,2008AP266-CR.
• Citation: 2009 WI App 97,770 N.W.2d 721
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Terion Lamar ROBINSON, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

770 N.W.2d 721

2009 WI App 97

STATE of Wisconsin, Plaintiff-Respondent, v. Terion Lamar ROBINSON, Defendant-Appellant.^†

No. 2008AP266-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs February 5, 2009.

Opinion Filed June 30, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Beth A. Eisendrath of Law Office of Beth A. Eisendrath, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, Attorney General, and Michael C. Sanders, Assistant Attorney General.

Before CURLEY, P.J., FINE and BRENNAN, JJ.

¶ 1 CURLEY, P.J

Terion Lamar Robinson appeals the order denying his motion to suppress and his conviction, entered following a guilty plea, for possession with intent to deliver a controlled substance—tetrahydrocannabinols (marijuana), less than 200 grams, contrary to WIS. STAT. § 961.41(1m)(h)1. (2005-06).¹ Robinson argues that the entry into the apartment where he was arrested and the seizure of the controlled substances found there were the result of an illegal warrantless search because what the police believed was an open felony warrant was actually a commitment order that was not signed by a judge. Alternatively, Robinson argues that if we conclude that the commitment order is a warrant for purposes of the Fourth Amendment, the search was illegal because the police were obligated to obtain a search warrant before entering as Robinson was a guest in the apartment. We assume, without deciding, that the commitment order in this case would be insufficient to permit a lawful entry into the apartment to effect Robinson's arrest and the resultant search. However, extrapolating from the holding in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), adopted in State v. Eason, 2001 WI 98, 245 Wis.2d 206, 629 N.W.2d 625, that evidence found in a search is subject to a good faith exception to the exclusionary rule when the police officer relied in good faith upon the search warrant's validity, we conclude that here, the officer's good faith belief that there existed an open felony warrant for Robinson's arrest is subject to the exception. In addition, because the trial court's finding that Robinson either lived or was staying at the apartment was not clearly erroneous, we affirm.²

I. BACKGROUND.

¶ 2 Milwaukee Police Officer Wesam Yaghnam testified at Robinson's motion seeking to suppress evidence found following his arrest at an apartment. Officer Yaghnam told the court that on November 6, 2006, a citizen walked into the district police station and told him that Robinson was selling "narcotics, marijuana" from his apartment, number eight, located at 7233 North 38th Street, in Milwaukee. The citizen, who wished to remain anonymous also told the officer Robinson's cell phone number. As a result, the officer "conducted a warrant check" which revealed that Robinson had two open warrants, "[o]ne warrant was [for] a family offense, and another warrant was for, I believe, the possession of, delivery of a controlled substance."

¶ 3 Officer Yaghnam then wrote down the information, including the felony case number, and, accompanied by several other police officers, he proceeded to the address given by the informant. Officer Yaghnam stated that a tenant let the officers into the building and they proceeded to apartment eight, where they knocked on the door. At first no one responded, so they knocked on the door again, and while waiting, they heard noise inside the apartment which led them to believe that someone was in the apartment. Officer Yaghnam then dialed the number given as Robinson's cell phone number, and heard it ringing inside the apartment. When no one answered the phone, Officer Yaghnam knocked on the door again and a male voice replied, "Who is it?" Officer Yaghnam then responded, "Terion?" to which the voice inside the apartment said, "[y]eah." Officer Yaghnam then identified himself as a Milwaukee police officer, and said: "You need to open the door." Officer Yaghnam explained that after he heard footsteps running from the door he decided to kick in the door because he was concerned Robinson was planning on escaping or destroying evidence.

¶ 4 Once inside the apartment, Officer Yaghnam observed Robinson in the dining room, a room connected to an outside balcony. Officer Yaghnam smelled the odor of burnt marijuana when he entered the apartment, and saw marijuana on a coffee table and bags of marijuana in a cooler. Robinson was arrested and a search was conducted of the apartment. Besides the marijuana which Officer Yaghnam observed upon entering, a large amount of currency was found in the apartment, as well as paraphernalia used for weighing and packaging drugs.

¶ 5 Robinson also testified at the hearing. He told the court that the apartment where he was arrested was his girlfriend's apartment, not his, but he did admit that he had clothing and music equipment there. He also admitted on cross-examination that he gave his address as 7233 North 38th Street (the apartment's location) when he was arrested. After Officer Yaghnam was recalled to testify sua sponte by the trial court, he stated that when he went to the apartment he believed that there was an open felony warrant for Robinson for possession or delivery of a controlled substance. The open felony warrant, which was actually a commitment order for nonpayment of a fine/forfeiture, was entered into the record. It bears a 1998 criminal felony court number.

¶ 6 After ordering briefs, the trial court implicitly found that Officer Yaghnam had probable cause to believe Robinson was at the residence based upon the report of a citizen who walked into the police station and told Officer Yaghnam that Robinson, who lived at a particular apartment and had a specific cell phone number, was selling drugs. Further, the trial court found that the police officer had a good faith belief that there was an open felony warrant for Robinson when he went to the apartment, only to later learn it was a commitment order, not signed by a judge, for nonpayment of a fine. The trial court also found the police could lawfully enter the apartment because of the existence of what Officer Yaghnam testified he believed to be an open felony warrant and the fact that the police knew Robinson was in the apartment because when they dialed his cell phone number, they heard the phone ring and Robinson identified himself as "Terion." Further, the trial court found that the apartment where the arrest and search occurred was either Robinson's or he was staying there. The trial court reasoned that the police found him at the address given by the citizen who complained about the drug dealing, who told police that Robinson lived there, and who had given the police a cell phone number which proved to be Robinson's. The trial court observed that Robinson, while claiming not to live there, conceded that he kept some personal items in the apartment and he gave that address to the police as his residence. Finally, a defense witness who testified at the suppression hearing and who was in the apartment at the time of the police entry testified that she was at "Terion's house" on the day in question.

II. ANALYSIS.

¶ 7 Robinson first argues that the search was unlawful because the police did not have a valid arrest warrant, thus rendering the search a "warrantless search and seizure." Robinson contends that because the warrant relied upon by Officer Yaghnam was, in actuality, a commitment order, not a warrant, his arrest and the resultant evidence obtained in a search of the apartment search should have been suppressed. We disagree.

¶ 8 WISCONSIN STAT. § 968.04(3) governs the procedure for the issuance of a warrant. Among the mandatory provisions are the requirements that the warrant be signed by a judge. See § 968.04(3)1. The warrant must also state the name of the crime and the statute allegedly violated. See § 968.04(3)2. An officer may make an arrest without having the warrant in the officer's possession "when the law enforcement officer has knowledge that a warrant has been issued." See § 968.04(4)(c). On the other hand, a commitment, as set forth in WIS. STAT. § 973.07, is issued when a fine, fee, or surcharge is not paid as required by the sentence. This order commits the defendant to the county jail for sixty days, or until the amount owed is paid, or until he is discharged by due course of law. Here, the commitment was not signed by a judge.

¶ 9 "We review a motion to suppress applying a two-step standard of review." State v. Sloan, 2007 WI App 146, ¶ 7, 303 Wis.2d 438, 736 N.W.2d 189. First, we will uphold the trial court's factual findings unless they are clearly erroneous. Eason, 245 Wis.2d 206, ¶ 9, 629 N.W.2d 625. Then, "we review the application of constitutional principles to those facts de novo." Id. The Fourth Amendment protects against unreasonable searches and seizures. State v. Richter, 2000 WI 58, ¶ 27, 235 Wis.2d 524, 612 N.W.2d 29. Under both the United States and Wisconsin Constitutions, a warrantless search is per se unreasonable, and evidence derived from it will be suppressed, subject to certain exceptions. State v. Williams, 2002 WI 94, ¶ 18 & n. 5, 255 Wis.2d 1, 646 N.W.2d 834; State v. Boggess, 115 Wis.2d 443, 449, 340 N.W.2d 516 (1983). These exceptions are "`jealously and carefully drawn,'" and "the burden rests with those seeking exemption from the warrant requirement to prove that the exigencies made that course imperative." Id. (citation omitted).

¶ 10 One exception to the requirement that evidence derived from warrantless searches must be suppressed is set forth in the holding first articulated in Leon and dubbed the "good faith exception." The good faith exception initially addressed a situation where police officers executed a search warrant which turned out to be invalid. See Leon, 468 U.S. at 900, 104 S.Ct. 3405. The purpose behind the rule...