State v. Stout

• Decision Date: 23 January 2002
• Docket Number: No. 01-0905-CR., No. 01-0904-CR
• Citation: 250 Wis.2d 768,2002 WI App 41,641 N.W.2d 474
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Jeffrey STOUT, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

250 Wis.2d 768

2002 WI App 41

641 N.W.2d 474

STATE of Wisconsin, Plaintiff-Appellant, v. Jeffrey STOUT, Defendant-Respondent.¹

Nos. 01-0904-CR, 01-0905-CR.

Court of Appeals of Wisconsin.

Oral argument December 5, 2001.

Decided January 23, 2002.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general. There was oral argument by Warren D. Weinstein.

On behalf of the defendant-respondent, the cause was submitted on the brief of and oral argument by James L. Fullin, assistant state public defender.

Before Nettesheim, P.J., Brown and Anderson, JJ.

¶ 1. BROWN, J.

The first question is whether the police entry into the apartment in this case can be justified under the Terry² doctrine where the statute and case law specify that the doctrine only applies to police-citizen confrontations in a public place. We hold that the doctrine only applies to stops made in a public place and police may not enter an abode based on Terry. The second issue is whether police must first have reasonable suspicion that someone inside a dwelling has committed a crime as a condition precedent to asking the owner for consent to enter and search the premises. We hold that there is no such condition precedent. Regardless of whether there is reasonable suspicion of criminal activity within a dwelling, the police can ask for permission to enter and the owner has the right to say "no." That is the extent of it and we reverse the trial court's holding to the contrary. We remand with directions that the trial court determine whether there was consent for the police to enter. If so, then consistent with the reasons set forth hereafter in this opinion, the resultant seizure was valid.

¶ 2. Jeffrey Stout was charged in two separate cases with possession of cocaine, with intent to deliver, with a penalty enhancer, in violation of WIS. STAT. §§ 961.41(1m)(cm)1 and 961.49 (1999-2000),³ and burglary of a building, in violation of WIS. STAT. § 943.10(1)(a). He filed motions to suppress in each case, seeking to suppress evidence seized and confessions he made after his arrest. After a hearing, the trial court granted the motions to suppress.

¶ 3. At the hearing, Officer Rick Birkholz testified that he received a phone call from a concerned citizen. The caller did not give a name or identifying information and the call was not recorded. The caller identified a white male wearing specific clothing named "Jeff" whom the caller had seen selling cocaine on the street in the area of the Viking Bar located near Douglas Avenue. The caller claimed to see "Jeff" enter the side door at 1405 Douglas Avenue.

¶ 4. Birkholz responded to that address; when he arrived he was joined by uniformed officers responding to a complaint of loud music. Birkholz met Mary Millhollen on the stairs. He described "Jeff" and asked if the person was in the building. Millhollen motioned upward toward her apartment. Birkholz asked if he could go look and, according to Birkholz, Millhollen said "I don't care" or words to that effect. Millhollen knocked on the door and said, "[I]t's me." Yusef Buckley, known to Birkholz from prior drug contacts, opened the door. ¶ 5. Birkholz observed an individual, later identified as Stout, matching the tipster's description seated on a couch in the living room facing the door. As Birkholz and the uniformed officers entered the apartment, Stout made a rapid movement with his right hand toward the area of his pants pocket. Birkholz testified that it appeared to him that Stout was going for something in his pocket. He feared Stout had a weapon and was concerned for his safety and the safety of others.

¶ 6. Birkholz quickly moved forward, drew his own weapon and, with his free hand, pulled Stout to his feet and placed him against the wall where he patted Stout down for weapons. During the pat-down he felt a baggie with a rock-like substance in it. Based on his training and experience, he believed the object to be crack cocaine. He removed the item and found a clear baggie which contained numerous individually wrapped whitish rock-like substances and cash.

¶ 7. Birkholz took Stout into custody. A full body search yielded pull tabs—gambling tickets sold in bars. At the police station, Stout was given his Miranda⁴ rights, after which he confessed to a burglary.

¶ 8. The trial court suppressed the cocaine, the pull tabs and the confession, ruling them to be the unattenuated fruits of a Terry stop-and-frisk for which the police lacked reasonable suspicion of criminal activity. In particular, the court held that an investigative stop occurred at the instant that the door to the apartment opened and Birkholz observed Stout, but before Stout reached for his pants pocket. The court further held that at the time the door opened, the only information available to Birkholz was the anonymous telephone call which did not provide reasonable suspicion of criminal activity in the absence of independent police observation of incriminating behavior.

[1-4]

¶ 9. When reviewing a motion to suppress evidence, we will uphold the trial court's findings of fact unless they are clearly erroneous. State v. Fields, 2000 WI App 218, ¶ 9, 239 Wis. 2d 38, 619 N.W.2d 279. However, the application of constitutional principles to the facts is a question of law that we decide de novo without deference to the trial court's decision. Id. A major question throughout this controversy has been whether Stout was stopped at the moment the police appeared at the door or only after he made the furtive gesture. The resolution of this issue drives the outcome of the case because once a person is "seized," the officers' conduct in doing so is constitutional only if they reasonably suspect the person of wrongdoing. See United States v. Mendenhall, 446 U.S. 544, 551-52 (1980). The correctness of the legal characterization of the facts in the record is also a matter for our independent review. Id. at 551 n.5.

[5-8]

¶ 10. The Fourth Amendment does not invalidate all searches and seizures but only those that are unreasonable. U.S. Const. amend. IV; Florida v. Jimeno, 500 U.S. 248, 250 (1991). Searches and seizures conducted without a warrant are per se unreasonable under the Fourth Amendment, subject to some exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372 (1993). The government bears the burden of establishing by a preponderance of the evidence that a warrantless search falls within one of the exceptions. United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000). One exception is when a police officer observes behavior that he or she reasonably believes is suspicious, the officer may briefly stop the person to inquire and may pat-down or frisk the person to check for weapons if the officer reasonably believes the person is armed and endangers the safety of the officer and others. Dickerson, 508 U.S. at 372-73 (summarizing the holding of Terry). Another exception is when a person consents to a search "because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so." Jimeno, 500 U.S. at 250-51.

¶ 11. Our first task is to determine which exception, if any, applies to the warrantless search in this case. The State argues that this is not a typical Terry stop based on reasonable suspicion provided by an informant's tip, although the tip "certainly led to the chain of events here." The State posits instead that the investigator had "consent inside the apartment from the person who lived there." Thereafter, "it was the actions of Mr. Stout that led to his own stop and the subsequent frisk of him." The trial court noted the distinctive fact in this case—that the stop occurred in a dwelling rather than a public place:

Let me ask you this question, you're basing your argument to a great extent upon the fact that the police had the authority to be where they were. They were given consent you say to go into the apartment and it was lawful for them to be there. . . . Now normally when we talk about investigative stops or Terry stops we talk about them being made in a public place, even the statute 968.28 codifies the right of the police to stop someone in a public place.

¶ 12. However, the trial court did not pursue this line of reasoning to inquire whether the Terry doctrine was even applicable to justify police entry into an apartment. Instead, the trial court made a legal conclusion that an investigative stop occurred when the police entered the apartment for the sole purpose of making contact with Stout. The only basis for the stop was the telephone call with no independent observations by police that would have led them to believe Stout was engaged in illegal activity. The trial court made no explicit factual or legal ruling about consent, apparently because it found that issue to be legally irrelevant: "I don't think that the controlling factor is that Ms. Millhollen said she didn't care if Investigator Birkholz went up to take a look for the defendant. It's not as if he was there for some other disconnected valid purpose." The trial court also stated that the actions of Birkholz "constitute an investigatory stop or certainly the functional equivalent."

¶ 13. We understand the trial court to be implicitly making the following legal characterizations: first, that the Fourth Amendment allows police officers to cross the threshold of a dwelling to make an investigatory stop based on reasonable suspicion, and second, police must have reasonable suspicion as a predicate to seeking consent. These statements do not reflect the law in Wisconsin and we address each in turn.

¶ 14. With respect to the first statement, the United States Supreme Court has never held that a warrantless entry into a private residence may be justified by a Terry investigatory stop based on reasonable suspicion provided by an informant's tip. To the contrary, the...