State v. Washington
| Citation | 358 N.W.2d 304,120 Wis.2d 654 |
| Decision Date | 25 September 1984 |
| Docket Number | No. 83-1804-CR,83-1804-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jonas M. WASHINGTON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Review Granted.
William J. Tyroler, Asst. State Public Defender, Milwaukee, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., for plaintiff-respondent; Thomas J. Balistreri, Asst. Atty. Gen., Madison, of counsel.
Before WEDEMEYER, P.J., and MOSER and SULLIVAN, JJ.
Defendant, Jonas Washington, appeals from a conviction of burglary (party to a crime), contrary to secs. 943.10(1)(a) and 939.05, Stats. He argues that the trial court had no personal jurisdiction over him because the police had no reasonable grounds to arrest him or to stop his car. He also argues that evidence seized following searches of himself and his car should be suppressed. We conclude that although the police had sufficient grounds for a brief investigatory stop of defendant's car, the state did not establish that the police had probable cause to believe three watches in defendant's possession were subject to seizure as evidence of a crime. We further conclude that without the watches, there was no probable cause to arrest defendant or to search the car.
We hold, however, that because the police would have inevitably found the stolen display case in plain sight on the rear seat of the car independently of the unlawful search and arrest of defendant, the display case need not be suppressed. We further hold that because the display case would have provided probable cause to arrest defendant, the complaint need not be dismissed for lack of personal jurisdiction. Additionally, because the police would have inevitably found the three watches on a station house inventory search of defendant pursuant to the arrest, the watches need not be suppressed. We therefore affirm defendant's conviction.
The testimony presented at the hearing on defendant's motion to suppress evidence and dismiss for lack of jurisdiction was as follows. Officer Bacon of the Wauwatosa Police Department testified that on November 22, 1982, at approximately 1:13 a.m., he received a radio call regarding an alarm at a jewelry store located in the 8700 block of North Avenue. An exhibit admitted at the hearing shows that the jewelry store is on the south side of North Avenue, almost directly across from Pasadena Boulevard, a north-south street which runs into North Avenue to form a T-intersection. As Bacon was driving on North Avenue toward the store, he saw a station wagon with its lights off in the intersection of North and Pasadena, traveling north on Pasadena, away from the store. The station wagon did not turn its lights on until it had traveled three-quarters of a block north on Pasadena. There were no other cars or pedestrians on North Avenue at that time. When Bacon reached the store, he noted that the door was ajar and one of the display cases had been broken into.
Officer Bozicevich testified that he arrived at the jewelry store at approximately 1:15 a.m. There were no other cars on North Avenue at that time. Bacon told him about the station wagon, and Bozicevich broadcast over the radio that the jewelry store had been broken into and that a station wagon with no lights on had been seen northbound on Pasadena about the time of the alarm.
Officer Sengbusch testified that he heard the 1:13 a.m. call regarding the jewelry store and that he saw two cars eastbound in the 8500 block of Center Street, four blocks north of North Avenue, at approximately 1:15 a.m. He decided to stop the older car first, but noticed that the other was a dark-colored General Motors station wagon, possibly a Chevrolet, with Wisconsin plates NB7126 or NB2176. The station wagon turned off of Center as Sengbusch approached. When he heard Bozicevich's radio broadcast that a station wagon might have been involved in the burglary, he turned back to look for the wagon but was unable to find it. He gave the police dispatcher his description of the wagon at approximately 1:16 a.m.
Officer Welter of the Milwaukee Police Department testified that he received a radio transmission that a Chevrolet station wagon with Wisconsin license number NB 7126, or a variation of that number, was wanted for a Wauwatosa burglary. At approximately 1:20 a.m., he saw a station wagon with those plates eastbound in the 3300 block of Center Street and pulled it over at the corner of 29th and Center Streets to conduct an investigation. His squad car stopped behind the wagon and an assisting squad stopped alongside. When he approached the wagon he had a shotgun pointed in the air, but did not know whether any other officers had drawn guns. 1
Welter ordered defendant to exit the car and then frisked him for weapons. He felt three watches, and discovered that the watches had tags from the Wauwatosa jewelry store on them. He arrested defendant after he found the watches, and then observed a two-foot-long plexiglass display case containing "a large amount" of necklaces on the rear seat of the station wagon.
Defendant moved to suppress the watches and the display case and to dismiss for lack of personal jurisdiction. The trial court found the officers' actions reasonable in all respects and denied defendant's motion. Defendant was found guilty of burglary.
Where an officer lacks probable cause to arrest, but has reason to believe an individual may be involved in the commission of a crime, the officer may stop the individual for questioning. State v. Flynn, 92 Wis.2d 427, 433, 285 N.W.2d 710, 712 (1979), cert. denied, 449 U.S. 846, 101 S.Ct. 130, 66 L.Ed.2d 55 (1980). To justify a forcible stop through an exercise of authority, the officer must present the court with " 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' " Wendricks v. State, 72 Wis.2d 717, 723, 242 N.W.2d 187, 191 (1976), quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Officers may stop an automobile if they have an "articulable and reasonable suspicion that ... either the vehicle or an occupant is ... subject to seizure for violation of law." Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979). Where the facts are undisputed, we independently determine whether fourth amendment standards of reasonableness are met, without deferring to the trial court's conclusions. State v. Drogsvold, 104 Wis.2d 247, 262, 311 N.W.2d 243, 250 (Ct.App.1981).
Sufficient grounds existed for an "articulable and reasonable suspicion" to justify an investigatory stop of defendant's car. Only a few minutes after receiving a radio call about the jewelry store, an officer observed a station wagon very near the store, driving away from it. No other cars and no pedestrians were on the street. It was night, but the car drove nearly a block before its headlights were turned on. This provided a basis for an articulable and reasonable suspicion that the station wagon's occupants had something to do with the burglary of the store. A few minutes later, a station wagon was observed a few blocks away from the jewelry store, one of only two cars (and the only station wagon) on the road. It was reasonable, given the short distance to the jewelry store and the absence of vehicles on the road, for the officer to suspect that that station wagon was the one seen near the store. He reported its license number, and defendant's car eventually was stopped. The stop meets the Prouse and Terry standards. Defendant's reasonable expectation of privacy was not invaded merely at " 'the discretion of the official in the field.' " Prouse, 440 U.S. at 655, 99 S.Ct. at 1397 (citation omitted).
Defendant argues that he was arrested, not merely stopped, at his initial contact with the police. He concedes that a stop is not converted into an arrest simply because guns are drawn. See Jones v. State, 70 Wis.2d 62, 70, 233 N.W.2d 441, 445-46 (1975). He argues, however, that here the use of force by the police, including stopping him at gunpoint, the use of four officers to detain two suspects, the alleged blocking in of his car, and the intensive frisk, establishes that this was not merely an investigative detention. See United States v. Merritt, 695 F.2d 1263, 1274 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983) ().
The extent and manner of the police's approach and detention of a suspect must be gauged by the reasonableness standard. Wendricks, 72 Wis.2d at 725, 242 N.W.2d at 192. A drawn weapon may constitute "necessary measures for [the officer's] own protection" or a "necessary use of force to compel the person to acquiesce in the nonarrest investigative detention." Id. at 725, 242 N.W.2d at 191-92. An investigative stop is not necessarily transformed into an arrest by the officers drawing their guns and blocking the front of the suspect's car with a patrol car. Id. at 725, 242 N.W.2d at 192.
The tactics used to stop defendant's car were not unreasonable under the circumstances. The officers were stopping an unknown number of burglary suspects, in a high-crime area, in the early morning when few other people were present. Using four officers, drawing two guns, and even pointing one of the guns at defendant's car was not an excessive show of force sufficient to convert the investigative stop into a full-scale arrest.
If an officer making an investigatory stop has reason to believe the person stopped may be armed, the officer may conduct a limited pat-down search for weapons of the person's outer clothing. Flynn, 92 Wis.2d at 433, 285 N.W.2d 712. The search must be limited to that which is necessary to discover weapons...
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