State v. Washington
| Decision Date | 05 September 1986 |
| Docket Number | No. 83-1804-CR,83-1804-CR |
| Citation | 134 Wis.2d 108,396 N.W.2d 156 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jonas M. WASHINGTON, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
William J. Tyroler, Asst. State Public Defender, argued, for defendant-appellant-petitioner; Ellen Pearlman, Asst. State Public Defender, on brief.
Thomas J. Ballistreri, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
There are two issues in this case:
(1) Was the defendant lawfully arrested after the police found evidence of a burglary on his person during a pat-down search for weapons?
(2) What are the limitations and ramifications of the inevitable discovery doctrine?
Defendant, Jonas M. Washington, was arrested for the burglary of Sedlar's Jewelry Store in Wauwatosa. Washington brought a motion to suppress certain evidence seized during the stop and arrest. The Honorable William J. Haese, in a Milwaukee county circuit court suppression hearing, held the arrest was legal and its fruits were legally seized and denied the motion. Washington waived his right to a jury trial, was tried to the court at his request and was convicted on the basis of police reports and the hearing testimony. He was sentenced to five years in prison.
On appeal of the conviction, the court of appeals held that, while the vehicle in which Washington was a passenger was legally stopped, the evidence was illegally seized. Nonetheless, the court of appeals reasoned the illegalities were cured under the doctrine of inevitable discovery. 1
At about 1:13 on the morning of November 22, 1982, Wauwatosa Police Officer Howard Bacon heard a radio dispatch stating an intrusion alarm had been activated at Sedlar's Jewelry Store located at 8707 West North Avenue, Wauwatosa. Sedlar's Jewelry Store is located at the foot of Pasadena Boulevard which runs north from a "T" intersection of West North Avenue and Pasadena Boulevard. Officer Bacon proceeded immediately to that location. As he neared the jewelry store, Bacon observed the silhouette of a station wagon in the westbound lane of West North Street turn north onto Pasadena Boulevard. There were no other vehicles or pedestrians in the vicinity at the time. Officer Bacon approached the jewelry store and as he stood next to the building he could see that the same station wagon, now about three-quarters of a block down Pasadena Boulevard, did not have its headlights on. The station wagon's lights finally went on as it neared the end of the block. Officer Bozicevich arrived at the scene and Bacon told him that he had observed a station wagon with no lights driving northbound on Pasadena Boulevard. Bozicevich broadcast this information over the radio.
At about 1:13 a.m., or moments after, Wauwatosa Officer Dennis Sengbusch also heard the radio dispatch that an intrusion alarm had been activated at Sedlar's Jewelry Store. Approximately two minutes later he saw a dark station wagon and an older, light-colored Chevrolet with a tail light out proceeding eastbound in the 8500 block of West Center Street, four blocks north of North Avenue. They were the only cars in the area. As Officer Sengbusch's marked squad car closed within fifty feet of the newer station wagon, it turned left on 84th Street. Sengbusch chose to follow the older vehicle, but noted the license number of the station wagon was NB 7126 or 2176 which he jotted down on a piece of paper.
As Officer Sengbusch approached the older Chevrolet still eastbound on West Center Street, he heard a broadcast by Officer Bozicevich that a Chevrolet station wagon had been seen in the vicinity of the burglarized jewelry store. Officer Sengbusch turned around and tried to locate the station wagon he had just seen but was unable to find it. Sengbusch, however, notified the police dispatcher over the radio that he had seen a newer model, possibly a Chevrolet but definitely a General Motors type, station wagon with Wisconsin license plates NB 7126. The time was approximately 1:16 a.m. In the meantime, Officer Bacon observed that the front door of the jewelry store had been pried open and that a display case had been broken into.
A teletype was sent out by the Wauwatosa Police Department with the description of the suspected vehicle. The Milwaukee Police Department received that teletype and subsequently broadcast it to police patrols on the north side of the city of Milwaukee stating that a Chevrolet station wagon with Wisconsin license number NB 7126, or a variant of that, was wanted in connection with a jewelry burglary in Wauwatosa.
At about 1:20 a.m. Milwaukee Police Officer William Welter had just received that dispatch when he observed a station wagon with matching license plates eastbound in the 3300 block of West Center Street. Welter contacted his dispatcher to confirm the license plate number of the suspected vehicle. The numbers matched and at 29th and Center Streets, Welter pulled his squad car in behind the wagon while another squad car pulled alongside it.
Officer Welter ordered the two occupants of the wagon, one of whom was Washington, to get out. The defendant, Washington, was a passenger in the car and exited from the right side. Because Washington was suspected of a felony, Welter had Washington place his hands on top of the car and lean on it so he could be patted down to determine whether he was carrying any weapons.
While frisking Washington, Officer Welter felt three watches in Washington's pocket and placed him under arrest. He removed the watches and noted they had tags identifying them as the property of Sedlar's Jewelers.
Washington does not allege that the initial search of his person went beyond his outer clothing. Officer Welter testified he "conducted a patdown for weapons" during the course of which he "felt several objects" which he said felt like three watches. This testimony differs from his statements at a second continued phase of the hearing when he said he saw them on the defendant's arms.
After the arrest, Officer Welter observed a jewelry case in the back seat of Washington's vehicle. It was plexiglass, about two feet long and contained a large number of necklaces.
After oral arguments and deliberations, this court found the testimony relating to the actual seizure ambiguous and therefore remanded the matter to the trial court with the following order:
"IT IS FURTHER ORDERED that this court retains jurisdiction over the matter and the clerk of circuit court shall remand the record to this court after the circuit court completes the hearing, its reconsideration, and enters its order." 2
The hearing was reopened and conducted by the Milwaukee county circuit court on June 11, 1985, with a decision rendered on June 14, 1985. However, due to the Milwaukee judicial district's plan of judicial rotation, the hearing pursuant to this court's order was conducted, not by Judge William Haese, but by the Honorable Laurence G. Gram, Jr.
Testifying at both the first and second hearing were Officer Welter and the defendant. Additional prosecutorial witnesses testified at the second hearing who had not testified at the first one. There were some differences in Officer Welter's testimony between the first and second hearings but some of that difference may be accounted for in that this court's order directed there be evidence in greater depth at the second hearing.
The substance of Officer Welter's testimony at the two appearances was:
At the first hearing, Officer Welter stated he conducted a pat-down search and felt several objects on the defendant's person. He stated he specifically felt three watches on the defendant's person. He then placed the defendant under arrest for burglary. After placing the defendant under arrest, Welter stated he saw a jewelry case containing necklaces on the back seat of the car in which the defendant was a passenger.
At the second phase of the hearing, Officer Welter stated that as he approached the defendant's stopped vehicle, he shined a flashlight beam in the rear to see if there were any passengers there. He saw no passenger; however, he did observe a large plexiglass container. He thought it to be "possibly something that was taken in the burglary of a jewelry store." However, he did not study it in detail at that time. Officer Welter then ordered the defendant out of the vehicle and patted him down. At that time, while having the defendant in the "spread eagle" position, Officer Welter stated he noticed the defendant had a watch on each wrist. Officer Welter stated that after the protective pat-down, defendant "was placed under arrest after further investigation into the rear seat." Further investigation involved opening the rear car door to see if the case that he had observed contained jewelry. It did contain necklaces and other jewelry. Finally, during a custodial search after arrest, he recovered a third watch from defendant's right jacket pocket that had a serial number or a tag number of 13361-80627 with a Sedlar's Jewelry tag on it.
Officer Welter was not sure on this second testimony whether he conducted the...
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