State v. Washington, No. 83-1804-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtSTEINMETZ; Initially, on the close of testimony at the second phase; Gram; CECI; SHIRLEY S. ABRAHAMSON
Citation134 Wis.2d 108,396 N.W.2d 156
Decision Date05 September 1986
Docket NumberNo. 83-1804-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Jonas M. WASHINGTON, Defendant-Appellant-Petitioner.

Page 156

396 N.W.2d 156
134 Wis.2d 108
STATE of Wisconsin, Plaintiff-Respondent,
v.
Jonas M. WASHINGTON, Defendant-Appellant-Petitioner.
No. 83-1804-CR.
Supreme Court of Wisconsin.
Argued Feb. 27, 1985.
Decided Nov. 18, 1986.
Submitted on Briefs Sept. 5, 1986.

Page 157

[134 Wis.2d 110] 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; [134 Wis.2d 111] Bronson C. La Follette, Atty. Gen., on brief.

STEINMETZ, Justice.

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 [134 Wis.2d 112] 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

Page 158

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 [134 Wis.2d 113] 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 [134 Wis.2d 114] 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 ORDERED that the record be remanded to the circuit court to reopen the hearing on defendant's motion to suppress evidence for further inquiry into the circumstances surrounding the seizure of the watches, giving both parties the opportunity to present their full evidence on the issue of the validity of the seizure of the watches and to file any additional briefs and to present any argument on this issue.

"IT IS FURTHER ORDERED that the hearing before the circuit court shall be held on or before June 12, 1985, and the circuit court shall, upon considering[134 Wis.2d 115] the matters presented at the rehearing, rule on the motion to suppress on or before June 19, 1985, making such findings of fact and conclusions of law as necessary.

"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

Page 159

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 [134 Wis.2d 116] 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...

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48 practice notes
  • State v. Martwick, No. 98-0101-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 19, 2000
    ...outside the curtilage to the home, it was still protected from warrantless searches by the Fourth Amendment). 24. State v. Washington, 134 Wis. 2d 108, 120, 396 N.W.2d 156 25. I also agree with the court of appeals (and the majority opinion) that the scope of curtilage for Fourth Amendment ......
  • Horton v. California, No. 88-7164
    • United States
    • United States Supreme Court
    • June 4, 1990
    ...193, 196, 737 P.2d 254, 257 (1987) W.Va. State v. Moore, 165 W.Va. 837, 852-853, 272 S.E.2d 804, 813-814 (1980) Wis. State v. Washington, 134 Wis.2d 108, 119-121, 396 N.W.2d 156, 161 (1986) Wyo. Jessee v. State, 640 P.2d 56, 63 (Wyo.1982) APPENDIX B UNITED STATES COURTS OF APPEALS THAT HAVE......
  • Com. v. Marconi
    • United States
    • Superior Court of Pennsylvania
    • October 16, 1991
    ...Henderson v. State, 535 So.2d 659 (Fla.App.1988); People v. Lee, 194 Cal.App.3d 975, 240 Cal.Rptr. 32 (1987); State v. Washington, 134 Wis.2d 108, 396 N.W.2d 156 (1986); State v. Ortiz, 67 Haw. 181, 683 P.2d 822 (1984). 7 I would Page 630 find, however, [408 Pa.Super. 628] the rationale emp......
  • State v. Williams, No. 96-2593-CR
    • United States
    • Court of Appeals of Wisconsin
    • May 19, 1998
    ...is subject to seizure for a violation of the law. State v. Washington, 120 Wis.2d 654, 660, 358 N.W.2d 304, 307 (Ct.App.1984), aff'd, 134 Wis.2d 108, 396 N.W.2d 156 (1986). The officers' actions are measured against an objective standard. State v. Guzy, 139 Wis.2d 663, 675, 407 N.W.2d 548, ......
  • Request a trial to view additional results
48 cases
  • State v. Martwick, No. 98-0101-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 19, 2000
    ...outside the curtilage to the home, it was still protected from warrantless searches by the Fourth Amendment). 24. State v. Washington, 134 Wis. 2d 108, 120, 396 N.W.2d 156 25. I also agree with the court of appeals (and the majority opinion) that the scope of curtilage for Fourth Amendment ......
  • Horton v. California, No. 88-7164
    • United States
    • United States Supreme Court
    • June 4, 1990
    ...193, 196, 737 P.2d 254, 257 (1987) W.Va. State v. Moore, 165 W.Va. 837, 852-853, 272 S.E.2d 804, 813-814 (1980) Wis. State v. Washington, 134 Wis.2d 108, 119-121, 396 N.W.2d 156, 161 (1986) Wyo. Jessee v. State, 640 P.2d 56, 63 (Wyo.1982) APPENDIX B UNITED STATES COURTS OF APPEALS THAT HAVE......
  • Com. v. Marconi
    • United States
    • Superior Court of Pennsylvania
    • October 16, 1991
    ...Henderson v. State, 535 So.2d 659 (Fla.App.1988); People v. Lee, 194 Cal.App.3d 975, 240 Cal.Rptr. 32 (1987); State v. Washington, 134 Wis.2d 108, 396 N.W.2d 156 (1986); State v. Ortiz, 67 Haw. 181, 683 P.2d 822 (1984). 7 I would Page 630 find, however, [408 Pa.Super. 628] the rationale emp......
  • State v. Williams, No. 96-2593-CR
    • United States
    • Court of Appeals of Wisconsin
    • May 19, 1998
    ...is subject to seizure for a violation of the law. State v. Washington, 120 Wis.2d 654, 660, 358 N.W.2d 304, 307 (Ct.App.1984), aff'd, 134 Wis.2d 108, 396 N.W.2d 156 (1986). The officers' actions are measured against an objective standard. State v. Guzy, 139 Wis.2d 663, 675, 407 N.W.2d 548, ......
  • Request a trial to view additional results

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