State v. Wilks

• Citation: 121 Wis.2d 93,358 N.W.2d 273
• Decision Date: 27 November 1984
• Docket Number: No. 83-737CR,83-737CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Timothy Bernard WILKS, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

Page 273

358 N.W.2d 273

121 Wis.2d 93

STATE of Wisconsin, Plaintiff-Respondent, v. Timothy Bernard WILKS, Defendant-Appellant-Petitioner.

No. 83-737CR.

Supreme Court of Wisconsin.

Argued Oct. 3, 1984.

Decided Nov. 27, 1984.

Margaret A. Maroney, Asst. Public Defender (argued), for defendant-appellant-petitioner; Richard D. Martin, Asst. Public Defender, on briefs.

Daniel J. O'Brien, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

Michael J. Lund and Frisch, Dudek & Slattery, Ltd., Milwaukee, amicus curiae for Wisconsin Civil Liberties Foundation.

CALLOW, Justice.

This is a review of a decision ¹ of the court of appeals affirming judgments of conviction for attempted robbery and attempted burglary entered by the Milwaukee county circuit court, Judge Robert W. Landry. We affirm the decision of the court of appeals.

The issues presented are whether a person lawfully held in police custody for a civil violation may be compelled to participate in a lineup on unrelated criminal charges and whether a city of Milwaukee ordinance, which prohibits loitering or prowling, is unconstitutionally vague or violative of the fourth amendment to the United States Constitution or art. I, sec. 11, of the Wisconsin Constitution.

At 4:15 a.m. on August 29, 1981, two city of Milwaukee police officers were dispatched to investigate an entry in progress at 4007 North 25th Street, Milwaukee. The officers turned off the headlights on their squad car as they responded to the call. They observed Timothy Wilks standing near the corner of the building at 4007 North 25th Street. Wilks then ran south in the crosswalk across Capitol Drive, passing 15 to 20 feet in front of the squad car. The officers stopped Wilks and asked him his name and address. He answered these questions truthfully. Wilks was then asked what he was doing in the area. He first stated that he was coming home from the bars and then stated that he was just out walking around. One of the officers told Wilks he remembered him from a previous incident where he had been arrested for breaking into a house and raping a woman. Wilks denied that incident and blurted out that he had not committed any burglaries. The officers advised Wilks of the inconsistencies in his story and arrested him for violating Milwaukee Ordinance sec. 106-31(1)(a)(1981) which prohibits loitering or prowling.

Sometime ² after his arrest, Wilks was required to participate in a lineup which involved criminal offenses unrelated to the civil offense which was the basis of his original arrest. As a result of the lineup, Wilks was identified by two women. Alice Ness identified Wilks as the man she found standing in her kitchen without her permission on August 20, 1981. She also identified him as the man she saw on her front porch on August 25, 1981. After the man left, Ness discovered that a board which secured the screen to the door had been loosened. As a result of these incidents, Wilks was charged with criminal trespass to a dwelling ³ and attempted burglary. ⁴

Evelyn Sandberg identified Wilks as the man she found on her front porch on August 26, 1981. Sandberg stated she asked the man what he wanted, and he responded, "I want your money." When she replied she had no money, the man kicked in the screen door and grabbed her blouse. Sandberg screamed, and the man fled. As a result of this incident, Wilks was charged with attempted robbery ⁵ as an habitual criminal. ⁶

Wilks moved to suppress the identifications resulting from the lineup on the grounds that there was no probable cause for his initial arrest and that, because his initial arrest had been for a civil violation, it was improper to compel him to participate in a criminal lineup. The trial court denied the suppression motion, concluding that the arrest for the ordinance violation was proper and that it was also proper to subject Wilks to the lineup. The trial court likened the compelled participation in the lineup to a situation where a motorist is stopped for a traffic violation, and as a result of the lawful stop, officers may conduct a search of the vehicle or its occupants. The trial court stated that participation in a lineup is a "realistic imposition" on a citizen who has been placed under arrest. Wilks subsequently pled guilty to attempted robbery and attempted burglary. A judgment of conviction was entered on December 14, 1982.

On appeal, Wilks argued that he was denied his constitutional right to be free from unreasonable seizure when he was forced to participate in a lineup following his arrest for the ordinance violation. He also argued that the Milwaukee loitering ordinance was unconstitutionally vague and violated the fourth amendment of the United States Constitution and art. I, sec. 11, of the Wisconsin Constitution by authorizing unreasonable seizures. The constitutional challenges to the loitering ordinance had not been raised in the trial court.

The court of appeals affirmed the judgments of conviction. The court concluded there had been probable cause to arrest Wilks on the ordinance violation and that an individual in lawful custody for a civil violation may be required to submit to a lineup for an unrelated criminal offense. 117 Wis.2d at 504-05, 345 N.W.2d 498. The court of appeals said that Wilks lacked standing to challenge the loitering ordinance on vagueness grounds because Wilks' conduct at the time of his arrest clearly fell within the "hard core" of the ordinance's proscriptions. 117 Wis.2d at 505, 345 N.W.2d 498. The court also found that the ordinance did not authorize unreasonable seizure by allowing officers to arrest an individual without probable cause that he violated the ordinance. Id. at 507, 345 N.W.2d 498. Wilks petitioned this court to review the court of appeals' decision, and we granted the petition.

The first issue we decide is whether a person lawfully held in police custody for a civil violation may be compelled to participate in a lineup on unrelated criminal charges. The fourth amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Wilks contends that forcing him to participate in a lineup violated his right to be free from unreasonable seizure and that the identification evidence derived from the lineup must be suppressed because it constituted the fruit of an unreasonable seizure.

The right to be free from improper search and seizure applies with equal force to those who are civilly arrested as to those who are criminally arrested since the immediate impact on the individual is the same in both cases. State ex rel. White v. Simpson, 28 Wis.2d 590, 596, 137 N.W.2d 391 (1965). For purposes of this portion of his argument, Wilks concedes that he was lawfully in custody for the ordinance violation, and he does not argue that his initial arrest was an improper seizure. Rather, he contends that the scope of the initially lawful seizure became unreasonable when, during the course of his custody for a civil violation, he was compelled to stand in a lineup on unrelated criminal charges.

The central inquiry under the fourth amendment is the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). In order to assess the reasonableness of a particular seizure, it is necessary to balance the need for the seizure against the invasion which the seizure entails. Id. at 20-21, 88 S.Ct. at 1879-1880. In conducting this balancing test, the individual's fourth amendment interest must be weighed against the legitimate governmental interests which will be promoted by the intrusion. Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). A seizure that is reasonable at its inception may later become unreasonable in scope, and in determining the question of reasonableness, reviewing courts must decide whether the seizure was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 19-20, 88 S.Ct. at 1878-1879.

The governmental interest at stake in compelling individuals to participate in lineups is identifying perpetrators of crimes. A properly conducted lineup is an effective way of securing an accurate identification. Note, Fourth Amendment Implications of Compelling an Individual to Appear in a Lineup Without Probable Cause to Arrest, 45 Fordham L.Rev. 124 (1976). The individual's interest at stake is his or her personal liberty and expectation of privacy. A lineup is an intrusion upon personal liberty, In Re Melvin, 546 F.2d 1, 5 (1st Cir.1976), which carries with it the danger of misidentification. United States v. Allen, 408 F.2d 1287, 1288 (D.C.Cir.1969). In determining the reasonableness of compelling an individual to participate in a lineup, the state's interest in identifying persons who have committed crimes must be weighed against the individual's interest in liberty and expected privacy.

Courts have held that, before a person who is at liberty may be compelled to participate in a lineup, there must be probable cause to believe that the individual committed the offense under investigation. In Re Armed Robbery, 99 Wash.2d 106, 112, 659 P.2d 1092 (1983). "[W]e must be concerned ... for the right of ordinary citizens who are not accused or suspected of any crime and who are asked to give several hours of their time to participate in a lineup, to choose freely whether or not they desire to participate." Butcher v. Rizzo, 317 F.Supp. 899, 903 (E.D. Pa. 1970). On the other hand, courts have held that a person lawfully in custody on a criminal charge may be required to participate in a lineup on an unrelated criminal...