State v. Wilks

• Decision Date: 24 January 1984
• Docket Number: No. 83-737-CR,83-737-CR
• Citation: State v. Wilks, 117 Wis.2d 495, 345 N.W.2d 498 (Wis. App. 1984)
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Timothy Bernard WILKS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 498

345 N.W.2d 498

117 Wis.2d 495

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

No. 83-737-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 14, 1983.

Opinion Released Jan. 24, 1984.

Opinion Filed Jan. 24, 1984.

Review Granted.

Margaret A. Maroney, Asst. State Public Defender, Milwaukee, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., Madison, for plaintiff-respondent; Daniel J. O'Brien, Asst. Atty. Gen., Madison, of counsel.

Before WEDEMEYER, P.J., and DECKER and MOSER, JJ.

WEDEMEYER, Presiding Judge.

Timothy Bernard Wilks appeals from judgments of conviction, both entered December 14, 1982, wherein he pled guilty to attempted robbery and attempted burglary, contrary to secs. 943.32(1)(a)and939.32, andsecs. 943.10(1)(a)and939.32, Stats., respectively.On appeal Wilks raises the following issues: (1) whether he was denied his constitutional rights ¹ to be free from unreasonable seizures when he was forced to submit to a lineup following his arrest for the violation of a city of Milwaukee ordinance; (2) whether city of Milwaukee ordinance sec. 106-31(1)(a) is unconstitutionally vague; ² and (3) whether city of Milwaukee ordinance sec. 106-31(1)(a) violates the fourth amendment of the United States Constitutionandarticle I, section 11 of the Wisconsin Constitution by authorizing unreasonable seizures.Because we conclude that there is no merit to any of the issues raised by Wilks, we affirm.

On August 29, 1981, Milwaukee police officers Maxime Taylor and Rudolph Binter were driving eastbound in the 2500 block of West Capitol Drive in a marked uniform squad car.At approximately 4:15 a.m., they received a dispatch regarding an entry in progress at 4007 North 25th Street.Taylor testified that he turned off the squad car's headlights and proceeded to the location of the entry in progress.Taylor stated that he observed Wilks standing about one to two feet away from the corner of a building at 4007 North 25th Street.Wilks then ran south across Capitol Drive passing within fifteen to twenty feet of the front of the squad car.Taylor stopped Wilks about seventy-five to one hundred yards away from the building.

Wilks was asked his name and his address, to which he responded truthfully.Wilks was then asked what he was doing in the area.Wilks immediately responded that he was not breaking into any houses.When asked where he had come from, Wilks stated that he had just left a bar in the 3900 block of North Teutonia.After advising Wilks of all the inconsistencies in his story, the officers placed him under arrest for violating the city of Milwaukee's loitering ordinance.Milwaukee, Wis., Ordinance sec. 106-31(1)(a)(1981).

Following Wilks' arrest, Binter interviewed the individual who reported the break-in.Binter stated that this individual told him that a screen had been removed from a window of the building.This window was approximately twenty feet from where Wilks had initially been seen by the police officers.

Sometime ³ after his arrest, Wilks was placed in a lineup which involved criminal offenses not related to the civil offense for which he was originally arrested.Wilks was identified by two individuals, Alice Ness and Evelyn Sandberg.Ness stated that Wilks was the man she found standing in her kitchen without her permission on August 20, 1981.She also stated that Wilks was the man she saw on her front porch on August 25, 1981.When Wilks left on that occasion, she discovered that a board which secured her front door had been loosened.As a result of these incidents, Wilks was charged with criminal trespass and attempted burglary.

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

Wilks moved to suppress the identifications on the grounds that there was no probable cause for his initial arrest and that, because he was arrested for an ordinance violation, it was improper to force him to submit to a criminal lineup.Following the trial court's denial of his motion, Wilks pled guilty to attempted robbery and attempted burglary.

LINEUP

Wilks initially contends that his constitutional rights to be free from unreasonable seizures were violated when he was forced to submit to a lineup following his arrest for an ordinance violation.We are not persuaded by this contention.

Probable Cause

Our first area of inquiry is whether the police officers had probable cause to arrest Wilks for the ordinance violation.

The power to arrest must be authorized by statute.City of Madison v. Two Crow, 88 Wis.2d 156, 159, 276[117 Wis.2d 501] N.W.2d 359, 361 (Ct.App.1979).Section 800.02(6), Stats., authorizes law enforcement officials to arrest a person "without a warrant for the violation of a municipal ordinance if the arresting officer has reasonable grounds to believe that the person is violating or has violated the ordinance."[Emphasis added.]The highlighted language above establishes a probable cause requirement before an individual may be arrested for an ordinance violation.

The standard of review when an appellate court determines whether probable cause to arrest exists is a question of law if the historical facts are undisputed.State v. Drogsvold, 104 Wis.2d 247, 262, 311 N.W.2d 243, 250(Ct.App.1981).When this court is presented with a question of law, the determination will be reviewed independently on appeal without deference to the conclusion of the trial court.Id.Where some of the facts are disputed, appellate courts first apply the "clearly erroneous" test to the trial court's findings regarding those facts, and then examine those findings and the undisputed facts independently.Seeid. at 260, 311 N.W.2d at 249;see alsoNoll v. Dimiceli's, Inc., 115 Wis.2d 641, 643-44, 340 N.W.2d 575, 577(Ct.App.1983).

In discussing the requirements for probable cause to arrest our supreme court has recently stated:

The probable cause standard required to arrest dictates that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed the offense.The evidence must show that there is more than a possibility or suspicion that the defendant committed the offense.The evidence need not reach the level of proof beyond a reasonable doubt or even that guilt is more likely than not.State v. Paszek, 50 Wis.2d at 624-25[184 N.W.2d 836].In State v. Paszek, 50 Wis.2d at 624-25[184 N.W.2d 836], we described probable cause as follows:

"Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not.It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information.The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case.Probable cause is defined in Draper v. United States, supra [ (1959), 358 U.S. 307] p. 313[79 S.Ct. 329, p. 333, 3 L.Ed.2d 327] as:

" ' "In dealing with probable cause, ... as the very name implies, we deal with probabilities.These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act."Probable cause exists where "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.Carroll v. United States, 267 U.S. 132[45 S.Ct. 280, 69 L.Ed. 543].' "State v. Paszek, 50 Wis.2d at 624-25[184 N.W.2d 836](citations omitted).State v. Welsh, 108 Wis.2d 319, 329-30, 321 N.W.2d 245, 251(1982), cert. granted, --- U.S. ----, 103 S.Ct. 1182, 75 L.Ed.2d 430(1983).

The record reveals that the majority of evidence in this case is undisputed.The only relevant fact which appears to be in dispute is when and in what context Wilks stated that "he was not breaking into any houses."Taylor testified that when he asked Wilks what he was doing in the area, Wilks immediately responded that he was not breaking into any houses.Binter, on the other hand, testified that when Wilks had told the officers his name, he informed Wilks that he remembered that Wilks had been arrested in the past for breaking into a house and raping a woman.Binter stated it was at this point that Wilks "blurted out" that he was not breaking into any houses.The trial court did not make a specific finding concerning when this statement was made; however, where a trial court does not expressly make a finding necessary to support its legal conclusion, an appellate court can assume that the trial court made the finding in the way that supports its decision.Id.108 Wis.2d at 345, 321 N.W.2d at 258.(Abrahamson, J., dissenting).

The ordinance in question makes it unlawful for anyone to: (1) loiter or prowl; (2) in a place, at a time, or in a manner not usual for law-abiding individuals; and (3) under circumstances that warrant alarm for the safety of persons or property in the vicinity.Milwaukee, Wis., Ordinance sec 106-31(1)(a)(1981).The ordinance also specifies circumstances which can be considered in determining whether such alarm is warranted.One...