State v. Williams, No. 96-2593-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtCURLEY; SCHUDSON; Unfortunately, Judge Wedemeyer declined to participate in those discussions. In his apparent eagerness to adopt Leon
Citation583 N.W.2d 673,220 Wis.2d 714
Docket NumberNo. 96-2593-CR
Decision Date19 May 1998

Page 673

583 N.W.2d 673
220 Wis.2d 714
State of Wisconsin, Plaintiff-Respondent,
McKinley Williams, Defendant-Appellant.
No. 96-2593-CR.
Court of Appeals of Wisconsin.
May 19, 1998.

APPEAL from a judgment of the circuit court for Milwaukee County: BONNIE L. GORDON, Judge. Affirmed.

Before Wedemeyer, Schudson and Curley, JJ.


McKinley Williams appeals from a judgment entered after he pled no contest to carrying a concealed weapon, contrary to § 941.23, STATS. He claims that the trial court erred in denying his motion to suppress. He argues that the evidence should have been suppressed because it was discovered incident to a stop which was conducted in violation of his Fourth Amendment rights. Because the officers acted in good faith when they conducted the search, the trial court did not err in denying Williams's motion to suppress, and we affirm.


On December 29, 1994, at approximately 2:30 p.m., City of Milwaukee Police Officers Paul Vierck and Steven Vento were patrolling the area of 12th and Center Streets. They observed a Cadillac whose license plate corresponded with a vehicle that had been reported stolen in an armed robbery a few days earlier. The Cadillac's license plate appeared on a "hot sheet" that the officers had updated immediately prior to their shift at 6:30 a.m. The officers observed a driver and passenger in the vehicle and considered both potential suspects in the armed robbery. The officers stopped the car. Vierck approached the driver while Vento approached the passenger. Williams was the passenger.

Vento ordered Williams to exit the vehicle and then began a patdown search for safety reasons. Williams told Vento that he had something in his pocket. Vento discovered a semiautomatic handgun in Williams's coat pocket. Williams was charged with carrying a concealed weapon. During the subsequent investigation, the officers discovered that the Cadillac had recently been returned to its owner, who was driving the car at the time the stop was made. There is no specific evidence in the record to show exactly when the car was recovered, though the State concedes that it was recovered prior to the time the officers commenced their shift.

Williams filed a motion to suppress, claiming that the Terry 1 stop was illegal because it was based on outdated and incorrect information. The trial court denied the motion, ruling that the officers acted in good faith. He then entered a no contest plea. Judgment was entered and he now appeals.


A motion to suppress evidence raises a constitutional question, presenting a mixed question of fact and law. To the extent the trial court's decision involved findings of evidentiary or historical facts, those findings will not be overturned unless they are clearly erroneous. State v. Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct.App.1991). The application of constitutional and statutory principles to the facts found by the trial court, however, presents a matter for independent appellate review. Id.

This case presents an issue of first impression: whether, when only two days have passed between the report of a stolen car and the police stopping of that car, evidence discovered incident to the investigatory stop should be suppressed where the stop was performed in good-faith reliance on a police "hot sheet" and where, between the time the police received the "hot sheet" information and the time of the stop, the information on the hot sheet had become outdated and incorrect. In addressing this issue, we apply the good faith exception to the exclusionary rule as articulated in United States v. Leon, 468 U.S. 897, 922-24 (1984). Based on Leon, we conclude that the police officers in the instant case acted in good-faith reliance on their hot sheet when they conducted the investigatory stop. Accordingly, the evidence discovered pursuant to the stop should not be suppressed.

In Leon, the United States Supreme Court created a good faith exception to the exclusionary rule. Id. The exception applies in situations where the exclusion of evidence would not promote the purpose of the exclusionary rule to deter police conduct that violates the Fourth Amendment. Id. The good faith exception to the exclusionary rule has been applied in one opinion from this court. See State v. Collins, 122 Wis.2d 320, 325-27, 363 N.W.2d 229, 232 (Ct.App.1984). Another court of appeals opinion, however, concluded that Wisconsin has not adopted the Leon exception. See State v. Grawien, 123 Wis.2d 428, 432, 367 N.W.2d 816, 818 (Ct.App.1985). Grawien declined to apply the exception, ruling that our supreme court in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923), barred the good faith exception.

We resolve the conflict in favor of applying the Leon exception for two reasons: (1) the factual scenario presented in the instant case is more akin to Collins than to Grawien; and (2) our analysis of all the pertinent law leads us to conclude that the Wisconsin Supreme Court has not rejected the Leon case.

A. Collins Case Analysis.

Williams asserts that the evidence should be suppressed because it was discovered incident to an illegal Terry stop. He argues that the Terry stop was illegal because the vehicle had been returned to the rightful owner, who was driving it at the time of the stop. Accordingly, Williams claims that the police officers did not have reasonable suspicion sufficient to justify a Terry stop.

Terry and its progeny provide that a law enforcement officer may stop a person for a reasonable length of time when the officer reasonably suspects that the person has committed, is committing or is about to commit a crime. See id.; see also § 968.24, STATS. This same standard applies to stops of automobiles. Jones v. State, 70 Wis.2d 62, 68-69, 233 N.W.2d 441, 444-45 (1975). 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 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, 554, cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). The reasonableness of an investigative stop depends on the facts and circumstances that are present at the time the stop takes place. Id. at 679, 407 N.W.2d 548, 407 N.W.2d at 555. Williams argues that the officers could not meet the Terry standard because the information they relied on to conduct the stop was incorrect.

Despite the fact that the grounds upon which the officers relied to conduct the stop turned out to be invalid, the evidence is admissible under the good faith exception to the exclusionary rule. See Collins, 122 Wis.2d at 325-27, 363 N.W.2d at 232. Suppressing evidence in a situation where a reasonable officer would believe that a Terry stop should be conducted would not help to deter misconduct by arresting officers, because there is no misconduct to deter. See id. Here, the officers had a good faith basis to conduct the stop.

The car in which Williams was riding had been reported stolen two days prior to the stop. Although the car had been recovered before Officers Vierck and Vinto began their shift, 2 the updated "hot sheet" information they received just prior to starting their shift at 6:30 a.m. still listed the car as stolen. Eight hours later, while on the same shift, they observed a vehicle whose license plate matched the "hot" car stolen in the armed robbery. Under these facts and circumstances, we agree that the officers acted in good faith belief that they had reasonable suspicion to stop the car. In light of the information available at the time they acted, the police were stopping a car taken in an armed robbery. The two individuals in the car were considered potential suspects. The officers were concerned that they still might be armed and dangerous. A pat-down search conducted for the officers' safety was performed, which resulted in the discovery of the concealed weapon.

It was reasonable for the officers to rely on the information available to them. This case does not present a situation where the car was stolen months or weeks earlier. The case to which Williams directs our attention, Carter v. State, 18 Md.App. 150, 305 A.2d 856 (Md.Ct.Spec.App.1973), is distinguishable. Carter involved a situation where the officers relied on outdated records to conduct a stop on a vehicle that had been stolen and recovered three months prior to the stop. See id. at 858. It would be more difficult to conclude that the officers were justified in relying on their hot sheet if the car in which Williams was riding had been stolen and recovered three months prior to the stop. Records that are not updated for three months are unreliable and cannot form the basis for a good faith act. In this case, however, the car was stolen only two days prior to the stop. Under these circumstances, it was objectively reasonable for the officers to presume that their hot sheet, which still listed the car as stolen, was accurate.

We acknowledge that another published case from this court declined to apply the good faith exception to the exclusionary rule. See Grawien, 123 Wis.2d at 432, 367 N.W.2d at 818. The facts in the instant case, however, are more aligned with Collins than with Grawien. In Collins, an officer arrested the defendant without knowing that the warrant had been previously executed. Collins, 122 Wis.2d at 325-27, 363 N.W.2d at 232. In Grawien, a warrant was declared invalid because it was issued by an individual without authority to do so. Grawien, 123 Wis.2d at 430-31, 367 N.W.2d at...

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