State v. Williamson
| Decision Date | 27 September 1982 |
| Docket Number | No. 81-1961-CR,81-1961-CR |
| Citation | 109 Wis.2d 83,325 N.W.2d 360 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Marvin R. WILLIAMSON, Jr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
E. Michael McCann, Dist.Atty., and Peg Tarrant, Asst.Dist.Atty., for plaintiff-respondent.
Before DECKER, C.J., MOSER, P.J., and WEDEMEYER, J.
This is an appeal from a misdemeanor conviction for carrying a concealed weapon contrary to sec. 941.23, Stats. Pursuant to On January 2, 1981, at approximately 2 a.m., Marvin R. Williamson, Jr. (Williamson) exited his home at 1020 West Center Street in Milwaukee, accompanied by a friend, Myles (phonetic) King (King). There was a police squad car parked next door in front of a tavern at 1016 West Center Street. The squad car's headlights were off but its rotating red lights were on. Two police officers were in the squad car completing a traffic citation.
sec. 809.41(3), the chief judge ordered that the case be decided by a three-judge panel. We reverse.
King approached within approximately eight feet of the squad car and peered into the windows, while Williamson remained about fifteen to twenty feet west of the squad car. Police officer Charles Berard (Berard) told his partner to roll down the window and ask King what he was doing. King replied, "Huh?" Berard then asked King if he had ever been arrested, to which King replied, "Yes, carrying a gun." Berard then asked King if he was wanted at the time, to which King responded, "Yeah."
At that point, the officers exited their squad car. Williamson turned and started to walk away. Berard approached Williamson and said, "Hold up a second, chief." Berard then told Williamson to keep his hands away from his body and asked Williamson if he had any weapons on him. Williamson made no response so Berard patted him down and found a loaded .22 caliber revolver in his coat pocket. Williamson was arrested for carrying a concealed weapon.
On January 2, 1981, at the initial appearance, a criminal complaint was filed charging Williamson with carrying a concealed weapon. Williamson, appearing specially, moved to dismiss the complaint on sufficiency grounds. The trial court found that the complaint was sufficient and Williamson entered a not guilty plea.
On January 19, 1981, Williamson filed a motion to dismiss the complaint contending that the complaint failed to allege sufficient facts to constitute probable cause to believe that Williamson committed the crime charged and that the stop, search, seizure and arrest of Williamson were all unconstitutional. A motion to suppress the evidence (the gun) was also filed at this time.
On February 26, 1981, an evidentiary hearing was held on these motions. Following this hearing, briefs were filed, and a decision was rendered on July 8, 1981, denying the motion to dismiss the complaint. The trial court found that the stop and frisk was reasonable under the Terry v. Ohio 1 factors. While the decision did not specifically state whether the evidence was to be suppressed, Judge Wells, to whom the case was later assigned, ruled that the July 8, 1981, decision also denied Williamson's motion to suppress.
On August 31, 1981, Williamson formally waived his right to a jury trial. Williamson and the State also stipulated to using the transcript of the February 26, 1981, evidentiary hearing for the trial to the court.
On September 2, 1981, after noting that the stop and frisk was proper under Terry and State v. Flynn 2 and that a .22 caliber revolver was found on Williamson, the trial court ruled that the "evidence was clearly sufficient" to find Williamson guilty of carrying a concealed weapon. The trial court sentenced Williamson on October 9, 1981. The sentence was stayed pending the outcome of this appeal.
The issues on appeal are: (1) whether the complaint was insufficient in this misdemeanor case because it failed to recite the facts of the underlying warrantless search and seizure; and, (2) whether the stop and subsequent frisk of Williamson were legal and constitutional.
Williamson argues that a complaint charging a person with a misdemeanor--carrying a concealed weapon--is jurisdictionally In Wisconsin, the complaint must be a written statement of the essential facts constituting the offense charged. 3 The complaint must contain minimal factual disclosures underlying the charge, but those facts need not be independently documented or spelled out in the complaint. 4 It need not state an encyclopedic listing of all evidentiary facts, only essential facts, preferably concisely and certainly clearly, stating exactly what the defendant is alleged to have done. 5 It need only exhibit enough information to enable a detached and neutral magistrate to make the judgment that the charges are not capricious and are sufficiently supported to bring into play the further steps of the criminal process. 6
suspect if it does not state on its face the underlying facts supporting a warrantless stop and frisk so as to enable a defendant to attack the validity of stop, search, seizure and arrest at the initial appearance before the magistrate. We disagree.
When the sufficiency of a criminal complaint is challenged, the alleged facts in the complaint must be sufficient to establish probable cause, not in a hypertechnical sense, but in a minimally adequate way through a common sense evaluation 7 by a neutral magistrate making a judgment that a crime has been committed. 8 The magistrate need only be able to answer the hypothetical question: "What makes you think that the defendant committed the offense charged?" 9 It is sufficient if the complaint answers the following questions: What is the charge? Who is charged? When and where is the offense alleged to have taken place? Why is this particular person being charged? and, Who says so? 10
The United States Supreme Court has mandated that because of the dangers inherent in police officers' street searches and seizures, with or without a warrant, there must be some form of preliminary determination by a neutral and detached magistrate establishing that the underlying search was facially antiseptic to warrant further criminal proceedings. 11 The Court noted, however, that this was not required to be accompanied by the full panoply of adversary safeguards--counsel, confrontation, cross-examination and compulsory process for witnesses. 12 It reasoned that, because the stakes are so high when an individual is detained, the detached judgment of a neutral magistrate is essential if the fourth amendment is to furnish meaningful protection from unfounded interference with liberty. 13 The Court held that the fourth amendment requires a judicial determination of probable cause for the warrantless search and seizure as a prerequisite to extended restraint of liberty following arrest. 14 The fourth amendment protections have long been applied to the states through the due process clause of the fourteenth amendment. 15
Williamson argues that the Gerstein 16 case requires that the complaint set forth Nowhere in Gerstein does the Court hold that the complaint must state the underlying facts establishing the validity of a street search and seizure. It merely holds that there must be a preliminary determination by a neutral magistrate that the fourth amendment protections have been met.
facts to justify the police action--stop and frisk. We disagree.
The instant complaint reads in part as follows:
THE ABOVE NAMED COMPLAINING WITNESS BEING DULY SWORN SAYS THAT THE ABOVE NAMED DEFENDANT IN THE COUNTY OF MILWAUKEE, STATE OF WISCONSIN,
on January 2, 1981, at 1016 W. Center Street, City of Milwaukee, not being a peace officer, did go armed with a concealed and dangerous weapon, contrary to Wisconsin Statutes section 941.23(1).
Upon conviction of this charge, a Class A Misdemeanor, the maximum possible penalty is a fine of not more than $10,000 or imprisonment for not more than 9 months or both.
Complainant states he is a City of Milwaukee Police Officer and makes this complaint based upon the following:
Complainant further states that on January 2, 1981, at 1016 W. Center Street, City and County of Milwaukee, State of Wisconsin, he searched the above defendant; that at that time your complainant found concealed in the right outer coat pocket of a coat that the defendant was wearing a loaded .22 cal. revolver.
After reviewing the complaint here we determine that it answers the following questions:
What is the charge? Marvin R. Williamson
was carrying a
concealed weapon
in violation of
941.23, Stats
Who is charged? Marvin R. Williamson
is charged
When and where is the It occurred January
the offense alleged 2, 1981, at 1016
to have occurred? West Center
Street, Milwaukee
Wisconsin.
Why is this He was searched and
particular person a loaded .22 caliber
being charged? revolver was
found in his pocket.
Who says so? Police officer
Charles Berard.
On January 2, 1981, the trial court made a common sense evaluation of this complaint and found that the complaint stated sufficient facts to arrive at the conclusion as to what was the crime charged, who committed it, when and where it was committed, why Williamson was charged and who said so. We are satisfied that this complaint meets all the constitutional prerequisites to establish the Wisconsin criteria for a sufficient complaint. 17 Accordingly, we hold...
To continue reading
Request your trial
-
U.S. v. Shannon
...not capricious and are sufficiently supported to bring into play the further steps of the criminal process." State v. Williamson, 109 Wis.2d 83, 325 N.W.2d 360, 363 (App.1982). At a minimum, the document must set forth facts that will withstand a challenge to the sufficiency of the complain......
-
State v. Williamson
...Defender, for defendant-appellant. DAY, Justice. This is a review of a decision of the court of appeals published at 109 Wis.2d 83, 325 N.W.2d 360 (Ct.App.1982). The decision reversed a judgment of a conviction entered against the defendant, Marvin R. Williamson, Jr., (Williamson), in the C......
-
State v. Wolske
...facts, not all evidentiary facts, which clearly indicate what the defendant is alleged to have done. State v. Williamson, 109 Wis.2d 83, 87, 325 N.W.2d 360, 363 (Ct.App.1982), rev'd on other grounds, 113 Wis.2d 389, 335 N.W.2d 814, cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 ...
-
State v. Bembenek
...Judgment affirmed. 1 State v. Hoffman, 106 Wis.2d 185, 197-98, 316 N.W.2d 143, 151 (Ct.App.1982).2 State v. Williamson, 109 Wis.2d 83, 87, 325 N.W.2d 360, 363 (Ct.App.1982).3 Id.4 Id.5 Hoffman, supra note 1, 106 Wis.2d at 200, 316 N.W.2d at 152.6 State v. Olson, 75 Wis.2d 575, 583, 250 N.W.......