State v. Young, 2010AP2559–CR.
| Decision Date | 06 March 2012 |
| Docket Number | No. 2010AP2559–CR.,2010AP2559–CR. |
| Citation | 813 N.W.2d 247,2012 WI App 52,340 Wis.2d 740 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Jermaine Kennard YOUNG, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Milwaukee County: Timothy M. Witkowiak and Carl Ashley, Judges.1Affirmed.
Before CURLEY, P.J., FINE and BRENNAN, JJ.¶ 1BRENNAN, J.
Jermaine Kennard Young was convicted of one count of possession with intent to deliver cocaine, in violation of Wis. Stat. § 961.41(1m)(cm)4. (2009–10),2 following a jury trial.3 Young appeals from the judgment of conviction and from the trial court's order denying his postconviction motion for a new trial. He raises three issues on appeal. First, Young argues that the trial court erred in not suppressing the drug evidence because he was unlawfully stopped, searched and arrested.4 Second, he argues that the trial court erred in granting the State's request for a party-to-a-crime (“PTAC”) jury instruction. Finally, he argues that his trial counsel was ineffective for failing to: (1) request a lesser-included jury instruction on simple possession; (2) ask for an entrapment jury instruction; and (3) file an Outlaw5 motion seeking the name of the confidential informant (“CI”). We reject each of his arguments and affirm.
¶ 2 Young was charged with intent to deliver a controlled substance after police arrested him at a restaurant with cocaine. Prior to trial, Young's trial counsel filed a motion to suppress. At the suppression hearing, which was held over several days, Milwaukee Police Officer Alejandro Arce, an experienced narcotics investigator, testified that a CI, who was known to police but not named in the case, told officers that a drug sale was going to take place one hour from then. The CI said that at 2:00 p.m., a thin black male in his thirties would be driving a blue two-door Chevy Tahoe with chrome rims to 60th Street and Burnham Street, with two ounces of cocaine on his person, to conduct a drug transaction. The CI told Officer Arce that he knew that the transaction was occurring because he spoke with the seller and was personally supposed to go to a particular location and purchase the cocaine. While the CI had never before purchased cocaine from the seller, the CI had spoken with the seller over the phone and a third party had contacted the seller to vouch for the CI. Officer Arce testified that he did not know this third party, but that the CI had given Officer Arce accurate information leading to a narcotics and firearm arrest one time in the past.
¶ 3 Officer Arce went to 60th Street and Burnham Street at 1:55 p.m. on September 14, 2006. While sitting in an unmarked police vehicle on the street, he observed a black male, later identified as Young, driving a blue two-door Chevy Tahoe. He saw the Tahoe travel eastbound down the 6100 block of West Burnham Street and pull into the parking lot of Johnnie's 7 restaurant at 6000 West Burnham Street. Officer Arce saw Young and another man get out of the vehicle and enter the restaurant. Through a window in the restaurant, Officer Arce observed Young “on a cell phone, looking out the window as if he was looking or waiting for somebody.” Officer Arce testified that Young did not buy anything in the restaurant and did not go to the counter to order. Officer Arce then called the police officers he had on standby and notified them of his observations, so that they could perform a field interview.
¶ 4 Milwaukee Police Officer Todd Bohlen testified at the suppression hearing that Officer Arce had notified him that a drug deal was going to take place at 60th Street and Burnham Street. Officer Arce gave him the description of the subject and said that the subject was bringing two ounces of cocaine to that location. When Officer Bohlen arrived at the location, he looked through the restaurant window and saw that Young was standing inside the restaurant, talking on a cell phone. Officer Bohlen opened the door to the restaurant and entered. He identified himself as a police officer and Young then put his hand in his left pants pocket “in a quick motion” and appeared “to be very excited, as if scared.” Officer Bohlen told Young to put his hands up. Young did not comply even when Officer Bohlen drew his weapon and ordered Young to show his hands.
¶ 5 Despite repeated commands, to put his hands up, Young kept his hand in his pocket. Officer Bohlen then “walked closer to [Young] and pinched his hand inside his pocket so his hand could not be quickly removed, fearing he might have a weapon in that pocket based on his actions and his expressions and his failure to comply with my commands.” Officer Bohlen testified that, at that point, based on his experience, he felt what he believed to be “a larger quantity of cocaine” in Young's pocket. Officer Bohlen and another officer on the scene removed two clear plastic baggies from Young's pocket that were later determined to contain two ounces of cocaine with a street value of approximately $2000.
¶ 6 The trial court found the officers' testimony to be credible and denied Young's motion to suppress. The case proceeded to trial. During closing argument, trial counsel moved for a mistrial based on the State's argument concerning party-to-a-crime liability. After the jury found Young guilty, trial counsel renewed that motion but the trial court denied it after post-trial briefing.
¶ 7 Young was sentenced to seven years of initial confinement and seven years of extended supervision. After postconviction counsel was appointed, Young filed a motion for a new trial based on the same arguments addressed in this appeal. The trial court conducted an evidentiary hearing on the ineffective assistance of trial counsel. The trial court denied the motion and this appeal follows.
¶ 8 On appeal, Young challenges the stop, search and seizure of cocaine on two grounds: (1) the police lacked probable cause for his arrest and for the subsequent search; and (2) the arrest and search could not be justified under the exigent circumstances exception to the Fourth Amendment's warrant requirement. The crux of Young's argument is that the police lacked probable cause to arrest him because they acted on a tip from a CI, whose information was not sufficiently reliable, in that it was based, in part, on information obtained from a third party unknown to police.
¶ 9 The State argues on appeal that there was sufficient evidence for probable cause, but even if there was not, the police had sufficient reasonable suspicion to justify a valid Terry6 stop, leading to a lawful protective search for weapons and the plain view discovery of the cocaine in Young's pocket. We agree with the State's reasonable suspicion/plain view argument and affirm the trial court's denial of Young's motion to suppress, albeit on different grounds than the trial court.7
¶ 10 The Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures by police. State v. Richardson, 156 Wis.2d 128, 137, 456 N.W.2d 830 (1990). On review of Young's Fourth Amendment challenge, we uphold the trial court's factual findings unless they are clearly erroneous. See State v. Matejka, 2001 WI 5, ¶ 16, 241 Wis.2d 52, 621 N.W.2d 891. We review the application of constitutional principles to the evidentiary facts independently of the trial court. Id.
¶ 11 It is well-established that the police may lawfully perform an investigatory stop of a person if they possess reasonable suspicion that the person has, or is, committing a crime. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see alsoWis. Stat. § 968.24. Reasonable suspicion must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21.
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The reasonableness of the suspicion is judged by an objective standard and is based on the totality of the circumstances. Richardson, 156 Wis.2d at 139, 456 N.W.2d 830.
¶ 12 A CI's tip may form the basis for reasonable suspicion, just as it may for probable cause, as long as under the totality of the circumstances, the information is sufficiently reliable. See White, 496 U.S. at 330. Even when the informant is anonymous, the same totality of the circumstances test applies to determine the reliability of the information and existence of reasonable suspicion for a lawful Terry stop. White, 496 U.S. at 330–31.
¶ 13 When determining the reliability of a CI's tip, the police may consider, among other things: (1) past police experience with the CI, see State v. McAttee, 2001 WI App 262, ¶ 9, 248 Wis.2d 865, 637 N.W.2d 774; (2) the content and specificity of the CI's tip; and (3) the ability to verify the details of the CI's tip, see Richardson, 156 Wis.2d 141–42. However, “[t]here are no longer specific prerequisites to a finding of confidential informant reliability.” State v. Jones, 2002 WI App 196, ¶ 13, 257 Wis.2d 319, 651 N.W.2d 305. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” White, 496 U.S. at 330. The more specific and unique the details of the informant's tip, the more likely the informant is telling the truth. Richardson, 156 Wis.2d at 142, 456 N.W.2d 830. When the police are able to...
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