State v. Young, No. 97-0034-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtBefore EICH, C.J., DYKMAN, P.J., and VERGERONT; VERGERONT; DYKMAN
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Charles D. YOUNG, Defendant-Appellant.
Decision Date17 July 1997
Docket NumberNo. 97-0034-CR

Page 84

569 N.W.2d 84
212 Wis.2d 417
STATE of Wisconsin, Plaintiff-Respondent,
v.
Charles D. YOUNG, Defendant-Appellant.
No. 97-0034-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs June 6, 1997.
Opinion Released July 17, 1997.
Opinion Filed July 17, 1997.

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[212 Wis.2d 418] On behalf of the defendant-appellant, the cause was submitted on the briefs of Susan E. Alesia of the Office of the State Public Defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Robert A. Selk, Assistant Attorney General.

[212 Wis.2d 419] Before EICH, C.J., DYKMAN, P.J., and VERGERONT, J.

VERGERONT, Judge.

Charles Young appeals from a conviction for possession of THC in violation of § 161.41(3r), STATS. The sole issue on appeal is whether the initial stop by the police officer violated Young's right to be free from unreasonable searches and seizures. We conclude that it did and that the evidence the officer discovered as a result of the initial stop must be suppressed. We therefore reverse the conviction.

BACKGROUND

The complaint charged Young with possession of THC as a repeater in violation of §§ 161.41(3r) and 161.48(3), STATS., and possession of drug paraphernalia in violation of § 161.573(1), STATS. The charges arose out of an incident in which Trooper Andrew Tennessen stopped Young as he was walking down the street and, after events that will be related in more detail below, seized marijuana and a pipe from Young. Young moved to suppress the evidence on the ground that the officer did not have reasonable suspicion to stop Young as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 1 The trial court denied the motion, concluding there was reasonable suspicion. Young then pleaded guilty to possession of THC as a repeater and was fined $500 plus costs.

[212 Wis.2d 420] Trooper Tennessen and Young were the witnesses at the hearing on the suppression motion. 2 Trooper Tennessen testified that

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he had been a trooper with the Wisconsin State Patrol for seven-and-a-half years. On February 24, 1996, the date of the stop, he was assigned to the Dane County Narcotics and Gang Task Force. The Task Force had been his assignment for about a year, and he focused primarily on narcotics. His training consisted of a week long in-service on narcotics trafficking at the Wisconsin State Patrol Academy; a three day in-service with the Dane County Narcotics and Gang Task Force in early 1995; and a week long basic narcotics investigator school in December 1995.

At about 1:15 p.m. on February 24, 1996, Trooper Tennessen was involved in a surveillance operation with a number of other law enforcement personnel in an attempt to purchase narcotics in an area described as the Badger Road-Eric Circle-Fiedler Lane area in Madison. Trooper Tennessen knew this to be a high drug-trafficking area. A confidential informant and an undercover officer in an unmarked vehicle were driving through the area attempting to purchase crack cocaine. Trooper Tennessen's role, besides maintaining security and responding to emergencies, was to make contact with the person who sold the narcotics, try to identify them, and then release them.

Trooper Tennessen was contacted on his radio by Detective Gerfen, who was also part of the surveillance. Detective Gerfen told Trooper Tennessen that there was "a black male subject in the Badger Lane [212 Wis.2d 421] [sic] area that had just made short-term contact with another subject in that area." Detective Gerfen described the black male's build, height and clothing and stated he was heading westbound on Badger Road on the north side of the sidewalk. 3

Trooper Tennessen drove eastbound on Badger Road for about a minute and a half until he saw a person who met the description and who Trooper Tennessen later identified as Young. Trooper Tennessen pulled his car up alongside Young, and he and his partner got out of the car and asked Young for identification. Young asked if there was a problem and Trooper Tennessen responded something to the effect of, "we saw you sell some drugs or buy some drugs" or that "a transaction took place." Young was cooperative, identified himself and, when Trooper Tennessen asked him if he had anything illegal on his person, Young responded that he had a marijuana pipe. Trooper Tennessen asked Young if he could search him for anything else illegal, and Young agreed. The trooper then did a pat down search and emptied Young's pockets. He found a small amount of marijuana and a marijuana pipe. There were other people in the area.

Trooper Tennessen acknowledged that he stopped Young based solely on what Detective Gerfen told him, not based on anything he personally observed. Detective Gerfen did not tell Trooper Tennessen that the person Young had contact with was a suspected drug [212 Wis.2d 422] dealer, and he did not tell Trooper Tennessen that Young was a suspected drug dealer. Because the meaning of "short-term contact" is important to this decision, we describe in detail Trooper Tennessen's testimony on the term. On direct examination he testified that, in high drug-trafficking neighborhoods, "short-term contact would be, in many time [sic], just to purchase drugs. An exchange of cash for drugs." He also testified on direct examination that in this area, drugs are sold right out on the street and that usually involves just a very short contact. On cross-examination, Tennessen testified as follows:

Q. And Detective Gerfen had told you that this person had made a short-term contact, but you didn't know how long, and he didn't say if there was anything exchanged, correct?

A. I don't recall specifically, okay.

Q. So as far as you know, this contact was just two people meeting; they may not have even touched each other, as far as you know, right, and then left? That was the information that you got?

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A. Basically.

Q. And when you--and based on that information [and the description Detective Gerfen provided] you stopped Mr. Young?

A. Um-hum.

Trooper Tennessen testified on redirect that his understanding of "short-term contact" is the commonly accepted definition for the term within the Dane County Narcotics and Gang Task Force.

Young testified that he was in the neighborhood to visit his sisters, who lived there. He lived in another section of the city. He acknowledged talking to people outside his sisters' apartments while he was in the neighborhood.

[212 Wis.2d 423] The trial court concluded that Trooper Tennessen had reasonable suspicion to stop Young because of his understanding, based on his training and experience, that the term "short-term contact" could mean an exchange of money for drugs; because Young was in a high drug-trafficking area; and because Trooper Tennessen knew that Detective Gerfen was part of the surveillance operation looking for suspected drug activity. The trial court found that the area was primarily a residential area, and that Young's testimony that he was there to visit his sisters was plausible: since it was a residential area, people went there to visit "for entirely legitimate purposes." The court also noted the "inherent danger in simply stopping people because, through no fault of their own, they happen to be either living in or visiting a high drug-trafficking area." However, the court observed, the temporary and limited nature of the detention, in addition to the requirement of reasonable suspicion, are safeguards for those innocent people who are stopped.

ANALYSIS

A brief investigatory stop is a seizure and is therefore subject to the requirement of the Fourth Amendment to the United States Constitution that all searches and seizures be reasonable. Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968). To execute a valid investigatory stop consistent with the Fourth Amendment, a law enforcement officer must reasonably suspect, in light of his or her experience, that some kind of criminal activity has taken or is taking place. State v. Richardson, 156 Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990). The officer must be able to point to specific and articulable facts that, taken together with rational inferences from [212 Wis.2d 424] those facts, reasonably warrant the intrusion. Terry, 392 U.S. at 21, 88 S.Ct. at 1879-80. The standard is the same under Article I, Section 11 of the Wisconsin Constitution. State v. Harris, 206 Wis.2d 242, 258, 557 N.W.2d 245, 252 (1996). The question of what constitutes reasonable suspicion is a common sense test: under all the facts and circumstances present, what would a reasonable police officer reasonably suspect in light of his or her training and experience. State v. Jackson, 147 Wis.2d 824, 834, 434 N.W.2d 386, 390 (1989). An officer may rely on information received from another officer in making a stop. See Johnson v. State, 75 Wis.2d 344, 349-50, 249 N.W.2d 593, 596 (1977). The inquiry in such a situation is whether the collective information among the officers is adequate to sustain the stop. Id. at 350, 249 N.W.2d at 596. 4

In reviewing a denial of a motion to suppress, we will uphold the circuit court's findings of fact unless they are clearly erroneous. Whether those facts satisfy the constitutional requirement of reasonableness is a question of law, which we review de novo. See State v. Waldner, 206 Wis.2d 51, 54, 556 N.W.2d 681, 683 (1996).

Young argues that observation of a brief contact between two individuals walking on a sidewalk in a residential neighborhood in the afternoon is insufficient to constitute a reasonable suspicion that a drug transaction has taken place, even in a neighborhood known for drug trafficking, and even if the officers [212 Wis.2d 425] involved are trained in drug enforcement and

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surveillance. Young acknowledges that Trooper Tennessen could rely on information he received from Detective Gerfen based on Gerfen's...

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122 practice notes
  • People v. Leggions, No. 4-07-0187.
    • United States
    • United States Appellate Court of Illinois
    • June 13, 2008
    ...of the police action must be such that it can be reviewed judicially by an objective standard.'" (Emphasis in original.) State v. Young, 212 Wis.2d 417, 429, 569 N.W.2d 84, 90 (Wis.App.1997), quoting United States v. Buenaventura-Ariza, 615 F.2d 29, 36 (2d Cir.1980), quoting United States v......
  • State v. Genous, 2019AP435-CR
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    • United States State Supreme Court of Wisconsin
    • June 4, 2021
    ...State v. Genous, No. 2019AP435-CR, unpublished slip op., ¶15, 2020 WL 2049121 (Wis. Ct. App. Apr. 28, 2020) (quoting State v. Young, 212 Wis. 2d 417, 433, 569 N.W.2d 84 (Ct. App. 1997) ). Rather, they describe the conduct of "large numbers of law-abiding citizens in a residential neighborho......
  • State v. Diggins, No. 2012AP526–CR.
    • United States
    • Court of Appeals of Wisconsin
    • July 30, 2013
    ...for approximately five minutes, at night, while dressed in dark clothing, is not enough for reasonable suspicion. See State v. Young, 212 Wis.2d 417, 429–30, 569 N.W.2d 84 (Ct.App.1997) (acknowledging that while some seemingly innocent conduct may also give rise to reasonable suspicion, “co......
  • State v. Hansen (In re Hansen), 2021AP1006
    • United States
    • Court of Appeals of Wisconsin
    • May 5, 2022
    ...present, what would a reasonable police officer reasonably suspect in light of his or her training and experience[?]" State v. Young, 212 Wis.2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997). "[T]he State bears the burden of proving that the seizure complied with the Fourth Amendment …." State v.......
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121 cases
  • People v. Leggions, No. 4-07-0187.
    • United States
    • United States Appellate Court of Illinois
    • June 13, 2008
    ...police action must be such that it can be reviewed judicially by an objective standard.'" (Emphasis in original.) State v. Young, 212 Wis.2d 417, 429, 569 N.W.2d 84, 90 (Wis.App.1997), quoting United States v. Buenaventura-Ariza, 615 F.2d 29, 36 (2d Cir.1980), quoting United States v. ......
  • State v. Genous, No. 2019AP435-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 4, 2021
    ...State v. Genous, No. 2019AP435-CR, unpublished slip op., ¶15, 2020 WL 2049121 (Wis. Ct. App. Apr. 28, 2020) (quoting State v. Young, 212 Wis. 2d 417, 433, 569 N.W.2d 84 (Ct. App. 1997) ). Rather, they describe the conduct of "large numbers of law-abiding citizens in a residential neigh......
  • State v. Diggins, No. 2012AP526–CR.
    • United States
    • Court of Appeals of Wisconsin
    • July 30, 2013
    ...for approximately five minutes, at night, while dressed in dark clothing, is not enough for reasonable suspicion. See State v. Young, 212 Wis.2d 417, 429–30, 569 N.W.2d 84 (Ct.App.1997) (acknowledging that while some seemingly innocent conduct may also give rise to reasonable suspicion, “co......
  • State v. Thomas, No. 2014AP478–CR.
    • United States
    • Court of Appeals of Wisconsin
    • January 27, 2015
    ...present, what would a reasonable police officer reasonably suspect in light of his or her training and experience.” State v. Young, 212 Wis.2d 417, 424, 569 N.W.2d 84 (Ct.App.1997).¶ 40 Thus, the operative question in this case is whether, based on the totality of the circumstances, Graf co......
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