Wendricks v. State, 75--183--CR

• Decision Date: 02 June 1976
• Docket Number: No. 75--183--CR,75--183--CR
• Citation: 242 N.W.2d 187,72 Wis.2d 717
• Parties: William F. WENDRICKS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 187

242 N.W.2d 187

72 Wis.2d 717

William F. WENDRICKS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--183--CR.

Supreme Court of Wisconsin.

Argued May 5, 1976.

Decided June 2, 1976.

Richard M. Sals, Madison, argued, for plaintiff in error; Howard B. Eisenberg, State Public Defender, and Richard M. Sals, Asst. State Public Defender, on the briefs.

Marguerite M. Moeller, Asst. Atty. Gen., argued, for defendant in error; Bronson C. La Follette, Atty. Gen., on the brief.

HANLEY, Justice.

Three issues are presented on this appeal:

1. Was there 'reasonable cause' for the forcible stop of the taxicab?

2. Did probable cause exist for the subsequent arrest of its passengers?

3. Were the weapons and bag of money obtained as the fruits of invalid police activity and thus inadmissible into evidence?

Vehicle Stop

Wendricks contends that an arrest occurred when the taxicab was forced to stop, or at least occurred when he was ordered to exit from the cab. Noting that the Fourth Amendment of the United States Constitution and sec. 11 of the Wisconsin Constitution have been held to uniformly compel the state to possess 'probable cause to believe that the apprehended person is committing or has committed a crime,' Leroux v. State (1973), 58 Wis.2d 671, 207 N.W.2d 589, as a prerequisite for a valid arrest, the defendant claims an insufficiency of this standard here and characterizes the seized evidence as tainted by an invalid seizure depriving him of his rights. Defendant's position was not altered even when the state called attention to the justification of a temporary investigative stop, an intrusion into the affairs of a person that does not amount to an arrest and thus does not demand that the instigating officer possess 'probable cause.'

The Fourth Amendment certainly does protect the 'security of one's privacy against arbitrary intrusion by the police.' Schneckloth v. Bustamonte (1973), 412 U.S. 218, 242, 93 S.Ct. 2041, 2055, 36 L.Ed.2d 854. There is a recognized distinction, however, in the appropriate levels of protection afforded by the Fourth Amendment to the different forms of intrusion.

In the recent decision of Jones v. State (1975), 70 Wis.2d 62, 233 N.W.2d 441, this court repeated its earlier recognition of the doctrinal validity of brief investigative stops and held such seizures available even when the individual is in an automobile in transit. See also State v. Chambers (1972), 55 Wis.2d 289, 198 N.W.2d 377; State v. Beaty (1973), 57 Wis.2d 531, 205 N.W.2d 11; State v. Gums (1975), 69 Wis.2d 513, 230 N.W.2d 813; as to vehicles, see State v. Williamson (1973), 58 Wis.2d 514, 206 N.W.2d 613; Anderson v. State (1974), 66 Wis.2d 233, 223 N.W.2d 879.

Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, proposed this constructional doctrine and Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 reaffirmed that a police officer could stop a person for interrogation even though he lacks probable cause to make an arrest. Despite this recognition, it must frankly be admitted that the distinction between an arrest and an investigatory stop is not of easy delineation. The factual contexts of different situations may cause equally differing conclusions on similar police procedures, as facts gathered under a proper temporary seizure may justify an immediate arrest.

Pertinent to the validity of an investigative stop is whether the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Terry, supra, 392 U.S. at 22, 88 S.Ct. 1868. Exercise of this power under Terry must be gauged by an objective standard: to justify a forcible stop through the exercise of authority, the officer must present the court with 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' Id. at 20--22, 88 S.Ct. at 1880.

In justifying the stop here, Solcz cited the timely report of a weapon incident at a store on Main Street and the following report that the 'suspects' were seen fleeing on the frozen river, which was closely situated south of the store, at an approximate location only a few blocks to the west. Upon further patrolling, Solcz noted that he was being closely observed by two passengers in a taxi parked only a block north of the last reported sighting of the suspects and a few blocks directly west of the store. Although the state and defendant disagree over the interpretation to be given to the taxi's return to Main Street immediately prior to its stop, the record indicates that the decision to pull it over was made earlier, as evidenced by Solcz' radio call for backup assistance.

We think Officer Solcz had reasonable suspicion to believe that Wendricks was involved in the reported incident when he first stopped the taxicab carrying the defendant. The testimony establishes a situation quite distinguishable from occasions when an officer acts solely because a person merely glances at him. The prolonged state of observation by two men (thus meeting the expected plurality of suspects) in an anticipated location based on the reported incident and subsequent sighting justified a forcible stop, especially when the individuals were in a vehicle capable of removing them from the vicinity of the scene of the crime. As Jones v. State, supra acknowledged, the presence of a vehicle may operate to justify a stop when only further observation would be justified in the case of pedestrians.

Legality of Arrest

It is a question of fact precisely when, in each case, the arrest took place. Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. Defendant here has relied on cases decided prior to the development of the 'reasonable cause' doctrine, especially Huebner v. State (1967), 33 Wis.2d 505, 147 N.W.2d 646, which interpret any imposition of authority by a police officer as an arrest and as tainting any consequently derived evidence if 'probable cause' to arrest was...