*1 Wisconsin, Plaintiff-Appellant, State Defendant-Respondent- T. Michael Morgan, Petitioner. Supreme Court September argument Oral No. 93-2089-CR. 21, 1995. November 1995. Decided 887.) (Also in 539 N.W.2d reported *3 there For the defendant-respondent-petitioner Tyroler, J. were briefs William public state by assistant Rebholz, & Auberry Calvin Malone and defender; argument by Malone, Milwaukee and oral Calvin Malone. plaintiff-appellant argued
For the cause was Marguerite by attorney general, Moeller, M. assistant Doyle, attorney with whom on the brief was James E. general.
Amicus curiae brief was filed Pamela Moors- head, Murray, Adelman, Adelman, and S.C., and Milwaukee for the American Civil Union Liberties Wisconsin Foundation and National Association for the (NAACP). People Advancement of Colored DAY, ROLAND B. C.J. This is a review of an unpublished reversing court decision an County, order of the circuit court for Milwaukee suppressing handgun Franke, Honorable John A. petitioner and cocaine base found on Michael T. Mor- gan (Morgan). Morgan charged carrying weapon, contrary § concealed (1991-92), to Wis. Stat. 941.23 possession armed, of cocaine while con- trary 161.14(7)(a), 161.41(3m), §§ to Wis. Stat. 161.48, (1991-92). Morgan challenged legality 939.63 pat-down produced leading
search that the evidence charges. hearing May At a 1993, the circuit granted suppress the defendant's motion to appeals, unpublished opin- evidence. The court of in an pat- ion, reversed the circuit court. hold We that the Morgan's right down search did not violate under the federal state constitutions to be free from unrea- *4 Accordingly, sonable searches. we affirm the court appeals. following preliminary facts are taken from the
hearing suppression hearing and matter, in this and undisputed. City are of Milwaukee Police Officers (Mulock) Tidquist (Tidquist) Peter Mulock and Brent patrol Officers 1, 1993. a.m. on March at four were squad driving Tidquist near car in a were Mulock and Officer Capitol Milwaukee, area which an Drive "fairly high-crime-rate area." as a Mulock described a whole was not noted that "there Mulock also Officer Mulock Officers at that time. on the street lot of traffic" containing Tidquist three males observed a vehicle and driving alley. turns then made several The car out of an city space another blocks, and entered of a few plates alley. Having license the car's observed lights emergency engaged expired, the officers were stopped squad Officer the vehicle. car and on their Morgan approached and asked the car then Mulock driver) (the Morgan rap- operator's license. for his car's pockets idly some wallet, and searched checked his pockets however, he was unable times; his several Morgan According Mulock, to Officer license. locate the searching license. "appeared for his while nervous" hearing: suppression at the Mulock testified Officer Mulock, has ever Now, not Q: Officer over, I act a little pulled I'm happened, when [sic] anything anymore nervous too. Is this — by the person stopped the usual unusual than police? Yes, it was.
A: I think so. it? Q: was different about What ner- just appeared his face. He A: Just the look on way checking pockets. and the he was vous extremely fast. doing it He was possess Morgan license, discov- which was did fact arrest. incident to in a later search of his wallet ered Morgan step out of Officer Mulock then asked pat-down performed on Mor- vehicle, search the gan. search, Officer In the course of *5 pistol a Mulock discovered loaded .22-caliber in Mor- gan's pocket. placed Morgan coat Officer Mulock under Morgan's arrest conducted a custodial search of (later person pills which discovered certain determined diazepam, antianxiety drug) pipe to be an and a show- ing According traces of cocaine base residue. to Officer testimony, Mulock's in the event that he not had found gun Morgan, placed would officer have Mor- gan squad in the back car while he or Officer Tidquist inquiries conducted various informational through squad operator's radio, car's such as an license check a and criminal record check.
Morgan challenged legality pat-down of the Following suppression hearing, search. the circuit granted Morgan's suppress. court to motion The circuit impermissi- ruled that the search was under Swanson, ble State v. 164 Wis. 2d (1991): N.W.2d 148
Officer Mulock had every [Mor- intention to put gan] into some sort of custody run a check. He was going put to him in the of the using back vehicle his vehicle something booking tentative room, check, run a and then either him in keep custody or release him. I think it's for a officer do that.... I only way by think this frisk flies is custodial search the officer. And while it seems reasonable, Swanson way be it seems to me that the written, deliberate, appears very very it to be careful, very intentional, did, that what this officer at least at time pat yet down not had ripend arrest, I [sic] into an at this have to look not in might the context of what not happened have minutes, in the next min- few not even five or ten moment, period, ute Swanson but under an arrest moment, I don't believe there was *6 Well, least and, therefore, I don't believe that — reasonable, fly.... the search can arguably going I'm to If Mulock had said "What Officer my run a you going the of car. I'm put do is in back that, going I'm your on license and before I do check custody into you. are to be taken going You to search custody," you that searching pursuant I'm and Swanson, at in flies. least I that this then believe dicta, says the officer's problem and addressed determining in the plan irrelevant unarticulated custody. of question that, of a in the absence
The circuit held it not on the record," rely and could specific "clear high- in a testimony stop the occurred officer's in the neighborhood determining legality crime addressing In the other factors the officer search. search, the stated: circuit court justifying raised of night While the time of and the nervousness subject are all occupants and number pertinent deciding in whether factors that are down, pat a to conduct the there's sufficient basis they're enough by together And not themselves. really nothing more than routine traf- here there's expired fic who were stop. People stopped and find licenses are often nervous plates can't their I any . and find that there was nervousness .. don't easily fact [Morgan] that was not attributable to the actually The fact he did could not find a license. in on him is not assess- important have license important ing what the officer did but it's assessing what credibility happened here testimony I'm own satisfied based the officer's observing person that fact that what he was was nervously trying up to come with their driver's thinking being there and not able to license it's find it. appeals holding
The court of reversed, permissible totality search because the justified protective of the circumstances search for weapons. appeals The court of held that the circuit erroneously granting court had relied on Swanson in suppress; the defendant's motion to the court of appeals stated that Swanson held a search invalid permissible scope, because it had exceeded its and not suspect because the officer had failed to inform the place suspect squad his intention to in his car. The Morgan court of then held that the search of supported by was including record, articulable facts the "fairly-high-crime-rate area"; Morgan's driving *7 alleys in two approximately a.m.; Morgan's 4:00 nervous and unsuccessful produce efforts driver's license upon request; and Morgan's appar- ent by violation of the traffic driving law without a license. We also note that Officer Mulock and his partner were occupants outnumbered the three of the car.
The court of concluded: "While none of these necessarily justify factors in isolation would a frisk for weapons, although the trial court noted the lack of specific regarding a 'clear and record' whether the area high they provide crime, was one of in combination ample justification."
The Fourth Amendment to the United States Con- §I, stitution and Article 11 of the Wisconsin guarantee right Constitution citizens the free be from "unreasonable court, searches."1 This in constru-
1The Fourth to the Constitution of the United Amendment provides: States
207
ing
§
Constitution,
I,
Article
11 of the Wisconsin
Supreme
consistently
Court's
the United States
follows
interpretation
v. Bet
Amendment. State
of the Fourth
(1995).
terly,
407, 417,
A
or
is a search. State
(1992),
311,
cert.
86, 93, 492 N.W.2d
Wis. 2d
(1993) (citing Terry Ohio,
denied,
seized.
I,
provides:
11
Constitution
Article
of the Wisconsin
§
right
people
SECTION 11 The
of the
Searches
seizures.
houses,
against
persons,
papers, and effects
to be secure in their
violated; and no
unreasonable searches and seizures shall not be
cause,
by
upon probable
supported
shall issue but
oath or
warrant
affirmation,
particularly describing-the place
to be searched
things
persons
and the
or
to be seized.
208
justified
searches are
when an
has a
officer
reasonable
suspicion
suspect may
be armed. Id. at
94.
suspicion
"spe-
officer's reasonable
must
based
be
together
which,
cific and articulable facts
taken
reasonably
rational
inferences from those
war-
facts,
rant
Richardson,
that intrusion."
Guy,
(quoting Terry,
Morgan argues con- search by supported ducted Officer Mulock was not giving articulable facts rise to a reasonable belief that Morgan making was armed. We hold that an officer Terry stop reasonably need not that an believe individ- armed; ual rather, the test is whether officer "has suspicion may suspect a be armed." Guy, 30); (citing Terry, 2d at 94 Wis. 392 U.S. at see ("The Terry, also U.S. at 27 officer need not be ."). absolutely certain . that the individual is armed . . totality case, In then, we look to the of the circum- determining stances known to Officer Mulock position reasonably whether an officer in his would *9 might Morgan Richardson, suspect See be armed. (test suspicion for frisk is reasonable 2d at 144 156 Wis. circumstances). totality of under Morgan disre- the court of claims that using findings garded fact the the circuit court's justifying high-crime the area a factor nature of the as However, the circuit the record reveals that search. finding was that the area court did not make a factual high-crime in mak- The circuit court stated not a area. ing ruling: its absolutely police
I think it's for just It's they to where are. not the officers consider as in other parts [sic] in Riverhills it is same rely if Court to But the state wants the town. theory Terry pat justifying area high-crime record down, specific there to be a clear and has made. length issue and reviewed
I've discussed this applicable problems cases reviewed say simply will face if we whenever that we area, right high-crime they in a have are day Maybe age in this frisk. that's reasonable done, to be going going but if it's to be it's have some clear and rules we specific done with which Terry. right Terry have now. We have doesn't don't allow it.... finding that the area
The circuit
did not make
reading
high-crime; instead,
it ruled
its
was not
Terry
high-crime
not
of the
did
allow
consideration
justifying
an area
a factor
a search.
nature of
disregarding
appeals case
not
court of
this
was
high-
findings
considering
of fact in
circuit court's
analysis.
appeals, like
in its
The court of
crime area
making
court,
its de novo determination of
question
search, a
of law
reasonableness
*10
without
reviewed
deference to the lower courts. Bet
terly,
Like the court of
we find that an officer's
perception
"high-crime"
of an area as
be
can
a factor
justifying a search. Professor LaFave notes that "the
suspect
highly
area in which the
is found is itself a
justifying
in
search,
relevant consideration"
a
and that
frequently
the cases "most
stress that
the observed
high-crime
Wayne
circumstances
in
occurred
a
area." 3
(2d
9.3(c),
LaFave,
§
R.
Search and Seizure
at 456
ed.
1987). In United
v. Michelletti,
States
F.3d 838,
13
844
(5th
1994) (en banc),
Cir.
denied,
cert.
State
courts have also noted the
determining
legality
in
crime nature of an area
of a
(Cal.
People
1994),
Souza,
In
search.
v.
211
Souza,
P.2d at 992.
Amendment."
885
Fourth
the use of an
states endorse
decisions
several
Recent
reputation
Dean, 645
State v.
a factor. See
area's
(Me. 1994);
Fraser,
v.
634,
Commonwealth
A.2d
636
(Mass. 1991);
Valentine,
v.
State
979, 982
573 N.E.2d
(N.J. 1994).
in this
Both
State
A.2d
513
jurisdictions con-
note other
LaFave
case
Professor
9.3(c),
supra, §
forming
LaFave,
at 456-
to the rule. See
(citing,
People Cobbin,
alia,
v.
692 P.2d
inter
57 n.194
(Colo. 1984);
Freeman, 414 N.E.2d
State v.
(Pa.
(Ohio 1980);
Ellis,
v.
In v. Williamson, State 2dWis. N.W.2d (1973), this court found an officer's valid substantially similar facts. As case, the instant stopped suspect's the officer in Williamson car after observing irregular pattern driving, an and the produce driver the car could not a driver's license. stop p.m. occurred at The court held: Given . . . the present, circumstances here day including the time of fact defendant driving was without a driver's license on person, any identification, and without justified officer his precautionary pat- down to determine if the defendant was armed and dangerous. permissible
Id. at 520. The search in Williamson was presence present even without the of a factor high-crime instant case: the area. present
The court of
in matter also
stop
noted the time at which the
occurred as a relevant
*12
Flynn,
In
427, 435,
factor.
State v.
92
2dWis.
285
(1979),
(1980),
denied,
N.W.2d 710
cert.
Morgan court of disre- relying garded finding offact the circuit court Morgan's justifying perceived as a factor nervousness However, that the circuit the record shows the search. specifically Morgan nervous; the found that was making ruling motion, court, in its on the defendant's Morgan "nervously repeatedly went stated that searching through pockets" for and his while his wallet Nonetheless, the circuit court considered his license. Morgan's light of the fact not unusual nervousness person might expect to be ner- that a in his situation expired plates "People stopped with who were vous: I are often nervous ... don't and can't find their licenses any not that was eas- find that there was ily nervousness he could not find a license." attributable to fact Morgan finding court, then, made a circuit as a nervous, discounted the nervousness fac- but explained justifying might it tor the search be because by Morgan's being not to find license. We note able explanation Morgan's for nervousness that another carrying might been the fact that he was loaded have speak- pistol drug paraphernalia .22-caliber while ing to also that Officer an officer law. We note *13 appeared Morgan Mulock testified that more nervous person stopped police." than the "usual the We con- appeals, court, clude that court and this can use Morgan's nervousness as a factor its de novo deter- legality pat-down mination of the of Officer Mulock's search. present agree
In
matter,
we
with
totality
that the
of the circumstances
to
known
justified
pat-down
Morgan
Mulock
Officer
a
search
weapons.
for
Officer Mulock observed the defendant
alleyways
a.m.,
in and
driving
out of
at four
in an area
high-crime
which
area,
the officer considered a
a
and in
expired
car
an
with
license. Officer Mulock observed
"appeared
failing
that the defendant
produce
nervous"
while
operator's
According
license.
to Officer
testimony
suppression hearing,
Mulock's later
Morgan
at the
typical person
was more nervous than the
stopped by
police.
reasonably prudent
A
officer in
position
of Officer Mulock could have concluded
Morgan might
Terry,
be armed.
On this a State us to formulate "bright-line" making justified rule all searches when place suspect squad officer intends to car. simply We decline. This case is resolved settled Fourth Amendment law.
By of the court of the decision Court.—The affirmed. fully (concurring). I concur GESKE, J. P. JANINE legal analysis only in mandate, but also the in not presented writing majority opinion. I am in the solely the dissent. to address concurrence "controlling principles dissent, in As noted firmly applicable are established." to this case law (Dissent 218.) principle include the at These requisite an officer had the determination whether pat-down suspicion to must be conduct totality This court of the circumstances. on the based . . . "all of the circumstances has reiterated that often determining reasona in what was are considered to be procedure particular police State situation." ble 520, 514, 206 613 Williamson, 58 Wis. 2d N.W.2d v. (1973) (quoting 289, 297, Chambers, 55 2d State v. Wis. (1972)). 377 N.W.2d analysis employ common sense its
A court must encounter, officer, the time of the of whether an at entirety justified pat- its a situation which in faced simply pulled cannot be out Individual factors down. Supreme noted, As the Court and discarded one one. "Terry acts, of them a 'series of each even perhaps itself involved separately, which if viewed 'but
innocent' investigation.'" together further taken warranted (1989) (quot- 1, Sokolow, v. 490 U.S. 9-10 United States (1968)). ing Terry Ohio, facts U.S. given upon equal not all inferences relied need be weight totality con- of the circumstances but fronting must at least be considered. the officer hindsight agree
I with the dissent's assertion that constitutionally justify pat- employed to be cannot (Dissent 223.) hindsight down. However, neither can selectively be used to discount facts and circumstances they perceived by were the officer at the time of the totality encounter. The of circumstances must be viewpoint sitting examined not from the of one on a judicial lights bench under the cold white of a safe viewpoint courtroom, but rather from the of a standing "fairly-high- officer he what believes to be a crime" area at 4:00 a.m. next to a car with three men in having split-second it, to make that decision of whether, under circumstances, Mor- gan safety. for the officer's own Did the officer have a *15 suspicion Morgan might be armed under the circumstances? At 4:00 a.m. on March Officer alley, Mullock had observed the car exit an make sev- alley eral turns and then enter another at a time when there was not much traffic on the road. He had expired plates observed a vehicle with which contained Upon stopping Morgan three men. car, the he saw ner- vously despite repeatedly fail to locate a driver's license checking pockets his and wallet. key, any question,
The
as with
Amendment
Fourth
Terry,
agree
is reasonableness.
I am authorized to state that Chief Justice Roland Day B. and Justices Donald Steinmetz, W. William A. Bradley join Bablitch, Jon P. Wilcox and Ann Walsh concurring opinion. this (dissenting).
SHIRLEY ABRAHAMSON, S. J. controlling principles applicable of law to this case are majority opin-
firmly disagree the I established. application principles of to the facts these of ion's validity pat-down frisk. The of a case to.determine validity pat-down of is an law which frisk area of particularly fact sensitive. agree reasons for court's stated
I with the circuit suppressing I that the factors conclude evidence. justify majority upon search relies give the "reasonable not rise to the defendant do required suspicion" armed, was as that the defendant (1968). Consequently, Terry I Ohio, 392 U.S. under of the court the decision would reverse with directions matter to the circuit court remand the suppression order. reinstate its majority opin- particularly by the I am troubled reliance on the fact that the defendant ion's high police stopped "a officer described as in what the high [a] I crime or what would consider crime area por- for his officer failed to state the basis area." The geographic trayal not of the area and did define locality speaking. he about which was majority
Many for its cases cited imprecise sweeping ruling officer's high justify crime can of an area characterization specificity pat-down frisk demanded far more have *16 glean one from the record in case.1 than can (1985) 1 £>ee, 675, 677 Sharpe, U.S. e.g., United States v. 470 suspected drug traf (stop lawful in area under surveillance for (3d Rickus, 360, ficking); v. 737 F.2d 362 Cir. United States (area 1984) stop recently had of been victimized Souza, 982, by burglaries); People 12 v. 885 P.2d 984 unsolved (Cal. 1994) stop (stop lawful when officer described area of burglaries drug "high area "known for activities" crime" area"); recently "in the exact and officer had make two arrests (Me. 1994) 634, Dean, (stop lawful in v. 645 A.2d 634-35 State 218 right concluding I think the circuit court was rely high- that "if the state wants the Court to on a theory justifying Terry pat crime area down, there specific documenting has to abe clear and record" both specific boundaries and the nature of the criminal activity question. in the area in Crime itself is obvi- ously variegated phenomenon. Some effort must be specific type allegedly made to correlate the of crime particular endemic to a area with the officers' suspicion they reasonable that an individual whom intend to search is armed. agree
No such correlation was made here. I "[u]nspecific Professor LaFave's conclusion that asser- problem particular tions that there is a crime in a area given weight, compared should be little at least as particular type more indications that a certain of crimi- suspected prevalent nal conduct of the kind in that area."2 accept majority's designation
Even Iwere to place stop high high area, as a crime "even in possibility any given areas, crime where the indi- significant, Terry requires vidual is armed is suspicion reasonable, individualized before a frisk for weapons Maryland can be Buie, conducted." 494 U.S. (1990). 325, 334-35 n.2 The other factors cited majority reaching its conclusion that the state had requisite suspicion to search the defen- patrolled uninhabited area request at the of its owners because complaints vandalism); Valentine, numerous State v. 636 (N.J. 1994) A.2d (pat-down lawful; 505-06 officer who was personally stop high familiar with area of as a crime area stated area). that he had made more than 100 arrests in the (2d LaFave, Wayne 9.3(c), R. Search and Seizure § 1987). ed. *17 up "reasonable do add to such dant for arms not suspicion." individualized allegedly erratic the defendant's
With reference to during suppres- driving, the the officer conceded hearing no violated traffic that the defendant sion nothing about the defendant's and that ordinances engaged triggered suspicion driving he had that was began trailing activity. Instead, the the officer criminal general of "a sense unease car because defendant's night [he] and the car it was late at that had because finger [his] driving way put [he] couldn't in a that was testimony represents precisely the sort This on." suspicion unparticularized or 'hunch'" "inchoate requi- Terry trigger the to which is insufficient under suspicion is armed. that a defendant site reasonable Terry, in marked Such hunch stands U.S. 27. suspicion triggering facts contrast the by majority, upon case relied the the Williamson driving erratic evinced an obvi- which defendant's police. Williamson, 58 State v. ous effort to evade the (1973). 517-18, 2d 206 N.W.2d Wis. majority's question reliance on the I also description as nervous. of the defendant While officer's opinion majority true, notes, it officer being defendant's more nervous than testified testimony person police, stopped the usual fully he neither sure such indicates that truly fully capable nor difference existed behavioral articulating it what entailed.3
3 Now, Muiock, Q: happened, not ever Officer has over, any pulled I'm I a little nervous too. Is this when act person stopped by thing anymore unusual than the usual — police? Yes, IA: think so. it was.
Q: about What was different it? *18 The circuit court concluded that the defendant's people nervousness was attributable to the fact expired plates who cannot find their licenses "are observing, often nervous." What the officer was nervously person trying stated, circuit "was to up thinking come with their driver's license and it's being there and not able to find it." finding greater This of historical fact is entitled to major deference from this court than it received in the ity opinion. majority opinion states, As the itself when granting suppression, this court reviews an order it uphold findings must they the circuit court's of fact unless against "great weight preponder
are
and clear
Kiper,
79,
ance of the evidence." State v.
221 necessary trigger "specific facts" articulable suspicion" is armed that a defendant the "reasonable Guzy, Terry progeny. required by State v. and its (1987). And I also 676, 663, 2d 407 N.W.2d Wis. individually recognize of factors a concatenation may, particu under innocent behavior consistent with requisite give rise to circumstances, lar facts and Terry requires. suspicion v. Reid which (1980); Georgia, Jackson, 438, 441 State 448 U.S. (1989). 835, 434 2d N.W.2d Wis. individually con- of factors Before a concatenation *19 trigger can reasonable innocent behavior sistent with degree suspicion suspicion, however, of must some specific which, combined, add acts when to the attach suspicion. up Sokolow, United States v. to reasonable (1989). itself, for 1, U.S. 10 Hence Sokolow 490 stop pat-down example, rather than a involved a which respondent pointed to fact that the frisk, the the Court paid plane cost- alias, tickets an for two traveled under ing flight bills, took a a roll of 20-hour $20 with $2100 only stayed in Miami for to Miami from Honolulu but luggage among factors hours, no the and checked respondent triggering suspicion the justifying drug and his brief courier therefore detention. expired case,
But while the defendant's in this stop provided plates him, a reason the officers with to majority upon the war- none of factors relied upholding subsequent frisk. rants night, time of nor undocumented Neither assumption prone unspecified to "area" was that an driving, crime, nor nor the defendant's manner entirely con- understandable nervousness defendant's specifically articulably to and related stituted behavior suspicion a reasonable that the defendant was armed dangerous. and
Consequently, non-specific these and non-individ- up totality ualized factors do not add to the justifying requisite circumstances reasonable sus- picion dangerous. that the defendant was armed and (1981); Cortez, 411, United States v. 449 U.S. 417-18 (1981). plus Texas, Brown v. 443 U.S. Zero zero always equal will zero. To conclude otherwise is to lend significance [which] very to "circumstances describe a large category presumably innocent travelers" and subject "virtually Reid, them to random seizures." U.S. at 438. might try justify
One the officers' in this actions by hindsight. produced case The officers' frisk a loaded gun. hindsight satisfy But does not the federal or state might try justify constitution. One also the officers' prevention actions this case the name of crime police protection. prevention police protec- Crime might by allowing tion well be served law enforcement everyone they stop. officers to frisk But the federal and state do constitutions not allow such frisks. majority opinion, agree
In contrast to the I depiction circuit court's of this case as a routine stop. displayed *20 traffic The defendant no behavior to support might a reasonable belief that he be armed and dangerous. Therefore I conclude that the circuit court suppressed was correct when it the evidence. forth,
For the reasons set I dissent.