STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Marvin R. WILLIAMSON, Jr., Defendant-Appellant.
No. 81-1961-CR
Supreme Court of Wisconsin
Argued March 31, 1983. Decided July 1, 1983.
113 Wis. 2d 389 | 335 N.W.2d 814
For the defendant-appellant there was a brief and oral argument by Peter D. Goldberg, assistant state public defender.
DAY, J. 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 Circuit Court for Milwaukee County, Honorable Lee E. Wells, Judge. Williamson was convicted of one count of carrying a concealed weapon in violation of
Two issues are considered in this review: First, in order to withstand a motion to dismiss the complaint for insufficiency, is it necessary for a misdemeanor complaint which alleges possession of a conсealed weapon to set forth facts showing that the underlying stop and frisk which led to the seizure of the weapon was constitutionally valid?
Second, did the stop and frisk of Williamson meet statutory and constitutional standards so that the weapon seized as a result of the frisk could be properly admitted into evidence?
We conclude the complaint was legally sufficient and affirm the court of appeals on this issue. We also conclude that the stop and frisk of Williamson was con-
At approximately 2:00 a.m. on January 2, 1981, Milwaukeе Police Officer Charles Berard (Berard) and his “partner” were parked in front of a closed tavern at 1016 West Center Avenue in Milwaukee. Their car‘s headlights were off but the rotating lights were on and activated. They had shortly before been involved in a traffic stop and the person involved in that incident had just been taken from the scene by a police vehicle.
As the officers sat in their car writing out tickets, they observed two men exiting the yard of 1020 West Center Avenue. The men turned toward the tavern and began walking. Apparently they did not immediately recognize that a police car was parked there because, as Berard testified, “They seemed startled when they first realized we were there.”
According to Berard, after the men recognized the squad car, one of them (Williamson) “hesitated and just began staring at the squad car from in front of the car” and the other, Myles King (King) “continued to where the passenger door is on the sidewalk and just stood there looking at my partner.”
After the staring continued for a short while, Berard‘s partner rolled down the car‘s window and Berard requested King to come over to the car. Berard then asked King what he was doing and what he was looking at to which King responded, “Huh?” Berard then asked King if he had ever been convicted of a crime and King answered, “Yes, carrying a gun.” At that point, Berard asked King if he was currently “wanted” and King responded, “Yeah.”
Berard and his partner then exited from their car. Berard stated that at that point he “feared for my safety and the safety of my partner, being one subject
Officer Berard approached Williamson who, as Berard exited from the car, had turned and started to walk away from the car. Berard asked Williamson to, “Hold up a second, chief,” which caused Williamson to stop and turn back towards Berard. At that time, Berard told Williamson to keep his hands away from his body and asked him if he had any weapons on his person. Williamson did not respond so Berard told him he was going to check for weapоns. Berard proceeded to perform a pat down search of Williamson‘s outer clothing. He felt a bulge in Williamson‘s coat pocket and retrieved a loaded twenty-two caliber pistol from the jacket. Berard then arrested Williamson for carrying a concealed weapon.
In response to questions at the suppression hearing, Berard articulated the following factors which led to his stopping and frisking Williamson:
“1. Williamson and King were acting in a suspicious manner in stopping and staring at the police car;
“2. King admitted that he had been previously convicted for carrying a concealed weapon and was currently ‘wanted;’
“3. Berard‘s past experience wаs that a person who had carried a gun once frequently carried it again;
“4. Knowing that King had been convicted of carrying a weapon and that he was currently wanted caused Berard to believe that Williamson might also be carrying a weapon;
“5. As Berard exited the car, Williamson turned away and his hands were no longer observable by Berard so that Berard would see if a weapon was being drawn; and
“6. Visibility was poor—the incident occurred at 2:00 a.m.”
A complaint charging Williamson with carrying a concealed weapon was issued. Williamson filed two motions,
A hearing was held on the motions on February 26, 1981, before Judge Rudolph Randa. On July 8, 1981, Judge Randa filed a written decision which denied Williamson‘s motions. He found that there were “more than sufficient facts to justify the stop and search.”
A hearing was held on the morning of August 31, 1981, before Judge Wells2 at which Williamson waived his right to a jury trial. It was stipulated that the transcripts of the February 26, 1981, suppression hearing be used for the trial. That afternoon a trial to the bench was commenced. On September 2, 1981, Williamson was convicted of carrying a concealed weapon. He appealed the judgment of conviction.
The court of appeals found the complaint sufficient to withstand a motion to dismiss. However, it concluded that Williamson‘s conduct was not sufficiently suspicious to justify the stop and frisk. The court of appeals therefore reversed the judgment of conviction.
The first issue on review is whether it is necessary for a misdemeanor complaint which alleges possession of a concealed weapon to set forth facts showing that the underlying stop and frisk which led to the seizure of the weapon was constitutionally valid?
In order for a complaint to withstand a motion to dismiss, it must follow the form set out in
The trial court found the complaint sufficient. The court of appeals reviewed the complaint and determined it answered the six questions set out above.4 William-
The defendant apparently does not dispute the fact that the complaint answers the six questions. He argues, however, that given the constitutional requirement of a timely judicial determination of probable cause, Gerstein v. Pugh, 420 U.S. 103, 126 (1975), it is necessary for a complaint in a misdemeanor which charges the crime of possession to show that the weapon was constitutionally seized by the police. The defendant reasons that in a misdemeanor proceeding therе is no provision comparable to a preliminary hearing in a felony case at which a determination of probable cause may be made. This being the case, in a misdemeanor the probable cause determination must be made at the initial appearance. At the initial appearance, the complaint is the only source of information on the case that is available to the court. Therefore, if a determination of probable cause requires an initial decision that, where a stop and frisk is involved, it was constitutionally valid, then the misdemeanor complaint must show sufficient facts to justify the police action.
The problem with this reasoning is that it is based on the premise that a determination of probable cause requires the State to show the evidence was obtained legally. That is not the law.
For a complaint to state probable cause, “the information presented to the magistrate ... must be sufficient for him to conclude that ‘the charges are not capricious and are sufficiently supported to justify bringing into play further steps of the criminal process.‘” Williams, 47 Wis. 2d at 252, quoting State ex rel. Cullen v. Ceci, 45 Wis. 2d 432, 444, 173 N.W.2d 175 (1970); quoting Jaben v. United States, 381 U.S. 214, 224-225 (1965).
Here, the complaint states sufficient facts to insure the charge is not capricious. To determine whether it
This court has equated the burden of proof applicable to a grand jury indictment with that of probable cause at a preliminary hearing. State ex rel. Welch v. Waukesha Co. Cir. Court, 52 Wis. 2d 221, 224-25, 189 N.W.2d 201 (1971). The United States Supreme Court in United States v. Calandra, 414 U.S. 338 (1974), held that a witness in a grand jury proceeding could not refuse to answer questions on grounds that the questions were based on evidence resulting from an illegal search and seizure. As part of the reasoning leading to that holding, the Court noted that it had previously held that the,
“validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence; or even on the basis of information obtained in violation of a defendant‘s Fifth Amendment privilege against self-incrimination.” Calandra, 414 U.S. at 344-345. (Cites omitted.)
Just as an indictment is not subject to challenge because it is based on incompetent or inadequate evidence, neither is a complaint. A function of the grand jury is to determine whether probable cause exists to believe a crime has been committed. Calandra, 414 U.S. at 343. The grand jury‘s decision as to the existence of probable cause does not depend on whether the evidence before it was obtained in a constitutionally valid manner. Neither does a finding of probable cause in a complaint require such a showing.
Our system of justice leaves the quеstion of whether the evidence was obtained constitutionally to be deter-
Contrary to Williamson‘s сontention on review, this court‘s holding in State ex rel. Pflanz v. County Court, 36 Wis. 2d 550, 153 N.W.2d 559 (1967), is not contrary to the result here. In Pflanz, this court found a complaint insufficient because it failed to disclose the identity and ability of a complainant to investigate the tax status of the defendant in a tax fraud case. Pflanz, 36 Wis. 2d at 561-562. The court noted that “Without [the agent‘s] identity as a tax agent of the tax depart-
Here, Berard is identified in the complaint as a police officer who had actually searched the person and discovered a loaded gun. That information formed a sufficient basis uрon which a magistrate could accept Berard‘s judgment that a crime had been committed.
That part of the decision of the court of appeals that the complaint was sufficient is affirmed.
The second issue is: Did the “stop and frisk” of Williamson meet statutory and constitutional standards so that the weapon seized as a result of the frisk could be properly admitted into evidence?
The state contends that the stop and frisk of Williamson was authorized by the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1 (1968) and by
Terry involved a police officer who observed the defendant and another man walking up and down a street five to six times apiece, stopping only to peer into a store window. The officer suspected the two men of “casing a job, a stickup” and approached the men to investigate further. As he approached, he identified himself as a police officer and asked the men for their names. When the men only mumbled a response, the officer grabbed the defendant, spun him around, and patted down his outer clothing. The officer discovered a weapon.
The Supreme Court held that the stop and frisk did not violate the Fourth Amendment‘s proscription against unreasonable search and seizures. In so holding the Court stated that,
“[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover
constitute the commission of a crime, or which may constitute a threat to his safety, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest the person so questioned.”
The reasonableness standard set out in Terry is an objective one. Terry, 392 U.S. at 21; Bies v. State, 76 Wis. 2d 457, 466, 251 N.W.2d 461 (1977). In order to justify a particular stop and frisk, the officer “must be able to point to specific and articulable facts which, taken with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21. A stop based simply on an officer‘s “inchoate and unparticularized suspicion or ‘hunch‘” will not pass the constitutional text. Terry, 392 U.S. at 27.
Once the officer has articulated the facts which caused him to aсt, those facts are assessed against an objective standard: “Would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry, 392 U.S. at 21-22.
In reviewing a trial court‘s order denying a motion to suppress, this court will uphold the court‘s findings of fact unless they are against the great weight and clear preponderance of the evidence. Bies v. State, 76 Wis. 2d at 469. However, this court will independently examine those facts to determine whether the constitutional requirement of reasonableness is satisfied.
We conclude that the facts as articulated by Berard and as found by the trial court would have warranted a man of reasonable caution in the belief that some criminal activity was possibly afoot. We also conclude that Berard was justified in believing that Williamson might be armed and dangerous. Therefore the stop and frisk did not violate Williamson‘s right to be free from unreasonable searches and seizures.
There is no set standard for what constitutes a reasonable police reaction in all situations. Rather, the reasonableness of the reaction depends upon the circumstances facing the officer. Bies, 76 Wis. 2d at 468, fn. 7. The court must examine the totality of the circumstances to determine whether the stop and frisk was justified. Penister v. State, 74 Wis. 2d 94, 100, 246 N.W.2d 115 (1976).
Examining the facts as stated by Berard along with all reasonable inferences that can be drawn from them, we believe that Berard could reasonably conclude that Williamson had been or was about to be engaged in criminal conduct. Berard spotted the defendant as he and King exited from a yard at 2:00 a.m. As each man saw the squad car, he stopped and stared at it. When Berard asked King if he had ever been convicted of a crime, King answered “yes” and volunteered that the crime was “carrying a gun.” King also admitted that he was currently “wanted.”
As Berard exited the car, Williamson turned away. It was dark and Berard could not see Williamson‘s hands. Given the time of night and the low visibility, the act of turning away could reasonably be viewed as threatening. Berard noted that at the time he felt Williamson might be carrying a weapon and believed his and his partner‘s lives might be in danger.
We therefore conclude that the seizure of Williamson was constitutionally permissible.
Although the stop of Williamson was justified, it does not automatically follow that a pat-down search could be conducted. Ybarra v. Illinois, 444 U.S. 85, 93 (1979). A frisk was justified only if Berard could reasonably believe that “in light of his experience ... the persons with whom he is dealing may be armed and presently dangerous.” Terry, 392 U.S. at 30.
The court of appeals opinion below suggests that a police officer must first question a person they have stopped as to his name, address and reason for his conduct before a frisk is allowеd unless there exists some “exigent circumstances compelling an immediate frisk. ...” State v. Williamson, 109 Wis. 2d at 95.
This language is misleading. A police officer may make inquiries of the person once a stop is made before a frisk begins.
“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officers or to others, it would appear to be clearly unreasonablе to deny the officer the power to take necessary
Requiring an officer to first question a person he reasonably believes to be armed and presently dangerous before a protective search is done will deny, at least for a short while and perhaps forever, the officer‘s power to neutralize the threat of physical harm. We therefore conclude that to the extent the court of appeals opinion can be read as requiring an officer to question a person before a frisk is done, the language is ovеrruled.
We conclude that Berard had reasonable grounds to believe Williamson might be armed and dangerous. This justified the frisk.
The stop and frisk of Williamson did not violate the constitutional protection against unreasonable searches and seizures. And, because
By the Court.—Decision of the court of appeals is affirmed in part and reversed in part; judgment of conviction is affirmed.
SHIRLEY S. ABRAHAMSON, J. (dissenting). I dissent from the majority‘s holding that the stop and frisk in this case was constitutionally valid. I would affirm the decision of the court of appeals and hold that the stop and frisk violated the defendant‘s rights guaranteed by the federal and state constitutions.
Both the Wisconsin Constitution and the United States Constitution are “designed to maximize individual free-
The framers of the constitutions, recognizing the dangers of criminal conduct and attempting to stop it, could have allowed stops and searches of all citizens looking or acting in a manner other than the manner in which the state believed we should act. Our constitutions do not allow such state action, however. Rather, the constitutions recognize that all persons and property need protection against the power of the state, even when such protection may result in less efficient law enforcement.
The rights of the accused are not just his or hers; they belong to each of us. The interest in being free from unreasonable governmental intrusion is a collective interest, not just an interest bеlonging to those we suspect of being criminals. Hoyer v. State, 180 Wis. 407, 417, 193 N.W. 89 (1923); Jokosh v. State, 181 Wis. 160, 163, 193 N.W. 976 (1923). The purpose underlying the constitutional prohibitions against unreasonable searches and seizures is not, as it is often perceived, to protect criminals but to minimize governmental intrusion into the everyday lives of ordinary citizens. To the extent that this court allows encroachment of the constitutional rights of the accused, it allows encroachment on the rights of all. We need to strengthen law enforcement
By this case, the majority permits a significant intrusion upon our ability to walk freely in our own neighborhoods. Thе fourth amendment allows stops and searches if there is probable cause to believe the conduct violates the criminal law or if the stop and search fits with the exception to the requirement of probable cause established by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The Terry exception is “narrow,” and the Supreme Court has been careful to maintain its limited boundaries despite encouragements to broaden it. Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). See Florida v. Royer, 460 U.S. 491, 51 L.W. 4293, 4295 (March 23, 1983).
The majority concludes that this stop and frisk falls within Terry‘s narrow exception because the officer was “able to point to specific and articulable facts which, taken with rational inferences from those facts, reasonably warrant” the intrusion and that the state proved that the officer‘s stop and frisk of the citizen was reasonable, judged by an objective standard. Terry v. Ohio, 392 U.S. at 21.
The police were in the neighborhood giving a traffic ticket, not investigating a reported crime. Indeed, no crime or suspected crime had been reported. Two men were out walking at 2 a.m. in a residential neighborhood where, as it turned out, the defendant resided. The police officer justifies stopping the defendant because the defendant “stared at” and “monitored” for about twenty seconds a parked police car whose red light was flashing. The defendant‘s companion admitted to having been convicted of the crime of carrying a gun and to being then “wanted,” and when the officer got out of the police car, the defendant turned and started walking away.
Reliance on the defendant‘s actions in walking away as grounds for the stop is especially ironic in the context of this case. The police stopped both the defendant and his companion: the defendant for walking away, the companion for not walking away. If a рerson may decline to listen to police questions and has the right to “go on his [or her] way,” Florida v. Royer, 460 U.S. 491, 51 L.W. 4293, 4295 (March 23, 1983), I fail to see how exercising that right constitutes reasonable suspicion to stop. As I read this record of justification, there is no way that either the defendant or his companion could have avoided being stopped by the police. If the stop in this case is deemed reasonable then the state, as this case illustrates, literally gets the citizen coming and going.
Guilt by association also fails to provide a sufficient objective standard to allow a stop and frisk. The defendant‘s companion freely admitted having been convicted of the crime of carrying a gun and that he was “wanted.” There is nothing in the record to show that the companion was then carrying a gun. The defendant‘s “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search” him, Ybarra v. Illinois, 444 U.S. 85, 91 (1979), nor does it give rise to even a reasonable suspicion sufficient to stop or frisk him. Id. at 94; Sibron v. New York, 392 U.S. 40, 62 (1968).
In my opinion, not one of the factors set forth by the majority is sufficient in itself to justify the stop. Neither is the totality of the circumstances. The police officer, in summarizing the totality of the circumstances,
The Colorado Supreme Court recently considered a situation with, according to the majority‘s logic, even more “indicia of suspicion” and concluded that a person‘s actions in making eye contact with the police and then leaving the scene were insufficient to justify the temporary detention of the person. As the Colorado court stated, from the officer‘s viewpoint, “an innocent move may often be mistaken for a guilty reaction. From the perspective of the person observed, the ‘furtive gesture’ might be imрelled by a variety of motives, from an unsettling feeling of being watched to an avoidance of what might be perceived as a form of harassment. See People v. Superior Court of Yolo County, 3 Cal. 3d 807, 478 P.2d 449, 91 Cal. Rptr. 729 (1970). Then again, a person‘s movement may not be a reaction to the police
See also United States v. Best, 563 F. Supp. 1075, 33 Cr. L. 2216 (USDC DC, April 21, 1983), holding unconstitutional as a violation of the Terry standards for a stop, a routine police sweep of a parking lot located in an area with a high incidence of drug traffic. The court held that a “mere investigative stop of the type discussed in Terry cannot be justified simply because a person is found in an area with a high incidence of drug traffic, looks unfamiliar and suspicious to the police officer, but has done nothing to create suspicion of ‘any specific misсonduct,’ Brown v. Texas. The police must have, in Judge Leventhal‘s words, a ‘founded suspicion of wrongdoing, U.S. v. Montgomery, 561 F.2d 875, 880 (D.C. Cir. 1977).‘” Id. at 1080, 33 Cr. L. at 2217. The action of the police, taking “legal shortcuts in dealing with drug trafficking,” was not constitutionally permissible. Id.
One might try to justify the officer‘s actions in this case in hindsight, since the officer‘s stop and frisk actually produced a gun and the defendant was charged with carrying a concealed weapon. But hindsight is not and can not be the test. If hindsight is the test, the ordinary citizen engaging in ordinary activity is not protected from stops and searches.
I recognize that the police officers in this case may have felt they were just trying to do their job. Police are trained to be suspicious of all persons: Any citizen can be а potential threat to a police officer. But the constitutions protect us against the state‘s detaining everyone the police officers think may be threatening. In our society a police officer is not “entitled to seize and search every person whom he sees on the street or of whom he makes inquiries.” Sibron v. New York, 392 U.S. 40, 64 (1968). Police officers may not in our so-
Like the majority, I am not insensitive to the needs of law enforcement officers. I am aware that the weighty social objective of crime prevention and police protection might well be served by allowing officers to stop, question, and search any person the officers mistrust. As weighty as the concern is to combat the problem of crime in this state and nation, and as concerned as we all are that we each be safe on our streets, this concern can not justify state action that will undermine our constitutional guarantees of freedom. We have not reached the point in our society where citizens walking in their neighborhoods at night should expect to be stopped and frisked by the police.
It is well to remember Benjamin Franklin‘s words: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
I dissent. I am authorized to state that CHIEF JUSTICE BRUCE BEILFUSS and JUSTICE NATHAN S. HEFFERNAN join in this dissent.