Summary
explaining that an officer drawing a weapon during a Terry stop does not transform the stop into an arrest
Summary of this case from State v. BlattermanOpinion
No. State 229 (1974).
Argued September 9, 1975. —
Decided September 30, 1975.
APPEAL from a judgment and an order of the circuit court for Milwaukee county: MAX RASKIN, Reserve Circuit Judge. Affirmed.
For the plaintiff in error there were briefs by Paula K. Lorant and Dennis W. Egre, both of the Legal Aid Society of Milwaukee, and oral argument by Mr. Egre.
For the defendant in error the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
This appeal and review involves the conviction, upon a plea of guilty, of the plaintiff in error, Hollis Jones (hereinafter defendant), on a count of armed robbery, contrary to sec. 943.32(1) (b) and (2), Stats., and sec. 939.05, and one count of robbery, contrary to sec. 943.32. The defendant was sentenced to consecutive terms of thirty years and nine years. A written order denying the defendant's motion for reconsideration of both sentences was entered on August 30, 1974.
The appeal is from the judgment of conviction on the armed robbery charge and the writ of error was issued to review the order denying defendant's motion for reconsideration of sentences.
The incident resulting in this conviction occurred on August 3, 1972. At 2:20 a.m. Johnny Whittley reported to police that he had been robbed less than an hour ago at the premises located at 1630 North 24th Street, city of Milwaukee, by a lone red-shirted black male armed with a pistol. Money and jewelry had been taken.
City of Milwaukee Police Officers Patrick Leffler and Jerry Wiesmueller made an investigation of the complaint at 1630 North 24th Street. Present during the interview was the complainant's girl friend, Vernell McCants. She stated that she had seen a person matching Whittley's description of the robber in the company of her brother, Hollis Jones. They had stopped briefly at the Club Detroit, a tavern owned by Whittley where she had been working, within an hour prior to the robbery. She had also seen them together a few days before.
In the course of the officers' investigation, they stopped at a residence at 1949 West Finn Place. The occupant, Leslie Cox, was known by them to be an acquaintance of the defendant. Although she did not know Jones' whereabouts, she expected him soon. This was at 4 a.m. At that time, she received a phone call from the defendant. The brief conversation revealed no more than that Jones wanted to see her.
The officers then parked their squad car in an alley across from the Cox residence. Shortly thereafter, they observed an automobile approaching. Alert to the possibility that Jones and the robbery suspect might be occupants, the officers kept the vehicle under surveillance. As it slowed near the residence, both officers observed the defendant in the right front seat. Officer Leffler also saw that the rear seat passenger was a black male wearing a red upper garment.
The officers then pursued and stopped the vehicle. No attempt had been made to elude them, nor had any traffic violations been observed. Wiesmueller, with gun drawn, ordered Jones to leave the vehicle. He also recognized that the rear seat passenger met Whittley's description of the robber. After patting down Jones for weapons, Wiesmueller then ordered the suspect to exit the vehicle. While the latter was complying, the officer directed his flashlight into the interior. A sawed-off shotgun was revealed on the floor. The suspect was later identified as Jimmy Dell Walker. After being advised of his rights, Walker confessed to the robbery.
Both Jones and Walker were taken to the detective bureau. The officers then searched the vehicle. Cartridges and a revolver were found under the seat occupied by Jones. A brown paper bag containing a watch and packets suspected of being marijuana was found on the rear seat. The watch and a ring worn by Walker were identified by Whittley as having been taken in the robbery.
During questioning at 6:20 a.m., Jones was advised of his arrest for the Whittley robbery. At that time, he made an oral statement regarding the crime. Another oral statement was given during the early afternoon of the next day. The latter statement was suppressed by the trial court as obtained under circumstances violating the defendant's right to counsel. Motions to suppress the earlier statement and physical evidence were denied by orders of January 18, 1973, and March 12, 1973.
Four issues are presented for review:
1. Was the stopping of the Bacon vehicle and the accompanying "frisks" of the occupants an act of officials' illegality, the fruits of which must be suppressed?
2. Was the arrest of defendant illegal as without probable cause, such that fruits of the arrest must be suppressed?
3. Was the search of the vehicle legal?
4. Should the trial court be required to review the sentence imposed?
Legality of forced stop of vehicle.
The defendant contends that the police officers needed "probable cause to arrest" before they could stop the vehicle he was occupying. He also admits the possible application of a lesser standard of "reasonable cause," Adams v. Williams (1972), 407 U.S. 143, 147, 92 Sup. Ct. 1921, 32 L.Ed.2d 612, although disputing that the officers involved had information sufficient to satisfy either standard. It is settled law that, in certain circumstances, a police officer may:". . . in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. . ." Terry v. Ohio (1968), 392 U.S. 1, 22, 88 Sup.Ct. 1868, 20 L.Ed.2d 889. Such approaches may involve forcible stops that amount to "seizures" under the fourth amendment. Id. at 19.
Terry, of course, addressed itself mainly to the weapons "frisk" that might accompany an investigative stop. While the constitutional propriety of the investigative seizure was not answered by Terry ( Id. at 19 and n. 16), the decision does supply implicit recognition of the "legitimate investigative function." Moreover, the decision in Adams v. Williams, supra, recognized that a police officer has alternatives to the traditional arrest; a brief stop to obtain information may be most reasonable, even if probable cause to arrest is lacking. Id. at 145, 146.
Citing Terry, the court proposed that the fourth amendment:
". . . does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. . . . [I]t may be the essence of good police work to adopt an intermediate response." Adams, supra, page 145.
In Adams, an officer was advised by an individual known to him that a person seated in a nearby vehicle possessed narcotics and carried a gun at the waist. When the seated individual rolled down a window in response to the officer's request to open the door, the policeman reached in and removed the hidden revolver. The arrest for unlawful weapon possession and its incidental full search were not found to be acts of official illegality.
Adams also indicated that the Terry doctrine was flexible in other ways. The court noted that the "reasonable cause" for a stop need not be based on the officer's personal observations. Reports from informants, although not meeting the Spinelli-Aguilar tests for sufficient reliability, may still justify a forcible stop. Adams, supra, at 147. Thus, the "reasonable cause" standard is a viable doctrine capable of various applications.
The "reasonable cause" doctrine has been followed in Wisconsin also. The Adams ruling was adopted in State v. Chambers (1972), 55 Wis.2d 289, 198 N.W.2d 377. The nature of the "intermediate response" allowed was more fully discussed in State v. Beaty (1973), 57 Wis.2d 531, 536-540, 205 N.W.2d 11. After noting that an arrest involves the detaining of a person by word or action, with the intent to take him into custody and the person's corresponding understanding that he is in custody, this court distinguished the arrest from an investigative stop:
"An arrest, . . . is `inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows.' Obviously, stopping a suspect to question him — and to frisk him for weapons — does not involve such certainty of continued or future restraint. It may, but not necessarily so." (Emphasis in original.) Id. at 537, quoting Terry, supra, at 26.
The defendant disputes that Terry may be extended to situations where an automobile must be stopped to initiate the investigation. His contention is that the presence of the automobile alters the balance and makes "reasonable cause" a too minimal standard to protect the great and more numerous constitutional rights infringed upon by the stops. This contention is expressly refuted by Terry: One cannot seek to isolate from constitutional scrutiny the contacts involved by suggesting a rigid all-or-nothing model of justification and regulation. Id. at 17. The automobile's presence is not a controlling distinction that dictates a standard different from temporary seizures of pedestrians. Its effect may be felt in measuring whether the acts of the officers were reasonable.
This court has had occasion to follow Terry and Adams in automobile situations. In State v. Williamson (1973), 58 Wis.2d 514, 206 N.W.2d 613, the court believed an investigatory stop was justified after the defendant drove a circuitous route, pulled to the curb and pretended to stop in the presence of a squad car. Noting that the engine was still running and that the driver did not exit after opening the door, the squad returned to the area. The driver again pretended to stop. Unsatisfactory and evasive answers provoked a frisk that uncovered bullets. Thereupon, a full search of the vehicle produced a revolver. The orderly mounting of justification to arrest began with the valid suspicion-based stop.
A temporary investigative stop of one possessing information as to a crime may certainly be reasonable, depending upon the exigencies of the situation. Here, the particular facts involving the defendant raise reasonable suspicions that he was more than just a possible source of information. A brief investigative stop was justified to determine even that slight status. There were more implicating facts and a view of another occupant of the vehicle that tended to confirm such implication.
Jones was not a suspect for the actual commission of the holdup. The victim knew him and confirmed that fact. The armed intruder had been described by Whittley as:
"A black male, 25 to 30 years of age, five foot 10, six feet tall, 170, medium build, medium complexion having an afro hair style, bumpy skin, bare headed, long sleeve red knit shirt, gray trousers with black pin striping, boot-type shoes."
The officers knew that the victim had given this description by telephone to his girl friend McCants prior to their arrival and that she maintained to them that she had seen such a person at a tavern owned by Whittley and operated by them less than an hour before the robbery. She stated that the suspect then had been in the company of her brother, the defendant. Although the victim did not know his assailant, the robber referred to the victim by name. The victim and Jones' sister alleged that Jones had robbed him before on a "same type of occasion" and both expressed the belief that Jones was involved again. Officer Leffler was acquainted with the defendant and knew he had a criminal record.
Under the above circumstances, it was not unreasonable for the officers to search for the defendant in the hopes of meeting his possible companion or at least obtaining information as to the latter and his whereabouts during the time of the robbery. The view of the defendant in the company of a young, red-shirted black male a few hours after the crime reinforced the justified suspicions prompting the intended investigative stop.
Arrest of Jones.
Jones also attacks the validity of his arrest. If the stopping of the vehicle did not constitute an arrest, he then contends that an arrest occurred when he was ordered from the vehicle and frisked by Officer Wiesmueller. He was also ordered to raise his hands and the officer had his gun drawn.At this time, Officer Leffler had ordered the driver to exit and was frisking him also. Walker, in the rear seat, was also ordered out of the car. It is clear that Jones was not singled out for specific scrutiny.
Terry noted that an officer engaged in investigatory stops has a right, for his own safety, to "pat down" those he has stopped. An investigation into an armed robbery where a pistol was involved implies the likelihood of danger justifying a frisk. The fact that a weapon was drawn by the officer does not transform the act into an arrest. United States v. Maslanka (5th Cir. 1974), 501 F.2d 208, 213 footnote 10.
In the further alternative, Jones argues that no "probable cause" existed when he was conveyed to the detective bureau. At that point, an arrest under Beaty undoubtedly occurred. Defendant's contentions as to a lack of probable cause are without merit.
Officer Wiesmueller had confirmed that the rear seat passenger matched the full, specific description of the armed robber. After noting the illegal sawed-off shotgun on the floor below the suspect, Wiesmueller handcuffed and interrogated him. An apparent confession of the robbery resulted with Walker indicating that the stolen items were in the car. Jones, meanwhile, had indicated to Officer Leffler that Walker was involved in Whittley's robbery and that a revolver was under the front seat. Although there is no indication that Walker implicated Jones in his statement to the officers, there was a sufficient nexus between the activities of Jones and Walker, culminating in their joint presence in a vehicle containing the robbery's fruits only a few hours after the crime, to constitute probable cause to arrest Jones as a party to the crime. Probable cause is not ". . . that quantum of evidence which might later support a conviction, rather it is `. . . that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.'" Ball v. State (1973), 57 Wis.2d 653, 659, 205 N.W.2d 353.
The arrest being valid, there is no arguable merit to defendant's claim that his subsequent incriminating statements must be suppressed.
Vehicle search.
Defendant challenges the search of the vehicle, subsequent to his arrest, on two grounds: (1) Their presence to search the vehicle was the fruit of official illegality, and (2) the consent to search was not voluntary.Since the investigative stop of the vehicle was valid as was the arrest of Jones and Walker, the access to search the vehicle was not a product of illegal detention, as proscribed in Davis v. Mississippi (1969), 394 U.S. 721, 89 Sup.Ct. 1394, 22 L.Ed.2d 676.
Defendant attacks the consent to search the vehicle given by its owner-driver, Raymond Bacon. In his motion to suppress, Jones asserted the lack of his consent to the search without any reference to the voluntariness of the consent of Bacon. The trial court considered Bacon's consent and properly so. It was elicited from Officer Leffler that Bacon's ownership of the vehicle was confirmed by a radio check. Bacon was shown the shotgun on the back seat and he was then advised that he need not consent to the search. Leffler further testified that assent to search was given after Jones and Walker were either in a patrol wagon or on their way to the station. The trial court was satisfied that the consent was voluntarily given. We agree.
Sentence reduction.
Defendant Jones originally moved for modification of sentence on June 21, 1973. In an exhaustive memorandum, the trial court justified the sentence imposed. More than a year later, on June 27, 1974, the defendant again sought modification.The trial court apparently felt it had no jurisdiction in the matter. This court has reiterated in State v. Foellmi (1973), 57 Wis.2d 572, 205 N.W.2d 144, that the ninety-day limit for motions to reconsider sentence, Hayes v. State (1970), 46 Wis.2d 93, 175 N.W.2d 625, was regulatory rather than jurisdictional. Thus, the trial court could entertain motions beyond that time in the exercise of its discretion, given good reason for the delay. It is difficult to discern here whether the refusal to proceed on the motion was an act of discretion or a mistake as to jurisdiction.
No error resulted, however, because Foellmi also directed that only "new factors" may justify sentence modification. The matters raised by defendant's motion were either elaborations of matters fully considered at his sentencing and previous reduction hearing or were reports of defendant's progress in the rehabilitation system. The former were not "new" and the latter are matters more properly considered by the department of health and social services.
The recent decision of State v. Wuensch (1975), 69 Wis.2d 467, 230 N.W.2d 665, allows the trial court to review its own sentence for abuse of discretion, i.e., unduly harsh or unconscionable sentences, even if no "new factors" are present.
Although no time limit was expressed in Wuensch as to govern the presentation of such a motion, it is apparent that the ninety-day limit of Hayes be followed. Rulings by this court on claimed abuse of discretion have been withheld if a timely motion was not made below. Farley v. State (1971), 50 Wis.2d 113, 115, 183 N.W.2d 33; Stockwell v. State (1973), 59 Wis.2d 21, 28, 207 N.W.2d 883; Gaddis v. State (1974), 63 Wis.2d 120, 129, 216 N.W.2d 527. Such procedure should be followed now.
Much of the matter in defendant's second motion arguably pertaining to abuse of discretion was considered in his previous motion for reduction. Denial of that motion was based on the trial court's belief that the motion had no merit, not on a belief that the court lacked the power to correct an abuse. The refusal to modify sentence on the factors raised in that timely motion gave rise to an avenue of appeal. Jones instead chose to wait and resubmit his contentions along with irrelevant factors believed to be "new matter."
No reason exists for returning this motion to reconsider sentence to the trial court. The issue of abuse of discretion was specifically raised in the June, 1973, motion and was fully answered at that time. No error under Wuensch was thus committed, since the trial court cannot be faulted for not fully demonstrating the exercise of discretion on matters answered by it at the first motion. Successive motions for postconviction relief, raising the same issues and seeking the same relief, need not be entertained. State v. Wills (1975), 69 Wis.2d 489, 492, 230 N.W.2d 827.
By the Court. — Judgment and order affirmed.