State v. Matthews

2011 WI App 92, 799 N.W.2d 911, 334 Wis. 2d 455, 2011 Wisc. App. LEXIS 389

• Court: Court of Appeals of Wisconsin
• Decided: May 17, 2011
• Docket: No. 2010AP1712-CR
• Status: Published

Opinions

FINE, J.

¶ 1. The determinative issue on this appeal is whether police officers may, in order to find out what's "afoot," see Terry v. Ohio, 392 U.S. 1, 30 (1968), stop and question a person wearing a ski mask and hoodie they see late at night in a high-crime area near a woman who was walking away from the hooded and masked person and who appeared to be frightened. The circuit court held that they may not. On our de novo review of the circuit court's legal conclusions, we disagree. Accordingly, we reverse.

¶ 2. This is the State's appeal from the circuit court's order suppressing cocaine, marijuana, and pills the police found on Deshon C. Matthews. See Wis. Stat. § 974.05(l)(d)2 (State may appeal an order "[suppressing evidence."). There are no disputed material facts. Thus, our review of the circuit court's order is de novo. See State v. Davis, 2000 WI App 270, ¶ 9, 240 Wis. 2d 15, 19, 622 N.W.2d 1, 3 (matters of law and constitutional principles are decided by an appellate court de novo).

I.

¶ 3. On the night of November 30, 2009, three Milwaukee police officers were patrolling what one of them described as a high-crime area: "Street robberies, gang related violence, gun violence, and drug dealing." At about a quarter past eleven that night, they saw a man whom they later identified as Matthews. It was twenty degrees. According to the testimony of one of the officers, Michael Lopez, Matthews "had a ski mask over his face standing at the corner. There was a female walking away from him who was looking over her shoulder." Matthews was also wearing a hoodie. All this raised a red flag. Lopez explained at the suppression hearing: "[I]t appeared to be unusual I guess maybe because of the mask, and his hoodie up, and her walking away looking back over her shoulder, and when she would turn back and look in our direction or the direction she was headed, it appeared that she had a worried look on her face."

¶ 4. Lopez described Matthews's ski mask as "normal," and said that it "covered his face below the eyes." According to Lopez, Matthews "had his hands in his pocket" [sic] when the police first saw him. The officers never saw anything in Matthews's hands once he took them out of his pockets. Lopez testified that he was suspicious because "I often know that people wear ski masks when they commit crimes out there so that it conceals their face."

¶ 5. The patrol car's driver stopped next to Matthews when Matthews was "in the middle of the intersection at 16th and Meinicke." The patrol car's siren and flashing lights were off. Lopez, who was in the front passenger seat, got out of the patrol car, and walked over to Matthews. "I asked him immediately, I said, hey, are you going to rob somebody." Matthews replied "no and then he pulled down his mask." By this time, the other two officers had gotten out of the patrol car and walked over to Matthews. None of the officers had their guns drawn.

¶ 6. Lopez testified that he then "asked [Matthews] if I could have consent to search him." According to Lopez, Matthews said "yeah and he put his arms up." It was during this search that Lopez found the cocaine, marijuana, and pills, and they arrested Matthews.

¶ 7. As we have seen, the circuit court granted Matthews's motion to suppress the cocaine, marijuana, and pills. It ruled that although Matthews freely consented to the search, a ruling that Matthews does not dispute on this appeal, the police officers violated Matthews's rights by stopping him to ask whether he was intending to rob someone. As material, the circuit court found that the evidence at the suppression hearing established:

• That the area of Meinicke and 16th Street was "a high crime area.";

• "[A] marked squad with three officers pull[s] beside him.";

• "One officer exits the squad and asks, quote, 'Are you going to rob someone,' end quote.";

• "Two other officers exit the squad."

¶ 8. The circuit court opined that "[c]ommon sense tells us then and there the defendant was not free to leave or ignore officers' commands [,]" and that thus Matthews "was stopped when the squad pulled alongside him and Lopez asked if the defendant was planning to rob someone." It ruled that the stop was unlawful. We set out the pertinent part of the circuit court's rationale:

Matthews was not loitering near a house known to be vacant. He was on a street corner .... Officers saw no guns, drugs or contraband. They didn't give Matthews an opportunity to explain why he was in the area.[¹] They didn't attempt to question the female that was in the vicinity. The officers had no tips or information from citizen witnesses. The female lodged no complaints about any wrongdoing.

There are many aspects of this case that trouble this Court. Matthews is in a high crime area at 11:13 at night alone and having contact with a passing female. His contact with her and his reasons for being there may have been innocent. I have a hunch it wasn't innocent, particularly when you consider the amount and type of drugs found on his person. [²] But hunches don't work for this Court, and hunches don't work for the law enforcement. The ends do not justify the means.

II.

¶ 9. For some reason not evident in the Record, the State's appeal, as phrased by its main brief, "only challenges" the circuit court's conclusion that the officers stopped Matthews, and "does not argue reasonable suspicion existed to justify a stop." We are not, of course bound by the State's concession. See State v. Gomaz, 141 Wis. 2d 302, 307, 414 N.W.2d 626, 629 (1987) (court need not accept State's retraction of legal argument); Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712, 714 (1997) (we are not bound by a party's concessions of law); Fletcher v. Eagle River Mem'l Hosp., Inc., 156 Wis. 2d 165, 168, 456 N.W.2d 788, 790 (1990) (A party's "concession" "in respect to a matter of law," however, "is binding upon neither the parties nor upon any court."); cf. State v. Conger, 2010 WI 56, ¶ 24, 325 Wis. 2d 664, 684-685, 797 N.W.2d 341, 351 (Courts are not bound by the State's plea-bargained concessions.). A person is "stopped" under Fourth Amendment jurisprudence when the circumstances are such that, viewed objectively, a reasonable innocent person in the person's shoes would not feel free to walk away from the police. State v. Williams, 2002 WI 94, ¶ 23, 255 Wis. 2d 1, 13, 646 N.W.2d 834, 839-840. As the circuit court recognized, the circumstances here are at least problematic whether, as the State argues on appeal, that, objectively, a reasonable innocent person in Matthews's position would have felt he or she was free to disregard the three police officers who pulled up next to him in their marked patrol car and, in essence, asked why he was wearing a ski mask and hoodie. Assuming (but not deciding), as the circuit court concluded, and as the Dissent opines, that the officers did "stop" Matthews, the stop was clearly consistent with the Fourth Amendment.³ Since we are assuming that the officers did stop Matthews, the Dissent's contention that the officers stopped Matthews is immaterial to our analysis because we do not nay say any of the circuit court's "findings." We conclude, however, on our de novo analysis of the legal issue, that those findings did not, as a matter of law, support the circuit court's suppression order.

¶ 10. The circuit court's oral opinion recognized that the fount of Fourth Amendment jurisprudence as to whether police may lawfully stop a person to find out what is going on even though they do not have probable cause for an arrest is Terry, which, of course, concerned two aspects of police intrusion that was not supported by probable cause: (1) a stop; and (2) a frisk. See id., 392 U.S. at 19-20, 23. Here, however, we are only concerned with a "stop"; Lopez's search of Matthews was, as the circuit court found, and as Matthews does not dispute, consensual. We thus turn to what Terry teaches about whether the officers' stop of Matthews was lawful.

¶ 11. Under Terry, courts must assess the following in determining whether a stop is lawful:

• there must be "articulable facts" evident in the Record

• that "taken together with rational inferences from those facts,"

• when viewed objectively, permit a law-enforcement officer to "reasonably" "conclude in light of his experience that criminal activity may be afoot."

Id., 392 U.S. at 21-22, 30. This is true even if each of those acts may be "innocent in itself, but which taken together warranted further investigation." Id., 392 U.S. at 22. That is what we have here: (1) a man in a high-crime area; (2) late at night; (3) wearing a ski mask that covers his face below his eyes; (4) wearing a hoodie; (5) who had an ambiguous but "unusual"appearing encounter with a woman walking by herself. Although it was not a mid-summer night, and Matthews may have worn the ski mask and hoodie to stay warm so that his choice of clothing was innocent, the police reasonably and based on their experience could objectively see that "further investigation" was "warranted" to ensure that "criminal activity" was not "afoot." Accordingly, we hold on our de novo review, that Officer Lopez and the other officers had, objectively, the requisite reasonable suspicion to ask Matthews what he was doing. Indeed, Terry teaches that this is what a concerned competent officer should do: "a police officer may in appropriate circumstances and 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." Ibid. For example, the defendant in United States v. Sokolow, 490 U.S. 1, 10 (1989), had argued that "the least intrusive means available to verify or dispel their suspicions that he was smuggling narcotics," would have been "simply approaching] and sp[eaking] with him, rather than forcibly detaining him." That is what the officers did here. Certainly, phrasing the inquiry as "hey, are you going to rob somebody" was neither off-the-wall nor coercive. Indeed, Matthews replied "no," and was not forcibly detained until he was arrested following the consensual search. Since no one contends that Lopez's search of Matthews was not lawful, we reverse the circuit court's suppression order.⁴

By the Court.—Order reversed.

1 This is not entirely true because, as the circuit court found, Lopez asked Matthews whether he was preparing or intending "to rob someone."

2 Of course, what the officers found after the stop would not support reasonable suspicion to make the stop.

3 Although wrongly contending that we are bound by the State's abandonment of the argument that the officers lawfully stopped him, see State v. Gomaz, 141 Wis. 2d 302, 307, 414 N.W.2d 626, 629 (1987) (court need not accept State's retraction of legal argument), Matthews adopts the circuit court's analysis of that issue, which we have set out in Part I of this opinion.

4 As Terry v. Ohio, 392 U.S. 1 (1968) recognized, there was when Terry was decided, and, sadly, there still is, occasional police harassment of law-abiding citizens just trying to go about their lives without being hurt or hurting others. Id., 392 U.S. at . 'Yet," as Chief Justice Earl Warren tells us in Terry, "a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime." Id., 392 U.S. at 15. That said, the exclusionary rules as they are applied to suppress evidence of crime do not help those who suffer unwarranted on-street indignities or harassment unless they are guilty; as Chief Justice Warren noted, the exclusionary rules give the innocent no recourse. The officers here did nothing wrong, and if other police officers in the future were encouraged by judicial decisions to ignore such obvious signs of potential trouble as the officers saw here, those decisions may very well exact what the Chief Justice called a "high toll" in human suffering. We commend the officers here for not just driving by, which, of course, would have been the easy thing for them to do.