Opinion
No. 2013AP1575–CR.
2014-09-16
STATE of Wisconsin, Plaintiff–Respondent, v. Miguel LOMBRANO, Defendant–Appellant.
See id. (citation, quotation marks, and brackets omitted). When these elements are satisfied, an officer may seize evidence without a warrant. See id. at 449–50, 504 N.W.2d 400.
Appeal from a judgment of the circuit court for Milwaukee County: Jonathan d. Watts, Judge. Affirmed.
Before CURLEY, P.J., FINE and BRENNAN, JJ. ¶ 1 PER CURIAM.
Miguel Lombrano appeals a judgment of conviction entered upon his guilty plea to possessing a firearm as a felon. The only issue is whether the trial court properly denied his motion to suppress evidence found during an investigative stop. We affirm.
ANALYSIS
¶ 10 “We review suppression motions using a two-step process. First, we uphold the [trial] court's findings of historical fact unless clearly erroneous. Whether those facts require suppression is a question of law reviewed without deference to the [trial] court.” State v. Pender, 2008 WI App 47, ¶ 8, 308 Wis.2d 428, 748 N.W.2d 471 (citations omitted).
¶ 11 Lombrano asserts that the police stopped him without reason. “The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures.” State v. Artic, 2010 WI 83, ¶ 28, 327 Wis.2d 392, 786 N.W.2d 430. Wisconsin courts typically interpret “Article I, Section 11 of the Wisconsin Constitution in tandem with the Fourth Amendment jurisprudence of the United States Supreme Court.” See State v. Young, 2006 WI 98, ¶ 30, 294 Wis.2d 1, 717 N.W.2d 729.
¶ 12 The Fourth Amendment is not offended when the police conduct an investigatory stop and briefly detain a person based on “ ‘reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts, that an individual is [or was] violating the law.’ ” See State v. Colstad, 2003 WI App 25, ¶¶ 7–8, 260 Wis.2d 406, 659 N.W.2d 394 (citation omitted, brackets in Colstad ). The standard is the same under the Wisconsin constitution. State v. Young, 212 Wis.2d 417, 423–24, 569 N.W.2d 84 (Ct.App.1997).
¶ 13 Reasonable suspicion is based on the totality of the circumstances. See Colstad, 260 Wis.2d 406, ¶ 8, 659 N.W.2d 394. Moreover, “ ‘[t]he question of what constitutes reasonable suspicion is a common sense test: under all the facts and circumstances present, what would a reasonable police officer reasonably suspect in light of his or her training and experience.’ ” Id. (citation omitted).
¶ 14 We begin with Lombrano's challenge to four of the trial court's factual findings. We reject each of those challenges.
¶ 15 First, Lombrano challenges the finding that “the [computer aided dispatch] report indicated that there was a potential crime being committed in the area of 25th and Atkinson.” Boyack testified that he and Fager went to 25th and Atkinson in response to a call for service in which the dispatcher indicated that a man might have “wrestled [a] phone away” from a woman. Thus, at the very least, the officers had information suggesting that a man may have stolen a telephone. The first challenged fact is supported by the record.
¶ 16 Second, Lombrano complains about the finding that “[u]pon seeing the squad, Lombrano turned his bike around, which the circuit court described as ‘noteworthy behavior.’ ” Boyack testified that when Lombrano first saw the squad car, “he stopped suddenly and turned [in] the other direction.” Boyack explained that this aroused his suspicion. Both components of the second challenged fact are supported by the record.
¶ 17 Third, Lombrano complains because the trial court found that he “[wa]s the only person observed [by the officers] in the area.” Fager testified that when the officers saw Lombrano, “there was nobody else in the area.” The third challenged fact is supported by this testimony.
¶ 18 Fourth, Lombrano complains because the trial court found that “Lombrano attempted to flee from officers.” Boyack testified that when the officers saw Lombrano the second time, he “tried to pedal fast away.” Boyack concluded that Lombrano was “trying to flee.” Similarly, Fager testified that, after Boyack directed Lombrano to stop, he “appeared to pedal faster, like he increased his speed.... [I]t appeared to [Fager] that Lombrano was trying to get away, trying to get past Officer Boyack.” The fourth challenged fact is supported by this testimony.
¶ 19 Testimony from the police officers thus supports each finding that Lombrano disputes. The trial court expressly found the officers credible, deeming their credibility “great.” Credibility assessments are for the trial court, and we will not disturb them. See State v. Peppertree Resort Villas Inc., 2002 WI App 207, ¶ 19, 257 Wis.2d 421, 651 N.W.2d 345. Lombrano suggests the officers' testimony could have supported findings different from those that the trial court made, but “[w]hen more than one reasonable inference can be drawn from the credible evidence, the reviewing court must accept the inference drawn by the trier of fact.” See id.
¶ 20 We next consider the contention that the officers seized Lombrano without reasonable suspicion. He asserts that “the seizure in this instance occurred when police yelled an order for Mr. Lombrano to stop,” but, at that time, “nothing was known by the officers concerning Mr. Lombrano.” Lombrano misunderstands the point at which the officers seized him.
¶ 21 “[T]o effect a seizure, an officer must make a show of authority, and the citizen must actually yield to that show of authority.” State v. Kelsey C.R., 2001 WI 54, ¶ 33, 243 Wis.2d 422, 626 N.W.2d 777. Here, the police made a show of authority when Boyack directed Lombrano to stop. See id. Lombrano, however, did not yield. He fled. Accordingly, the officers did not seize him until they physically stopped him in flight. See id.
¶ 22 We turn, then, to whether the officers had reasonable suspicion allowing them to seize Lombrano as he fled. “[E]vasion and flight ... can properly give rise to reasonable suspicion when viewed in the totality of the circumstances.” Young, 294 Wis.2d 1, ¶ 75, 717 N.W.2d 729. Here, Lombrano changed direction when he saw the squad car, behavior that Boyack immediately noted and viewed as suspicious. A subject's decision to alter his or her course at the sight of an officer may contribute to an officer's reasonable suspicion. See State v. Williamson, 58 Wis.2d 514, 518, 206 N.W.2d 613 (1973). Moreover, when Lombrano bicycled into the officers' view a second time, Fager thought Lombrano appeared to be “circling the area,” an area where a man had reportedly wrestled a telephone from a woman just twenty minutes earlier. Unusual and ambiguous behavior can contribute to reasonable suspicion under the totality of the circumstances. See State v. Waldner, 206 Wis.2d 51, 60–61, 556 N.W.2d 681 (1996).
¶ 23 Additionally, the lateness of the hour—here, one o'clock in the morning—may properly contribute to an officer's reasonable suspicion. See State v. Allen, 226 Wis.2d 66, 74, 593 N.W.2d 504 (Ct.App.1999). “[T]he reputation of an area is another factor in the totality of the circumstances equation.” Id. In this case, the officers described the neighborhood as a high crime area. Finally, the training and experience of the police officers is relevant. Id. Both Boyack and Fager drew on many years of law enforcement experience in making their observations and assessing Lombrano's behavior.
¶ 24 In light of the totality of the circumstances here, Lombrano's decision to flee rather than to comply with the officers' show of authority gave rise to reasonable suspicion justifying further inquiry. The officers were therefore entitled to detain Lombrano and investigate. See Colstad, 260 Wis.2d 406, ¶ 8, 659 N.W.2d 394. Moreover, given Lombrano's flight, the officers were entitled to exert reasonable physical restraint to permit them to carry out the investigation. See United States v. Sokolow, 490 U.S. 1, 10–11, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (reasonable to initiate an investigative stop by taking hold of a subject about to get into a taxicab). Indeed, the right to make an investigative stop “would mean little if the officer could not restrain a suspect who attempts to walk away from the investigation.” See State v. Goyer, 157 Wis.2d 532, 538, 460 N.W.2d 424 (Ct.App.1990).
¶ 25 We turn to the claim that the “plain touch” doctrine did not justify seizing the shotgun in Lombrano's backpack. We reject the argument.
¶ 26 “The ‘plain touch’ exception to the warrant requirement is an extension of the ‘plain view’ doctrine.” State v. Buchanan, 178 Wis.2d 441, 449, 504 N.W.2d 400 (Ct.App.1993). The parties agree that the exception consists of three elements:
(1) the evidence must be in plain view; (2) the officer must have a prior justification for being in the position from which he or she discovers the evidence in ‘plain view’; and
(3) the evidence seized ‘in itself or in itself with facts known to the officer at the time of the seizure, must provide probable cause to believe there is a connection between the evidence and criminal activity.
See id. (citation, quotation marks, and brackets omitted). When these elements are satisfied, an officer may seize evidence without a warrant. See id. at 449–50, 504 N.W.2d 400.
¶ 27 Lombrano concedes that “elements 1 and 3 are present. The firearm was in plain view/touch and the nature of the firearm was immediately obvious to Fager.” Lombrano asserts, however, that the police did not have prior justification for the touching that revealed the firearm because he believes the police lacked reasonable suspicion to stop him. As we have explained, Lombrano is wrong. His flight, coupled with the circumstances surrounding it, gave rise to reasonable suspicion in this case. See Young, 294 Wis.2d 1, ¶ 75, 717 N.W.2d 729.
¶ 28 Lombrano next argues that, even assuming Boyack acted lawfully in restraining Lombrano, Fager's actions were unlawful because “when Fager made tactile contact with the weapon, Mr. Lombrano had already been seized by Boyack.” We are not persuaded. The trial court found that Lombrano attempted to escape from the officers within two-to-five seconds before Boyack took hold of the bicycle handlebar. Fager testified that only “momentarily later” he too seized Lombrano “to prevent him from fleeing further.” As the Supreme Court has explained, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Under the circumstances here, Fager acted reasonably in assisting Boyack to seize and detain Lombrano.
¶ 29 In sum, the officers lawfully seized Lombrano in flight and took reasonable action to detain him. Upon coming in contact with him, Fager immediately recognized that Lombrano possessed a shotgun. The “plain touch” doctrine therefore applies. See Buchanan, 178 Wis.2d at 449, 504 N.W.2d 400. Accordingly, the trial court properly denied Lombrano's suppression motion.
Judgment affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5.