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COURT OF APPEALS DECISION DATED AND RELEASED January 9, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0245-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PHILLIP G. ROBINSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County:
PATRICK J. FIEDLER, Judge. Affirmed.
Before Eich, C.J.,
Roggensack and Deininger, JJ.
PER
CURIAM. Phillip G. Robinson appeals from a judgment of
conviction resulting from a no-contest plea he entered to charges of possessing
cocaine with intent to deliver, as a repeater, contrary to
§§ 161.41(1m)(cm)4 and 161.48(3), Stats.[1] Specifically, Robinson appeals a circuit
court ruling denying his motion to suppress evidence. For the reasons set forth below, we affirm the conviction.
BACKGROUND
In the evening of March
30, 1995, Robinson disembarked at Madison's Badger bus station from a bus
originating in Chicago. He carried no
luggage, but hand-held a plastic bag.
According to police testimony later adduced at a hearing, Robinson
looked nervously about him, scanned the bus parking lot repeatedly, set off on
foot in one direction, then changed direction.
A plain-clothes police officer watching him believed Robinson's behavior
was suspicious. The plain-clothes
officer maintained radio contact with uniformed officers. A uniformed officer approached Robinson and
asked if he would be willing to talk.
Robinson responded by running away into the path of oncoming traffic. Police pursued. Robinson appeared to be reaching for something about his
body. Police, fearing a gun, drew
weapons and shouted at him to stop.
Robinson fell, and when subdued, was revealed to be carrying a cellular
phone, a pager, a quantity of U.S. currency and 100.1 grams of cocaine.
ANALYSIS
Robinson
argues that he was improperly subjected to a Terry[2]-stop
based upon his race. We disagree for
several reasons.
First, Robinson failed
to raise this argument at the circuit court.[3] We do not consider arguments raised for the
first time before this court. Zeller
v. Northrup King Co., 125 Wis.2d 31, 35, 370 N.W.2d 809, 812 (Ct. App.
1985). Second, even if we were to
consider this argument, nothing in the record supports it. Rather, the police testimony made clear that
Robinson's suspicious behavior, not his race, is what focused their attention
upon him.
In addition, we conclude
that Robinson was not subjected to any sort of stop until after he fled. Under Terry, 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." Id. at 22.
One who is clearly identified as a fully uniformed police officer, and
who asks a citizen if the citizen would be willing to talk, is not engaging in
a citizen in a "stop."
Conversely, an officer pursuing a citizen who flees for no apparent
reason is justified in believing that this unusual behavior demonstrates
criminal behavior is afoot. Id. We conclude that no stop took place until
after Robinson fled, at which time a Terry-stop was fully
justified by Robinson's flight.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Chapter 161 was renumbered in part and repealed in part by 1995 Act 448, §§ 243 to 266, effective July 9, 1996. The applicable provisions are now § 961.48(3) and § 961.41(1m)(cm)4.
[3] More
accurately, Robinson affirmatively eliminated race as an issue at the circuit
court, as shown by the following colloquy:
Q [Defense
Counsel] You're not going to tell the
Court that simply because my client is a black male that that in and of itself
is suspicious, are you?
A [Police witness] No.