COURT OF APPEALS
DATED AND FILED
March 17, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
Samuel Q. Hocking,
from a judgment and an order of the circuit court for
¶1 BLANCHARD, J. Following his conviction for possession of a switchblade knife, contrary to Wis. Stat. § 941.24(1), Samuel Hocking appeals the circuit court’s order denying his motion to suppress the knife as evidence. A police officer took the knife from Hocking during a temporary detention, but the officer did not immediately recognize the knife to be an illegal switchblade. The officer then left the scene, forgetting that he was carrying the knife. Upon later realizing that the knife was illegal, the officer cited Hocking for its possession. Hocking argues that the circuit court erred in concluding that the suppression motion should be denied because the knife was, viewed objectively, contraband at the time the officer lawfully took possession of it. The court’s order denying suppression and the judgment of conviction that followed are affirmed.
¶2 Relevant facts are not in dispute, and there are no credibility determinations at issue. Several officers were dispatched to a disturbance at a tavern. Observing Hocking fighting in the tavern, an officer restrained Hocking. This included temporarily placing Hocking in handcuffs. The same officer asked Hocking if he had any weapons. Hocking replied that he had a knife in one of his pockets. The officer located a knife in Hocking’s pocket and removed it, then put the knife in his own pocket “for safekeeping.”
¶3 After investigating the disturbance, the officer released Hocking, without issuing him a citation. Instead of returning the knife to Hocking, it “stayed with me at that time, and I forgot to return it” to Hocking, the officer testified at the suppression hearing. After the officer returned to the police station following the incident, he recalled that he still had the knife. The officer conferred with other officers about the knife, and realized for the first time that it was a switchblade, namely a knife that is illegal to possess because it has a blade that opens by pressing a button, spring, or other device. Police first issued Hocking an ordinance citation for possession of a switchblade, but later voided that in favor of a criminal charge, for reasons not relevant to this appeal.
¶4 The knife outwardly resembles a common lock-blade knife. However, with manipulation it operates as a switchblade. The knife has a sliding switch on its side that functions as a “safety,” so that when one pushes a small silver button near the back of the knife, the blade swings out automatically.
STANDARD OF REVIEW AND LEGAL STANDARDS
¶5 Our standard of review and the framework for our analysis are well established:
review a motion to suppress applying a two-step standard of review. First, we will uphold the trial court’s
factual findings unless they are clearly erroneous. Then, we review the application of
constitutional principles to those facts de novo. The Fourth Amendment protects against
unreasonable searches and seizures.
Under both the
State v. Robinson,
2009 WI App 97, ¶9, 320
to the specific standards that apply to evidence seized during the course of a warrantless
temporary detention under Terry v. Ohio, 392 U.S. 1 (1968), “[w]hile
frisk is not a general evidentiary search, an officer is not required to look
the other way when [the officer] inadvertently discovers evidence of a crime
during the course of a legitimate protective frisk.” State v. McGill, 2000 WI 38, ¶40,
is justified when the officer is lawfully in a position to observe the evidence, the evidence is in plain view of the officer, the discovery is inadvertent, and “[t]he item seized in itself or in itself with facts known to the officer at the time of the seizure, provides probable cause to believe there is a connection between the evidence and criminal activity.”
relevant is case law regarding how courts are to treat the subjective
motivations of police officers in most Fourth Amendment contexts. “An action is ‘reasonable’ under the Fourth
Amendment, regardless of the individual officer’s state of mind, ‘as long as
the circumstances, viewed objectively,
justify [the] action.’” Brigham
City, Utah v. Stuart, 547
in “probable cause analysis, the subjective intent of the officer plays no role
in the totality of the circumstances that a court considers in determining
whether there is probable cause to arrest.”
State v. Kramer, 2009 WI 14, ¶31, 315
applying an objective standard, the question is not what might have been in the
mind of the officer at the time of an alleged Fourth Amendment violation, but
instead what a “reasonably prudent” officer would have done under the
¶10 Hocking concedes that his temporary detention and the initial seizure of his knife were both lawful under Terry. His contention is that from the moment Hocking was no longer temporary detained, the lawful seizure of his knife ended, and the officer was without authority to continue to possess his knife, because the officer had not yet discovered that the knife was contraband. This contention is without merit, because it ignores the objective standard that applies in this context.
cannot reasonably be argued, and Hocking does not argue, that a reasonably
prudent officer would take possession of a weapon, whether it is a knife or a
firearm, and then return that weapon to its owner, without at least briefly
inspecting the weapon to determine whether it constituted contraband. Separately, there was uncontradicted
testimony at the suppression hearing suggesting that the illegal status of the
knife was readily ascertained by officers at the police station. Therefore, a reasonably prudent officer in these
circumstances would have taken the simple step of inspecting the knife and in
doing so would have determined that the officer had probable cause to seize it
as a switchblade, while still possessing it under authority of the Terry
detention, the lawfulness of which is not contested. This was not a container that might hold contraband; the knife was readily
discernable contraband lawfully in the hands in the police. See
¶12 Hocking relies in part on the language of Wis. Stat. § 968.25, which together with § 968.24 are the “stop and frisk” statutes that effectively codify Terry. Hocking relies particularly on the phrases emphasized here in § 968.25:
When a law enforcement officer has stopped a person for temporary questioning pursuant to s. 968.24 and reasonably suspects that he or she or another is in danger of physical injury, the law enforcement officer may search such person for weapons or any instrument or article or substance readily capable of causing physical injury and of a sort not ordinarily carried in public places by law abiding persons. If the law enforcement officer finds such a weapon or instrument, or any other property possession of which the law enforcement officer reasonably believes may constitute the commission of a crime, or which may constitute a threat to his or her safety, the law enforcement officer may take it and keep it until the completion of the questioning, at which time the law enforcement officer shall either return it, if lawfully possessed, or arrest the person so questioned.
¶13 However, this statute does not add to the analysis. The statute does not purport to adjust the “reasonably prudent officer” standard established in the case law, under which a reasonably prudent officer would not have considered the knife to have been “lawfully possessed” by Hocking. The phrase in Wis. Stat. § 968.25 that is highlighted above, by its own terms, does not apply to require return of unlawfully possessed property.
¶14 Hocking asserts that only facts “known to the officer at the moment of the intrusion, and not facts determined subsequently” may
be “considered to determine if a search or seizure is lawful.” This is not the law. Probable cause is an objective standard. As a general rule, the subjective intentions
of arresting officers are immaterial in judging whether their actions were
reasonable for Fourth Amendment purposes. See Devenpeck
v. Alford, 543
¶15 Hocking cites United States v. Place, 462 U.S. 696
(1983), for the proposition that a temporary property seizure made under
authority of Terry, as supported by reasonable suspicion, may violate the
Fourth Amendment when police take too much time in attempting to develop the
probable cause they seek to establish. However,
this case does not involve temporarily seized containers suspected to contain contraband, as in Place.
¶16 For these reasons, the circuit court made no clearly erroneous factual findings, and it is evident that the Fourth Amendment does not require suppression of the knife as evidence. Accordingly, the court’s judgment and order are affirmed.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2009-10). All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.