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COURT OF APPEALS DECISION DATED AND RELEASED June 12, 1996 |
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. 95-2096-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
IRVIN STANLEY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Reversed
and cause remanded with directions.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Irvin Stanley appeals from a judgment of conviction of
party to the crime of burglary. We
conclude that the physical evidence was obtained as a result of an illegal
stop. We reverse the conviction and
remand the case.
Stanley and a friend,
Eric Rivera, were observed by a police officer of the City of Waukesha
Police Department hopping over a fence near a residence and entering Stanley's
car in the adjacent parking lot. It was
2:30 p.m. on September 8, 1993.
The officer eventually stopped the car and upon removing the occupants searched
the vehicle, including the trunk. Three
stolen guns were found in the trunk.
Stanley brought a motion
to suppress the physical evidence taken from his car arguing that the stop,
search and arrest were illegal. The
trial court denied the motion to suppress.
Stanley entered an Alford plea[1]
to a burglary charge.
The sole issue on appeal
is whether the police officer's stop of Stanley's vehicle was constitutionally
permissible.[2] Whether an investigatory stop meets
constitutional and statutory standards is a question of law subject to de novo
review by this court. State v.
Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991). When an
appellate court reviews an order denying a motion to suppress the evidence, it
will uphold the trial judge's findings of fact unless they are clearly
erroneous. Id.
In Terry v. Ohio,
392 U.S. 1, 22 (1968), the Supreme Court held that "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."
To make a valid investigatory stop the officer must reasonably suspect,
in light of his or her experience, that some kind of criminal activity has
taken or is taking place. State
v. Richardson, 156 Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990). The police officer "must be able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21.
Here, the police
officer's suspicions were raised by two factors. The first was the officer's observation of the two men hopping
the fence. The officer knew that there
had been thefts from vehicles in that area.
He was concerned that the men might have been involved in a
burglary. The State argues that a
suspicious inference may be drawn from the fence hopping. However, the officer was not acting in
response to a specific, reported crime.
Further, there was no evidence that the men were holding anything when
they hopped over the fence or that they acted suspiciously as they approached
Stanley's vehicle. Absent are
articulable facts which give rise to a reasonable inference that the men were
engaged in criminal conduct.
The officer's second
justification for stopping the vehicle arose after a license check was run on
the vehicle. The vehicle was registered
to Stanley and there were no outstanding warrants related to the vehicle or to
Stanley. The officer recalled that
Stanley had been reported to be a friend of Rivera's. Rivera was a suspect in a shooting and had an active probation
apprehension request. While it was good
police work to remember the friendship between Stanley and Rivera, it did not
justify the stop. The officer had no
idea what either man looked like or whether either was Stanley or Rivera. The officer's hunch that Rivera was in the
car does not rise to the level of a reasonable suspicion justifying a stop.
We reverse the judgment
and remand with directions that Stanley be allowed to withdraw his plea. The order denying the motion to suppress
evidence is also reversed.
By the Court.—Judgment
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.