author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Jeffrey Stout, Defendant-Respondent.

    Court of Appeals

      Nos. 01-0904-CR, 01-0905-CR.

      Oral argument December 5, 2001.

    Decided January 23, 2002.

    2002 WI App 41
    (Also reported in 641 N.W.2d 474.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general. There was oral argument by Warren D. Wein-stein.

    On behalf of the defendant-respondent, the cause was submitted on the brief of and oral argument by James L. Fullin, assistant state public defender.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 4-22-02.

   BROWN, J.

¶ 1. The first question is whether the police entry into the apartment in this case can be justified under the Terry doctrine where the statute and case law specify that the doctrine only applies to police-citizen confrontations in a public place. We hold that the doctrine only applies to stops made in a public place and police may not enter an abode based on Terry. The second issue is whether police must first have reasonable suspicion that someone inside a dwelling has committed a crime as a condition precedent to asking the owner for consent to enter and search the premises. We hold that there is no such condition precedent. Regardless of whether there is reasonable suspicion of criminal activity within a dwelling, the police can ask for permission to enter and the owner has the right to say "no." That is the extent of it and we reverse the trial court's holding to the contrary. We remand with directions that the trial court determine whether there was consent for the police to enter. If so, then consistent with the reasons set forth hereafter in this opinion, the resultant seizure was valid.

¶ 2. Jeffrey Stout was charged in two separate cases with possession of cocaine, with intent to deliver, with a penalty enhancer, in violation of Wis. Stat. §§ 961.41(lm)(cm)l and 961.49 (1999-2000), and burglary of a building, in violation of Wis. Stat. § 943.10(l)(a). He filed motions to suppress in each case, seeking to suppress evidence seized and confessions he made after his arrest. After a hearing, the trial court granted the motions to suppress.

¶ 3. At the hearing, Officer Rick Birkholz testified that he received a phone call from a concerned citizen. The caller did not give a name or identifying information and the call was not recorded. The caller identified a white male wearing specific clothing named "Jeff whom the caller had seen selling cocaine on the street in the area of the Viking Bar located near Douglas Avenue. The caller claimed to. see "Jeff enter the side door at 1405 Douglas Avenue.

¶ 4. Birkholz responded to that address; when he arrived he was joined by uniformed officers responding to a complaint of loud music. Birkholz met Mary Millhollen on the stairs. He described "Jeff and asked if the person was in the building. Millhollen motioned upward toward her apartment. Birkholz asked if he could go look and, according to Birkholz, Millhollen said "I don't care" or words to that effect. Millhollen knocked on the door and said, "[I]t's me." Yusef Buckley, known to Birkholz from prior drug contacts, opened the door.

¶ 5. Birkholz observed an individual, later identified as Stout, matching the tipster's description seated on a couch in the living room facing the door. As Birkholz and the uniformed officers entered the apartment, Stout made a rapid movement with his right hand toward the area of his pants pocket. Birkholz testified that it appeared to him that Stout was going for something in his pocket. He feared Stout had a weapon and was concerned for his safety and the safety of others.

¶ 6. Birkholz quickly moved forward, drew his own weapon and, with his free hand, pulled Stout to his feet and placed him against the wall where he patted Stout down for weapons. During the pat-down he felt a baggie with a rock-like substance in it. Based on his training and experience, he believed the object to be crack cocaine. He removed the item and found a clear baggie which contained numerous individually wrapped whitish rock-like substances and cash.

¶ 7. Birkholz took Stout into custody. A full body search yielded pull tabs — gambling tickets sold in bars. At the police station, Stout was given his Miranda rights, after which he confessed to a burglary.

¶ 8. The trial court suppressed the cocaine, the pull tabs and the confession, ruling them to be the unattenuated fruits of a Terry stop-and-frisk for which the police lacked reasonable suspicion of criminal activity. In particular, the court held that an investigative stop occurred at the instant that the door to the apartment opened and Birkholz observed Stout, but before Stout reached for his pants pocket. The court further held that at the time the door opened, the only information available to Birkholz was the anonymous telephone call which did not provide reasonable suspicion of criminal activity in the absence of independent police observation of incriminating behavior.

¶ 9. When reviewing a motion to suppress evidence, we will uphold the trial court's findings of fact unless they are clearly erroneous. State v. Fields, 2000 WI App 218, ¶ 9, 239 Wis. 2d 38, 619 N.W.2d 279. However, the application of constitutional principles to the facts is a question of law that we decide de novo without deference to the trial court's decision. Id. A major question throughout this controversy has been whether Stout was stopped at the moment the police appeared at the door or only after he made the furtive gesture. The resolution of this issue drives the outcome of the case because once a person is "seized," the officers' conduct in doing so is constitutional only if they reasonably suspect the person of wrongdoing. See United States v. Mendenhall, 446 U.S. 544, 551-52 (1980). The correctness of the legal characterization of the facts in the record is also a matter for our independent review. Id. at 551 n.5.

¶ 10. The Fourth Amendment does not invalidate all searches and seizures but only those that are unreasonable. U.S. Const. amend. IV; Florida v. Jimeno, 500 U.S. 248, 250 (1991). Searches and seizures conducted without a warrant are per se unreasonable under the Fourth Amendment, subject to some exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372 (1993). The government bears the burden of establishing by a preponderance of the evidence that a warrantless search falls within one of the exceptions. United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000). One exception is when a police officer observes behavior that he or she reasonably believes is suspicious, the officer may briefly stop the person to inquire and may pat-down or frisk the person to check for weapons if the officer reasonably believes the person is armed and endangers the safety of the officer and others. Dickerson, 508 U.S. at 372-73 (summarizing the holding of Terry). Another exception is when a person consents to a search "because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so." Jimeno, 500 U.S. at 250-51.

¶ 11. Our first task is to determine which exception, if any, applies to the warrantless search in this case. The State argues that this is not a typical Terry stop based on reasonable suspicion provided by an informant's tip, although the tip "certainly led to the chain of events here." The State posits instead that the investigator had "consent inside the apartment from the person who lived there." Thereafter, "it was the actions of Mr. Stout that led to his own stop and the subsequent frisk of him." The trial court noted the distinctive fact in this case — that the stop occurred in a dwelling rather than a public place:

Let me ask you this question, you're basing your argument to a great extent upon the fact that the police had the authority to be where they were. They were given consent you say to go into the apartment and it was lawful for them to be there.... Now normally when we talk about investigative stops or Terry stops we talk about them being made in a public place, even the statute 968.28 codifies the right of the police to stop someone in a public place.

¶ 12. However, the trial court did not pursue this line of reasoning to inquire whether the Terry doctrine was even applicable to justify police entry into an apartment. Instead, the trial court made a legal conclusion that an investigative stop occurred when the police entered the apartment for the sole purpose of making contact with Stout. The only basis for the stop was the telephone call with no independent observations by police that would have led them to believe Stout was engaged in illegal activity. The trial court made no explicit factual or legal ruling about consent, apparently because it found that issue to be legally irrelevant: "I don't think that the controlling factor is that Ms. Millhollen said she didn't care if Investigator Birkholz went up to take a look for the defendant. It's not as if he was there for some other disconnected valid purpose." The trial court also stated that the actions of Birkholz "constitute an investigatory stop or certainly the functional equivalent."

¶ 13. We understand the trial court to he implicitly making the following legal characterizations: first, that the Fourth Amendment allows police officers to cross the threshold of a dwelling to make an investigatory stop based on reasonable suspicion, and second, police must have reasonable suspicion as a predicate to seeking consent. These statements do not reflect the law in Wisconsin and we address each in turn.

¶ 14. With respect to the first statement, the United States Supreme Court has never held that a warrantless entry into a private residence may be justified by a Terry investigatory stop based on reasonable suspicion provided by an informant's tip. To the contrary, the Supreme Court extended the Terry doctrine's reasonable suspicion standard within the confines of a dwelling only when lawful entry had already been obtained. See Maryland v. Buie, 494 U.S. 325, 337 (1990). We are convinced that this is also the law in Wisconsin. For example, in State v. Rodriguez, 2001 WI App 206, 247 Wis. 2d 734, 634 N.W.2d 844, review denied, 2001 WI 117, 247 Wis. 2d 1035, 635 N.W.2d 783 (Wis. Oct. 23, 2001) (No. 00-2546-CR), we addressed whether a warrantless entry into a home is justified when an individual flees from an officer attempting to conduct an investigative stop. Id. at ¶ 22. We concluded that the suspect's flight from the officer constituted, at best, reasonable suspicion, id., and as the concurring opinion clarified, reasonable suspicion, even coupled with exigent circumstances, is not sufficient to justify a warrantless home entry; probable cause and exigent circumstances are required. Id. at ¶ 26. Also on point is State v. Munroe, 2001 WI App 104, 244 Wis. 2d 1, 630 N.W.2d 223, in which officers obtained Munroe's consent to enter his hotel room by telling him that they were there to check his identification. Id. at ¶ 5. Once they determined that his identification was valid, they asked for permission to search his room. Id. In a footnote, we explicitly refused to sanction the trial court's use of the Terry doctrine authorizing brief investigative stops to justify talking to Munroe in his motel room about drugs. Id. at ¶ 13 n.4 ("[B]oth Terry and § 968.24 authorize such stops in public places, not in homes or- hotel rooms.").

¶ 15. Based upon Rodriguez, Munroe, and the explicit language in Wis. Stat. § 968.24 that a "law enforcement officer may stop a person in a public place," we conclude that under Wisconsin law, Terry applies to confrontations between the police and citizens in public places only. For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry. State v. Rodgers, 119 Wis. 2d 102, 107, 349 N.W.2d 453 (1984).

¶ 16. Having concluded that the entry into the apartment cannot be based on a Terry investigative stop, we now address the consent issue. The trial court appeared to hold that police cannot request consent to enter without at least an articulable suspicion to believe that there is criminal evidence or activity where the police seek to enter. This is why the court did not make any explicit findings regarding consent; it was irrelevant in the absence of "some other disconnected valid purpose" for the detective's presence. We disagree with this view of the law.

¶ 17. We hold that there is no Fourth Amendment requirement of reasonable suspicion as a prerequisite to seeking consent to enter a dwelling. We find support for this holding in federal automobile search cases. In Ohio v. Robinette, 519 U.S. 33, 39-40 (1996), the United States Supreme Court held that as a matter of Fourth Amendment jurisprudence, the voluntariness of a driver's consent to search, requested without articu-lable suspicion, cannot be made to depend upon his or her being told by the police that if he or she refuses to consent to the search, he or she will be free to go. The proposition that reasonable suspicion is not required as a basis for seeking consent is apparently the majority view respecting the mandate of the Fourth Amendment of the Federal Constitution. State v. Carty, 753 A.2d 149, 153 (N.J. Super. Ct. App. Div. 2000); see also 3 Wayne R. LaFave, Search and Seizure § 8.1 n.8, at 597 (3rd ed. 1996). In Wisconsin, our supreme court has stated that the law of search and seizure under the state constitution conforms to that developed by the United States Supreme Court under the Fourth Amendment. State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998). We therefore apply the federal approach to our state law and conclude that reasonable suspicion is not a prerequisite to an officer's seeking consent to enter a private dwelling.

¶ 18. We conclude, therefore, that Birkholz could ask permission to enter the apartment without a reasonable suspicion that criminal activity was afoot. Providing that the police did in fact receive such a valid permission, they had a right to enter the apartment even if the sole purpose for being there was to question Stout. After scrutinizing the record, however, we do not find any indication that consent was established or that Stout conceded the consent issue. Indeed, the issue of consent seemed to have been cast aside by the trial court and the prosecutor did not thereafter pursue the matter. For example, at one point the court indicated that it was unclear as to the nature of the consent conveyed to the police: "I'm not certain exactly what it is they asked consent to go into her apartment to make contact with Mr. Stout." [sic] Nor did the court make a ruling regarding Millhollen's authority to grant consent. "I don't know that the record ever really established that this was in fact her apartment." In its reply brief, the State contends that Stout failed to raise the consent issue in the trial court and therefore he has forfeited any claim of error as to that issue. In light of the sparse record showing a factual basis for consent and the trial court's digression from the issue altogether, we remand to the trial court for explicit factual and legal findings on the validity of consent granted to the officers.

¶ 19. We next address whether the entry of the officers to the apartment, assuming Millhollen's consent, effected a seizure of Stout, thereby implicating the Fourth Amendment. Relying on California v. Hodari D., 499 U.S. 621 (1991), and State v. Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, 626 N.W.2d 777, the State argues that even if there was a show of authority at the door, no seizure occurred in the absence of submission to the authority. Stout responds that these cases involve fleeing suspects and are inapplicable to this case. He states that "[t]here is not a shred of evidence in this record to suggest that Mr. Stout did not submit to the show of authority by police. Certainly Mr. Stout did not attempt to escape them like Hodarf D. and Kelsey C.R. did."

¶ 20. In Mendenhall, the United States Supreme Court provided guidance as to what might constitute a seizure even where the suspect does not attempt to flee. In language applicable to this case, the Court stated:

[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, . the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Mendenhall, 446 U.S. at 554-55 (footnote and citations omitted). We now review the relevant facts in this case to determine whether, under the Mendenhall criteria, Stout was "seized" prior to the furtive gesture.

¶ 21. The trial court made a factual finding that when Birkholz entered the apartment he neither said nor announced anything. Therefore, nothing in his tone of voice could have made Stout feel compelled to remain. Similarly, prior to the furtive gesture, there was no physical contact between the officers and Stout. Stout argues, however, that the presence of three officers, two in uniform and one with sidearm drawn, was sufficient to establish a stop and seizure. The trial court's findings of historical fact, however, contradict Stout's view that Birkholz drew his weapon as he entered the room. We detail the trial court's factual findings:

As Investigator Birkholz stepped through the door and took several steps simultaneously, [sic] With that he observed the defendant who was still seated on the couch make a motion. The motion was described as moving his right hand quickly toward his right pants pocket or toward his pants. That occurred according to Investigator Birkholz simultaneously with his stepping forward through the door and into the apartment. Investigator Birkholz became concerned for his safety and believed that the defendant may have been reaching for a weapon. As a result Investigator Birkholz drew his own weapon and with his free hand pulled the defendant to his feet and placed him against the wall where he then proceeded to frisk him or to do a pat down for weapons.

This portion of the record indicates that these events evolved in an extremely compressed time frame; it also clarifies that Birkholz did not enter the apartment with a weapon drawn. Thus, we are left with the presence of three officers in the room and the issue of whether their presence, absent the display of a weapon, physical contact or use of language, was sufficient to establish a seizure. Under these circumstances, we conclude that a reasonable person in Stout's position would have no reason to believe he or she was not free to leave. Assuming the officers were present under the cloak of valid consent, their initial brief encounter at the door to the apartment was nothing more than an inoffensive encounter between a citizen and police that intruded upon no constitutionally protected interest.

¶ 22. Based on the foregoing analysis, and on the premise that the officers had consent, we determine that no seizure occurred until after Stout's gesture toward his pants pocket. After that point, Birkholz drew his weapon and placed Stout against the wall to frisk him. We now address the constitutionality of the frisk at this point in the confrontation.

¶ 23. The State argues the seizure was a Terry frisk for weapons justified by reasonable suspicion that Stout was armed and dangerous. According to the State, Birkholz, having a legitimate right to be in the apartment, allegedly developed a reasonable suspicion that Stout was attempting to draw a weapon when he reached for his pants pocket. Stout responds that Birkholz did not have a reasonable suspicion because the "bare bones" anonymous tip was uncorroborated by independent police observation of criminal activity.

¶ 24. Preliminary to this analysis, we make the following observation. Notwithstanding our holding that investigative stops must be made in a public place, it is entirely consistent with the Terry doctrine to allow a frisk under certain circumstances once the police have lawfully gained entry to a private dwelling. The different treatment lies in the distinction between the two types of police work, the stop and the frisk, and the different purposes underlying them. The stop serves to investigate crime and therefore must be based on a reasonable suspicion of criminal activity, but a frisk is different. A frisk serves to prevent injury and is therefore based on a reasonable suspicion that the person is armed. See United States v. Bonds, 829 F.2d 1072, 1074 (11th Cir. 1987) (discussing the justifications for the separate components of the Terry stop-and-frisk). A lawful frisk does not always flow from a justified stop, United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988); the standard is whether a reasonably prudent officer in the circumstances would be warranted in the belief that his or her safety or that of others was in danger. Terry, 392 U.S. at 27. These safety concerns may arise wherever an officer legitimately encounters an individual, whether in a public place or in a private residence or hotel room.

¶ 25. In Buie, for example, the United States Supreme Court extended the Terry frisk doctrine to a private residence when the police swept the house for dangerous persons while effecting an in-house arrest pursuant to an arrest warrant. Buie, 494 U.S. at 334. The sweep, based only on reasonable suspicion, was upheld. Id. at 337. The Buie Court focused on a concern for police safety in the confines of a suspect's dwelling. Id. at 333. Terry, an on-the-street stop, involved similar safety concerns. Terry, 392 U.S. at 24 ("[I]t would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.").

¶ 26. The protective search was upheld in Buie because the police had a legitimate right to enter the home and "[o]nce inside, the potential for danger justified a standard of less than probable cause for conducting a limited protective sweep." Buie, 494 U.S. at 334 n.l. We conclude from this that when the police have lawfully entered a dwelling with valid consent and have a reasonable suspicion that a suspect is armed, a Terry pat-down for weapons is permissible. See United States v. Flippin, 924 F.2d 163, 167 (9th Cir. 1991) (upholding frisk of suspect in motel room who consented to police entry but then grabbed bag, creating reasonable belief in officer that she was attempting to arm herself).

¶ 27. We now consider the legitimacy of the frisk of Stout which must be based on Birkholz having a reasonable belief or suspicion that Stout was armed and presently dangerous. Ybarra v. Illinois, 444 U.S. 85, 92-93 (1979). In this case, the facts forming the predicate of reasonable belief include the anonymous tip and the furtive gesture. The facts known to Birkholz conveyed through the tip included the information that "Jeff1 had been personally observed selling drugs at a specific location and had been observed entering a building. The State argues that when Birkholz entered the apartment and personally verified an individual present, fitting the description provided by the tipster who then reached for his pants pocket, these facts justified a reasonable officer in suspecting that Stout was armed. See State v. Guy, 172 Wis. 2d 86, 96, 492 N.W.2d 311 (1992) (weapons are often tools of trade for drug dealers). Stout argues, and the trial court agreed, that verification of innocent details, without personal observation of criminal activity, does not provide reasonable suspicion to justify a frisk.

¶ 28. We note that at the time of the trial court's decision, State v. Williams, 225 Wis. 2d 159, 591 N.W.2d 823 (1999) CWilliams I), had been vacated and remanded by the United States Supreme Court for further consideration in light of its holding in Florida v. J.L., 529 U.S. 266 (2000). Thus, the trial court did not have the benefit of the Wisconsin Supreme Court's subsequent decision in State v. Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106 (Williams II), cert. denied, 122 S. Ct. 343.

¶ 29. In Williams II, our supreme court addressed whether an anonymous tip containing a contemporaneous report of drug trafficking, combined with independent observations and corroboration of details from the tip, justified a stop and frisk. Id. at ¶ 2. In assessing the indicia of reliability surrounding the tip, the court considered that the tipster described the basis for her knowledge of the criminal activity, id. at ¶ 33, the tipster put her identity at risk by the manner in which she contacted the authorities, id. at ¶¶ 34-35, the police corroborated significant, if innocent, details of the tip, id. at ¶ 39, and the police observed a hand gesture that raised concerns of contraband or weapons, id. at ¶ 43.

¶ 30. In this case, as in Williams II, we have the personal observation of a concerned citizen caller that criminal activity was taking place. Although the tip was not recorded, there is no evidence disputing the fact that the call was made to the COP House, which citizens frequently called because they knew detectives worked there. In addition, Birkholz corroborated significant, if innocent, details of the tip: a person wearing the clothes described was in fact located at the address given by the tipster. Additionally, Millhollen corroborated that a person known as "Jeff' was in her apartment. Finally, and most significantly, Birkholz corroborated a fact independent of the tip, giving him reason to believe Stout was attempting to arm himself — Stout reached toward his pocket upon seeing the officers enter the apartment.

¶ 31. We hold that this collective information entitled Birkholz to conduct a pat-down search for weapons. Although there may have been an innocent reason for Stout's movement, it was also reasonable for Birkholz to suspect that Stout was attempting to reach for a weapon. This belief was objectively reasonable in light of the tip suggesting that Stout was engaged in selling cocaine, coupled with the officer's knowledge that persons engaged in selling narcotics frequently carry firearms. Guy, 172 Wis. 2d at 96. We conclude that the content of the tip, Birkholz's corroboration of the facts in the tip, and his independent observation of suspicious behavior were sufficient to justify the frisk of Stout.

¶ 32. In conclusion, we determine that Birkholz's approach at the apartment door was not a Terry investigative stop based upon a reasonable suspicion that a person inside was engaged in criminal activity. Under Wisconsin law, Terry stops are limited to confrontations between police and citizens in public places. In addition, the appearance of Birkholz and two uniformed officers at the door was not a sufficient show of authority to constitute a seizure within the Fourth Amendment. We remand this case to the trial court for particularized factual and legal findings regarding the validity of the consent given to Birkholz to enter the apartment. We further instruct, however, that if the trial court finds such consent to be valid, no seizure occurred until after Stout's furtive gesture, at which point Birkholz could reasonably believe, based on the facts known to him at the time, that Stout might be armed and dangerous.

By the Court — Orders reversed and cause remanded with directions.

        Terry v. Ohio, 392 U.S. 1 (1968).

       All references to the Wisconsin Statutes are to the 1999-2000 version.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       We also noted, without deciding, that such flight might satisfy the requirements for an on-the-street Terry stop, but it would not justify entry into the home. State v. Rodriguez, 2001 WI App 206, ¶ 13, 247 Wis. 2d 734, 634 N.W.2d 844, review denied, 2001 WI 117, 247 Wis. 2d 1035, 635 N.W.2d 783 (Wis. Oct. 23, 2001) (No. 00-2546-CR).

       A case on point is State v. Stankus, 220 Wis. 2d 232, 582 N.W.2d 468 (Ct. App. 1998). We analyzed that automobile case as a consent case rather than a Terry search case. Stankus, 220 Wis. 2d at 236 n.l. Indeed, we expressed doubt as to the existence of reasonable suspicion under the facts of that case, id., but did not have to directly address the point under the consent analysis. Instead, the analysis focused on whether the consent was voluntary under the totality of the circumstances and not the product of duress or coercion, express or implied. Id. at 237. With respect to whether an officer has the right to ask for consent to search, we stated: "[A]n officer has a right to ask for consent to search and the individual has a right to say no," so long as consent is received and not extracted. Id. at 239.
      Although we rely on automobile cases on the consent issue, we find their reasoning equally applicable to cases where police seek consent to enter and search a dwelling. The fact that police ask permission to search a "castle" rather than an automobile makes no difference to the analysis. In each case, a person is giving up his or her right to privacy by consent.

       Applying the law to the facts in that case, the Court held that no "seizure" occurred when federal drug enforcement agents approached a suspect at the airport because the agents wore no uniforms and displayed no weapons. United States v. Mendenhall, 446 U.S. 544, 555 (1980). Furthermore, Menden-hall was not seized "simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official." Id.

       By contrast, in Ybarra v. Illinois, 444 U.S. 85 (1979), the Supreme Court addressed the question of whether the police could pat-down a patron of a tavern which was legitimately being searched. The police frisked every person in the bar solely as a safety precaution. Id. at 88. The Court held that the frisk of Ybarra was not supported by a reasonable belief that he was armed and presently dangerous when,
      [u]pon seeing Ybarra, [police] neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover ... Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening.

        Id. at 93.

       In Williams II, the police received an anonymous tip indicating that individuals were selling drugs from a particular automobile in the parking lot of an apartment building. State v. Williams, 2001 WI 21, ¶ 4, 241 Wis. 2d 631, 623 N.W.2d 106 (Williams IT), cert, denied, 122 S. Ct. 343. The tipster provided her address but not her name. Id. The police located the vehicle and in addition observed Williams reach down and behind the passenger seat as they approached. Id. at ¶ 8.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    In re Return of Property in State v. Bergquist: State of Wisconsin, Appellant, v. Kirk J. Bergquist, Respondent.
    Court of Appeals

      No. 01-0814.

      Submitted on briefs November 19, 2001. —
    Decided January 23, 2002.

    2002 WI App 39
    (Also reported in 641 N.W.2d 179.)

      On behalf of the appellant, the cause was submitted on the briefs of G. Richard White, district attorney, and Meri C. Larson, assistant district attorney, of Eau Claire.
    On behalf of the respondent, the cause was submitted on the brief of Steven H. Gibbs of Hertel & Gibbs, S.C. of Eau Claire.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. The State appeals from an order requiring it to return two guns to Kirk Bergquist. The State argues that pursuant to Wis. Stat. § 968.20(lm)(b), the guns cannot be returned to Bergquist because he committed a crime involving their use. The circuit court ordered the guns returned to Bergquist after concluding that forfeiture of the guns would violate the United States Constitution's prohibition of excessive fines. We conclude that nonreturn of weapons used in the commission of a crime, pursuant to § 968.20(lm)(b), constitutes a forfeiture subject to the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. Because the State's appeal is based solely on its theory that the Excessive Fines Clause is inapplicable, the State chose not to argue, in the alternative, that the forfeiture in this case was not an excessive fine. Accordingly, we affirm the order without addressing the merits of whether the forfeiture of Bergquist's guns would be excessive under the Eighth Amendment.

Background

¶ 2. At issue is the return of two guns that were seized from Bergquist after neighbors reported that he fired the guns toward their property. Bergquist was originally charged with two counts of recklessly endangering safety, contrary to Wis. Stat. § 941.30(2), but later pled no contest to one count of disorderly conduct, a Class B misdemeanor.

¶ 3. At the plea hearing, the State argued that the guns must be forfeited pursuant to Wis. Stat. § 968.20(lm)(b). Bergquist argued that the guns should be returned to him because they were not used in the commission of the crime of disorderly conduct and because their forfeiture would violate the Excessive Fines Clause.

¶ 4. In support of his second argument, Bergquist presented evidence that the total value of the two guns is between $5,000 and $7,150. He argued that because the maximum fine for disorderly conduct is $1,000, and the fine imposed in Bergquist's case was $100, forfeiture of the guns would be excessive.

¶ 5. The circuit court concluded that the guns had been used in the commission of a crime and were therefore subject to Wis. Stat. § 968.20(lm)(b). However, the court concluded that forfeiture of the guns would be grossly disproportionate to the maximum penalty for the crime and therefore unconstitutional under the Excessive Fines Clause. Accordingly, the court ordered that the guns be returned to Bergquist. The circuit court denied the State's motion to rescind its order and this appeal followed.

Standard of Review

¶ 6. At issue is whether the nonreturn of weapons used in the commission of a crime, pursuant to Wis. Stat. § 968.20(lm)(b), constitutes a forfeiture subject to the Excessive Fines Clause of the Eighth Amendment. Resolution of this issue requires us to interpret § 968.20, as well as the Eighth Amendment as applied to the states through the Fourteenth Amendment. See State v. Hammad, 212 Wis. 2d 343, 348, 569 N.W.2d 68 (Ct. App. 1997) (assuming applicability of Eighth Amendment to states). Statutory and constitutional interpretations are questions of law that we review de novo. See State v. City of Oak Creek, 2000 WI 9, ¶ 18, 232 Wis. 2d 612, 605 N.W.2d 526 (interpretation of a constitutional provision is subject to independent review); State v. Dean, 163 Wis. 2d 503, 510, 471 N.W.2d 310 (Ct. App. 1991) (interpretation of a statute is a question of law reviewed de novo).

Discussion

¶ 7. We begin our discussion with Wis. Stat. § 968.20, entitled "Return of Property," which governs the disposition of seized property. The statute provides in relevant part:

(1) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under sub. (lm) or (lr) or s. 173.12 or 173.21 (4), returned if:
(a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or
(b) All proceedings in which it might be required have been completed.
(lm) (a) In this subsection:
1. "Crime" includes an act committed by a juvenile or incompetent adult which would have been a crime if the act had been committed by a competent adult.
2. "Dangerous weapon" has the meaning given in s. 939.22 (10).
(b) If the seized property is a dangerous weapon or ammunition, the property shall not be returned to any person who committed a crime involving the use of the dangerous weapon or the ammunition. The property may be returned to the rightful owner under this section if the owner had no prior knowledge of and gave no consent to the commission of the crime. Property which may not be returned to an owner under this subsection shall be disposed of under subs. (3) and (4).

¶ 8. Although the term "forfeiture" does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture. See In re Return of Property in State v. Perez, 2001 WI 79, ¶ 61, 244 Wis. 2d 582, 628 N.W.2d 820. In Perez, our supreme court considered whether a person who is convicted of carrying a concealed and dangerous weapon under Wis. Stat. § 941.23 (1997-98) has "committed a crime involving the use of the dangerous weapon," as that phrase is used in Wis. Stat. § 968.20(lm)(b), so that a dangerous weapon seized from the person may not be returned. See id. at ¶ 1. The court concluded that "the legislature intended forfeiture of dangerous weapons in this situation." Id. at ¶ 61 (emphasis added). The court also refers to § 968.20(lm)(b) as a "forfeiture statute" several times. Id. at ¶¶ 59, 60.

¶ 9. We are convinced that even though Wis. Stat. § 968.20(lm)(b) does not contain the word "forfeiture," it prescribes one. The determinative issue, therefore, is whether the statute prescribes a forfeiture subject to the Excessive Fines Clause.

I. The Excessive Fines Clause is applicable if the forfeiture's purpose is, in part, punishment.

¶ 10. The Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, as punishment for an offense. Austin v. United States, 509 U.S. 602, 609-10 (1993). Austin recognized that the critical inquiry in deciding whether the Excessive Fines Clause applies to a forfeiture statute is not whether it is based in civil or criminal law, but rather whether the forfeiture is punishment. See id. at 610-11, 622. Even if the forfeiture statute serves multiple purposes, the Excessive Fines Clause applies if the forfeiture serves in part to punish. Id. at 610, 618.

II. The Excessive Fines Clause applies here because the purposes of Wis. Stat. § 968.20(lm)(b) include punishment.

¶ 11. Applying the Austin analysis here, we conclude that the Excessive Fines Clause applies to Wis. Stat. § 968.20(lm)(b). In State v. Williams, 148 Wis. 2d 852, 858, 436 N.W.2d 924 (Ct. App. 1989), we recognized that § 968.20(lm)(b) satisfies two legitimate police power objectives: deterrence and preventing the same firearms from being used again in criminal activities. In Perez, our supreme court agreed with this assessment and stated:

The first purpose of [Wis. Stat. § 968.20(lm)(b)] is deterrence, which is one of the principal objectives of the criminal law. The criminal code increases the penalty for an offender who commits a crime while possessing, using, or threatening to use a dangerous weapon. Wis. Stat. § 939.63. The increased penalty is intended to discourage the use of dangerous weapons in the commission of crimes by creating fear of additional punishment. Logically, the loss of dangerous weapons through forfeiture is also intended to deter the use of dangerous weapons in the commission of crimes. Conversely, the return of dangerous weapons to persons who have committed crimes with them undermines deterrence. If people understand the risk of forfeiture on top of criminal prosecution, they are more likely to comply with the law.

Perez, 2001 WI 79 at ¶ 54. This language convinces us that the goal of the statute is, in part, punishment. Therefore, § 968.20(lm)(b) is subject to the Excessive Fines Clause.

¶ 12. Our conclusion that the statute provides punishment is reinforced by the fact that Wis. Stat. § 968.20(lm)(b) protects innocent gun owners whose guns are used in the commission of a crime. If the gun owner "had no prior knowledge of and gave no consent to the commission of the crime," then the gun is returned to the owner. Wis. Stat. § 968.20(lm)(b). Although the goal of preventing the use of. guns in future crimes could arguably be remedial, the innocent owner provision in § 968.20(lm)(b) provides an element of punishment that prevents us from concluding that the goal of § 968.20(lm)(b) is solely remedial. Cf. In re 1650 Cases of Seized Liquor, 721 A.2d 100, 108 (Vt. 1998) (holding civil forfeiture of transported liquor not punishment because the statute does not give the owner a defense based on innocence, the illegally transported liquor has become contraband and the forfeiture remedy.is part of a scheme to control the transport and delivery of liquor in Vermont).

III. Application of the Excessive Fines Clause.

¶ 13. The circuit court concluded that forfeiture of the guns in this case would be grossly disproportionate to the maximum penalty for the crime and therefore would be unconstitutional under the Excessive Fines Clause. In doing so, the court applied the proportionality test that we applied in State v. Boyd, 2000 WI App 208, ¶ 14, 238 Wis. 2d 693, 618 N.W.2d 251. In Boyd, we explained that courts determine whether a forfeiture violates the Excessive Fines Clause by considering the following factors: (1) the nature of the offense; (2) the purpose for enacting the statute; (3) the fine commonly imposed upon similarly situated offenders; and (4) the harm resulting from the defendant's conduct. See id.

¶ 14. Here, the State offers no argument concerning these factors. Although its approach is consistent with its theory that the Excessive Fines Clause is inapplicable, the result is that the State has failed to contest Bergquist's assertion that forfeiture of his guns would violate the Excessive Fines Clause. Arguments that are not refuted are deemed admitted. Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Accordingly, we affirm without further discussion the circuit court's conclusion that forfeiture of the guns would violate the Excessive Fines Clause and its order that the State return the guns to Bergquist.

By the Court. — Order affirmed.

       All statutory references are to the 1999-2000 version unless otherwise noted.

       The Eighth Amendment to the United States Constitution proclaims: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const, amend. VIII.

       Because we affirm the circuit court's order on these grounds, we do not address Bergquist's argument that the guns need not be forfeited because he did not "use" the guns when he committed disorderly conduct.

       The State does not dispute the value estimates. The testimony suggested that the high value is based in part on the guns' rarity.

       Because Austin recognized that the civil or criminal nature of a forfeiture statute is not determinative, we need not address whether Wis. Stat. § 968.20(lm)(b) is technically a civil or criminal forfeiture statute. See Austin v. United States, 509 U.S. 602, 610-11, 622 (1993).

       This is not the first time we have concluded that a Wisconsin forfeiture statute is subject to the Excessive Fines Clause. Applying the Austin analysis, we concluded that Wis. Stat. § 973.075(l)(b) is subject to the Excessive Fines Clause. See State v. Hammad, 212 Wis. 2d 343, 351-52, 569 N.W.2d 68 (Ct. App. 1997).

       In contrast, the court in In re 1650 Cases of Seized Liquor, 721 A.2d 100 (Vt. 1998), suggested that the Excessive Fines Clause would apply to a forfeiture action brought against the truck that carried the liquor because the Vermont Legislature had chosen to provide an innocent owner defense for the transporter. See id. at 108.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Joseph M. Espinoza, Defendant-Respondent.
    Court of Appeals

      No. 01-1473-CR.

      Submitted on briefs December 6, 2001.

      Decided January 23, 2002.

    2002 WI App 51
    (Also reported in 641 N.W.2d 484.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of John M. Daniels, assistant district attorney of Oshkosh.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Steven P. Weiss, assistant state public defender of Madison.

      Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 4-22-02.

   ANDERSON, J.

¶ 1. The State of Wisconsin appeals from a circuit court order granting Joseph M. Espinoza's motion to dismiss Count 2 of a criminal complaint charging him with knowingly obstructing police officers contrary to Wis. Stat. §§ 946.41(1) and 939.62(l)(a) (1999-2000). Because we agree with the circuit court that the obstruction charge is not supported by the information/allegations contained in the criminal complaint, we affirm.

¶ 2. The facts are undisputed. On August 5, 2000, at approximately 11:23 p.m., Officers Mark Tilkens and Paul Jacobsen of the City of Menasha Police Department were dispatched to a reported theft in progress at 432 Broad Street. Upon arrival at that location, the officers had an opportunity to speak with Julie Martin and her daughter Amy Jolly who indicated that two men were attempting to steal Michael Jolly's car from the parking lot of the apartment building.

¶ 3. The officers then went to look at the vehicle and noticed that the vehicle had been jacked up and off of the ground near the front driver's side and that it appeared as though the front wheel was partially removed. The officers searched the area and could find no other evidence.

¶ 4. About forty-five minutes later, at approximately 12:10 a.m. on August 6, 2000, the officers received a call back indicating that the subjects were again trying to steal the car as they were now crawling through the grass. Upon arrival, the officers spoke with Michael Jolly, who stated that he had just observed a Hispanic male crawling through the grass. He further described the individual as having a dark complexion and long black hair. He stated that he watched the individual flee from the area and run through the front door of the neighboring residence at 436 Broad Street.

¶ 5. Tilkens proceeded to 436 Broad Street and made contact with Espinoza. Both Michael Jolly and Julie Martin later identified Espinoza as the man they had seen crawling through the grass to Michael Jolly's car. Tilkens noticed that there was a car with a flat tire at 436 Broad Street. Espinoza admitted that the car was his girlfriend's, that he had been using it, and that he had gotten a flat tire earlier in the evening.

¶ 6. Espinoza denied being involved in the reported incident with Michael Jolly's car and told the officers that they had the wrong guy. That evening, the officers also made contact with Joseph Gibas, who stated that Espinoza asked him to assist him in stealing a tire. Gibas said that while Espinoza was attempting to remove the tire, Gibas acted as his lookout. He said that a car pulled up and the driver saw them so they ran back to the house. Gibas said that later Espinoza went back a second time to retrieve the jack that had been left behind when they had been scared off.

¶ 7. Espinoza was charged with attempted theft and obstruction. With regard to the obstruction charge, which is the issue on appeal, the criminal complaint states:

Joseph Espinoza denied being involved in the attempt to steal the tire. Joseph Espinoza became quite upset when officers accused him of attempting to steal the tire, and threaten [sic] to sue the officers, telling them that they had the wrong guy.

¶ 8. Espinoza moved to dismiss the obstruction charge, alleging that his mere denial of guilt, in and of itself, was not a sufficient basis for an obstruction charge. The circuit court agreed and dismissed the obstruction charge. The State appeals.

¶ 9. Whether a criminal complaint sets forth sufficient probable cause to justify a criminal charge is a legal determination which we review de novo. State v. Adams, 152 Wis. 2d 68, 74, 447 N.W.2d 90 (Ct. App. 1989). Wisconsin Stat. § 968.01 requires a criminal complaint to meet probable cause requirements to confer personal jurisdiction on the circuit court. State v. White, 97 Wis. 2d 193, 197, 295 N.W.2d 346 (1980). A criminal complaint is a self-contained charge that must set forth facts within its four corners that are sufficient, in themselves or together with reasonable inferences to which they give rise, to allow a reasonable person to conclude that a crime was probably committed and the defendant is probably culpable. State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 12 (1971). To be sufficient, a complaint must only be minimally adequate. State v. Gaudesi, 112 Wis. 2d 213, 219, 332 N.W.2d 302 (1983). This is to be evaluated in a commonsense, rather than a hypertechnical, manner in setting forth the essential facts establishing probable cause. Id. A complaint is sufficient under this standard if it answers the following five questions: (1) Who is charged?; (2) What is the person charged with?; (3) When and where did the alleged offense take place?; (4) Why is this particular person being charged?; and (5) Who says so or how reliable is the informant? White, 97 Wis. 2d at 203.

¶ 10. There is no dispute that the complaint satisfactorily addresses the first, second, third, and fifth questions. The only issue is whether the complaint adequately establishes the reason Espinoza was charged with obstruction. A valid complaint must allege facts in support of each element of the crime charged, which, if proven, would suffice to convict the defendant of the crime charged. See Haugen, 52 Wis. 2d at 796-97. The crime of obstruction has four elements:

1. that the accused knowingly gave false information to an officer;
2. that the officer was acting in an official capacity;
3. that the officer was doing an act with lawful authority, and;
4. that the defendant intended to mislead the officer in the performance of his or her duty.

Wis JI — CRIMINAL 1766A; Wis. Stat. § 946.41. Elements two and three are supported by the facts in the complaint. The portion of the complaint in dispute relates to elements one and four and states:

Joseph Espinoza denied being involved in the attempt to steal the tire. Joseph Espinoza became quite upset when officers accused him of attempting to steal the tire, and threaten [sic] to sue the officers, telling them that they had the wrong guy.

The question therefore is whether the facts in the complaint support elements one and four of the crime of obstruction. That is, do the facts in the complaint support a finding that Espinoza knowingly gave false information to the officers (element one) with the intent to mislead the officers in the performance of their duty (element four).

¶ 11. Wisconsin Stat. § 946.41 states in relevant part:

(1) Whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority, is guilty of a Class A misdemeanor.
(2) In this section:
(a) "Obstructs" includes without limitation knowingly giving false information to the officer.. . 'with intent to mislead the officer in the performance of his or her duty....

¶ 12. Wisconsin Stat. § 946.41 permits conviction for obstruction of an officer under circumstances where efforts to intentionally mislead an officer may be involved. Peters v. State, 70 Wis. 2d 22, 29, 233 N.W.2d 420 (1975). Nevertheless, our supreme court held in Peters that before a charge is made under § 946.41, the district attorney should have sound reasons for believing that statements made by a suspected defendant to the police were knowingly and intentionally made for the purpose of deceiving and misleading the police, and not simply out of a good faith desire to defend against an accusation of crime. Peters, 70 Wis. 2d at 29.

¶ 13. The holding in Peters is instructive although not directly on point (because it deals with a situation where the defendant provided a false alibi to the police). See id. at 26-29. The issue before us, whether a denial can establish probable cause for the charge of obstruction, is one of first impression in Wisconsin. We therefore take into consideration that statutes in other jurisdictions, which have the similar purpose of punishing one who knowingly or willfully gives false information to a police officer with the intention of misleading him or her in the performance of his or her official duties, have been generally construed to exclude prosecution for statements made by a defendant in defense of an accusation of a crime.

¶ 14. For example, in People v. Brooks, 367 N.E.2d 236, 239 (Ill. App. Ct. 1977), the court held that the Illinois obstruction of justice statute excepts the exculpatory denials falsely made by a defendant in answer to police questioning in regard to his or her own involvement in a crime. In Brooks, two defendants were convicted in a bench trial of obstructing justice. Id. at 236. The conviction arose from an incident at a Rockford, Illinois, filling station. Id. A car with three men and a woman pulled into a gas station and there was a disagreement between the station attendant and the occupants. Id. After further altercation, the attendant went into the station to call the police. Id. When the attendant came back out, he attempted to detain the car and broke its antenna as the car was driven away. Id. One of the occupants of the car fired three shots, wounding a friend of the station attendant. Id. at 236-37.

¶ 15. From a description of a distinctive blue and white Ford, late 1950's model, with the name "Brooks" on the windshield, given by the victims, the police identified a car answering the description shortly after the incident. Id. at 237. The police stopped the car and Charles E. Brooks and Gene N. Williams were the only occupants in the car. The police found a pistol with three discharged shells and two live cartridges in the cylinder on the street approximately one and one-half blocks from the car. The car's antenna was broken. Williams and Brooks were arrested. Id.

¶ 16. Both defendants were questioned after being given Miranda warnings and signing waivers. Brooks, 367 N.E.2d at 237. Brooks was asked whether he was at the station on the date of the occurrence. Id. He answered that he was not. Id. He was asked whether he had been in a fight at a service station; he said that he had not. Id. He was asked whether there had been other people in the car besides himself and Williams; he said no, just he and Williams. Id. Brooks said he had only been in Rockford for about ten minutes when he was stopped, was not in a gas station, did not shoot anyone, did not know of anyone that did shoot someone, and did not know about the gun. Id.

¶ 17. Williams was similarly questioned and said that he did not know anything about the incident, that he did not shoot anyone, that no one in the car shot anyone and that there was no one in the car but he and Brooks. Both defendants were eventually convicted of obstructing justice. Id.

¶ 18. On appeal, the issue was whether false statements to the police as to the participation of the defendants and others in a felony is an obstruction of justice under the statute. Brooks, 367 N.E.2d at 236. The defendants argued that since they were arrested, jailed and charged with a serious felony, their protestations of innocence in response to police interrogation could not be made the basis of a prosecution for obstructing justice. Id. at 237. At the time the answers were made which formed the basis for the conviction, each defendant had been charged by complaint with the offense of attempted murder. Id. at 237-38. The defendants were expressly told that they were being questioned about the gas station shooting. Id. at 238.

¶ 19. The Brooks court held that it was "clear" that "the defendants furnished false information to the interrogating officers." Id. at 237. The court then noted that "[tjruthful answers that the shooting was the act of an accomplice would necessarily inculpate defendants on the attempt[ed] murder charge. Similarly any truthful admission as to the gun or the presence of the one who used it at the scene would have implicated defendants." Id. at 238. The court then concluded that the legislature did not intend such a broad result as to include within the statute all false answers or false statements which a defendant utters intending to exculpate himself or herself against a charge of a crime and to prevent his or her prosecution. Id.

¶ 20. We note that unlike the court in Brooks, the court here did not even make a finding that Espinoza furnished false information to the officers. The court indicated that it remains unknown whether Espinoza was untruthful unless Espinoza is convicted of the crime of attempted theft. The Brooks court did make a finding that the defendants' statements were untruthful yet upheld their ability to make them without penalty. Like the defendants in Brooks, Espinoza was a clear target of the police investigation. Like the defendants in Brooks, an affirmative answer from Espinoza would have implicated him in the crime under investigation. The Brooks court concluded that the legislature did not intend such a broad result as to include within the statute all false answers or false statements which a defendant utters intending to exculpate himself or herself against a charge of a crime and to prevent his or her prosecution. Id. We also believe that the Wisconsin legislature did not intend such a broad result and adopt this reasoning.

¶ 21. The State argues that "Espinoza's denial of involvement in a crime which there is probable cause to believe he committed, as a matter of law, establishes probable cause that he also committed the crime of o[b]structing." This broad, sweeping contention disregards the principle of Peters, which states that before a charge is made under Wis. Stat. § 946.41, the district attorney should have sound reasons for believing that statements made by a suspected defendant to the police were knowingly and intentionally made for the purpose of deceiving and misleading the police, and not simply out of a good faith desire to defend against an accusation of crime. Peters, 70 Wis. 2d at 29. We must keep in mind: "The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime." Sherman v. United States, 356 U.S. 369, 372 (1958).

¶ 22. It seems that the intent of the legislature in Wis. Stat. § 946.41 was to prevent the waste of time, energy and expense involved in having law enforcement officers running down false leads concerning criminal conduct. Doubtless the legislature intended to circumscribe conduct which would frustrate or thwart the police function. The State makes no claim that Espinoza's mere denial of wrongdoing thwarted the police function. And though truth and morality may have required Espinoza to answer in the affirmative when he was questioned regarding the tire incident, we cannot say that the law required him to do so.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The obstruction statute applicable at the time of Peters v. State, 70 Wis. 2d 22, 29, 233 N.W.2d 420 (1975), is substantially the same as the current version.

         Miranda v. Arizona, 384 U.S. 436 (1966).

       The applicable Illinois statute is substantially similar to the applicable Wisconsin statute and states in pertinent part:
      31-4. Obstructing Justice. A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:
      (a) furnishes false information^]

        People v. Brooks, 367 N.E.2d 236, 236 n.l (Ill. App. Ct. 1977).

       We do not suggest that at sentencing the circuit court cannot consider a defendant's cooperation or lack of cooperation during the investigation leading to the issuance of criminal charges. See State v. Thompson, 172 Wis. 2d 257, 264-65, 493 N.W.2d 729 (Ct. App. 1992).


author: FINE, J.

text:
    In the Matter of the Protective Placement, with Guardianship, of Judith G.: Kindcare, Inc., Petitioner-Respondent, v. Judith G., Appellant.
    Court of Appeals

      No. 00-3450.

      Submitted on briefs January 9, 2002.

    Decided January 29, 2002.

    2002 WI App 36
    (Also reported in 640 N.W.2d 839.)

      On behalf of the appellant, the cause was submitted on the briefs of Carol J. Wessels of SeniorLAW/Legal Action of Wisconsin, Inc., Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Janet F. Resnick of Resnick & Yamat, S.C., Milwaukee.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.
   FINE, J.

¶ 1. Judith G. appeals from an order for protective placement under Wis. Stat. § 55.06, which directed that she be "placed in the least restrictive placement commensurate with her needs as designated by the Milwaukee County Department on Aging." Ms. G. has since died. We decide the appeal nevertheless because of the importance of the issue it raises and, given the age and health condition of many of the persons for whom protective placement is sought, the issue may otherwise evade appellate review. See State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 725, 416 N.W.2d 883, 889 (1987). Moreover, the liability of Ms. G.'s estate for the costs associated with her protective placement may turn on our decision. See Ethelyn I.C. v. Waukesha County, 221 Wis. 2d 109, 120-121, 584 N.W.2d 211, 216 (Ct. App. 1998) (although subject of a protective placement under Wis. Stat. § 56.06(11) may be liable for costs of that placement, subject not liable if the "initial detention was without a legal basis under the statutory guidelines").

¶ 2. As material to this appeal, Wis. Stat. § 55.06(ll)(a) permits a guardian to have a ward taken into immediate protective custody if, from the guardian's "personal observation... it appears probable" that the ward "will suffer irreparable injury or death ... as a result of... infirmities of aging... if not immediately placed" in protective-placement custody. Wisconsin Stat. § 55.06(11)(b) requires that "[u]pon detention, a petition shall be filed under [Wis. Stat. § 55.06] sub. 2 by the person making such emergency placement and a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays and legal holidays, to establish probable cause to believe the grounds for protective placement under sub. (2)." Wisconsin Stat. § 55.06(2) permits certain persons, including guardians, to:

[P]etition the circuit court to provide protective placement for an individual who:
(a) Has a primary need for residential care and custody;
(c) As the result of.. . infirmities of aging... is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to oneself or others.

¶ 3. The issue presented by this appeal is whether the circuit court loses competence to adjudicate a person's need for protective placement if the probable-cause hearing is not held within seventy-two hours after the person was taken into custody, or whether, as the trial court determined, the seventy-two-hour clock can be reset by the simple expedient of filing a new petition for protective placement. We hold that the circuit court loses competence if the probable-cause hearing is not held within seventy-two hours after the person is first taken into custody, and that the mere filing of a new petition does not start the clock anew. Accordingly, we reverse.

I.

¶ 4. The following are the undisputed facts that are material to this appeal. On March 6, 2000, the circuit court determined after a hearing that Ms. G. was, as phrased in the March 29, 2000, order entered on that determination, "incapable of caring for herself by reason of the infirmities of aging and senile dementia and [was] a proper subject for a limited guardianship." The circuit court appointed Kindcare, Inc., as the corporate "guardian of the person and estate of' Ms. G. See Wis. Stat. §§ 880.33(5m) & 880.35 (approved nonprofit corporations may be appointed as guardian of the person and estate of an incompetent). The March 29th order directed Kindcare to review Ms. G.'s then living arrangements "utilizing the criteria of least restrictive placement."

¶ 5. On May 2, 2000, Kindcare filed a petition seeking Ms. G.'s temporary emergency protective placement, alleging that she was "a suitable person" under Wis. Stat. § 55.06(11). On May 2, 2000, Kindcare also filed a petition for protective placement against Ms. G. On May 3, 2000, Kindcare moved Ms. G. from where she was living to the skilled-nursing area of the Jewish Home and Care Center in Milwaukee. Kindcare did not get a court order authorizing the move, and a probable-cause hearing in connection with the move was not held within seventy-two hours of the move. Kindcare filed an amended protective-placement petition on May 16, 2000.

¶ 6. Ms. G. sought to have the amended petition for protective placement dismissed because of the circuit court's failure to hold a probable-cause hearing within seventy-two hours. The matter was heard by the circuit court on June 23, 2000. Although Kindcare represented to the circuit court that Ms. G. consented to being moved to the Jewish Home and Care Center, Ms. G.'s counsel disagreed, contending that Ms. G. was moved "against her will."

¶ 7. The circuit court ruled at the June 23rd hearing that moving Ms. G. on May 3, 2000 triggered the need for a seventy-two-hour probable-cause hearing under Wis. Stat. § 55.06(ll)(b). As noted, there was no such hearing. Accordingly, the circuit court dismissed "without prejudice" the amended petition for protective placement filed against Ms. G. and granted her petition for habeas corpus. Kindcare then indicated that it would simply "refile" the petition, which it did that day. Neither party contends that anything in Ms. G.'s condition changed between May 3, 2000, and June 23, 2000. The June 23rd petition is substantively identical to the amended petition that was filed on May 16, 2000.

¶ 8. June 23, 2000, was a Friday. The circuit court set the probable-cause hearing under Wis. Stat. § 55.06(11)(b) for Monday, June 26, 2000. At that time, Ms. G. moved to dismiss the June 23rd petition. The circuit court denied her motion. After taking testimony from Kindcare's executive director, the circuit court found probable cause for the May 3, 2000, move. A four-day jury trial was held in mid-July, 2000, and Ms. G. was found to be "in need of protective placement." The jury also found that "a nursing home setting" was "the least restrictive environment" for Ms. G. The order for protective placement from which this appeal was taken was entered on the verdict.

II.

[I, 2]

¶ 9. Whether a circuit court may adjudicate the merits of a protective-placement petition filed under Wis. Stat. § 55.06(11) is a matter of statutory analysis that we review de novo. State ex rel. Sandra D. v. Getto, 175 Wis. 2d 490, 493, 498 N.W.2d 892, 893 (Ct. App. 1993). We start with the statutory mandate that a guardian may not protectively place a ward without following the procedures set out in Wis. Stat. § 55.06. Wis. Stat. § 880.33(7) ("A finding of incompetency and appointment of a guardian under this subchapter is not grounds for involuntary protective placement. Such placement may be made only in accordance with s. 55.06.").

¶ 10. As we have seen, there are two ways under § 55.06 that a guardian may seek a ward's protective placement. First, the guardian may file a petition for protective placement. Wis. Stat. § 55.06(2). If this route is followed, the ward may not be protectively placed unless there is a finding "by clear and convincing evidence that the individual to be placed is in need of placement." Wis. Stat. § 55.06(7).

¶ 11. Second, a guardian may seek to have the ward "immediately placed" if "from personal observation ... it appears probable" that the ward "will suffer irreparable injury or death... as a result of. . . infirmities of aging" if not taken into custody immediately. Wis. Stat. § 55.06(ll)(a). This emergency protective placement is governed by Wis. Stat. § 55.06(ll)(b), which provides:

Upon detention, a petition shall be filed under sub. (2) by the person making such emergency placement and a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays and legal holidays, to establish probable cause to believe the grounds for protective placement under sub. (2).

If the court finds probable cause for the emergency detention, the court "may order temporary placement up to 30 days pending the hearing for a permanent placement." Wis. Stat. § 55.06(ll)(c). Thus, a person taken into emergency custody under § 55.06(ll)(a) may not be held for more than thirty days after a finding of probable cause without a final trial on whether permanent protective placement is warranted. N.N. v. County of Dane, 140 Wis. 2d 64, 69, 409 N.W.2d 388, 390-391 (Ct. App. 1987) (thirty-day time limit under § 55.06(11)(c.) is mandatory).

¶ 12. The legislature imposed tight timetables in connection with the involuntary detention of persons alleged to be incapable of caring for themselves in recognition of the significant liberty interest a person has in living where and under what conditions he or she chooses. See Sandra D., 175 Wis. 2d at 500, 498 N.W.2d at 896. Thus, unless those time limits are obeyed a court loses competence to decide whether that liberty interest should give way in the face of more significant considerations. Id., 175 Wis. 2d at 497, 498 N.W.2d at 895. The specific issue raised by this appeal is a matter of first impression: whether the seventy-two-hour clock established by Wis. Stat. § 55.06(11)(b) may be re-started if: 1) a probable-cause hearing required by that section is not held within seventy-two hours of the emergency detention; 2) as a result, the court dismisses "without prejudice" the petition filed under § 55.06(ll)(b); and 3) the person or entity that seeks to retain in custody the subject of the petition for more than seventy-two hours files a new petition. We hold that it may not.

¶ 13. There are three decisions that light our path: N.N., State ex rel. B.S.L. v. Lee, 115 Wis. 2d 615, 340 N.W.2d 568 (Ct. App. 1983), and Sandra D. In N.N, as noted, the circuit court did not hold the final protective-placement trial within thirty days as mandated by Wis. Stat. § 55.06(11)(c). N.N., 140 Wis. 2d at 69 n.2, 409 N.W.2d at 391 n.2. This required dismissal of the protective placement petition. Id., 140 Wis. 2d at 69-70, 409 N.W.2d at 390-391. We observed, however, that nothing discussed in that decision was "a bar to recommencement of proceedings for protective placement or such other remedies as may be appropriate." Id., 140 Wis. 2d at 70, 409 N.W.2d at 391. We neither analyzed nor decided, however, the permissible limits of whatever "recommencement" might be attempted.

¶ 14. In B.S.L., a juvenile under the age of fourteen was placed at an inpatient facility under Wis. Stat. ch. 51. B.S.L., 115 Wis. 2d at 617-618, 340 N.W.2d at 569. Under chapter 51, the juvenile had to be discharged within forty-eight hours of his or her fourteenth birthday if he or she requested it, unless the authorities filed an emergency-detention affidavit. Id., 115 Wis. 2d at 618, 340 N.W.2d at 569. Chapter 51 also required that the committed juvenile undergo two psychiatric evaluations before the final detention hearing. Id., 115 Wis. 2d at 617, 340 N.W.2d at 569. Four days before his fourteenth birthday on January 22, 1983, B.S.L. made the necessary request to be released from custody. Id., 115 Wis. 2d at 618, 340 N.W.2d at 569. At a timely hearing, the circuit court found probable cause for B.S.L.'s continued commitment and appointed two psychiatrists to examine B.S.L. Id., 115 Wis. 2d at 619, 340 N.W.2d at 569. The examinations were never made. Ibid. As a result, the final commitment hearing, scheduled for February 11, 1983, was never held, and the circuit court dismissed the case and ordered B.S.L. discharged. Ibid. County officials "immediately filed a second affidavit for emergency detention alleging essentially the same facts as the first affidavit." Ibid. The court again found probable cause to continue to hold B.S.L. in custody, and scheduled a final commitment hearing. Ibid.

¶ 15. B.S.L. appealed, contending that the dismissal was an adjudication on the merits under Wis. Stat. Rule 805.14(7) ("Unless the court in its order for dismissal otherwise specifies for good cause recited in the order, any dismissal under this section operates as an adjudication upon the merits.") and that, therefore, the principles of claim preclusion barred the proceedings on the second emergency-detention affidavit. Id., 115 Wis. 2d at 619-620, 340 N.W.2d at 570. The juvenile also contended that, as phrased by B.S.L., he "had a constitutional due process right to an examination by two independent specialists and access to their reports forty-eight hours before the final commitment hearing." Id., 115 Wis. 2d at 621, 340 N.W.2d at 570. He asserted that filing the second emergency-detention affidavit to give the psychiatrists more time thus invaded his liberty interest. Ibid.

¶ 16. In connection with B.S.L.'s claim-preclusion argument, we held that the dismissal was ordered before any testimony was heard at the scheduled final hearing and that, therefore, the dismissal was not on the merits. Id., 115 Wis. 2d at 620-621, 340 N.W.2d at 570. We disagreed with his due-process claim, noting that "[a] 11 time limits required by statute were met during the first proceeding for continued detention," and that the first proceeding was dismissed because of a "procedural defect." Id., 115 Wis. 2d at 621, 340 N.W.2d at 570. We also rejected his related argument that permitting "the filing of a second affidavit after dismissal of the first leads to abuse of the commitment process," observing that "[a]ny initial proceeding may be dismissed with prejudice if the trial court believes the process is being abused." Id., 115 Wis. 2d at 622, 340 N.W.2d at 571.

¶ 17. Sandra D., like N.N., concerned the thirty-day limit in Wis. Stat. § 55.06(ll)(c). We held that the circuit court lost competence to proceed with the final hearing on a petition for protective placement because that hearing was not held within the thirty days. Sandra D., 175 Wis. 2d at 493, 498 N.W.2d at 893. Before the case came to us on appeal, non-compliance with the thirty-day limit (as well as a fourteen-day limit in an applicable provision of Wis. Stat. ch. 51 that is not at issue in this case) was papered over by the filing of successive petitions for protective placement. Id., 175 Wis. 2d at 495-499, 498 N.W.2d at 894-896. We observed that although we were sympathetic with the County's view that Sandra D. needed protective placement, "the next respondent in a commitment or placement proceeding who is similarly deprived of his or her liberty for twice — or three or four times — the thirty-day limit may not be." Id., 175 Wis. 2d at 499, 498 N.W.2d at 896. Accordingly we held that the successive petitions in that case violated Sandra D.'s due process rights against unlawful involuntary detention. Ibid. Distinguishing B.S.L.'s observations that the filing of the second affidavit in that case was not an abuse of the commitment process, and that trial courts were empowered to dismiss with prejudice if they believed that "the process is being abused," we held that the finding of probable cause that Sandra D.'s condition satisfied the protective-placement criteria did not "cure" the failure to hold the final hearing within the thirty-day period. Sandra D., 175 Wis. 2d at 500-501, 498 N.W.2d at 896. We noted that Wis. Stat. § 55.06(11) "does not allow continued, multiple periods of detention upon repeated assurances that probable cause exists for the subject's temporary, emergency detention." Id., 175 Wis. 2d at 501, 498 N.W.2d at 896-897.

¶ 18. As we have seen, Wis. Stat. § 55.06(7) prevents the detention of the subject of a protective-placement petition unless there has been a finding by clear and convincing evidence that the person "is in need of placement," "[ejxcept for emergency placement or temporary placement under" Wis. Stat. 55.06(11). (Emphasis added.) Here, and unlike the situation in B.S.L., there was no compliance with the "time limits required by [the] statute [here, § 55.06(ll)(b)] . . . during the first proceeding for continued detention." See B.S.L., 115 Wis. 2d at 621, 340 N.W.2d at 570. Rather, as in Sandra D., a successive petition was filed here only to avoid the time limits. But § 55.06(ll)(b) requires that "[u]pon detention... a preliminary hearing shall be held within 72 hours ... to establish probable cause to believe the grounds for protective placement under sub. (2)." Thus, the hearing must be held within seventy-two hours of the detention, not the filing of the petition. The filing of the successive petition was a nullity because Ms. G., by then, had been in custody for more than seventy-two hours without a probable-cause hearing. See N.N., 140 Wis. 2d at 69, 409 N.W.2d at 390-391.

¶ 19. This comports with the legislature's intent to limit significantly the time the subject of a protective-placement petition must spend in involuntary detention without court approval. See Sandra D., 175 Wis. 2d at 500, 498 N.W.2d at 896. Timing the running of the seventy-two hours from either the filing of the initial petition or, as was done here, from the filing of a successive petition would either dilute or destroy the protection afforded by § 55.06(ll)(b). See Heritage Credit Union v. Office of Credit Unions, 2001 WI App 213, ¶ 18, 247 Wis. 2d 589, 603, 634 N.W.2d 593, 600 ("When construing statutes we are to give them their common sense meaning to avoid unreasonable and absurd results."). Ms. G. did nothing to delay the probable-cause hearing beyond the required seventy-two hours; thus, her continued detention beyond that period was unlawful. See County of Milwaukee v. Edward S., 2001 WI App 169, ¶¶ 5-11, 247 Wis. 2d 87, 90-94, 633 N.W.2d 241, 243-245 (subject of an involuntary commitment petition under Wis. Stat. ch. 51 who creates delay may not argue that hearing held beyond mandatory time limit deprived court of competence). Accordingly, we reverse.

By the Court. — Order reversed.

       Wisconsin Stat. § 55.06(ll)(a) provides in full:
      If from personal observation of a sheriff, police officer, fire fighter, guardian, if any, or authorized representative of a board designated under s. 55.02 or an agency designated by it it appears probable that an individual will suffer irreparable injury or death or will present a substantial risk of serious physical harm to others as a result of developmental disabilities, infirmities of aging, chronic mental illness or other like incapacities if not immediately placed, the person making the observation may take into custody and transport the individual to an appropriate medical or protective placement facility. The person making placement shall prepare a statement at the time of detention providing specific factual information concerning the person's observations and the basis for emergency placement. The statement shall be filed with the director of the facility and shall also be filed with any petition under sub. (2). At the time of placement the individual shall be informed by the director of the facility or the director's designee, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family and the right to have an attorney provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is a child or is indigent. The director or designee shall also provide the individual with a copy of the statement by the person making emergency placement.

       In light of our resolution of this appeal, we do not discuss Ms. G.'s other arguments. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need be addressed).