State v. Johnson

WEDEMEYER, P.J.

(dissenting). The court today holds that the Fourth Amendment prohibits a police officer from extending "the tips of his toes to the balls of feet" across the threshold of an apartment doorway absent a warrant. This conclusion rests on the majority's assertion that Officer Timothy Klug's position in the threshold of the doorway was an incursion that would not have allowed Donnell Johnson to close the door, and further, was without the appropriate consent. Although I agree with the majority's conclusion that Johnson did not consent to the entry of Officer *236Klug into the apartment, nonetheless, I believe that under the totality of the circumstances, Klug's entry and subsequent actions were reasonable under the Fourth Amendment, and I respectfully dissent.

As noted correctly by the majority, an appellate court will not upset findings of historical fact unless they are clearly erroneous, but will review the trial court's application of constitutional principles to the found facts de novo. State v. Altenburg, 150 Wis. 2d 663, 667, 442 N.W.2d 526, 528 (Ct. App. 1989).

The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make while investigating possible crime. At the suppression hearing, the trial court found that Officer Klug's testimony was so inherently credible that "where the testimony coincides, the Court may accept it, but where it differs, it has to opt for that of Officer Klug." Thus, as Johnson concedes, Klug's testimony establishes the historical facts.

On December 19, 1989, Officers Klug and Robert Paluso were working a Directed Patrol Mission at the West Wells Street apartment building in question. The owners and the manager of the building had given permission for the police to be in the building in an effort to keep drug dealers and purchasers from transacting business within the building. Officer Klug testified that unauthorized individuals would gain entry into the building, kick in the doors of vacant apartments, change the locks, and utilize the apartments as drug-dealing centers. Klug further testified that this particular building was one of the worst drug-dealing buildings in the worst drug-dealing area of the city. In short, of the worst, it was the best.

Officer Klug's job during the Directed Patrol Mission was to field interview anyone in the apartment *237building or surrounding area so as to ascertain the nature of their business. Klug had been working on this particular patrol for about two weeks before the incident in question. The majority of people that he had interviewed did not belong in the building. Approximately 50% of the people questioned had given false identities. Klug testified that a favorite excuse for being in the building was that the individual was there to visit a1 girlfriend. In 75% of the cases, however, this justification turned out to be false.

On the night in question, Officers Klug and Paluso stopped Johnson in the hallway of the building to inquire as to whether he "belonged there." The officers asked Johnson for his name and birth date. Johnson gave them his name and date of birth and stated that he was in the building to visit his girlfriend in apartment 208. Johnson, however, possessed no form of identification. The officers ran a wanted check on Johnson which was delayed several minutes due to the fact that Johnson is a common name. After waiting several minutes, Klug suggested that they proceed to apartment 208 in an effort to verify Johnson's story. Johnson agreed. Upon arriving at the apartment, Klug knocked on the door but there was no answer. Johnson indicated that she must not be home but that he had a key. Klug took the key in an effort to ascertain whether it would work in the door. Johnson, however, stated that he wanted to open the door, whereupon Klug returned the key.

Upon retrieving the key, Johnson proceeded to unlock the door. Johnson then indicated that he would go look for some identification. He proceeded directly into the bedroom of the apartment. Officer Klug remained at the threshold of the door with his feet positioned in such a way as to preclude the door from *238being thrown shut. Johnson contends, and the majority agrees, that this intrusion into the apartment was a violation of the warrant requirement of the Fourth Amendment, and therefore, any evidence seized must be excluded from consideration. I disagree.

The Fourth Amendment1 provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

In Cady v. Dombrowski, 413 U.S. 433, 439 (1973), the United States Supreme Court stated that "[t]he ultimate standard set forth in the Fourth Amendment is reasonableness." Further, in Elkins v. United States, 364 U.S. 206, 222 (1960), the Supreme Court noted that "it can fairly be said that in applying the Fourth Amendment this Court has seldom shown itself unaware of the practical demands of effective criminal investigation and law enforcement." And in Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) *239(citation omitted), the Court, in evaluating the validity of an officer's investigative or protective conduct under the Fourth Amendment noted, the "touchstone of our analysis ... is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." See also Bies v. State, 76 Wis. 2d 457, 468, 251 N.W.2d 461, 466 (1977). Finally, the standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application. Ker v. California, 374 U.S. 23, 33 (1963). Thus, in the world of search and seizures, what is constitutionally correct is ultimately decided by what reasonable expectations of privacy exist and whether the police officer's conduct vis-a-vis the particular expectation was reasonable. Minor intrusions of privacy have never been regarded as fatal.

It cannot be gainsaid that Officer Klug was engaged in an authorized investigation seeking verification of Johnson's identity. He lawfully accompanied Johnson to apartment 208. Johnson opened the door and it remained open. In the context of Klug's knowledge of the premises and his training and experience, plus his mission, Klug positioned himself so that he could successfully complete, without interference, his investigation. He was doing nothing more, nothing less. He was neither invited into the apartment nor was he told to remain in the hallway. The reasonableness of his reaction as an officer versus a layman, is to be tested by the circumstances in which he found himself, keeping in mind his duty as an officer.2

*240I conclude that Klug's position, if however slightly intrusive, is incidental given that the door was open wide enough for him to continually observe Johnson. The acts and gestures of Johnson were of such a nature that even if Klug was outside the apartment standing in the hallway, his professional response in the context of his duties was objectively reasonable in the circumstances in which he found himself.

We cannot divine what techniques are apposite in a criminal investigation, nor ought a reviewing court engage in such an exercise. Our task, given the nature of the appeal, is to determine whether the police officer's conduct was reasonable in the milieu of danger in which he was discharging his professional responsibility. A criminal investigation reasonably, is not a series of slides, any one of which can be isolated and then examined with the precision of an academic scalpel. Rather, it is an interdependent continuum of action and reaction requiring split-second decisions that ought be examined only under the microscope of reasonableness.

Because the majority concludes that Officer Klug's entry into the apartment was illegal, it does not reach the question of whether Klug's subsequent actions in entering the apartment and discovering the evidence at issue was constitutionally flawed. Without belaboring the point, I would hold that the trial court acted appropriately in finding that Klug's subsequent movement into the bedroom was reasonable. Officer Klug testified that while he was watching Johnson search for some identification, Johnson began fumbling for something while looking directly at Klug. Klug explained that he could not see Johnson's right side *241while this fumbling was occurring. Klug stated that he became fearful because of the look in Johnson's eye and because he believed that Johnson was reaching for a gun. Based on these facts, Klug made the split-second decision to enter the room to ascertain what Johnson was doing. The trial court concluded the following regarding Klug's movement into the bedroom:

I can't find that it's unreasonable at all. I think that in this context, not to allow this to be deemed reasonable is to in effect disarm the community and disarm its police officers when certain segments of the community actually asked the police officer to do what he actually did here.

I would hold that the trial court's above statement adequately considered the appropriate considerations and was a sound result.

Finally, I would also conclude that the gun, the cocaine, and the money were properly admitted into evidence under the "plain view" exception to the warrant requirement for searches. State v. Amrine, 157 Wis. 2d 778, 784, 460 N.W.2d 826, 828 (Ct. App. 1990). There is no dispute that when Klug entered the bedroom area the evidence was plainly visible. The gun, a .25 caliber semi-automatic handgun, was lying on the shelf where Johnson had previously been reaching. Under the gun were ten packets of pharmaceutically folded bindles containing white powder that Klug suspected to be cocaine. Lying next to the weapon and cocaine was $260 in cash.

In conclusion, in light of the reasonably perceived danger in which Officer Klug found himself, his minimal intrusion into the apartment of Johnson was both reasonable and appropriate. Although I agree with the majority that the entry was not appropriately based *242upon Johnson's consent, nonetheless, the trial court was correct in its result. See State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985) (where trial court reaches the proper result, but for the wrong reason, the decision will be affirmed). Further, Klug's subsequent actions in entering the apartment and discovering illegal contraband were not constitutionally flawed. Thus, I would affirm.

As an initial matter, we note that the Wisconsin Supreme Court has stated that the search and seizure provisions of the United States Constitution and Wisconsin Constitution are identical. Conrad v. State, 63 Wis. 2d 616, 622, 218 N.W.2d 252, 255 (1974). The supreme court has "consistently and routinely conformed the law of search and seizure under the state constitution to that developed by the United States Supreme Court under the fourth amendment." State v. Fry, 131 Wis. 2d 153, 172, 388 N.W.2d 565, 573 (1986), cert. denied, 479 U.S. 989 (1987).

As noted in the Law Enforcement Code of Ethics, a law enforcement officer's "fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the *240peaceful against violence or disorder; and to respect the constitutional rights of all men to liberty, equality, and justice."