State v. Wilks

WILLIAM G. CALLOW, J.

This is a review of a decision1 of the court of appeals affirming judgments of conviction for attempted robbery and attempted burglary entered by the Milwaukee county circuit court, Judge Robert W. Landry. We affirm the decision of the court of appeals.

The issues presented are whether a person lawfully held in police custody for a civil violation may be compelled to participate in a lineup on unrelated criminal charges and whether a city of Milwaukee ordinance, *97which prohibits loitering or prowling, is unconstitutionally vague or violative of the fourth amendment to the United States Constitution or art. I, sec. 11, of the Wisconsin Constitution.

At 4:15 a.m. on August 29, 1981, two city of Milwaukee police officers were dispatched to investigate an entry in progress at 4007 North 25th Street, Milwaukee. The officers turned off the headlights on their squad car as they responded to the call. They observed Timothy Wilks standing near the corner of the building at 4007 North 25th Street. Wilks then ran south in the crosswalk across Capitol Drive, passing 15 to 20 feet in front of the squad car. The officers stopped Wilks and asked him his name and address. He answered these questions truthfully. Wilks was then asked what he was doing in the area. He first stated that he was coming home from the bars and then stated that he was just out walking around. One of the officers told Wilks he remembered him from a previous incident where he had been arrested for breaking into a house and raping a woman. Wilks denied that incident and blurted out that he had not committed any burglaries. The officers advised Wilks of the inconsistencies in his story and arrested him for violating Milwaukee Ordinance sec. 106-31(1) (a) (1981) which prohibits loitering or prowling.

Sometime2 after his arrest, Wilks was required to participate in a lineup which involved criminal offenses unrelated to the civil offense which was the basis of his original arrest. As a result of the lineup, Wilks was identified by two women. Alice Ness identified Wilks as the man she found standing in her kitchen without her permission on August 20, 1981. She also identified him *98as the man she saw on her front porch on August 25, 1981. After the man left, Ness discovered that a board which secured the screen to the door had been loosened. As a result of these incidents, Wilks was charged with criminal trespass to a dwelling3 and attempted burglary.4

Evelyn Sandberg identified Wilks as the man she found on her front porch on August 26, 1981. Sandberg stated she asked the man what he wanted, and he responded, “I want your money.” When she replied she had no money, the man kicked in the screen door and grabbed her blouse. Sandberg screamed, and the man fled. As a result of this incident, Wilks was charged with attempted robbery5 as an habitual criminal.6

Wilks moved to suppress the identifications resulting from the lineup on the grounds that there was no probable cause for his initial arrest and that, because his initial arrest had been for a civil violation, it was improper to compel him to participate in a criminal lineup. The trial court denied the suppression motion, concluding that the arrest for the ordinance violation was proper and that it was also proper to subject Wilks to the lineup. The trial court likened the compelled participation in the lineup to a situation where a motorist is stopped for a traffic violation, and as a result of the lawful stop, officers may conduct a search of the vehicle or its occupants. The trial court stated that participation in a lineup is a “realistic imposition” on a citizen who has been placed under arrest. Wilks subsequently pled guilty to attempted robbery and attempted burglary. A judgment of conviction was entered on December 14, 1982.

On appeal, Wilks argued that he was denied his constitutional right to be free from unreasonable seizure *99when he was forced to participate in a lineup following his arrest for the ordinance violation. He also argued that the Milwaukee loitering ordinance was unconstitutionally vague and violated the fourth amendment of the United States Constitution and art. I, see. 11, of the Wisconsin Constitution by authorizing unreasonable seizures. The constitutional challenges to the loitering ordinance had not been raised in the trial court.

The court of appeals affirmed the judgments of conviction. The court concluded there had been probable cause to arrest Wilks on the ordinance violation and that an individual in lawful custody for a civil violation may be required to submit to a lineup for an unrelated criminal offense. 117 Wis. 2d at 504-05. The court of appeals said that Wilks lacked standing to challenge the loitering ordinance on vagueness grounds because Wilks’ conduct at the time of his arrest clearly fell within the “hard core” of the ordinance’s proscriptions. 117 Wis. 2d at 505. The court also found that the ordinance did not authorize unreasonable seizure by allowing officers to arrest an individual without probable cause that he violated the ordinance. Id. at 507. Wilks petitioned this court to review the court of appeals’ decision, and we granted the petition.

The first issue we decide is whether a person lawfully held in police custody for a civil violation may be compelled to participate in a lineup on unrelated criminal charges. The fourth amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Wilks contends that forcing him to participate in a lineup violated his right to be free from unreasonable seizure and that the identification evidence derived from the lineup must be suppressed because it constituted the fruit of an unreasonable seizure.

*100The right to be free from improper search and seizure applies with equal force to those who are civilly arrested as to those who are criminally arrested since the immediate impact on the individual is the same in both cases. State ex rel. White v. Simpson, 28 Wis. 2d 590, 596, 137 N.W.2d 391 (1965). For purposes of this portion of his argument, Wilks concedes that he was lawfully in custody for the ordinance violation, and he does not argue that his initial arrest was an improper seizure. Rather, he contends that the scope of the initially lawful seizure became unreasonable when, during the course of his custody for a civil violation, he was compelled to stand in a lineup on unrelated criminal charges.

The central inquiry under the fourth amendment is the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. Terry v. Ohio, 392 U.S. 1, 19 (1968). In order to assess the reasonableness of a particular seizure, it is necessary to balance the need for the seizure against the invasion which the seizure entails. Id. at 20-21. In conducting this balancing test, the individual’s fourth amendment interest must be weighed against the legitimate governmental interests which will be promoted by the intrusion. Delaware v. Prouse, 440 U.S. 648, 654 (1979). A seizure that is reasonable at its inception may later become unreasonable in scope, and in determining the question of reasonableness, reviewing courts must decide whether the seizure was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 19-20.

The governmental interest at stake in compelling individuals to participate in lineups is identifying perpetrators of crimes. A properly conducted lineup is an *101effective way of securing an accurate identification. Note, Fourth Amendment Implications of Compelling an Individual to Appear in a Lineup Without Probable Cause to Arrest, 45 Fordham L. Rev. 124 (1976). The individual’s interest at stake is his or her personal liberty and expectation of privacy. A lineup is an intrusion upon personal liberty, In Re Melvin, 546 F.2d 1, 5 (1st Cir. 1976), which carries with it the danger of misidentification. United States v. Allen, 408 F.2d 1287, 1288 (D.C. Cir. 1969). In determining the reasonableness of compelling an individual to participate in a lineup, the state’s interest in identifying persons who have committed crimes must be weighed against the individual’s interest in liberty and expected privacy.

Courts have held that, before a person who is at liberty may be compelled to participate in a lineup, there must be probable cause to believe that the individual committed the offense under investigation. In Re Armed Robbery, 99 Wash. 2d 106, 112, 659 P.2d 1092 (1983). “ [W] e must be concerned . . . for the right of ordinary citizens who are not accused or suspected of any crime and who are asked to give several hours of their time to participate in a lineup, to choose freely whether or not they desire to participate.” Butcher v. Rizzo, 317 F. Supp. 899, 903 (E.D. Pa. 1970). On the other hand, courts have held that a person lawfully in custody on a criminal charge may be required to participate in a lineup on an unrelated criminal charge. See, e.g., People v. Hodge, 186 Colo. 189, 526 P.2d 309 (1974) (defendant who was in custody as a suspect in a robbery was placed in a lineup on another unrelated robbery); People v. Hall, 396 Mich. 650, 242 N.W.2d 377 (1976) (defendant in custody on one charge was required to participate in lineup on felony murder). “[C]ourts have generally found no fourth amendment violation where a suspect incarcerated on another charge is ordered into a lineup *102for a crime for which there is no probable cause to arrest him, because the procedure requires no detention without probable cause.” Note, 45 Fordham L. Rev. at 126.

The instant case conforms to neither of the two situations described above since Wilks does not claim he was unlawfully in custody for a civil violation at the time he was compelled to stand in a lineup for unrelated criminal charges. No reported cases have heretofore addressed this issue. In resolving the issue, it is helpful to consider the court’s reasoning in those cases which have upheld compelled participation in lineups for individuals already in custody on criminal charges. In United States v. Anderson, 352 F. Supp. 33 (D.C. D.C. 1972), aff'd., 490 F.2d 785 (D.C. Cir. 1974), the defendant was' lawfully in custody for assault with intent to commit robbery while armed at the time he was placed in a lineup on another unrelated robbery charge. The court held that no court order was required before he could be viewed in a lineup. The court stated:

[W] hen there exists probable cause to detain the suspect and to deprive him of his liberty, he can be viewed by witnesses to other offenses without condition, since such a viewing involves no additional infringement on his liberty. . . . The matter of placing one in a lineup when he is already in detention — whether temporarily under arrest or confined under a long sentence in prison —is not the same as arresting a suspect off the street or from his home. The former is not being deprived of his liberty when placed in a lineup.” 352 F. Supp. at 36.

In Rigney v. Hendrick, 355 F.2d 710 (3d Cir. 1965), cert. denied, 384 U.S. 975 (1966), the defendants were confined to jail pending trial for burglary and other offenses for failure to post bail at the time they were placed in a lineup for burglary and rape. The defendants contended they could not be forced to participate in a lineup for crimes unrelated to those for which they were in custody unless they had first been arrested for the additional crimes. The third circuit disagreed:

*103“The right of the police to investigate unsolved crimes cannot be denied. The scope of investigative measures used by the police necessarily includes identification of the suspected perpetrator by the victim or witnesses. In most cases this is the most positive method of solution. . . . The lineup, however, is not the only means of identifying a suspect; an individual not in custody may be placed under surveillance — he may be viewed on the streets, entering or leaving his home or place of business, at places of amusement, or at any other place where he is not entitled to privacy. . . . There is no law or decision which says that a man, free or incarcerated, has a constitutional right not to be observed and possibly identified as the perpetrator of a crime even though no formal charges have been made.
“The contention made by the appellants that there first must be an arrest before they are taken from their cells to be placed in a lineup has no merit, for the sole physical attribute of an arrest is the taking into custody. Here, it would be anomalous to require an arrest, for the appellants are already in custody.” Id. at 712-18 (citations omitted).

While both Anderson and Bigney involved individuals who were in custody for prior criminal charges at the time they were placed in a lineup, the courts in both cases focused on the fact that, because the defendants were already lawfully detained, requiring them to participate in lineups did not constitute a further deprivation of their liberty. See also People v. Hodge, supra. “We see no difficulty in holding that a person properly detained can be exhibited in a line-up.” 186 Colo, at 191.

In balancing the interests of the state and the individual under the fourth amendment, it is also helpful to consider the privacy interest held by a person in lawful police custody. Once a person has been placed in valid custody, he may be fingerprinted or photographed, and those fingerprints or photographs may be used in the investigation of other crimes. Other courts have found *104no distinction between the use of photographs and the use of lineups as a means of identifying perpetrators of crimes. See, e.g., United States v. Anderson, 352 F. Supp. at 37.

In addition, courts and commentators alike have stated that a person’s expectation of privacy in his or her voice, handwriting, and physical appearance is minimal. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court stated that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Id. at 351.

In United States v. Dionisio, 410 U.S. 1 (1973), the Supreme Court considered the issue whether a grand jury’s directive that subpoenaed persons furnish voice exemplars violated the fourth amendment. The Court concluded it did not.

“In Katz v. United States, supra, we said that the Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public, even in his own home or office. . . .’ 389 U.S., at 351. The physical characteristics of a person’s voice, its tone and manner, . . . are constantly exposed to the public. Like a man’s facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.” Id. at 14.

In State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (1977), this court upheld an order requiring a witness at a John Doe hearing to provide handwriting exemplars, stating, “[t]he amalgam of the holdings of the Supreme Court . . . is . . . that a witness may be compelled to produce exemplars not only of his handwriting and voice, but, in addition, his fingerprints or other nonintrusive or nondegrading physical manifestations or characteristics which are generally open to public view.” Id. at 170.

*105This court has long held that a person cannot harbor any great expectation of privacy in his physical appearance. In Thornton v. State, 117 Wis. 338, 93 N.W. 1107 (1903), a defendant in custody on a rape charge was ordered to turn over his shoe so that it could be compared with a footprint left at the scene of the crime. This court upheld the order, saying:

“[T]he personal appearance of one, his obvious physical characteristics and his attire, are things usually open to observation by others, and from time immemorial testimony by those who have observed them has been received and has been considered in no wise to invade the privacy of the person observed. . . . That a man’s head is bald is a fact ordinarily observed and known by many who come in contact with him. Does it not thereby cease to be one of those private, secret facts which it is an invasion of his right to have observed against his will? May he not, when in custody, be required to remove his hat and thus give the opportunity of observation which has commonly existed for those coming in contact with him? It seems that this must be so.” Id. at 342-43.

, It is also helpful in conducting the balancing test of the state’s and the individual’s interests to consider the degree and extensiveness of the governmental intrusion into a person’s zone of privacy. Courts have held that extreme intrusions will not be allowed into the personal privacy of individuals arrested for civil violations. In Tinetti v. Wittke, 479 F. Supp. 486 (E.D. Wis. 1979), aff’d., 620 F.2d 160 (7th Cir. 1980), the district court held that persons arrested for misdemeanor traffic violations could not be subjected to strip searches unless there was probable cause to believe the offender was concealing weapons or contraband on his body. The court focused on the extreme intrusiveness of strip searches, stating, “ [w] hile the total time involved in a strip search is minimal, the humiliation and embarrassment experi*106enced by the offender are much more long lasting.” Id. at 489. Similarly, courts have been reluctant to allow police intrusions into the privacy of individuals’ homes absent a valid warrant. See, e.g., Welsh v. Wisconsin, 104 S. Ct. 2091 (1984).

While compelling a person held in custody for a civil offense to participate in a lineup may be a greater intrusion into the individual’s privacy than subjecting him or her to fingerprinting or photographing, lineups are clearly less intrusive than either strip searches or warrantless entries into homes. Further, the expectation of privacy in a person’s physical appearance is minimal since no one can reasonably expect that his or her physical characteristics will remain a secret. Finally, requiring someone who is already in custody to stand in a lineup involves no additional deprivation of the person’s liberty.

The state has a valid interest in identifying perpetrators of crimes. Incarcerated individuals have an interest in their personal liberty and expectation of privacy. On balance, however, we conclude in this case that the state’s interest outweighs that of the individual. There is no question but that if Wilks had been in custody for a criminal offense, he could have been required to stand in a lineup for another unrelated criminal charge. We see no distinction between a criminal and a civil arrest for purposes of requiring the incarcerated person to participate in a lineup. Since the person is already in custody, no additional deprivation of liberty is involved. A person who has been placed under valid detention does not have the same expectation of privacy as a person at liberty. The reasonable expectation of privacy in concealing one’s physical appearance is small. Consequently, we hold that a person who is lawfully in custody for a civil offense may be required to participate in a lineup for an unrelated criminal offense.

*107Wilks also argues that the Milwaukee loitering ordinance upon which he was initially arrested is unconstitutionally vague and authorizes unreasonable seizure by allowing officers to make arrests without probable cause that the ordinance had been violated. This issue was raised for the first time on appeal. Consideration of a constitutional issue raised for the first time on appeal is discretionary with this court. In Interest of Baby Girl K., 113 Wis. 2d 429, 448, 335 N.W.2d 846 (1983). “This court has consistently held that it will not entertain a constitutional issue raised for the first time on appeal unless there [are] some compelling reasons for doing so.” Sambs v. Brookfield, 66 Wis. 2d 296, 314, 224 N.W.2d 582 (1975). Because Wilks failed to raise the constitutional challenges to the loitering ordinance in the trial court and because we do not on the record before us find a compelling reason for doing so, we do not address that issue.

By the Court. — The decision of the court of appeals is affirmed.

State v. Wilks, 117 Wis. 2d 495, 345 N.W.2d 498 (Ct. App. 1984).

The record does not disclose the exact date of the lineup. The motion to suppress the eyewitness identification testimony filed by Wilks’ attorney stated the lineup was conducted on August 30, 1981, at 2:45 p.m. This would have been the afternoon of the day following Wilks’ arrest.

Section 943.14, Stats.

Sections 943.10(1) (a) and 939.32, Stats.

Sections 943.32(1) (a) and 939.32, Stats.

Section 939.62, Stats.