Preview:

COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                                 This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 18, 2012
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                                                   petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                          Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                   and RULE 809.62.
                                                                                                                                                   Cir. Ct. No.   2009CF3987
Appeal No.                                                                                      2011AP2384-CR
STATE OF WISCONSIN                                                                                                                                 IN COURT OF APPEALS
                                                                                                                                                   DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MARK A. SANDERS,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  and  order  of  the  circuit  court  for
Milwaukee County:   PATRICIA D. McMAHON and REBECCA F. DALLET,
Judges.1   Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
1  The Honorable Patricia D. McMahon entered the judgment of conviction and imposed
sentence.   The Honorable Rebecca F. Dallet entered the order denying Sanders’ postconviction
motion.




No.   2011AP2384-CR
¶1                                                                                         CURLEY, P.J.      Mark A. Sanders appeals a judgment convicting
him of one count of possession of a firearm by a felon and one count of possession
of a firearm by a person subject to a domestic abuse injunction.   He also appeals
an order denying his motion for postconviction relief.   Sanders argues:   (1) that the
circuit court erred in denying his motion to suppress evidence; and (2) that there
was insufficient evidence to support the jury’s verdict.   We affirm.
¶2                                                                                         Sanders first argues that the circuit court should have suppressed a
gun that the police found in a room adjacent to the hallway where he was arrested
because the police did not obtain a warrant before they conducted the search.
Sanders argues that while the police may search a person lawfully arrested and
“the area within his immediate control” without a warrant, the gun was not within
his  immediate  control  after  he  was  arrested  and  handcuffed.    See  Chimel  v.
California, 395 U.S. 752, 763 (1969) (internal quotation marks omitted).
¶3                                                                                         Sanders  reads  Chimel  too  narrowly.    Chimel  teaches  that  “it  is
reasonable  for  [an]  arresting officer  to search the  person arrested in order  to
remove any weapons that the latter might seek to use in order to resist arrest or
effect his escape” and that it is also “entirely reasonable for the arresting officer to
search for and seize any evidence on the arrestee’s person in order to prevent its
concealment or destruction.”   Id.   Chimel explains that the police may also search
the area within the arrestee’s “immediate control” incident to arrest in order to
prevent the destruction of evidence of the crime and protect officers’ safety.   Id.
(internal quotation marks omitted).
¶4                                                                                         In this case, Sanders was apprehended after fleeing the police in the
hallway  of  an  apartment  under  circumstances  that  suggested  that  he  just  hid
evidence of the crime the police were pursuing him for—possession of a firearm—
2




No.   2011AP2384-CR
under bedcoverings in a bedroom from which he emerged as the police entered.
Acting on an informant’s tip that Sanders was armed, the police had approached
Sanders, who was standing outside a residence with another man.    When the
police identified themselves and ordered the men to put their hands in the air,
Sanders ran into the residence.   As he did so, the police saw him adjust something
at his waistband which, based on the officers’ training and experience, suggested
that Sanders was carrying a weapon.   After pursuing Sanders into the house, the
police  encountered  him  near  the  door  of  a  bedroom  and  noticed  that  the
bedcoverings were rumpled in a manner that suggested to the officers, again based
on their experience, that an object may have been recently hidden there.
¶5                                                                                     Under these circumstances, the rumpled bedcovers on the nearby
bed suggested that the gun reported in the tip was likely hidden there.   The police
did not conduct a general search of the house or the room where they located
Sanders; instead, they searched only the bed because they reasonably inferred
from the rumpled bedding that Sanders had just stashed a weapon.   Given the
circumscribed nature of the scope of the police search and the timeframe—just
seconds after entering the house and seeing Sanders and the disturbed bedding—
this search was reasonable as incident to Sanders’ arrest.
¶6                                                                                     Sanders next argues that there was insufficient evidence to support
the jury’s verdict.                                                                    “[A]n appellate court may not substitute its judgment for that of
the trier of fact unless the evidence, viewed most favorably to the [S]tate and the
conviction, is so lacking in probative value and force that no trier of fact, acting
reasonably,  could  have  found  guilt  beyond  a  reasonable  doubt.”     State  v.
Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).   We apply the same
standard of review regardless of whether the evidence is direct or circumstantial.
Id.
3




No.   2011AP2384-CR
¶7                                                                                       Police  Officer  Jon  Osowski  testified  that  he  responded  to  an
informant’s  tip  with  his  partner  Michael  Wawrzyniakowski  and  Officer  Joe
Warner.   They received information from a confidential informant that there was
an armed man dressed in a gray sweater with a white T-shirt underneath in the
area south of 61st Street and Capitol Drive.   They arrived at the location within a
few minutes of receiving the tip and saw Sanders, who fit the description, standing
near the front steps of a residence talking to another person.   The police identified
themselves and ordered the men to put their hands up, but Sanders fled inside the
residence.   Officer Osowski testified that he saw Sanders bend at the waist and
move his hands near his waistband in a manner consistent with someone carrying
a concealed weapon as he turned to run.   Officer Osowski also testified that after
following Sanders into the house, he saw Sanders emerge from the back left side
of the hallway where a bedroom was located.   After placing Sanders under arrest,
Officer Osowski asked Officer Wawrzyniakowski to look in the back left bedroom
where the bed appeared disturbed.   Officer Osowski’s partner went to the bed and
immediately found the gun.
¶8                                                                                       Officer  Wawrzyniakowski  testified  that  he  responded  to  the
informant’s tip with Officers Osowski and Warner.   He testified that Sanders and
another man were in front of a residence when he approached with the other two
officers.   He testified that he ordered the men to put their hands up and that he
handcuffed the other man, who immediately surrendered.   After proceeding into
the house, he saw the disturbed bedcoverings in the back left bedroom, which
suggested to him that something had been hidden there based on his previous
experiences.   He looked and found the gun.   He did not search any other area in
the house.
4




No.   2011AP2384-CR
¶9                                                                                      Finally, the State presented evidence that Sanders had previously
been convicted of a felony and was subject to a domestic abuse restraining order.
The officers’ testimony and the documentation of Sanders’ status as a felon who
was also subject to a restraining order provided more than sufficient evidence for a
reasonable trier of fact to conclude that Sanders was guilty of possession of a
firearm by a felon and possession of a firearm by a person subject to a domestic
abuse  restraining  order.    Therefore,  we  reject  the  argument  that  there  was
insufficient evidence to sustain the conviction.
By the Court.—Judgment and order affirmed.
Recommended for publication in the official reports.
5




No.                                                                                  2011AP2384-CR(D)
                                                                                     ¶10    KESSLER,  J.                  (dissenting).   Chimel  explicitly does  not  permit  a
warrantless search of an area which is not within the “immediate control” of an
arrested person.    The Supreme Court explained both the rationale                   for, and                             the
narrowly drawn limitations of, an area of “immediate control.”
When an arrest is made, it is reasonable for the arresting
officer to search the person arrested in order to remove any
weapons that the latter might seek to use in order to resist
arrest or effect his escape.                                                         …   In addition, it is entirely
reasonable for the arresting officer to search for and seize
any evidence on the arrestee’s person in order to prevent its
concealment or destruction.   And the area into which an
arrestee  might  reach  in  order  to  grab  a  weapon  or
evidentiary items must, of course, be governed by a like
rule.   A gun on a table or in a drawer in front of one who is
arrested can be as dangerous to an arresting officer as one
concealed in the clothing of the person arrested.   There is
ample justification, therefore, for a search of the arrestee’s
person  and  the  area                                                               ‘within  his  immediate  control’-
construing that phrase to mean the area from within which
he  might  gain  possession  of  a  weapon  or  destructible
evidence.
There  is  no  comparable  justification,  however,  for
routinely searching any room other than that in which an
arrest occurs-or, for that matter, for searching through all
the desk drawers or other closed or concealed areas in that
room  itself.     Such  searches,  in  the  absence  of  well-
recognized  exceptions,  may  be  made  only  under  the
authority of a search warrant.
Chimel, 395 U.S. at 762-63 (emphasis supplied).
¶11    Sanders was arrested in the hall.   He was taken by officers to the
kitchen, seated at a table, and handcuffed.   One or more officers remained with
him.   The gun was discovered under a mattress in a bedroom six to eight feet from
the kitchen.




No.   2011AP2384-CR(D)
¶12    A bed, in a bedroom six to eight feet from the kitchen, is not “within
the immediate control” of a handcuffed and guarded arrestee in the kitchen.   In
these circumstances, the bedroom is clearly not an  “area into which  [Sanders]
might reach in order to grab a weapon.”   See id. at 763.   The warrantless search of
the  bedroom  is,  in  my  view,  exactly  the  type  of  search  Chimel  explains  is
prohibited by the Fourth Amendment.   I conclude that Sanders’ motion to suppress
the gun should have been granted and his conviction should be reversed.
2

Download 2011ap002384-cr.pdf

Wisconsin Law