Wilson v. State

THOMAS, Justice,

dissenting.

I must dissent from the majority opinion in this case. In light of our recent decision in Collins v. State, 854 P.2d 688 (Wyo.1993), and the precedent from the Supreme Court of the United States and other courts applicable in this area, I must conclude the officer’s conduct with respect to Wilson was reasonable in these circumstances, and there was no seizure which would invoke Fourth Amendment concerns.

The question in this case is whether a seizure occurred. That is a question of fact as the majority notes, and the decision of the trial court is not to be disturbed on appeal unless it is clearly erroneous. Furthermore, the majority recognizes our commitment to the view that the evidence is to be viewed in the light most favorable to the district court’s determination. Contrary to the determination of the trial court, however, the majority finds a seizure did occur in this case. It appears the majority endeavors to justify its conclusion as a matter of law, but it clearly is reaching a different finding of fact. The pertinent cases applied to justify this resolution are distinguishable, and the result is different from what those cases would lead one to expect.

The majority opinion sets forth the proper test for determining when a police-citizen encounter is a seizure under the Fourth Amendment which is:

We conclude that 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. See Terry v. Ohio, supra, [392 U.S.,] at 19, n. 16[, 88 S.Ct., at 1879, n. 16]; Dunaway v. New York, 442 U.S. 200, 207 , and n. 6[, 99 S.Ct. 2248, 2253 , 60 L.Ed.2d 824 ]; 3 W. LaFave, Search and Seizure 53-55 (1978). 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.

United States v. Mendenhall, 446 U.S. 544, 554-55 , 100 S.Ct. 1870, 1877 , 64 L.Ed.2d 497 , reh’g denied, 448 U.S. 908 , 100 S.Ct. 3051 , 65 L.Ed.2d 1138 (1980) (footnote omitted).

None of the examples recited in Menden-hall, 446 U.S. at 554-55 , 100 S.Ct. at 1877 , emerge from this record. In fact, a careful reading of other cases the majority relies upon leads to an ineluctable conclusion that the trial court correctly decided the issue. These cases also furnish guidance with respect to the objective standard espoused by the Supreme Court of the United States. California v. Hodari D., 499 U.S. 621 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991). Nothing can be found in this record to demonstrate *227 any seizure of Wilson’s person ever occurred. The contact between the officer and Wilson never went beyond the elicitation of Wilson’s voluntary cooperation so as to become a seizure if measured by any sort of objectivity.

Two of the cases relied upon in the majority opinion point the way to an objective resolution of whether a seizure has occurred when the circumstances, as in this case, remain equivocal in light of the Mendenhall standard. In both United States v. Coggins, 986 F.2d 651 (3rd Cir.1993), and United States v. Wilson, 953 F.2d 116 (4th Cir.1991), the subject made a request to leave and discontinue the contact. Such a request to leave serves as an objective manifestation that the contact no longer is consensual. This record is silent with respect to any such request by Wilson. The majority finds the encounter is divisible into two events, and the initial encounter ended because Wilson, when left unattended, felt free to leave. It even notes, “[ejither Wilson disregarded the police officer’s show of authority or felt sufficiently free to leave because, when left unattended, he limped away from the immediate area where the questioning had occurred.” Op. at 223. It is apparent, because of the intervening emergency situation, the entire encounter was one event, and nothing is present in the record to demonstrate Wilson did not feel equally free to leave at all times during the encounter until he was arrested on the outstanding warrants.

In this case the factual resolution of the able and experienced trial judge is correct and sustainable. The judge said:

I’m going to deny the motion. It appears to me that the officer was entirely reasonable in his effort to determine whether the man was hurt and what his situation was.

I see no problem with the arrest or the feeling of the substance.

According to Lanier v. South Carolina, [ 474 U.S. 25 , 106 S.Ct. 297 , 88 L.Ed.2d 23 ] the 1985 case, they say quite clearly that even assuming an illegal arrest, there is no reason to stop or to suppress a confession that was given after the person was properly “Mirandized”.

But anyhow, I find no illegality on the part of the arrest and I don’t think he was under arrest at the time the statements were taken and I don’t think it was unreasonable.

As a matter of fact, he stops him and then notices the fire and walks away leaving him unattended.

I find nothing wrong with it. I’ll deny the motion to suppress.

If the test is indeed objective, then this court should refrain from invoking any subjective factors. If we maintain an objective posture, however, this contact cannot qualitatively be distinguished from what occurred in Collins . In Collins , we adopted the three-tier approach to police-citizen encounters. See United States v. Berry, 670 F.2d 583 (5th Cir.1982). The first tier is communication between police and citizens that involves no coercion or detention and, thus, does not lead to any implication of Fourth Amendment protection. In this case, advice of outstanding warrants came within ten minutes. Up until that time, there was no unlawful seizure of Wilson implicating Fourth Amendment rights. This is clearly a first-tier encounter, as the majority concedes, in a caretaker function which is valid under Collins . The officer asked for Wilson’s name and identification which Wilson furnished. Then the officer requested an NCIC and local warrants check on Wilson.

At that time, the officer smelled smoke, and two individuals on motorcycles stopped to report a fire. The officer went to check the fire and asked Wilson to remain in the area. Wilson wandered around and, later, the officer returned to check on him. After helping him across the street, the officer told Wilson to wait on the street comer. The fact Wilson complied does not eliminate his cooperation. Nothing indicates he did not still feel free to leave if he chose.

Until the officer received advice of the outstanding warrants for Wilson and then arrested him, the encounter was clearly consensual, even under the authority cited in the majority opinion. Wilson did not even testify as to his subjective state of mind at the hearing on the motion to suppress. The officer testified he would not have pursued *228 Wilson if he had chosen to leave because he had no reason to detain him if Wilson did not consent. The majority of this court has substituted its own subjective rationale in this case for the subjective intent of either the police officer or Wilson.

To reach a different result from Collins , one must perceive the two cases as factually distinguishable. Any factual distinction, however, is present only when we usurp the prerogative of the trial court to decide questions of fact. It is obvious that has occurred in this instance. The majority advances its subjective conclusion as to how it would have understood the direction from the officer, rather than the objective facts presented to the trial judge when he concluded no seizure occurred.

Several events were occurring simultaneously. A fire was detected, and the officer had to devote his attention to reporting the fire and assisting with direction of traffic. According to the majority statement of the facts, the first contact occurred at 12:31 a.m. The advice warrants were outstanding was given to the officer at 12:41 a.m. Laying aside the question whether there was any constraint upon Wilson’s freedom to leave, an elapsed period of ten minutes, during which the officer’s attention was devoted to the fire and traffic direction, is not unreasonable. The record reveals, of the ten minutes, Wilson was in the presence of the officer less than three minutes.

The majority concedes the initial encounter was entirely proper and the officer’s request for Wilson’s name and identification was permissible. The majority concedes the officer did not impose any restriction on Wilson’s freedom to leave while the warrants check was being instituted. There is absolutely nothing to distinguish the further direction by the officer after helping Wilson across the street from the first direction to “stay in the area,” unless we recognize it may have been important to keep Wilson out of the way of the fire trucks responding to the fire.

In assuming our proper role of assisting in the protection of the rights of the citizens of Wyoming to be secure in their persons and property, this court should not follow the lead of more permissive tribunals in endeavoring to discover academic technicalities to justify reversing criminal convictions. While the majority offers an apology for failing to protect the victim’s property in this instance, I will feel more confident that a balance is being drawn when the academic technicalities are invoked in favor of the innocent victim equally with the miscreant. In my judgment, invocation of Constitutional protection to justify reversing Wilson’s conviction simply demonstrates victimization of our society, rather than protection of our society.

The American bench needs to understand that its invocation of the premise of protecting Constitutional rights in reversing criminal convictions has contributed to the development of a society in which violence stalks our streets and fear permeates our neighborhoods. Every decision that tightens the cuffs with which we shackle our law enforcement officers contributes to such evolution. We must remember this rule applies to serial killers and multiple rapists as well as to inept firebugs who are simply a nuisance to property, until someone dies in the fire. The wisdom reflected by Benjamin Franklin, with acknowledgment to George Herbert, in the Maxims prefixed to Poor Richard’s Almanac (1757) bears repeating:

A little neglect may breed mischief: for want of a nail the shoe was lost; for want of a shoe the horse was lost; for want of a horse the rider was lost.

I cannot better state my position than to quote from an earlier dissent:

While I agree that the majority approach is not an accurate application of constitutional requirements, I also have a deep philosophical difference with what the court has done. My analysis of this decision is based upon the premise that the application of constitutional principles is not an end in itself but a means to an end. Invoking constitutional principles as an end in itself is a purely academic approach. Those principles, however, evolved out of a desire to promote the well-being of the citizens of a fledgling nation and to secure for each of them those ideals articulated in the Declaration of Independence:

*229 “ * * * [T]hey are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, * *

It is in the light of these claims that I borrow from Handler, Jurisprudence and Prudential Justice, 16 Seton Hall L.Rev. 571, 572 (1986), this statement, somewhat out of context:

“ ⅜ * * Indeed, as a constituent and vital part of representative democratic government, the judiciary must be highly attuned to the needs and feelings of its citizens; it should be acutely aware of the public’s perception of its general performance, as well as its particular decisions. In short, the judiciary cannot be oblivious to the reactions that its own actions have engendered or the effects that its adjudications have created within the society it serves.”

Harvey v. State, 774 P.2d 87, 112 (Wyo.1989) (Thomas, J., dissenting).

In my judgment, the real question to be addressed in this case is: What was going on that was wrong? The obvious answer is it was wrong for Wilson to set fire to another citizen’s garage-workshop. Wilson then implicated himself in a voluntary statement made at an interrogation following his arrest upon a warrant for an entirely separate violation. The conclusion Wilson’s conviction should not be upheld because of an academic fascination with the supposed wrongful conduct of the police officer does not serve the interests of the citizens of Wyoming and their property rights, which are not constitutionally subordinated to the rights of their persons.

The majority cites several cases from the United States Court of Appeals for the Tenth Circuit articulating the proposition that an officer making a traffic stop may request a driver’s license and registration, run an NCIC computer cheek to determine if the vehicle is stolen and the license is valid, and issue a citation. Those cases, in which a seizure was implicit in the initial stop, are not helpful in resolving the question in this case. The question in the Tenth Circuit eases was the reasonableness of the length of the detention after a seizure was accomplished. Here, the question is whether there was a seizure.

I am persuaded no seizure occurred until Wilson was arrested because of the outstanding warrants. Even so, Wilson made a voluntary statement after being incarcerated on the warrants. He received proper advice with respect to his constitutional rights. His statement implicated him in the starting of the fire and, in my view, it was sufficiently attenuated from any possible influence from the seizure complained of that Wilson’s statement clearly was admissible at trial. Given that, the statement he made to the officer at the scene could not have had much import in front of the jury.

The majority opinion creates more questions than it answers. Nothing will serve the judge in determining how he erred or how to decide similar issues in the future. It stands as an in terrorem adjudication, advising our trial bench that they must be careful to protect the rights of the accused, but it fails to offer definitive criteria. Consequently, no standard is advanced, and skillful defense counsel will always be sure to say their case is just like Wilson v. State, 874 P.2d 215 (Wyo.1994). Unfortunately, they will probably succeed in intimidating the trial judge into making some unnecessarily lenient ruling.

Furthermore, no guidance is offered with respect to the’ scope of the ruling as to the evidence obtained following Wilson’s arrest. It seems implicit the evidence concerning the stain on Wilson’s shirt and the burn marks on his sneakers is considered tainted, even though the latter information was obtained following a lawful arrest. No specific ruling is made with respect to Wilson’s admission although it was attacked in the motion to suppress. When a conviction is reversed and the case remanded, the trial court is entitled to concrete guidance as to how to proceed.

I am satisfied this conviction should be affirmed. The only unreasonable factor in this scenario is the decision by this court. *230 Wilson’s seizure did not invoke his Fourth Amendment rights. I most vigorously dissent.