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01-0904 State v. Stout

By: dmc-admin//January 28, 2002//

01-0904 State v. Stout

By: dmc-admin//January 28, 2002//

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Based on case law and the explicit language of Wis. Stat. Sec. 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.

However, we 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. We conclude that the police officer in this case could ask permission to enter the apartment without a reasonable suspicion that criminal activity was afoot and, providing that the officer received permission, he had a right to enter the apartment even if the sole purpose was to question defendant.

However, because we do not find any indication that consent was established or that defendant conceded the consent issue, we must remand to the trial court for explicit factual and legal findings on the validity of the consent granted to the officers.

If, on remand, the court determines that the consent was valid, we further determine that no “seizure” by the officers occurred until defendant made a furtive gesture – reaching into his pants pocket, at which time the officer could have reasonably believed that defendant might be armed.

“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. … 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.”

Reversed and remanded with directions.

Recommended for publication in the official reports.

Dist II, Racine County, Marik, J., Brown, J.

Attorneys:

For Appellant: Robert S. Flancher, Racine; Warren D. Weinstein, Madison

For Respondent: James L. Fullin Jr., Madison

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