Review of a decision of the Court of Appeals. Affirming in part and reversing in part
Day, J. Shirley S. Abrahamson, J. (minority OPINION(S)ing). Chief Justice Bruce Beilfuss and Justice Nathan S. Heffernan join in this Dissent.
The opinion of the court was delivered by: Day
This is a review of a decision of the court of appeals published at 109 Wis. 2d 83, 325 N.W.2d 360 (Ct. App. 1982). The decision reversed a judgment of a conviction entered against the defendant, Marvin R. Williamson, Jr., (Williamson), in the Circuit Court for Milwaukee County, Honorable Lee E. Wells, Judge. Williamson was convicted of one count of carrying a concealed weapon in violation of sec. 941.23, *fn1 Stats. 1979-80.
Two issues are considered in this review: First, in order to withstand a motion to dismiss the complaint for insufficiency, is it necessary for a misdemeanor complaint which alleges possession of a concealed weapon to set forth facts showing that the underlying stop and frisk which led to the seizure of the weapon was constitutionally valid?
Second, did the stop and frisk of Williamson meet statutory and constitutional standards so that the weapon seized as a result of the frisk could be properly admitted into evidence?
We conclude the complaint was legally sufficient and affirm the court of appeals on this issue. We also conclude that the stop and frisk of Williamson was conducted in conformity with statutory and constitutional requirements. We therefore reverse the court of appeals on this issue and affirm the judgment of conviction.
At approximately 2:00 a.m. on January 2, 1981, Milwaukee Police Officer Charles Berard (Berard) and his "partner" were parked in front of a closed tavern at 1016 West Center Avenue in Milwaukee. Their car's headlights were off but the rotating lights were on and activated. They had shortly before been involved in a traffic stop and the person involved in that incident had just been taken from the scene by a police vehicle.
As the officers sat in their car writing out tickets, they observed two men exiting the yard of 1020 West Center Avenue. The men turned toward the tavern and began walking. Apparently they did not immediately recognize that a police car was parked there because, as Berard testified, "They seemed startled when they first realized we were there."
According to Berard, after the men recognized the squad car, one of them (Williamson) "hesitated and just began staring at the squad car from in front of the . . . car" and the other, Myles King (King) "continued to where the passenger door is on the sidewalk and just stood there looking at my partner."
After the staring continued for a short while, Berard's partner rolled down the car's window and Berard requested King to come over to the car. Berard then asked King what he was doing and what he was looking at to which King responded, "Huh?" Berard then asked King if he had ever been convicted of a crime and King answered, "Yes, carrying a gun." At that point, Berard asked King if he was currently "wanted" and King responded, "Yeah."
Berard and his partner then exited from their car. Berard stated that at that point he "feared for my safety and the safety of my partner, being one subject had previously had a gun, and [both men] were acting funny, in relation to the other subjects that normally pass you on the street."
Officer Berard approached Williamson who, as Berard exited from the car, had turned and started to walk away from the car. Berard asked Williamson to, "Hold up a second, chief," which caused Williamson to stop and turn back towards Berard. At that time, Berard told Williamson to keep his hands away from his body and asked him if he had any weapons on his person. Williamson did not respond so Berard told him he was going to check for weapons. Berard proceeded to perform a pat down search of Williamson's outer clothing. He felt a bulge in Williamson's coat pocket and retrieved a loaded twenty-two caliber pistol from the jacket. Berard then arrested Williamson for carrying a concealed weapon.
In response to questions at the suppression hearing, Berard articulated the following factors which led to his stopping and frisking Williamson:
"1. Williamson and King were acting in a suspicious manner in stopping and staring at the police car;
"2. King admitted that he had been previously convicted for carrying a concealed weapon and was currently 'wanted;'
"3. Berard's past experience was that a person who had carried a gun once frequently carried it again;
"4. Knowing that King had been convicted of carrying a weapon and that he was currently wanted caused Berard to believe that Williamson might also be carrying a weapon;
"5. As Berard exited the car, Williamson turned away and his hands were no longer observable by Berard so that Berard would see if a weapon was being drawn; and
"6. Visibility was poor -- the incident occurred at 2:00 a.m."
A complaint charging Williamson with carrying a concealed weapon was issued. Williamson filed two motions, one to dismiss the complaint on the grounds that it was insufficient and that the stop and frisk of the defendant was unconstitutional and the second to suppress any evidence seized by virtue of the alleged unconstitutional stop and frisk.
A hearing was held on the motions on February 26, 1981, before Judge Rudolph Randa. On July 8, 1981, Judge Randa filed a written decision which denied Williamson's motions. He found that there were "more than sufficient facts to justify the stop and search."
A hearing was held on the morning of August 31, 1981, before Judge Wells *fn2 at which Williamson waived his right to a jury trial. It was stipulated that the transcripts of the February 26, 1981, suppression hearing be used for the trial. That afternoon a trial to the bench was commenced. On September 2, 1981, Williamson was convicted of carrying a concealed weapon. He appealed the judgment of conviction.
The court of appeals found the complaint sufficient to withstand a motion to dismiss. However, it concluded that Williamson's conduct was not sufficiently suspicious to justify the stop and frisk. The court of appeals therefore reversed the judgment of conviction.
The first issue on review is whether it is necessary for a misdemeanor complaint which alleges possession of a concealed weapon to set forth facts showing that the underlying stop and frisk which led to ...