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State v. Scott

Court of Appeals of Wisconsin, District I

October 10, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Damien Markeith Divone Scott, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Milwaukee No. 2015CF4444 County: WILLIAM S. POCAN, Judge. Affirmed.

          Before Kessler, Brash and Dugan, JJ.

          BRASH, J.

         ¶1 Damien Markeith Divone Scott appeals his conviction for armed robbery with the threat of force as a party to a crime. Scott entered a guilty plea to this charge after the trial court denied his motion to suppress the evidence that was found during a vehicle search. The vehicle, in which Scott was a passenger, was stopped by West Allis police at a road block that was set up shortly after the armed robbery was committed. Scott argues that the police did not have reasonable suspicion to stop his vehicle, violating his Fourth Amendment protections against unreasonable searches and seizures, which renders the stop illegal. As a result, Scott asserts that the evidence obtained from the subsequent search of the vehicle should have been suppressed.

         ¶2 The trial court ruled that the circumstances of the stop qualified as a valid Terry[1] investigative stop, as opposed to a "checkpoint" stop, which is not permitted in the absence of reasonable cause that a statutory or ordinance violation has been committed, pursuant to WlS. STAT. § 349.02(2)(a) (2015-16).[2] The trial court therefore denied Scott's motion to suppress.

         ¶3 However, on appeal the State concedes that these circumstances did not constitute a Terry stop. Nevertheless, the State argues that these circumstances were sufficient to invoke an exception to the reasonable suspicion requirement of the Fourth Amendment for special needs of law enforcement. We agree and affirm.

         BACKGROUND

         ¶4 In the early morning hours of September 29, 2015, an officer of the West Allis Police Department was "waved down" by a female outside of the 6500 Bar, located at 6500 West Greenfield Avenue in the City of West Allis. The female, L.B., stated that she had just been the victim of an armed robbery. L.B. explained that she was the co-owner of the 6500 Bar and had just closed it for the night. She had offered to give two people a ride home: A.W., a patron of the bar, and Cory Critton, who was later named as a co-defendant in this crime.

         ¶5 L.B. had in her possession at the time an animal print purse and a bank bag with the night's proceeds from the bar. She stated that as soon as she had gotten into her vehicle with A.W. and Critton, they were approached by a black male brandishing a handgun that was similar to a police service weapon. He was wearing a dark sweatshirt with a white design on the front, and had a bandana over his face. He ordered L.B. to give him both the bank bag as well as her purse. Additionally, Critton handed over two cell phones to the perpetrator. L.B. told Officer Jesse Fletcher that the perpetrator had then fled on foot, running east on Greenfield Avenue before turning into an alley between 64th and 65th Streets.

         ¶6 Officer Erin Luedtke of the West Allis Police Department responded to the armed robbery complaint as well. Officer Luedtke testified that standard police department protocol for this type of situation is for several officers to set up a perimeter around a crime scene to "contain the area" for purposes of searching for and identifying suspects. She explained that in her experience, perpetrators of crimes "tend to use vehicles to flee the scene." Thus, because the crime had taken place within the previous few minutes, she took up a position at the intersection of 65th Street and Madison Street, approximately one block away from the crime scene. She positioned her squad car across the southbound lane of 65th Street, effectively blocking the intersection of 65th Street and Madison Street, and activated the squad lights.

         ¶7 While at that location, Officer Luedtke encountered three vehicles. The first vehicle contained two Hispanic males who were dressed in blue jumpsuits, consistent with uniforms worn by workers from a nearby factory. The occupants immediately confirmed that they had just finished work at the factory, so Officer Luedtke allowed them to proceed around her squad car.

         ¶8 In the second car that Officer Luedtke confronted there were two black males, one of whom was driving and the other in the passenger seat. She noted that the passenger's sweatshirt was inside-out but had some sort of design on it, and that he was sweating and very nervous. By that time other officers had responded, and the passenger, later identified as Scott, was ordered to exit the vehicle. Scott appeared to search for a means of escape, and then began to physically resist the officers. He also attempted to grab Officer Luedtke's service pistol as well as an assault rifle that was strapped to another officer. The officers were eventually able to gain control of Scott, and he was taken into custody along with the driver, Damiso Lee.[3]

         ¶9 After the arrests, the vehicle was searched; the police discovered two Glock pistols as well as a bank bag and an animal print purse. Furthermore, the police later retrieved messages from Critton's cell phone that was recovered from Scott, which indicated that Critton had set up the robbery with Scott. Critton, Lee, and Scott were all charged with armed robbery, with Scott incurring additional charges of disarming a police officer and resisting arrest.

         ¶10 Scott filed a motion to suppress the evidence found in the vehicle, asserting that Officer Luedtke's stop of his vehicle was illegal because she did not have reasonable suspicion for the stop. At the motion hearing held on February 4, 2016, the trial court determined that the foundational issue was to ascertain the nature of the stops that Officer Luedtke had performed on both Scott's vehicle as ...


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