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An Appeals Court rejected a circuit court judge's finding that a man who was pulled from his car, handcuffed by police, and surrounded by five officers was not in police custody. The state argued unsuccessfully that Omar Quinton Triggs was not in custody for Miranda purposes in part because police did not draw their weapons or "take him to the ground." "We disagree," District 1 Court of Appeals Judge Joan F. Kessler wrote for the three-judge panel. "Our focus is not what police did not do, but rather, what the police did do." The appeals court found that police did not properly inform Triggs of his Miranda rights. It also found that Triggs did not give voluntary consent for police to search his garage, where they found a large amount of marijuana. The court, in reversing Milwaukee County Circuit Judge Clare Fiorenza, reversed Triggs' conviction on a felony charge of possessing marijuana as a second or subsequent offense. It also ordered suppression of all evidenced seized as the result of the search. Testimony "indicates that at least three police officers removed Triggs from the car, that Triggs was handcuffed within seconds of his removal, that Triggs was handcuffed between five and ten minutes, and that three police cars surrounded his BMW," Kessler wrote. The state argued unsuccessfully that Omar Quinton Triggs was not in custody for Miranda purposes in part because police did not draw their weapons or "take him to the ground." Those circumstances constituted "an assertion of custody," she said. She was joined in the opinion by Appeals Judges William W. Brash III and Kitty K. Brennan. Police reported that when officers approached Triggs' illegally parked car with potentially illegally tinted windows, they could smell fresh marijuana. Triggs informed the officers he was armed and had a concealed carry permit. Triggs began to move around the vehicle as he looked for the permit and then became agitated, prompting police to remove him from the car and handcuff him.  No custody going on here, judge! A passenger in the car said it was not parked illegally, but police approached it anyway. While Triggs was handcuffed, police asked him repeatedly for permission to search a garage from which they said they had seen him walk quickly away. Officers did not remove the handcuffs until Triggs finally consented to the search. One officer "acknowledged that Triggs was not free to leave at the time, but stated that Triggs was being detained for officer safety and was not under arrest," Kessler wrote. Fiorenza, in refusing to suppress evidence, found that there was "a reasonable explanation as to why the defendant was initially handcuffed" and a "reasonable explanation as to why the defendant was un-handcuffed." The appeals panel, though, found "that the degree of restraint the police used against Triggs created a situation in which a reasonable person in Triggs' position would not feel free to leave." The court, in rejecting the argument that Triggs gave voluntary consent for the garage search, said that "opening the garage was not voluntary, but was a condition of handcuff removal imposed by the police." Triggs was handcuffed, but was not actually arrested until after the garage search, about a half-hour after the initial stop, Kessler wrote. "Before they knew anything beyond having observed a car parked in the alley and seeing a man quickly move from from a garage to the car, officers made it impossible for that man to move, either personally or in his vehicle," Kessler wrote. "This overwhelming show of force occurred without officers even seeing Triggs violate any laws."
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A man shot in the chest, gasping for air, and fading in and out of consciousness was presumably coherent enough to share a "rational adult" fear that he would die, a Court of Appeals panel said in a ruling released Tuesday. "The nature of (Jamal) Pinkard’s injury itself supports the inference that Pinkard believed he was going to die," Appeals Judge William Brash wrote. "This inference is strengthened by the fact that Pinkard was gasping for air, going in and out of consciousness, and that he died while he was en route to the hospital." "Being shot in the chest would cause any rational adult to fear imminent death," he said.  Did dying necessarily mean that Pinkard understood he was in danger of doing so? The District 1 appeals panel upheld the conviction of Anthony R. Owens on charges of first-degree reckless homicide and possession of a firearm by a felon, both as repeaters. Brash was joined in his opinion by Appeals Judges Patricia S. Curley and Joan F. Kessler. According to the court: Milwaukee Police Officer Derek Kitts, responding to a shooting call, found Pinkard, shot, on the ground in the 2200 block of W. Burnham St. "Pinkard’s condition was dire," Brash wrote. "He was pale, gasping for air, and was going in and out of consciousness." Kitts performed first aid and twice asked Pinkard who shot him. "Kitts leaned in close to Pinkard and was able to hear Pinkard say 'Anthony,'” Brash wrote. Pinkard, according to Kitts, also told him that Anthony went by the names of “Lil Ant” and “2-1.” Kitts kept Pinkard's attention by shaking his shoulders and yelling at him “don’t die on me” and “open your eyes,” Brash said. Pinkard died on the way to his hospital, but his statements led police to police identify Owens as a participant in the shooting.  Milwaukee County Circuit Judge Jeffrey Wagner admitted Pinkard's identification of "Anthony" into evidence as a dying declaration, a recognized exception to hearsay rules that are supposed to prohibit admission second-hand testimony. Owens was convicted and appealed, arguing that there was no evidence that Pinkard knew he was going to die. The appeals panel disagreed, ruling that it was proper for Wagner to infer that Pinkard believed he was in danger of dying.  "Indeed, Kitts reinforced Pinkard’s suspicions when he yelled at Pinkard not to die," Brash wrote.   The appeals panel did not address the possibility that Pinkard might have gone into shock after being shot. The panel also rejected Owens' contentions that there was not enough evidence at trial to prove his guilt and that his sentence -- a total of 39 years initial confinement and 14 years extended supervision -- was too harsh.
It was kind of like watching a "nyah, nyah boo boo" moment on a playground. Only it was the State Supreme Court. And it was a very important case -- the Milwaukee Police Association's challenge to the city's residency rule. But, hey, if you can't interrupt yourself to act like a child when you are a Supreme Court justice, when can you? Here's the exchange between Justice Michael Gableman and Justice Ann Walsh Bradley. It started when Gableman confronted Bradley.  Gableman: Justice Bradley, is there something amusing that I’m saying?
 A. Bradley: It must be the acoustics that have a problem here.  Gableman: It must be. It must be, Ann. So back to my question.... The State Supreme Court this week stripped away a bit more of Fourth Amendment protection against unreasonable searches.
Check out our illustrated casebook on the decision in State of Wisconsin v Charles V. Matalonis. |
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