State v. Cherry, 2012AP1137-CR; District 2, 6/19/13; (not recommended for publication); case activity

Cherry was convicted of burglary and criminal damage to property, both as party to a crime.  Here’s what happened:  While investigating a residential burglary, officers saw two black men (Cherry and a companion) walking down a rural road near the scene of the crime. Their pants were wet as if they had been crossing a swampy area near the home.  Meanwhile, two additional officers responded to a dispatch about the crime.  They spotted the suspects, approached them, and at gun point  ordered them to the ground, handcuffed them, and then patted them down.  The officers found no weapons.  They obtained additional information, concluded that Cherry and his friend fit the description of the suspects, and hauled them to the sheriff’s department, where they ordered Cherry to empty his pockets.  The contents included items from the burglarized home, which led to the burglary and criminal-damage-to-property charges.

Cherry moved to suppress the evidence arguing that the officers lacked reasonable suspicion to stop him or, alternatively, the show of force (a total of 3 sheriff’s officers and 1 police officer) transformed the stop into an arrest that was not supported by probable cause.  The trial court denied the motion, and the court of appeals affirmed for these reasons:

• Cherry’s stop was lawful under Terry v. Ohio, 392 U.S. 1 (1968) because officers were investigating a recent crime in the area where the suspects were at large.  Slip op., ¶8.
• His seizure was reasonable under State v. Guzy, 139 Wis. 2d 663, 675, 407 N.W.2d 548 (1987) because he and his companion fit the description of the suspects, and they were in the area of the burglarized residence. Slip op., ¶9.
• The officers’ use of handcuffs or “other restrictive measures” did not transform the detention into an arrest because they were concerned that Cherry might both possess firearms and try to escape. See State v. Pickens, 2010 WI App 5, ¶32, 323 Wis. 2d 226, 779 N.W.2d 1 (2009).  Slip op., ¶10.
• The officers had probable cause to arrest Cherry at the point when they received additional information of the suspects’ descriptions, which occurred before he was transported to the sheriff’s department and searched.  Slip op., ¶12.