State v. Kahreem Rashah Wilkins, Sr., 2023AP1385-CR, 10/8/24, District I (not recommended for publication); case activity
In a 2-1 decision, the Court of Appeals reversed the circuit court’s order granting Kahreem Wilkins’ motion to suppress evidence seized from his vehicle. The majority found that Wilkins was not seized when police approached the vehicle and saw a firearm in plain view, while the dissent concluded a reasonable person surrounded in his vehicle by four officers would not feel free to leave.
Four Milwaukee police officers were on bicycle patrol in a “high crime” area at 2 a.m. They observed an SUV parked on the street with its engine running. Wilkins was in the driver’s seat and his nephew was in the passenger seat. An officer testified at the evidentiary hearing that he smelled burnt marijuana coming from the partially opened driver’s side window as he rode past the vehicle. The officer stopped his bicycle directly outside the driver’s door, a second officer stopped behind the first officer, and the other officers stopped on the passenger side of the vehicle. The first officer began to speak with Wilkins and, within ten seconds, saw a gun on Wilkins’ lap and green residue on the driver’s floorboard that the officer suspected was marijuana. The officer asked Wilkins if he had a permit for the gun. Wilkins said he did not have a permit and acknowledged he had a felony conviction for bail jumping. The officer removed Wilkins from the vehicle and arrested him for possessing a firearm as a felon. The officers searched the vehicle and seized two firearms and a small amount of marijuana residue.
The circuit court granted Wilkins’ motion to suppress the firearms because it did not find the officer’s testimony credible that he smelled burnt marijuana; therefore, the police did not have reasonable suspicion to stop the vehicle. The circuit court also found that the police encounter was not consensual. (¶ 9).
The Court of Appeals reversed. The Court assumed that the officer did not smell burnt marijuana, but found that the officers’ encounter with Wilkins was consensual. The Court determined that, when the officers approached Wilkins, a reasonable person would have felt free to leave because “[t]here was no evidence presented that the officers activated the emergency lights on their bicycles, used forceful language, displayed firearms, or placed a hand on Wilkins or his nephew. Moreover, the officers did not position their bicycles in front of the SUV, which would have prevented Wilkins from pulling forward and driving away.” (¶ 18).
The Court did not consider that the officers were in uniform and armed “remarkable” because the officers did not display or place their hands on their firearms. (¶ 19). And the Court rejected Wilkins’ argument that the officer using his flashlight to illuminate the inside of the SUV “transforms a consensual encounter into a seizure.” (¶ 20).
The Court distinguished United States v. Smith, a 2015 Seventh Circuit case where Milwaukee police on bicycles confronted Smith in an alley, whom they considered a suspect in a shooting incident, and asked if he had a weapon. One of the officers had his hand on his weapon. The Seventh Circuit found that Smith was seized without reasonable suspicion. Here, the COA found, “Wilkins was sitting with his nephew in a large SUV with its motor running on a well-lit public street when the officers approached. The officers, who were on a routine patrol, did not position their bicycles to block the SUV’s path forward. . . Additionally, there was no evidence presented that any of the officers had their hands on their firearms.” (¶ 22).
Dissent
The dissent concluded that Wilkins was seized because “[n]o reasonable person I can imagine would feel free to drive away under these circumstances. A reasonable person would be concerned that driving away could be viewed as violating a traffic law or a law regarding fleeing or endangering an officer.” (¶ 29). Further, “no reasonable person would believe they could exit the vehicle and leave the scene. Police officers were blocking both the driver and front passenger door, and if the neighborhood did indeed have a high rate of drug deals and shootings as [the officer] testified, getting out of the vehicle after it has been approached and surrounded by four police officers could, perhaps reasonably, be viewed as threatening.” (¶ 30).
The dissent also determined the record supported the circuit court’s finding that the officer did not smell burnt marijuana before he approached the vehicle because no paraphernalia or burnt marijuana was found inside the SUV. (¶ 36).
