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Terry Frisk – House; Ineffective Assistance – Prejudice

State v. Jacquese Franklin Harrell, 2010 WI App 132; for Harrell: Michael S. Holzman; BiC; Resp.; Reply

Terry Frisk – House

The police had both reasonable suspicion that Harrell had committed a violent crime, and consent to be in his house to question him. Therefore, police inspection of a chair for possible weapons before allowing Harrell to sit in it, leading to discovery and seizure of a gun, was permissible.

¶10       Terry v. Ohio, 392 U.S. 1, 27–28 (1968), recognized that under the Fourth Amendment’s ban against unreasonable searches and seizures, a law-enforcement officer may search a person to ensure the officer’s safety if the officer has reason to believe that the person may have committed a crime and that the person may be “armed and dangerous.” “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id., 392 U.S. at 27. Although Terry does not permit officers to enter houses without authorization in order to investigate suspicious activity, State v. Stout, 2002 WI App 41, ¶15, 250 Wis. 2d 768, 780–781, 641 N.W.2d 474, 479, it does permit them to protect themselves from threats of immediate danger once they are lawfully in a house, id., 2002 WI App 41, ¶24, 250 Wis. 2d at 786–787, 641 N.W.2d at 482 (“These safety concerns may arise wherever an officer legitimately encounters an individual, whether in a public place or in a private residence or hotel room.”). Thus, if officers have a “reasonable suspicion” that a person may have access to a weapon, a limited search is permitted. Id., 2002 WI App 41, ¶26, 250 Wis. 2d at 788, 641 N.W.2d at 482. This is especially true, somewhat paradoxically, in the home, where “unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’” Maryland v.Buie, 494 U.S. 325, 333 (1990). Thus, the police may lawfully search an area from where an arrestee might grab a weapon, but not beyond it. Chimel v. California, 395 U.S.752, 763, 768 (1969). Given Terry’s recognition of the need for officer safety, this analysis also applies where the officers are lawfully in the home and are reasonably concerned that the person to whom they are talking can do them harm, even though he or she has not yet been arrested. See Terry, 392 U.S. at 27; Stout, 2002 WI App 41, ¶¶24–26, 250 Wis. 2d at 786–788, 641 N.W.2d at 482.

¶11      Harrell does not dispute that the officers went to where they believed Harrell was staying because they suspected that he was involved in the Jackson shooting. Thus, the two aspects of Terry were satisfied:  (1) the officers suspected that Harrell had committed a violent crime; and (2) reasonable prudence dictated that they keep Harrell from having possible access to a gun….

The seizure of the gun was permissible under a separate rationale. Before finding the gun, the police found cocaine in another chair. Therefore, “they could also legitimately search the area near Harrell as an incident to Harrell’s pending arrest, as well as to ensure their safety when they directed him to sit in the second chair,” ¶12.

Ineffective Assistance – Prejudice

Various asserted deficiencies, including: failure to impeach a witness with a prior conviction for disorderly conduct, with his arrest for the crime at issue, and his state of intoxication; and failure to object to prior inconsistent statements, did not either singly or cumulatively prejudice the defense, ¶¶16-22.

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