State v. Tory C. Johnson, 2015AP1322-CR, 6/28/2016, District 1 (not recommended for publication); case activity (including briefs)
Tory Johnson raises various challenges to his jury-trial conviction for resisting an officer causing substantial bodily harm.
Two Milwaukee police officers in a squad car saw Johnson driving a car with, they believed, no front license plate. They also claimed to observe that Johnson and his passenger were not wearing seatbelts. The officers turned their car around to pursue Johnson; while they were doing so Johnson quickly parked his car in an illegal spot, and he and his passenger went up onto the front porch of a nearby house.
The officers approached the house to speak with Johnson and the passenger about the traffic and parking violations. Trial testimony differed as to what happened next, but at any rate, Johnson refused to provide identification when asked, and a scuffle ensued, resulting in stitches and a facial bone fracture for one of the officers.
The jury acquitted Johnson of two charges but convicted him of the count of resisting causing bodily harm contrary to Wis. Stat. §§ 946.41(1) and (2r). That statute required the state to prove
(1) the defendant resisted an officer; (2) the officer was engaging in an act in an official capacity; (3) the officer was acting with lawful authority; and (4) the defendant knew the officer was an officer acting in an official capacity and with lawful authority and that the defendant knew his conduct would resist the officer. See § 946.41(1); see also WIS JI—CRIMINAL 1765.
(¶10). Johnson first raises a sufficiency claim, arguing that the state failed to prove either that the officers were acting with lawful authority or that he resisted them.
As to lawful authority, the court discerns two separate claims: first, that the traffic stop was finished once Johnson refused to provide identification and the officers lacked probable cause to arrest him; and second, that the stop did not occur in a “public place” as required by Wis. Stat. § 968.24. The court examines the order of events and concludes that Johnson’s refusal to give ID did not terminate the stop; rather, the officer attempted to restrain Johnson in order to continue the temporary detention, as is permitted by State v. Goyer, 157 Wis. 2d 532, 460 N.W.2d 424 (Ct. App. 1990).
As for the “public place” claim, the court analogizes to Fourth Amendment law. Though a front porch may be part of a home’s “curtilage,”
societal norms may imply that there is a license to approach the home “‘justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.’” See Jardines, 133 S. Ct. at 1415-16 (citation omitted). “Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.’” Id. (citation omitted).
(¶27). Thus, the court concludes, the front porch of the house was sufficiently “public” for the stop to comply with Wis. Stat. § 968.24.
Per the court, Johnson’s argument that he did not resist the officers boils down to the claim that he was no longer the subject of a temporary stop when he fought with the police. Having already concluded that the stop was ongoing, the court rejects this claim. (¶¶32-34).
Johnson also raises various jury-instruction claims, but the court considers only one in any depth, concluding that the others are forfeited or have already been addressed. Johnson argues that the trial court erroneously informed the jury, on the question of whether the officers were acting with lawful authority, that “[i]f a person refuses to provide identification they can be detained to obtain the subject’s identification.” (¶42). The court notes that, even if erroneous, this instruction would be harmless, since the officers had observed other law violations justifying the detention. (¶45).
Nevertheless, the court goes on to uphold the instruction, relying on State v. Flynn, 92 Wis. 2d 427, 285 N.W.2d 710 (1979), which permitted an officer to search a suspect’s wallet for identification as part of a Terry frisk. Perhaps the court should have stopped at “harmless,” as Flynn is of questionable merit or validity. See, e.g., People v. Garcia, 52 Cal. Rptr. 3d 70 (Ct. App. 2006) (declining to follow Flynn; “We would have to indulge in legal legerdemain to justify a patdown search for identification. In fact, it would require a rewriting of [Terry], which we could not and would not undertake even if we were so inclined.”); State v. Webber, 694 A.2d 970, 972 (N.H. 1997) (Of Flynn: “We need only examine the basis for that decision to reject its logic.”); 4 Wayne R. LaFave Search & Seizure § 9.6(g) (5th ed. 2012) (discussing and criticizing Flynn).
