State v. Raytrell K. Fitzgerald

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 1, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP1769-CR Cir. Ct. No. 2016CF4475

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RAYTRELL K. FITZGERALD,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
DENNIS R. CIMPL, Judge. Affirmed.

Before Brash, P.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Raytrell K. Fitzgerald appeals his judgment of
conviction for possession of a firearm contrary to a harassment injunction.
No. 2019AP1769-CR

Fitzgerald was charged when a handgun was discovered in his backpack after he
was stopped and frisked by Milwaukee Police Department (MPD) officers
investigating a report of shots fired. Fitzgerald filed a motion to suppress the gun
evidence, arguing that the police lacked reasonable suspicion for the stop and frisk.

¶2 After a hearing on Fitzgerald’s motion, the trial court found that the
police had established that there was reasonable suspicion for the stop and frisk, and
denied the motion. Fitzgerald subsequently pled guilty. We affirm.

BACKGROUND

¶3 The stop and frisk of Fitzgerald occurred in October 2016. The
officers involved in the incident discovered that on April 8, 2016, Fitzgerald’s
former employer had obtained a restraining order which prohibited Fitzgerald from
possessing a firearm. That order was to remain in effect until April 8, 2020. Thus,
Fitzgerald was charged with possession of a firearm contrary to a harassment
injunction when the officers found the gun in Fitzgerald’s backpack.

¶4 In his motion to suppress, Fitzgerald argued that the police lacked
reasonable suspicion for the stop and frisk. A hearing on the motion was held over
two days—January 13, 2017 and July 21, 2017—during which testimony was taken
from three MPD officers involved in the incident regarding the basis for the stop
and frisk.

¶5 Officer Michael Driscoll testified that he and his partner were on a
directed patrol mission on the night of the incident. The reason for this special
assignment was because of a recent spike in violent crimes in the area. The
assignment involved officers in two marked squad cars as well an undercover squad.
Officer Driscoll explained that the officers on this assignment communicated

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No. 2019AP1769-CR

amongst themselves on a separate MPD radio frequency—a “side channel”—as
opposed to the main MPD channel.

¶6 Officer Driscoll was in one of the marked squad cars. He testified that
at approximately 10:15 p.m. that night, he heard a number of gunshots that he
believed had come from the area of East Locust Street and North Buffum Street,
approximately eleven blocks—about a mile—from his location at North Dousman
Street and East Clarke Street.1 Officer Driscoll reported this information to the other
two squads involved in the special assignment on their side channel.

¶7 Officer Chad Boyack and his partner were in the undercover car, in
the area of East Keefe Avenue and North Richards Street, approximately six blocks
north of Locust and Buffum. Officer Boyack stated that he did not hear any shots,
but when he and his partner received the information from Officer Driscoll, they
drove south on North Holton Street toward the area where Officer Driscoll thought
the shots had been fired.

¶8 As they approached East Burleigh Street, Officer Boyack testified that
they observed an individual running across the intersection of Burleigh and Holton.
Officer Boyack stated that this person appeared to be “holding and securing some
type of object on the left side of his coat.” This sighting occurred about three
minutes after Officer Driscoll had broadcasted the information about shots being
fired. The location of this person was approximately three blocks northeast of
Locust and Buffum.

1
A street map of the City of Milwaukee, marked with the locations of the officers and
Fitzgerald at the time of the incident, was introduced into evidence at the motion hearing and is
included in the record.

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No. 2019AP1769-CR

¶9 Officer Boyack explained that since they were in the undercover car,
they did not stop this person because they did not want to “burn the vehicle”—
expose the car as being an undercover squad. He therefore communicated his
sighting to the other squads over the side channel.

¶10 Officer Mark Dillman was in the other marked squad car with his
partner. Officer Dillman explained that he was not sure of his location when he
heard the information broadcasted by Officer Driscoll and Officer Boyack, but he
believed he was southwest of Locust and Buffum, south of West Center Street. He
testified that he had not heard any gunshots, either.

¶11 Officer Dillman and his partner immediately proceeded to the area of
Burleigh and Holton, where Officer Boyack had seen the individual running across
the street. As they approached, they observed an individual walking eastbound on
Burleigh at North Pierce Street, about two blocks east of where Officer Boyack had
seen the person running across Holton Street.

¶12 Officer Dillman testified that this individual—later identified as
Fitzgerald—was not doing anything suspicious at the time Officer Dillman and his
partner came upon him. However, Officer Dillman observed that Fitzgerald was
sweating and was out of breath, consistent with someone who had been “running
vigorously.” Officer Dillman and his partner exited their vehicle and approached
Fitzgerald. Officer Dillman stated that he said something to Fitzgerald about
running, and asked whether he had any weapons on him. Fitzgerald did not respond,
and Officer Dillman proceeded to pat him down.

¶13 Officer Dillman noticed a “hump” on Fitzgerald’s back, which he
discovered was a backpack underneath Fitzgerald’s jacket. Officer Dillman felt a
“hard object” at the bottom of the backpack, consistent with “a slide of a

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No. 2019AP1769-CR

semiautomatic handgun.” He then unzipped the backpack and found the gun at the
bottom of the backpack.

¶14 Fitzgerald called Raynard E. Richards to testify on his behalf at the
motion hearing. Richards, who had previously retired from MPD as a lieutenant
with over thirty-three years of service, was employed with the Wisconsin State
Public Defender’s Office as an investigator/supervisor. Richards had made an open
records request to MPD for reports of shots fired on the night of the incident in the
area where Fitzgerald was arrested. There were no reports of shots fired in that area
that night, although Richards acknowledged that not all shots fired get reported.
Richards further noted that the MPD reports showed that no other squads were
dispatched to the location where Officer Driscoll had reported hearing shots fired,
even though such a report would usually generate a high priority response by MPD.
Additionally, Richards noted that in his experience, it would be “extremely
difficult” to pinpoint the intersection of Locust and Buffum as the location from
which the shots were fired at the distance—almost a mile—that Officer Driscoll was
from that area.

¶15 The trial court determined that, under the totality of the circumstances,
the officers had reasonable suspicion for the stop and frisk of Fitzgerald. It found
that Officer Driscoll’s testimony regarding hearing the shots fired was credible, and
that Officer Boyack’s observation of Fitzpatrick running in that area provided
reasonable suspicion to stop him. The court noted that Fitzgerald was “out of breath,
sweating” when Officer Dillman spotted him, and that Officer Dillman reasonably
believed Fitzgerald “might be armed” and that he “could have been in the area where
the shots were reported fired,” providing reasonable suspicion for the frisk. Thus,
the court denied Fitzgerald’s motion to suppress.

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No. 2019AP1769-CR

¶16 Subsequent to that decision, Fitzgerald entered a guilty plea in January
2019.2 He was sentenced to time served. This appeal follows.

DISCUSSION

¶17 On appeal, we review the trial court’s determination that the officers
had reasonable suspicion to stop and frisk Fitzgerald, which was the basis for its
denial of Fitzgerald’s motion to suppress. In reviewing a trial court’s decision on a
motion to suppress, this court applies a two-step standard of review: we review the
trial court’s findings of fact under the clearly erroneous standard; we then review de
novo the application of constitutional principles to those facts. State v. Eason, 2001
WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. In this case, the facts relating to the
incident are undisputed;3 as such, we focus on the second step of the test. See id.

¶18 “The Fourth Amendment of the United States Constitution and Article
I, Section 11 of the Wisconsin Constitution protect people from unreasonable
searches and seizures.” State v. Young, 2006 WI 98, ¶18, 294 Wis. 2d 1, 717

2
The trial court ordered a competency examination of Fitzgerald in October 2017.
3
Although Fitzgerald does not dispute the trial court’s factual findings, we noted with
interest Richards’ testimony that while it was plausible that Officer Driscoll heard shots being fired
almost a mile from his location that night, it would be “extremely difficult” for him to pinpoint
those shots to a “particular corner.” However, under the clearly erroneous standard of review,
“even though the evidence would permit a contrary finding, findings of fact will be affirmed on
appeal as long as the evidence would permit a reasonable person to make the same finding.”
Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530
(citation omitted). Furthermore, in our review “we search the record not for evidence opposing the
[trial] court’s decision, but for evidence supporting it.” See id.

Officer Driscoll testified that this location was his “best guess” as to where the shots were
fired, and the trial court found his testimony credible. “The trial court is the arbiter of the credibility
of witnesses, and its findings will not be overturned on appeal unless they are inherently or patently
incredible or in conflict with the uniform course of nature or with fully established or conceded
facts.” Global Steel Prods. Corp. v. Ecklund, 2002 WI App 91, ¶10, 253 Wis. 2d 588, 644 N.W.2d
269. Thus, we conclude that the trial court’s factual findings relating to Officer Driscoll’s
testimony are not clearly erroneous.

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No. 2019AP1769-CR

N.W.2d 729 (footnotes omitted). A stop and frisk by police is included in these
constitutional protections. Terry v. Ohio, 392 U.S. 1, 16 (1968).

¶19 For an investigatory stop to pass constitutional muster, the police must
have a reasonable suspicion that “a crime has been committed, is being committed,
or is about to be committed.” Young, 294 Wis. 2d 1, ¶20. “The question of what
constitutes reasonable suspicion is a common sense test: under all the facts and
circumstances present, what would a reasonable police officer reasonably suspect
in light of his or her training and experience.” State v. Young, 212 Wis. 2d 417,
424, 569 N.W.2d 84 (Ct. App. 1997). In making this determination, there must be
“articulable facts” in the record that when “taken together with rational inferences
from those facts” and “viewed objectively,” allow for an officer to reasonably
conclude “that criminal activity may be afoot.” State v. Matthews, 2011 WI App
92, ¶11, 334 Wis. 2d 455, 799 N.W.2d 911 (citing Terry, 392 U.S. at 21-22, 30). A
“mere hunch that a person has been, is, or will be involved in criminal activity is
insufficient.” Young, 294 Wis. 2d 1, ¶21.

¶20 Furthermore, “[i]f a police officer reasonably suspects a person of
committing a crime, he may frisk the person if he reasonably believes the person is
armed and if a reasonable officer would have believed the person posed a safety risk
to the officer or others.” Id., ¶55. This requirement seeks to “strike[] a proper
balance between two important interests: the safety of law enforcement officers and
the right of persons to be free from unreasonable government intrusions.” State v.
Johnson, 2007 WI 32, ¶22, 299 Wis. 2d 675, 729 N.W.2d 182. This determination
is made by the trial court “‘on a case-by-case basis’” by “‘evaluating the totality of
the circumstances[.]’” Id. (citation omitted).

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No. 2019AP1769-CR

¶21 In this case, the “articulable facts” provided by the officers to establish
reasonable suspicion—which the trial court found to be credible—were: (1) Officer
Driscoll’s report of hearing shots fired; (2) Officer Boyack’s observation of
Fitzgerald running across the intersection of Burleigh and Holton; (3) that Fitzgerald
looked like he was holding something on the left side of his coat as he was running;
and (4) that he was sweating and out of breath when he was stopped by Officer
Dillman.

¶22 Fitzgerald argues that these facts are very similar to a recent
unpublished decision of this court, State v. Lewis, No. 2017AP234-CR, unpublished
slip op. (WI App July 25, 2017). In Lewis, the defendant was stopped by police
officers investigating a report of shots fired. Id., ¶2. The basis for the stop was that
the defendant was walking in the general area of the shots fired report with his hand
on the waistband of his pants. Id. When the officers stopped him, he admitted that
he was carrying a concealed weapon without a permit. Id. The State conceded that
these were not sufficient articulable facts to establish reasonable suspicion for the
stop. Id., ¶¶6, 8.

¶23 The State’s concession in Lewis was based on the similarity of those
facts to the facts in State v. Gordon, 2014 WI App 44, 353 Wis. 2d 468, 846 N.W.2d
483. See Lewis, 2017AP234-CR, ¶4. In Gordon, we reversed the trial court’s denial
of a motion to suppress evidence that was seized from the defendant. See id., 353
Wis. 2d 468, ¶1. The officers had stopped Gordon because he was walking in “one
of the more dangerous areas of the district” that they patrolled, and because he had
done a “security adjustment”—a “conscious or unconscious movement,” such as
touching a pants pocket, which is sometimes done by an individual who is carrying
a weapon when approached by law enforcement. Id., ¶¶3-4. We noted that “sadly,
many, many folks, innocent of any crime, are by circumstances forced to live in

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No. 2019AP1769-CR

areas that are not safe,” and further, that “many folks, most innocent of any nefarious
purpose, may occasionally pat the outside of their clothing to ensure that they have
not lost their possessions.” Id., ¶¶15, 17. We therefore concluded that “[p]ermitting
Terry stops of persons momentarily patting the outside of their clothing when the
only additional facts are that those persons are in a high crime area and have seen a
cruising police car would expand the individualized reasonable suspicion
requirement so far so as to negate it.” Id., ¶18 (internal quotation marks omitted).

¶24 Here, the State argues that there is a significant difference that
distinguishes this case from Lewis and Gordon: that Officer Boyack observed
Fitzgerald running across the intersection. In fact, the State contends that
Fitzgerald’s “running is what supports a finding of reasonable suspicion” in this
case. The State also points to our statement in Gordon that a security adjustment—
in this case, Officer Boyack’s observation that Fitzgerald looked like he was holding
something in his jacket while he ran—together with “flight or attempted flight” may
be sufficient to support a finding of reasonable suspicion. Gordon, 353 Wis. 2d
468, ¶17.

¶25 Fitzgerald, on the other hand, argues that his running across the street
was not a suspicious activity; for example, he “may have simply been running to
stay out of traffic on Holton while it was dark out.” However, “police officers are
not required to rule out the possibility of innocent behavior before initiating a brief
stop.” Young, 294 Wis. 2d 1, ¶21 (citation omitted). Thus, Fitzgerald’s explanation
for running does not disavow the inferences made by the officers based on the facts
they knew at that time. See Young, 212 Wis. 2d at 424. Additionally, although
Fitzgerald was walking when Officer Dillman stopped him, the officer noted that
Fitzgerald was sweating and out of breath, consistent with someone who had been

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No. 2019AP1769-CR

“running vigorously.” This suggests that he had run further than just across the
intersection.

¶26 Based on these facts and circumstances, we conclude that the officers
reasonably inferred that Fitzgerald may have been running from the area where
Officer Driscoll had heard shots fired, and further, that he may have been holding a
gun in the pocket of his jacket. See Matthews, 334 Wis. 2d 455, ¶11. Therefore,
the officers had reasonable suspicion to stop Fitzgerald. See id.

¶27 With regard to frisking Fitzgerald, the officers were investigating a
report of shots fired, which by definition is “linked to … weapons possession,” and
often to “criminal activity” as well. See Johnson, 299 Wis. 2d 675, ¶40. In
concluding that the officers had reasonable suspicion to stop Fitzgerald on their
belief that he may have been involved in a shooting in the area, it was also
reasonable for the officers to frisk him for weapons, to ensure their safety. See id.

¶28 We therefore affirm the trial court’s denial of Fitzgerald’s motion to
suppress.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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