State v. Frank K. Miles, Jr.

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.
October 26, 2021
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. 2020AP96-CR Cir. Ct. No. 2018CF760

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

FRANK K. MILES, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: GLENN H. YAMAHIRO, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and Dugan, J.

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. Frank K. Miles, Jr., appeals from a judgment,
entered on his guilty pleas, convicting him of possession of a firearm by a felon
No. 2020AP96-CR

and fifth offense operating while intoxicated (OWI). Miles contends the circuit
court erroneously denied his suppression motion, which was premised on a claim
that Miles was illegally seized and searched. We conclude that the circuit court
did not err, so we affirm the judgment.

BACKGROUND

¶2 According to the criminal complaint, City of Greenfield Police
Officer David Meyer was dispatched to a subject with gun complaint at a bar
called Drift Inn on February 5, 2018. P.A.L. reported that he and his girlfriend,
S.L.H., had been watching two men playing video gambling machines. The two
men got up and said they would not be back for twenty minutes. P.A.L. went to
use one of the machines, but then the men returned. The men and P.A.L. began
arguing. P.A.L. said, “What are you going to do, call the cops?” One of the men
pulled out a silver handgun, pointed it at P.A.L., and said, “This is your cops.”
The two men then fled the bar.

¶3 P.A.L. said that the man with the gun fled in a silver Cadillac.
S.L.H. obtained a number from the car’s snow-covered license plate; she believed
it to be 888-XGP. The Drift Inn’s bartender said that one of the two men involved
in the altercation was a regular named Frank. Through some investigation, Meyer
discovered documentation of a recent police contact with Miles and the silver
car—actually a Lincoln, registered to Miles’s wife, with the license plate 888-
WXP—at a location adjacent to the Drift Inn. Meyer looked up Miles’s
description, which was a “close” match to the description of the suspect given by
P.A.L. A photo array was developed. P.A.L. identified Miles in the array,
although he was not fully confident in his choice. In looking up Miles’s
description, Meyer also learned that Miles had a prior felony conviction.

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¶4 On February 12, 2018, Meyer sat in his squad car and monitored
Miles’s home from the road, intending to arrest Miles for the Drift Inn incident.
When Meyer saw the silver car pull into the driveway, he initiated a traffic stop.
He activated his lights and parked his car at the end of the driveway. Meyer
observed the driver reaching around the car. The driver—Miles—then got out of
the car. As Meyer took Miles into custody, the officer noticed that Miles was
slurring his speech and smelled strongly of alcohol and marijuana. At some point,
Meyer’s dispatcher informed him that Miles was subject to a .02 blood-alcohol
limit due to prior convictions. Miles was arrested for the firearm incident and
operating with a prohibited alcohol concentration. Meyer then searched the car
incident to arrest and found a silver Ruger .357 Magnum in the center console.

¶5 The State charged Miles with two counts of possession of a firearm
by a felon—one for the bar incident and one for the day of the arrest—and one
count of operating a motor vehicle while intoxicated as a fifth or sixth offense.
Miles moved to suppress “all evidence seized pursuant to an illegal search of his
vehicle and any other derivative evidence.” He claimed that there was no
reasonable suspicion or probable cause to justify the traffic stop; even if the stop
was justified, his warrantless arrest was improper; and even if the arrest was
proper, the search of the vehicle was unconstitutional, both as an invalid search
incident to arrest and as a warrantless search conducted within the curtilage of
Miles’s home. The circuit court held a motion hearing at which only Meyer
testified. Following the hearing, the circuit court denied the suppression motion.
Miles then pled guilty to one count of possession of a firearm by a felon and
operating while intoxicated as a fifth offense. The other possession charge was

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dismissed and read in, as were charges from three other cases.1 The circuit court
imposed consecutive sentences totaling eight and one-half years of imprisonment.
Miles appeals.

DISCUSSION

¶6 The only issue on appeal is whether the circuit court erred when it
denied Miles’s suppression motion. Review of an order denying a motion to
suppress evidence is preserved notwithstanding Miles’s guilty pleas. See WIS.
STAT. § 971.31(10) (2019-20).2 A circuit court’s decision on a motion to suppress
is reviewed in two steps. See State v. Roberson, 2019 WI 102, ¶66, 389 Wis. 2d
190, 935 N.W.2d 813. First, we will uphold the trial court’s findings of historical
fact unless clearly erroneous. See State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d
358, 752 N.W.2d 748. A factual finding is clearly erroneous if it is contrary to the
great weight and clear preponderance of the evidence. See id. We then review
de novo whether those facts warrant suppression. See State v. Hampton, 2010 WI
App 169, ¶23, 330 Wis. 2d 531, 793 N.W.2d 901.

I. Reasonable Suspicion for the Stop

¶7 Miles contends that Meyer lacked reasonable suspicion to conduct a
traffic stop. The temporary detention of a person during a traffic stop constitutes a
seizure under the Fourth Amendment. See State v. Gaulrapp, 207 Wis. 2d 600,

1
The charges in the three other Milwaukee County Circuit Court cases were felony bail
jumping in case No. 2018CM2354, resisting or obstructing an officer in case No. 2019CM1980,
and a refusal to submit a sample for a chemical test for intoxication following an arrest in case
No. 2018TR4193.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP96-CR

605, 558 N.W.2d 696 (Ct. App. 1996). Thus, an investigatory stop is subject to
the constitutional requirement of reasonableness. See State v. Post, 2007 WI 60,
¶12, 301 Wis. 2d 1, 733 N.W.2d 634. When conducting an investigatory stop,
officers must have reasonable suspicion, grounded in specific articulable facts and
reasonable inferences therefrom, that a particular person has violated the law. See
State v. Gammons, 2001 WI App 36, ¶6, 241 Wis. 2d 296, 625 N.W.2d 623; see
also Berkemer v. McCarty, 468 U.S. 420, 439 (1984).

¶8 Miles contends that he was seized at the moment Meyer activated his
lights and parked his car behind Miles but, at that moment, Meyer lacked
reasonable suspicion because he “had no knowledge of who was inside the
Lincoln when he conducted the traffic stop[.]” Thus, Miles argues, Meyer “acted
on an ‘inchoate and unparticularized suspicion or hunch’” rather than reasonable
suspicion, and an inchoate hunch is insufficient to pass constitutional muster.

¶9 It is true that Meyer did not know who was driving the Lincoln at the
moment he initiated the traffic stop. What he did know was that Miles was a
suspect in the prior week’s Drift Inn incident; during that incident, Miles fled in a
silver car; the license plate of that car, as provided by S.L.H., was substantially
similar to the actual license plate of a silver Lincoln registered to Miles’s wife;
Miles and the Lincoln appeared in another incident report for a location near the
Drift Inn; and Meyer was currently observing the Lincoln pull into the driveway of
the Miles home. The circuit court stated, and we agree, that it was a reasonable
inference that the spouse (Miles) of a registered vehicle owner (Miles’ wife) may
be driving that vehicle; this is particularly true where, as here, there is relatively
recent documentation of the spouse doing just that. Thus, there were specific,
articulable facts from which Meyer could reasonably infer that Miles had

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committed a crime and it was further reasonable to initiate the traffic stop to
investigate whether Miles was currently in the target vehicle.

¶10 Further, when Miles opened the car door, which turned on the
interior light, Meyer observed nothing that might have dissipated his reasonable
suspicion, such as a person of a different gender. See, e.g., State v. Newer, 2007
WI App 236, ¶8, 306 Wis. 2d 193, 742 N.W.2d 923 (“If an officer comes upon
information suggesting that [an] assumption is not valid in a particular case …
reasonable suspicion would, of course, dissipate.”). Based on the foregoing, we
conclude that the traffic stop was supported by reasonable suspicion and, thus, the
circuit court properly declined to suppress evidence on that basis.

II. Probable Cause for Arrest

¶11 Miles next argues that, even if the traffic stop was supported by
reasonable suspicion, Meyer still lacked probable cause to arrest him.
“Warrantless arrests are unlawful unless they are supported by probable cause.”
State v. Blatterman, 2015 WI 46, ¶34, 362 Wis. 2d 138, 864 N.W.2d 26. The
State bears the burden of showing it had probable cause for the arrest. See id.
“Probable cause for arrest exists when the totality of the circumstances within the
arresting officer’s knowledge would lead a reasonable police officer to believe that
the defendant probably committed a crime.” State v. Kutz, 2003 WI App 205,
¶11, 267 Wis. 2d 531, 671 N.W.2d 660. “In determining whether probable cause
exists, the court applies an objective standard[.]” Id., ¶12.

¶12 “While the information must be sufficient to lead a reasonable
officer to believe that the defendant’s involvement in a crime is ‘more than a
possibility,’ it ‘need not reach the level of proof beyond a reasonable doubt or
even that guilt is more likely than not.’” Id., ¶11 (citation omitted). Whether the

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evidence is sufficient to demonstrate probable cause is a question of law, which
we review de novo. See id., ¶13.

¶13 Miles asserts that he was arrested the moment Meyer ordered him
out of the car at gunpoint, and that the timing of the arrest is important because it
limits the facts this court can consider in the probable cause analysis. See State v.
Young, 2006 WI 98, ¶23, 294 Wis. 2d 1, 717 N.W.2d 729. Miles believes that
Meyer lacked probable cause because the officer did not know at the particular
moment of arrest that Miles was driving the car.

¶14 However, the identity of the person driving the vehicle on
February 12, 2018, is irrelevant to whether there was probable cause to believe
that Miles had unlawfully possessed a firearm on February 5, 2018. Even if
Meyer had not directly encountered Miles on February 12, the “quantum of
evidence” within police knowledge on that date was objectively adequate to
establish probable cause for the possession charge. See State v. Howes, 2017 WI
18, ¶28, 373 Wis. 2d 468, 893 N.W.2d 812 (citation omitted).

¶15 The facts previously discussed herein as supporting reasonable
suspicion for the stop, see supra, ¶9, also support the probable cause
determination. In addition to those facts, Meyer also knew that P.A.L. had
tentatively identified Miles from a photo array; that although P.A.L. was not
certain in his identification, the Drift Inn bartender had identified a regular named
Frank as part of the confrontation; and that Miles had at least one prior felony
conviction. Based on the totality of the information available, then, Meyer had
probable cause to arrest Miles for the February 5 incident. Thus, the circuit court
properly declined to suppress evidence on that basis.

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No. 2020AP96-CR

III. The Vehicle Search

¶16 Finally, Miles argues that the search of his vehicle following his
arrest was unlawful for two reasons. First, Miles claims the search violated the
search-incident-to-arrest rule established in Arizona v. Gant, 556 U.S. 332, 343-44
(2009). Second, Miles believes the search was impermissible because it was
conducted within the curtilage of his home.

A. Search Incident to Arrest

¶17 “[W]arrantless searches are per se unreasonable unless they fall
within a well-recognized exception to the warrant requirement.” State v. Foster,
2014 WI 131, ¶32, 360 Wis. 2d 12, 856 N.W.2d 847. “When a defendant
challenges evidence that has been obtained through a warrantless search, the State
bears the burden to establish that the search was justified by a recognized
exception to the warrant requirement.” State v. Prado, 2020 WI App 42, ¶11, 393
Wis. 2d 526, 947 N.W.2d 186, aff’d, 2021 WI 64, ¶5, 397 Wis. 2d 719, 960
N.W.2d 869. One recognized exception to the warrant requirement is a search
incident to a lawful arrest. See id.; see also Birchfield v. North Dakota, 136 S. Ct.
2160, 2174 (2016).

¶18 In Chimel v. California, 395 U.S. 752, 762-63 (1969), the United
States Supreme Court explained that because a search of a person incident to
lawful arrest was reasonable, there was also reasonable justification for searching
an area within the arrestee’s immediate control. In New York v. Belton, 453 U.S.
454, 460-63 (1981), the Supreme Court, intending to give law enforcement a clear
principle to rely on, concluded that the passenger compartment of a vehicle was
searchable incident to a lawful arrest under Chimel. The Wisconsin Supreme
Court adopted the Belton interpretation in State v. Fry, 131 Wis. 2d 153, 170, 388

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N.W.2d 565 (1986). Subsequent to Fry, then, the law in Wisconsin was that after
a lawful arrest, “police may search the contents of an automobile while the
defendant is at the scene” without violating Fourth Amendment protections. See
State v. Dearborn, 2010 WI 84, ¶25, 327 Wis. 2d 252, 786 N.W.2d 97.

¶19 In 2009, the United States Supreme Court in Gant rejected the
interpretation of Belton that our supreme court had relied on in Fry. See
Dearborn, 327 Wis. 2d 252, ¶26. It explained that Chimel authorized police to
search a vehicle incident to arrest “only when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of the search.” See
Gant, 556 U.S. at 343. The Court further concluded, however, “that
circumstances unique to the vehicle context justify a search [of an otherwise
inaccessible vehicle] incident to a lawful arrest when it is ‘reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.’” See
Dearborn, 327 Wis. 2d 252, ¶26 (brackets in Dearborn) (quoting Gant, 556 U.S.
at 343).

¶20 Miles argues that it was unreasonable to believe evidence of
possession of a firearm by a felon would be found thin his vehicle at the time of
the stop, claiming Meyer was operating on “stale information” from the week
prior. He notes that during the Drift Inn incident, he allegedly had the gun on
him—no one claimed he had retrieved it from his vehicle. Thus, Miles contends,
it was “illogical” to assume that the firearm remained with him indefinitely and
even more illogical to assume that the gun remained in Miles’s vehicle
indefinitely.

¶21 The circuit court explained “there were facts that [Meyer] had
knowledge of with regard to the February 5th allegations” and that Meyer

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No. 2020AP96-CR

observed Miles “reaching around prior to getting out of his vehicle. There was a
basis here to reasonably conclude that the defendant was someone who may
regularly travel with a firearm or have it in his vehicle.” We agree. Miles
previously used the Lincoln to transport himself and the gun to the Drift Inn.
Further, Miles’s furtive movements upon being stopped made it appear as though
he might be hiding something and Meyer could reasonably believe that thing
happened to be the gun Miles was known to carry. Thus, the search of the vehicle
incident to arrest for possession of a firearm by a felon was not contrary to Gant,
and the circuit court properly declined to suppress evidence on that ground.3

B. Search Within the Curtilage

¶22 Finally, Miles argues that the search of his vehicle was unreasonable
because it occurred within the curtilage of his home, to which the protections of
the Fourth Amendment also apply. See State v. Dumstrey, 2016 WI 3, ¶23, 366
Wis. 2d 64, 873 N.W.2d 502.

¶23 There does not appear to be a specific circuit court ruling with
respect to the curtilage,4 although it appears the circuit court may have believed
the question was moot upon a finding of probable cause. In any event, we are also
not persuaded that any search occurred within the curtilage of Miles’s home.

3
Miles also argues that, relative to his “OWI arrest,” there was no reason to believe that
that alcohol or drugs might be found in the vehicle; Meyer had not observed any impaired
driving, nor had he smelled any alcohol or marijuana coming from the vehicle, and a small
container from Miles’s pocket that smelled like marijuana was empty. Because we conclude that
the search of the vehicle was lawful as the felon-in-possession arrest, we need not consider
whether the search was justified relative to the OWI charge. In any event, there was no OWI-
related evidence recovered, and Miles was not charged with any drug crimes.
4
It appears that the curtilage issue was not part of the original motion to suppress but
was raised in Miles’s reply brief to the State’s response to the suppression motion.

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Curtilage is the land immediately surrounding a house “to which extends the
intimate activity associated with the sanctity of a man’s home and the privacies of
life[.]” See State v. Artic, 2010 WI 83, ¶93, 327 Wis. 2d 392, 786 N.W.2d 430
(citations and internal quotation marks omitted). “The curtilage is defined by
factors that determine ‘whether an individual reasonably may expect that an area
immediately adjacent to the home will remain private.’” Id. (citation omitted).
We apply four factors, identified by the United States Supreme Court, in
determining whether an area constitutes curtilage:

the proximity of the area claimed to be curtilage to the
home, whether the area is included within an enclosure
surrounding the home, the nature of the uses to which the
area is put, and the steps taken by the resident to protect the
area from observation by people passing by.

See United States v. Dunn, 480 U.S. 294, 301 (1987); see also Dumstrey, 366
Wis. 2d 64, ¶32.

¶24 While Miles acknowledges the four Dunn factors, he relies on only
one: proximity. He tells us, without pointing to any evidence so establishing, that
his driveway was “directly abutting his house.” Proximity alone does not suffice.
Here, there is no indication that the driveway was enclosed or otherwise designed
to protect the area from observation and, indeed, we know that Meyer was
observing the driveway from the road. There is also no indication that the
driveway was used for anything other than parking, which “courts seem
overwhelmingly to hold … constitutes a use associated with neither an intimate
activity of the home nor a privacy of life.” Dumstrey, 366 Wis. 2d 64, ¶41. Miles
has failed to establish that the search occurred in a constitutionally protected area.
Therefore, suppression is not warranted.

By the Court.—Judgment affirmed.

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

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