State v. Lawrence Griffin, 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.
June 29, 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. 2020AP1043-CR Cir. Ct. No. 2017CF104

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LAWRENCE GRIFFIN, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
DAVID A. HANSHER, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, 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. Lawrence Griffin, Jr. appeals his judgment of
conviction for possession of a firearm by a felon. Griffin pled guilty to that charge
No. 2020AP1043-CR

after the trial court denied his motion to suppress. Griffin asserts that that the trial
court erred in denying his suppression motion, arguing that at the time the arresting
police officers seized him— resulting in the discovery of the gun—they did not have
reasonable suspicion for the seizure, and it was therefore illegal. We disagree and
affirm.

BACKGROUND

¶2 The charge against Griffin stemmed from an incident that occurred in
the early morning hours of August 9, 2016. According to the complaint, officers
from the Milwaukee Police Department were on patrol in the area of North 11th
Street in Milwaukee at approximately 2:47 a.m. when they saw Griffin standing in
the road, leaning into the driver’s side window of a parked car. When Griffin saw
the marked squad car approaching, he walked around the vehicle to the passenger
side, “blading his body in the process” away from the squad. One of the officers
stated that he saw Griffin perform a “security check” of his right side—holding the
waistband of his pants—as Griffin walked around the vehicle. That officer later
explained at the suppression motion hearing that blading and security checks can be
indicative of a person having a concealed firearm.

¶3 The officers stopped the squad behind the vehicle, but did not activate
its lights or siren. One of the officers exited the squad car “quickly,” and then heard
the sound of metal hitting concrete. The officer believed that the sound was a
firearm that had been dropped in the road. The officer stated that Griffin backed
away from the item he had dropped, looking at the ground, but did not attempt to
retrieve it; instead, he simply put his hands up. As the officer proceeded toward
Griffin, he saw a 9mm handgun on the ground next to the vehicle. The officer then
grabbed Griffin’s arm and inquired as to whether Griffin had a valid permit to carry

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No. 2020AP1043-CR

a concealed weapon. When Griffin replied that he did not, the officer took him into
custody. Officers subsequently discovered that Griffin had a previous felony
conviction.

¶4 Griffin was charged with possession of a firearm by a felon. He filed
a motion to suppress the evidence of the firearm that was recovered on the ground,
arguing that at the point in time he was seized—which, he asserted, was when the
officer got out of the squad—the officer did not have reasonable suspicion of a
crime, and the seizure was therefore illegal.

¶5 A hearing on the motion was held in February 2018, with one of the
arresting officers testifying as to the events relating to Griffin’s arrest. The officer
stated that the entire incident—from when the officers turned onto 11th Street to
when Griffin was taken into custody—was less than a minute, and that there was
only “a few seconds maybe” between the time that the officer exited the squad,
heard the gun fall on the ground, and reached Griffin.

¶6 Griffin also testified, stating that he was simply giving cigarettes to
his friend who was sitting in the vehicle that night; that he had moved around the
vehicle when he saw the squad for purposes of “avoidance,” because he did not want
to be “talked to” by the officers; and that he had not been holding the waistband of
his pants. Griffin testified that it took “[m]aybe 15 seconds” for the officer to exit
the squad and reach him.

¶7 The trial court denied the motion, finding that Griffin was not seized
until after the officer heard the gun fall to the ground. The court found that at that
point, the officer had established reasonable suspicion that Griffin was carrying a
gun, and then determined that Griffin did not have a valid permit to carry a
concealed firearm.

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No. 2020AP1043-CR

¶8 Griffin subsequently entered a guilty plea to the charge against him.1
He was sentenced in August 2019 to five years of initial confinement followed by
five years of extended supervision. This appeal follows.

DISCUSSION

¶9 On appeal, Griffin argues that the trial court erred in denying his
motion to suppress. The review of a trial court’s decision on a motion to suppress
presents a mixed question of fact and law. State v. Eason, 2001 WI 98, ¶9, 245
Wis. 2d 206, 629 N.W.2d 625. We will not reverse the trial court’s findings of fact
unless they are clearly erroneous; however, we review de novo the application of
constitutional principles to those facts. Id.

¶10 Griffin argues that his motion to suppress should have been granted
because the police officers did not have reasonable suspicion of a crime when
Griffin was seized. “The Fourth Amendment of the United States Constitution and
[a]rticle I, [s]ection 11 of the Wisconsin Constitution protect people from
unreasonable searches and seizures.” State v. Young, 2006 WI 98, ¶18, 294 Wis.
2d 1, 717 N.W.2d 729 (footnotes omitted). An investigative stop is “technically a
‘seizure’ under the Fourth Amendment[.]” State v. Waldner, 206 Wis. 2d 51, 55-
56, 556 N.W.2d 681 (1996). However, an investigative stop passes constitutional
muster “if the police have reasonable suspicion that a crime has been committed, is
being committed, or is about to be committed.” Young, 294 Wis. 2d 1, ¶20.

¶11 The specific issue in this case requires a determination of when Griffin
was actually seized. “[A] person is ‘seized’ only when, by means of physical force

1
Under the plea agreement, charges against Griffin in a different case were dismissed but
read in for sentencing in this case.

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No. 2020AP1043-CR

or a show of authority, his freedom of movement is restrained.” United States v.
Mendenhall, 446 U.S. 544, 553 (1980). Put another way, as long as an individual
with whom the police have made contact “remains free to disregard the questions
and walk away,” there has not been a seizure, and the constitutional protections of
the Fourth Amendment have not been invoked. Id. at 553-54.

¶12 Griffin asserts that the seizure occurred when the officer exited the
squad car and began moving quickly toward him. The State, on the other hand,
argues that the seizure of Griffin did not occur until the officer had grabbed Griffin’s
arm and inquired about a permit for the gun that had dropped.

¶13 To determine whether a seizure has occurred, the Mendenhall Court
provided several “[e]xamples of circumstances that might indicate a seizure, even
where the person did not attempt to leave,” such as “the threatening presence of
several officers, the display of a weapon by an officer, some physical touching …
of the citizen, or the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.” Id. at 554. It is also considered to
be a seizure “when a police officer makes a show of authority to a citizen, [and] the
citizen yields to that show of authority.” State v. Kelsey C.R., 2001 WI 54, ¶30, 243
Wis. 2d 422, 626 N.W.2d 777; see also California v. Hodari D., 499 U.S. 621, 626
(1991) (“An arrest requires either physical force … or, where that is absent,
submission to the assertion of authority.”).

¶14 Here, the officer’s testimony at the suppression hearing—which the
trial court found to be credible—indicates that he exited the squad quickly and began
moving toward Griffin. However, the lights and siren of the squad had not been
activated, and only one officer exited the squad when it stopped. Furthermore, there
is no evidence that the officer who exited the squad drew his weapon or spoke to

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No. 2020AP1043-CR

Griffin before he heard the gun drop. Additionally, that officer testified that when
the gun dropped, Griffin backed away from it and raised his hands in the air,
indicating consciousness of guilt. Moreover, the officer did not restrain Griffin by
grabbing his arm until after he heard the gun hit the ground.

¶15 Even if Griffin inferred that the officer was approaching him to speak
with him, “police questioning, by itself, is unlikely to result in a Fourth Amendment
violation” unless “the circumstances of the encounter are so intimidating as to
demonstrate that a reasonable person would have believed he was not free to leave
if he had not responded[.]” I.N.S. v. Delgado, 466 U.S. 210, 216 (1984). We again
note that the squad’s lights and siren had not been activated; in fact, Griffin testified
that he “felt free” to move around the vehicle when he saw the squad approaching.
After that, only a few seconds elapsed between the time the officers pulled up in
their squad and when the arresting officer heard the gun drop, and there is no
evidence that Griffin submitted to police authority during that time frame. See
Kelsey C.R., 243 Wis. 2d 422, ¶30.

¶16 Based on these circumstances, we conclude that the seizure of Griffin
occurred after the officer heard the gun drop. See id. At that point, the officer had
reasonable suspicion that a crime “has been committed, is being committed, or is
about to be committed,” and thus had proper grounds for the seizure. See Young,
294 Wis. 2d 1, ¶20. Therefore, the trial court did not err in denying Griffin’s motion
to suppress. Accordingly, we affirm his judgment of conviction.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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